in respect to judgments of foreign states and nations.--Aetna Life Ins.
Co. _v._ Tremblay, 223 U.S. 185 (1912). In Hilton _v._ Guyot, 159 U.S.
113, 234 (1895) where a French judgment offered in defense was held not
a bar to the suit. Four Justices dissented on the ground that "the
application of the doctrine of _res judicata_ does not rest in
discretion; and it is for the Government, and not for its courts, to
adopt the principle of retorsion, if deemed under any circumstances
desirable or necessary." At the same sitting of the Court, an action in
a United States circuit court on a Canadian judgment was sustained on
the same ground of reciprocity. Ritchie _v._ McMullen, 159 U.S. 235
(1895). _See also_ Ingenohl _v._ Olsen, 273 U.S. 541 (1927), where a
decision of the Supreme Court of the Philippine Islands was reversed for
refusal to enforce a judgment of the Supreme Court of the British colony
of Hongkong, which was rendered "after a fair trial by a court having
jurisdiction of the parties." In 1897 Foreign Relations of the United
States 7-8, will be found a three-cornered correspondence between the
State Department, the Austro-Hungarian Legation, and the Governor of
Pennsylvania, in which the last named asserts that "under the laws of
Pennsylvania the judgment of a court of competent jurisdiction in
Croatia would be respected to the extent of permitting such judgment to
be sued upon in the courts of Pennsylvania." Stowell, _op. cit. supra_
note I, at 254-255. Another instance of international cooperation in the
judicial field is furnished by letters rogatory. "When letters rogatory
are addressed from any court of a foreign country to any district court
of the United States, a commissioner of such district court designated
by said court to make the examination of the witnesses mentioned in said
letters, shall have power to compel the witnesses to appear and depose
in the same manner as witnesses may be compelled to appear and testify
in courts," 28 U.S.C.A., _supra_ note II, Sec. 653. Some of the States
have similar laws. _See_ 2 Moore, Digest of International Law (1906)
108-109.
[132] David K. Watson, The Constitution of the United States, vol. II,
1206 (1910).
[133] The Federalist No. 42.
[134] 16 Wall. 36 (1873).
[135] Ibid. 75.
[136] Scott _v._ Sandford, 19 How. 393 (1857).
[137] Ibid. 518, 527-529.
[138] 153 U.S. 684, 687 (1894).
[139] 135 U.S. 492 (1890).
[140] Slaughter-House Case, 15 Fed. Cas. No. 8408 (1870); Chambers _v._
Baltimore & O.R. Co., 207 U.S. 142 (1907); Whitfield _v._ Ohio, 297 U.S.
431 (1936).
[141] 16 Wall. 36 (1873).
[142] Ibid. 77.
[143] Bradwell _v._ Illinois, 16 Wall. 130, 138 (1873). _See also_ Cole
_v._ Cunningham, 133 U.S. 107 (1890).
[144] Blake _v._ McClung, 172 U.S. 239, 246 (1898); Travis _v._ Yale &
Towne Mfg. Co., 252 U.S. 60 (1920).
[145] La Tourette _v._ McMaster, 248 U.S. 465 (1919); Douglas _v._ New
York, N.H. & H.R. Co., 279 U.S. 377 (1929); _cf._ Maxwell _v._ Bugbee,
250 U.S. 525 (1919).
[146] United States _v._ Harris, 106 U.S. 629, 643 (1883). _See also_
Baldwin _v._ Franks, 120 U.S. 678 (1887).
[147] United States _v._ Wheeler, 254 U.S. 281 (1920).
[148] Scott _v._ Sandford, 19 How. 393 (1857)
[149] Ibid. 403-411.
[150] Ibid. 572-590.
[151] 13 Pet. 519 (1939).
[152] Ibid. 586.
[153] 8 Wall. 168 (1869).
[154] Ibid. 181.
[155] Crutcher _v._ Kentucky, 141 U.S. 47 (1891). _See also_ pp.
193-198, 1049-1056.
[156] Hemphill _v._ Orloff, 277 U.S. 537 (1928).
[157] 6 Fed. Cas. No. 3,230, 546, 550 (1823).
[158] Ibid. 551-522.
[159] Ibid. 552.
[160] Corfield _v._ Coryell, 6 Fed. Cas. No. 3230, 546, 552 (1823).
[161] Ibid. 552.
