by John Marshall Harlan

“ No such apportionment can possibly be made without doing gross injustice to the many for the benefit of the favored few in particular states. Any attempt upon the part of congress to apportion among the states, upon the basis simply of their population, taxation of personal property or of incomes, would tend to arouse such indignation among the freemen of America that it would never be repeated. ”

“ In my judgment, a tax on income derived from real property ought not to be, and until now has never been, regarded by any court as a direct tax on such property, within the meaning of the constitution. As the great mass of lands in most of the states do not bring any rents, and as incomes from rents vary in the different states, such a tax cannot possibly be apportioned among the states, on the basis merely of numbers, with any approach to equality of right among taxpayers, any more than a tax on carriages or other personal property could be so apportioned. ”

“ I may say, in answer to the appeals made to this court, to vindicate the constitutional rights of citizens owning large properties and having large incomes, that the real friends of property are not those who would exempt the wealth of the country from bearing its fair share of the burdens of taxation, but rather those who seek to have every one, without reference to his locality contribute from his substance, upon terms of equality with all others, to the support of the government. ”

“ Is the judiciary to supervise the action of the legislative branch of the government upon questions of public policy? Are they to override the will of the people, as expressed by their chosen servants, because, in their judgment, the particular means employed by congress in execution of the powers conferred by the constitution are not the best that could have been devised, or are not absolutely necessary to accomplish the objects for which the government was established? ”

“ If the court knows, or is justified in believing, that congress would not have provided an income tax that did not include a tax on incomes from real estate and personal property, we are more justified in believing that no part of the Wilson act would have become a law without provision being made in it for an income tax. ”

“ But, by its present construction of the constitution, the court, for the first time in all its history, declares that our government has been so framed that, in matters of taxation for its support and maintenance, those who have incomes derived from the renting of real estate, or from the leasing or using of tangible personal property, or who own invested personal property, bonds, stocks, and investments of whatever kind, have privileges that cannot be accorded to those having incomes derived from the labor of their hands, or the exercise of their skill, or the use of their brains. ”

“ I am unable to perceive that the performance of our duty should depend, in any degree, upon an inquiry as to the residence of the persons who are required by the statute to pay this income tax. If, under the bounty of the United States, or the beneficent legislation of congress, or for any other reason, some parts of the country have outstripped other parts in population and wealth, that surely is no reason why people of the more favored states should not share in the burdens of government alike with the people of all the states of the Union. ”

“ I cannot assent to an interpretation of the constitution that impairs and cripples the just powers of the national government in the essential matter of taxation, and at the same time discriminates against the greater part of the people of our country. ”

“ There is nothing in the nature of an income tax per se that justifies judicial opposition to it upon the ground that it illegally discriminates against the rich, or imposes undue burdens upon that class. There is no tax which, in its essence, is more just and equitable than an income tax. ”

“ It gives no lien upon the lands to secure the payment of the duty laid on rents that may accrue to the landlord from them. It does not apply to rents due and payable by contract, and not collected, but only to such as are received by the taxpayer. But whether a grant or devise, with or without limitation or restriction, as to time, of the rents and profits or of the income of land, passes the land itself, is wholly immaterial in the present causes. ”

“ And it may further be taken as established, upon the testimony of Paterson, that the words 'direct taxes,' as used in the constitution, comprehended only capitation taxes, and taxes on land, and perhaps taxes on personal property by general valuation and assessment of the various descriptions possessed within the several states. It follows, necessarily, that the power to tax without apportionment extends to all other objects. Taxes on other objects are included under the heads of taxes not direct, duties, imposts, and excises, and must be laid and collected by the rule of uniformity. ”

“ The authority to sustain itself, and, by its own agents and laws, to execute the powers granted to it, are the features that particularly distinguish the present government from the Confederation, which Washington characterized as 'a half-starved, limping government,' that was 'always moving upon crutches, and tottering at every step.' The vast powers committed to the present government may be abused, and taxes may be imposed by congress which the public necessities do not in fact require, or which may be forbidden by a wise policy. ”

“ The truth is that the articles taxed in one state should be taxed in another. In this way the spirit of jealousy is appeased, and tranquillity preserved; in this way the pressure on industry will be equal in the several states, and the relatin between the different subjects of taxation duly preserved. ”

“ Give the necessary powers to the national government, and the state will not be again necessitated to involve itself in debt for its defense in war. It will lie upon the national government to defend all the states,-to defend all its members from hostile attacks. ”

“ If a tax upon carriages, kept for his own use by the owner, is not a direct tax, we can see no ground upon which a tax upon the business of an insurance company can be held to belong to that class of revenue charges.' 'The consequences which would follow the apportionment of the tax in question among the states and territories of the Union, in the manner prescribed by the constitution, must not be overlooked. They are very obvious. Where such corporations are numerous and rich, it might be light; where none exist, it could not be collected ”

“ If the sections of the statute relating to a tax upon incomes derived from other sources than rents and invested personal property are to fall because, and only because, those relating to rents and to income from invested personal property are invalid, let us see to what result such a rule may logically lead. There is no distinct, separate statute providing for a tax upon incomes. ”

“ The income tax is prescribed by certain sections of a general statute known as the 'Wilson Tariff Act.' The judgment just rendered defeats the purpose of congress by taking out of the revenue not less than thirty millions, and possibly fifty millions, of dollars, expected to be raised by the duty on incomes. We know from the official journals of both houses of congress that taxation on imports would not have been reduced to the extent it was by the Wilson act, except for the belief that that could be safely done if the country had the benefit of revenue derived from a tax on incomes. ”

“ If it were true that this legislation, in its important aspects and in its essence, discriminated against the rich, because of their wealth, the court, in vindication of the equality of all before the law, might well declare that te statute was not an exercise of the power of taxation, but was repugnant to those principles of natural right upon which our free institutions rest, and therefore was legislative spoliation, under the guise of taxation. ”

“ Thoughtful, conservative men have uniformly held that the government could not be safely administered except upon principles of right, justice, and equality, without discrimination against any part of the people because of their owning or not owning visible property, or because of their having or not having incomes from bonds and stocks. ”

“ The practice of a century, in harmony with the decisions of this court, under which uncounted millions have been collected by taxation, ought to be sufficient to close the door against further inquiry, based upon the speculations of theorists, and the varying opinions of statesmen who participated in the discussions, sometimes very bitter, relating to the form of government to be established in place of the articles of confederation, under which, it has been well said, congress could declare everything and do nothing. ”