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FROM SUPREME COURT JUSTICE TO COURT JESTER — PART II
Justice Noah H. Swayne: When Opinion Becomes Constitutional Certainty
In our last video, we examined Chief Justice John Roberts and his remarkable words:
“IF FAIRLY POSSIBLE.”
Today, we return to 1881 and another Supreme Court justice whose reasoning deserves equally serious examination:
Justice Noah H. Swayne.
In Springer v. United States, Swayne confronted a challenge to the federal income tax. William Springer’s property had been seized and sold to satisfy the government’s tax claim.
The constitutional question was whether the tax was direct and therefore required apportionment among the states.
Swayne turned to distinguished authorities:
Justice Joseph Story.
Chancellor James Kent.
Thomas Cooley.
John Norton Pomeroy.
And others.
But the critical question is not how distinguished these men were.
IT IS WHETHER THEIR WORDS ESTABLISHED WHAT SWAYNE CLAIMED.
Swayne declared:
“The text-writers of the country are in entire accord upon the subject.”
Entire accord?
On what precise proposition?
That land and capitation taxes were recognized as direct taxes?
Or that the Constitution categorically excluded every other possible subject?
THOSE ARE TWO DIFFERENT CLAIMS. AND THE DIFFERENCE IS THE VERY QUESTION SWAYNE WAS OBLIGATED TO EXAMINE.
Justice Story identified taxes upon land as direct taxes and taxes upon consumption as indirect taxes.
But identifying examples of direct taxation does not establish that no other direct taxes can exist.
Now consider Chancellor Kent.
Kent wrote:
“The better opinion seemed to be that the direct taxes contemplated by the Constitution were only two.”
THE BETTER OPINION SEEMED TO BE.
Kent was expressing his assessment of the prevailing constitutional interpretation.
Yet Swayne proceeded to announce:
“Our conclusions are, that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate.”
There is the transformation.
Story identifies categories.
Kent describes what he considers the better interpretation.
Swayne announces an exhaustive constitutional rule.
BUT WHERE IS THE INDEPENDENT DEMONSTRATION THAT THE CONSTITUTION EXCLUDES EVERY OTHER FORM OF DIRECT TAXATION?
Swayne relied upon earlier judicial decisions as well, including cases involving carriages, insurance receipts, banknotes, and succession interests.
Those precedents supported his interpretation, but their existence does not eliminate the need to explain why their reasoning governs a tax upon Springer’s income.
Swayne acknowledged that the constitutional debates had not supplied a precise definition of direct taxation.
Nevertheless, he treated the narrow classification as controlling and dismissed opposing authorities as requiring no substantial additional reply.
BUT DID THAT CHAIN ESTABLISH EVERY PREMISE NECESSARY TO REACH HIS CONCLUSION?
Consider the distinction at the heart of Volume IV.
Land produces rent.
Capital produces interest.
A business produces profit.
But a man earns compensation by expending his intelligence, abilities, strength, and irreplaceable time.
He sacrifices hours with his family, years of his life, and opportunities he can never recover.
BY WHAT CONSTITUTIONAL REASONING DID SWAYNE ESTABLISH THAT THE EARNINGS OF PERSONAL LABOR BELONGED WITHIN THE TAX CLASSIFICATION HE ADOPTED?
His opinion sustained the tax without developing a comprehensive constitutional distinction between income derived from property and compensation earned through personal labor.
Here is the danger.
A justice invokes distinguished authorities.
He represents their conclusions as supporting his own.
His conclusion becomes the judgment of the Supreme Court.
And thereafter, Americans are expected to accept that judgment as constitutional authority.
BUT IF THE ORIGINAL REPRESENTATION EXCEEDED WHAT THE AUTHORITIES ACTUALLY ESTABLISHED, THEN THE ENTIRE CHAIN DESERVES REEXAMINATION.
That is the process examined throughout Victory:
BREACH. DRIFT. ENCROACHMENT. ENTRENCHMENT.
The alleged breach is an inadequately demonstrated narrowing of a constitutional limitation.
The drift is the elevation of qualified interpretations into a categorical rule.
The encroachment is the tax sustained without apportionment.
Entrenchment follows when later institutions treat the holding as settled authority.
THE CONSTITUTIONAL PREMISE MUST BE PROVED BEFORE THE PRECEDENT CAN BE TREATED AS ITS SUBSTITUTE.
Now we arrive at the question of honesty.
If a justice knowingly represents an authority as establishing something contrary to what that authority actually established, that is not legitimate interpretation.
THAT IS DECEPTION.
The record must therefore be examined for precisely what the authorities said, what Swayne attributed to them, and whether his conclusion was justified.
A magnificent title cannot excuse a false representation.
A black robe cannot supply missing constitutional proof.
And the reputation of distinguished scholars cannot legitimately establish propositions their writings do not support.
This is the connection between Swayne and Roberts.
Both confronted constitutional limitations upon federal power.
Both relied upon established methods of judicial interpretation to sustain contested federal taxing measures.
DID THE REASONING ESTABLISH THE AUTHORITY, OR WAS THE AUTHORITY PRESERVED THROUGH THE REASONING?
The American people are entitled to examine that distinction.
Authority carries an obligation to truth.
THE CONSTITUTION IS NOT WHATEVER A JUSTICE CAN MAKE IT APPEAR TO SAY.
AND AS ALWAYS, MAY TRUTH REIGN SUPREME.