[162] 94 U.S. 391 (1877).
[163] 161 U.S. 519 (1896).
[164] 209 U.S. 349 (1908).
[165] 334 U.S. 385 (1948).
[166] Ibid. 403. In Mullaney _v._ Anderson, 342 U.S. 415 (1952) an
Alaska statute providing for the licensing of commercial fishermen in
territorial waters and levying a license fee of $50.00 on nonresident
and only $5.00 on resident fishermen was held void under Art. IV,
Sec. 2 on the authority of Toomer _v._ Witsell, cited above.
[167] 172 U.S. 239 (1898).
[168] Ibid. 256.
[169] La Tourette _v._ McMaster, 248 U.S. 465 (1919).
[170] Doherty and Co. _v._ Goodman, 294 U.S. 623 (1935).
[171] Hess _v._ Pawloski, 274 U.S. 352, 356 (1927).
[172] Ferry _v._ Spokane P. & S.R. Co., 258 U.S. 314 (1922), followed in
Ferry _v._ Corbett, 258 U.S. 609 (1922).
[173] Conner _v._ Elliott, 18 How. 591, 593 (1856).
[174] Blake _v._ McClung, 172 U.S. 230, 248 (1898).
[175] Williams _v._ Bruffy, 96 U.S. 176, 184 (1878).
[176] Chambers _v._ Baltimore & O.R. Co., 207 U.S. 142, 148 (1907);
McKnett _v._ St. Louis & S.F.R. Co., 292 U.S. 230, 233 (1934); Miles
_v._ Illinois C.R. Co., 315 U.S. 698, 704 (1942).
[177] Canadian N.R. Co. _v._ Eggen, 252 U.S. 553 (1920).
[178] Ibid. 563.
[179] Chemung Canal Bank _v._ Lowery, 93 U.S. 72, 76 (1876).
[180] Douglas _v._ New York, N.H. & H.R. Co., 279 U.S. 377 (1929).
[181] Chambers _v._ Baltimore & O.R. Co., 207 U.S. 142 (1907).
[182] 12 Wall. 418, 424 (1871). _See also_ Downham _v._ Alexandria, 10
Wall. 173, 175 (1870).
[183] Chalker _v._ Birmingham & M.W.R. Co., 249 U.S. 522 (1919).
[184] 252 U.S. 60 (1920).
[185] Ibid. 62-64. _See also_ Shaffer _v._ Carter, 252 U.S. 37 (1920).
[186] 252 U.S. 60, 79-80 (1920).
[187] Williams _v._ Fears, 179 U.S. 270, 274 (1900).
[188] Haavik _v._ Alaska Packers' Asso., 263 U.S. 510 (1924).
[189] Travelers' Ins. Co. _v._ Connecticut, 185 U.S. 364, 371 (1902).
[190] Maxwell _v._ Bugbee, 250 U.S. 525 (1919).
[191] Kirtland _v._ Hotchkiss, 100 U.S. 491, 499 (1879). _Cf._ Colgate
_v._ Harvey, 296 U.S. 404 (1935) in which discriminatory taxation of
bank deposits outside the State owned by a citizen of the State was held
to infringe a privilege of national citizenship, in contravention of the
Fourteenth Amendment. The decision in Colgate _v._ Harvey was overruled
in Madden _v._ Kentucky, 309 U.S. 83, 93 (1940).
[192] 1 Stat. 302 (1793).
[193] Roberts _v._ Reilly, 116 U.S. 80, 94 (1885). _See also_ Innes _v._
Tobin, 240 U.S. 127 (1916). Said Justice Story: "... the natural, if not
the necessary conclusion is, that the national government, in the
absence of all positive provisions to the contrary, is bound, through
its own proper departments, legislative, judicial, or executive, as the
case may require, to carry into effect all the rights and duties imposed
upon it by the Constitution"; [and again] "... it has, on various
occasions, exercised powers which were necessary and proper as means to
carry into effect rights expressly given, and duties expressly enjoined
thereby." Prigg _v._ Pennsylvania, 16 Pet. 539, 616, 618-619 (1842).
[194] Taylor _v._ Taintor, 16 Wall. 366, 371 (1873).
[195] 24 How. 66 (1861); _Cf._ Prigg _v._ Pennsylvania, 16 Pet. 539, 612
(1842).
[196] 24 How. 66, 107 (1861).
[197] 48 Stat. 782 (1934).
[198] Roberts _v._ Reilly, 116 U.S. 80 (1885). _See also_ Strassheim
_v._ Daily, 221 U.S. 280 (1911); Appleyard _v._ Massachusetts, 203 U.S.
222 (1906); Ex parte Reggel, 114 U.S. 642, 650 (1885).
[199] Drew _v._ Thaw, 235 U.S. 432, 439 (1914).
[200] Innes _v._ Tobin, 240 U.S. 127 (1916).
[201] Bassing _v._ Cady, 208 U.S. 386 (1908).
[202] Hyatt _v._ New York ex rel. Corkran, 188 U.S. 691 (1903).
[203] Kentucky _v._ Dennison, 24 How. 66, 103 (1861).
[204] Taylor _v._ Taintor, 16 Wall. 366, 375 (1873).
[205] Kentucky _v._ Dennison, 24 How. 66, 104 (1861); Pierce _v._
Creecy, 210 U.S. 387 (1908). _See also_ Marbles _v._ Creecy, 215 U.S. 63
(1909); Strassheim _v._ Daily, 221 U.S. 280 (1911); Re Strauss, 197 U.S.
324, 325 (1905).
[206] Munsey _v._ Clough, 196 U.S. 364 (1905); Pettibone _v._ Nichols,
203 U.S. 192 (1906).
[207] Drew _v._ Thaw, 235 U.S. 432 (1914).
[208] Pettibone _v._ Nichols, 203 U.S. 192, 216 (1906).
[209] Biddinger _v._ Police Comr., 245 U.S. 128 (1917). _See also_
Rodman _v._ Pothier, 264 U.S. 399 (1924).
[210] Hyatt _v._ New York ex rel. Corkran, 188 U.S. 691 (1903). _See
also_ South Carolina _v._ Bailey, 289 U.S. 412 (1933).
[211] Munsey _v._ Clough, 196 U.S. 364, 375 (1905).
[212] Ker _v._ Illinois, 119 U.S. 436, 444 (1886); Mahon _v._ Justice,
127 U.S. 700, 707, 712, 714 (1888).
[213] Cook _v._ Hart, 146 U.S. 183, 193 (1892); Pettibone _v._ Nichols,
203 U.S. 192, 215 (1906).
[214] Lascelles _v._ Georgia, 148 U.S. 537, 543 (1893).
[215] United States _v._ Rauscher, 119 U.S. 407, 430 (1886).
[216] Prigg _v._ Pennsylvania, 16 Pet. 539, 612 (1842).
[217] 1 Stat. 302 (1793).
[218] Jones _v._ Van Zandt, 5 How. 215, 229 (1847); Ableman _v._ Booth,
21 How. 506 (1859).
[219] Prigg _v._ Pennsylvania, 16 Pet. 539, 625 (1842).
[220] Moore _v._ Illinois, 14 How. 13, 17 (1853).
[221] Escanaba & L.M. Transp. Co. _v._ Chicago, 107 U.S. 678, 689
(1883).
[222] Madison, Journal of the Debates in the Convention which Framed the
Constitution, 89 (Hunt's ed., 1908).
[223] Ibid. 274.
[224] Ibid. 275.
[225] Pollard _v._ Hagan, 3 How. 212, 221 (1845).
[226] 2 Stat. 701, 703 (1812).
[227] Justice Harlan, speaking for the Court in United States _v._
Texas, 143 U.S. 621, 634 (1892); 9 Stat. 108.
[228] Permoli _v._ New Orleans, 3 How. 589, 609 (1845); McCabe _v._
Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914); Illinois Central R. Co.
_v._ Illinois, 146 U.S. 387, 434 (1892); Knight _v._ United Land Asso.,
142 U.S. 161, 183 (1891); Weber _v._ State Harbor Comrs., 18 Wall. 57,
65 (1873).
[229] Coyle _v._ Smith, 221 U.S. 559 (1911).
[230] Ibid. 567.
[231] United States _v._ Texas, 339 U.S. 707, 716 (1950); Stearns _v._
Minnesota, 179 U.S. 223, 245 (1900).
[232] Pollard _v._ Hagan, 3 How. 212, 223 (1845); McCabe _v._ Atchison,
T. & S.F.R. Co., 235 U.S. 151 (1914).
[233] Van Brocklin _v._ Tennessee, 117 U.S. 151, 167 (1886).
[234] Wilson _v._ Cook, 327 U.S. 474 (1946).
[235] Permoli _v._ New Orleans, 3 How. 589, 609 (1845); Sands _v._
Manistee River Imp. Co., 123 U.S. 288, 296 (1887); _see also_ Withers
_v._ Buckley, 20 How. 84, 92 (1858); Willamette Iron Bridge Co. _v._
Hatch, 125 U.S. 1, 9 (1888); Cincinnati _v._ Louisville & N.R. Co., 223
U.S. 390 (1912); Huse _v._ Glover, 119 U.S. 543,(1886).
[236] Draper _v._ United States, 164 U.S. 240 (1896) following United
States _v._ McBratney, 104 U.S. 621 (1882).
[237] Dick _v._ United States, 208 U.S. 340 (1908); Ex parte Webb, 225
U.S. 663 (1912).
[238] United States _v._ Sandoval, 231 U.S. 28 (1914).
[239] Boyd _v._ Nebraska, 143 U.S. 135, 170 (1892).
[240] Baker _v._ Morton, 12 Wall. 150, 153 (1871).
[241] Freeborn _v._ Smith, 2 Wall. 160 (1865).
[242] John _v._ Paullin, 231 U.S. 583 (1913).
[243] Hunt _v._ Palao, 4 How. 589 (1846). _Cf._ Benner _v._ Porter, 9
How. 235, 246 (1850).
[244] 179 U.S. 223, 245 (1900).
[245] How. 212, 223 (1845). _See also_ Martin _v._ Waddell, 16 Pet. 367,
410 (1842).
[246] United States _v._ California, 332 U.S. 19, 38 (1947); United
States _v._ Louisiana, 339 U.S. 699 (1950).
[247] 339 U.S. 707, 716 (1950).
[248] Brown _v._ Grant, 116 U.S. 207, 212 (1886).
[249] Shively _v._ Bowlby, 152 U.S. 1, 47 (1894). _See also_ Joy _v._
St. Louis, 201 U.S. 332 (1906).
[250] United States _v._ Winans, 198 U.S. 371, 378 (1905); Seufert Bros.
Co. _v._ United States, 249 U.S. 194 (1919). A fishing right granted by
treaty to Indians does not necessarily preclude the application to
Indians of State game laws regulating the time and manner of taking
fish. Kennedy _v._ Becker, 241 U.S. 556 (1916). But it has been held to
be violated by the exaction of a license fee which is both regulatory
and revenue-producing. Tulee _v._ Washington, 315 U.S. 681 (1942).
[251] Ward _v._ Race Horse, 163 U.S. 504, 510, 514 (1896).
[252] 14 Pet. 526 (1840).
[253] Ibid. 533, 538.
[254] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 335-340
(1936). _See also_ Alabama Power Co. _v._ Ickes, 302 U.S. 464 (1938).
[255] United States _v._ Fitzgerald, 15 Pet. 407, 521 (1841). _See also_
California _v._ Deseret Water, Oil & Irrig. Co., 243 U.S. 415 (1917);
Utah Power & Light Co. _v._ United States, 243 U.S. 389 (1917).
[256] Sioux Tribe _v._ United States, 316 U.S. 317 (1942); United States
_v._ Midwest Oil Co., 236 U.S. 459, 469 (1915).
[257] Gibson _v._ Chouteau, 13 Wall. 92, 99 (1872); _see also_ Irvine
_v._ Marshall, 20 How. 558 (1858); Emblem _v._ Lincoln Land Co., 184
U.S. 660, 664 (1902).
[258] Bagnell _v._ Broderick, 13 Pet. 436, 450 (1839). _See also_ Field
_v._ Seabury, 19 How. 323, 332 (1857).
[259] Tameling _v._ United States Freehold & Emigration Co., 93 U.S.
644, 663 (1877). _See also_ United States _v._ Maxwell Land-Grant and R.
Co., 121 U.S. 325, 366 (1887).
[260] Ruddy _v._ Rossi, 248 U.S. 104 (1918).
[261] Light _v._ United States, 220 U.S. 523 (1911). _See also_
Hutchings _v._ Low, 15 Wall. 77 (1873).
[262] Camfield _v._ United States, 167 U.S. 518, 525 (1897). _See also_
Jourdan _v._ Barrett, 4 How. 169 (1846); United States _v._ Waddell, 112
U.S. 76 (1884).
[263] United States _v._ McGowan, 302 U.S. 535 (1938).
[264] United States _v._ San Francisco, 310 U.S. 16 (1940).
[265] Van Brocklin _v._ Tennessee, 117 U.S. 151 (1886); _cf._ Wilson
_v._ Cook, 327 U.S. 474 (1946).
[266] Gibson _v._ Chouteau, 13 Wall 92, 99 (1872). _See also_ Irvine
_v._ Marshall, 20 How. 558 (1858); Emblem _v._ Lincoln Land Co., 184
U.S. 660, 664 (1902).
[267] Wilcox _v._ Jackson ex dem. M'Connel, 13 Pet. 498, 517 (1839).
[268] Oklahoma _v._ Texas, 258 U.S. 574, 595 (1922).
[269] United States _v._ Oregon, 295 U.S. 1, 28 (1935).
[270] Simms _v._ Simms, 175 U.S. 162, 168 (1899). _See also_ United
States _v._ McMillan, 165 U.S. 504, 510 (1897); El Paso & N.E.R. Co.
_v._ Gutierrez, 215 U.S. 87 (1909); First Nat. Bank _v._ Yankton County,
101 U.S. 129, 133 (1880).
[271] Binns _v._ United States, 194 U.S. 486, 491 (1904). _See also_
Sere _v._ Pitot, 6 Cr. 332, 336 (1810); Murphy _v._ Ramsey, 114 U.S. 15,
44 (1885).
[272] Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593, 604 (1897);
Simms _v._ Simms, 175 U.S. 162, 163 (1899); Wagoner _v._ Evans, 170 U.S.
588, 591 (1898).
[273] 24 Stat. 170 (1886).
[274] Downes _v._ Bidwell, 182 U.S. 244, 271 (1901). _See also_
Interstate Commerce Commission _v._ United States ex rel. Humboldt S.S.
Co., 224 U.S. 474 (1912); Church of Jesus Christ of L.D.S. _v._ United
States, 136 U.S. 1, 44 (1890).
[275] Dorr _v._ United States, 195 U.S. 138, 149 (1904). _See also_
Balzac _v._ Porto Rico, 258 U.S. 298 (1922).
[276] Rassmussen _v._ United States, 197 U.S. 516 (1905).
[277] Hawaii _v._ Mankichi, 190 U.S. 197 (1903); R.M.C. Littler, The
Governance of Hawaii, Chap. III (1929).
[278] American Ins. Co. _v._ Canter, 1 Pet. 511, 546 (1828). _See also_
Romeu _v._ Todd, 206 U.S. 358, 368 (1907); United States _v._ McMillan,
165 U.S. 504, 510 (1897); McAllister _v._ United States, 141 U.S. 174,
180 (1891); The "City of Panama" _v._ Phelps, 101 U.S. 453, 460 (1880);
Reynolds _v._ United States, 98 U.S. 145, 154 (1879); Hornbuckle _v._
Toombs, 18 Wall. 648, 655 (1874); Clinton _v._ Englebrecht, 13 Wall.
434, 447 (1872).
[279] American Ins. Co. _v._ Canter, 1 Pet. 511, 545 (1828).
[280] 7 How. 1 (1849).
[281] Ibid. 42. _See also_ Ohio ex rel. Bryant _v._ Akron Metropolitan
Park District, 281 U.S. 74, 80 (1930); Mountain Timber Co. _v._
Washington, 243 U.S. 219, 234 (1917).
[282] 7 Wall. 700, 729 (1869).
[283] Pacific States Teleph. & Teleg. Co. _v._ Oregon, 223 U.S. 118
(1912); Kiernan _v._ Portland, 223 U.S. 151 (1912); Ohio ex rel. Davis
_v._ Hildebrant, 241 U.S. 565 (1916).
[284] Ohio ex rel. Bryant _v._ Akron Metropolitan Park District, 281
U.S. 74, 80 (1930); O'Neill _v._ Leamer, 239 U.S. 244 (1915); Highland
Farms Dairy Inc. _v._ Agnew, 300 U.S. 608, 612 (1937); Forsyth _v._
Hammond, 166 U.S. 506, 519 (1897).
[285] Taylor _v._ Beckham, 178 U.S. 548 (1900). _See also_ Marshall _v._
Dye, 231 U.S. 250 (1914).
[286] Minor _v._ Happersett, 21 Wall. 162, 175 (1875).
[287] 7 How. 1 (1849).
[288] 1 Stat. 424 (1795).
[289] 7 How. 1, 43 (1849).
[290] 158 U.S. 564 (1895).
[291] Ibid. 582.
[292] On the decline in observance of the formalities required by the
provision both before and during World War I, _see_ Corwin, The
President, Office and Powers (3d ed., 1948), 164-166.
ARTICLE V
MODE OF AMENDMENT
Page
Amendment of the Constitution 711
Scope of the amending power 711
Procedure of adoption 712
Submission of amendment 712
Ratification 712
Authentication and proclamation 713
Judicial review under article V 714
MODE OF AMENDMENT
Article V
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either Case,
shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three fourths of the
several States, or by Conventions in three fourths thereof, as the one
or the other Mode of Ratification may be proposed by the Congress;
Provided that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first
and fourth Clauses in the Ninth Section of the first Article; and that
no State, without its Consent, shall be deprived of its equal Suffrage
in the Senate.
Amendment of the Constitution
SCOPE OF AMENDING POWER
When this Article was before the Constitutional Convention, a motion to
insert a provision that "no State shall without its consent be affected
in its internal policy" was made and rejected.[1] A further attempt to
impose a substantive limitation on the amending power was made in 1861,
when Congress submitted to the States a proposal to bar any future
amendments which would authorize Congress to "interfere, within any
State, with the domestic institutions thereof, * * *."[2] Three States
ratified this article before the outbreak of the Civil War made it
academic.[3] Many years later the validity of both the Eighteenth and
Nineteenth Amendments was challenged because of their content. The
arguments against the former took a wide range. Counsel urged that the
power of amendment is limited to the correction of errors in the framing
of the Constitution; that it does not comprehend the adoption of
additional or supplementary provisions. They contended further that
ordinary legislation cannot be embodied in a constitutional amendment
and that Congress cannot constitutionally propose any amendment which
involves the exercise or relinquishment of the sovereign powers of a
State.[4] The Nineteenth Amendment was attacked on the narrower ground
that a State which had not ratified the amendment would be deprived of
its equal suffrage in the Senate because its representatives in that
body would be persons not of its choosing, i.e., persons chosen by
voters whom the State itself had not authorized to vote for Senators.[5]
Brushing aside these arguments as unworthy of serious attention, the
Supreme Court held both amendments valid.
PROCEDURE OF ADOPTION
Submission of Amendment
When Madison submitted to the House of Representatives the proposals
from which the Bill of Rights evolved, he contemplated that they should
be incorporated in the text of the original instrument.[6] Instead the
House decided to propose them as supplementary.[7] It ignored a
suggestion that the two Houses should first resolve that amendments are
necessary before considering specific proposals.[8] In the National
Prohibition Cases[9] the Supreme Court ruled that in proposing an
amendment the two Houses of Congress thereby indicated that they deemed
it necessary. That same case also established the proposition that the
vote required to propose an amendment was a vote of two thirds of the
members present--assuming the presence of a quorum--and not a vote of
two thirds of the entire membership present and absent.[10] The approval
of the President is not necessary for a proposed amendment.[11]
Ratification
Congress may, in proposing an amendment, set a reasonable time limit for
its ratification. Two amendments proposed in 1789, one submitted in 1810
and one in 1861, were never ratified. In Dillon _v._ Gloss[12] the Court
intimated that proposals which were clearly out of date were no longer
open for ratification. However, in Coleman _v._ Miller,[13] it refused
to pass upon the question whether the proposed child labor amendment,
submitted to the States in 1924, was open to ratification thirteen years
later. It held this to be a political question which would have to be
resolved by Congress in the event three fourths of the States ever gave
their assent to the proposal. With respect to the Eighteenth, Twentieth,
Twenty-first and Twenty-second Amendments, Congress included in the text
of these proposed amendments a section stating that the article should
be inoperative unless ratified within seven years. In Dillon _v._ Gloss
the Court sustained this limitation on the ground that it gave effect to
the implication of article V that ratification "must be within some
reasonable time after the proposal."[14] Congress has complete freedom
of choice between the two methods of ratification recognized by article
V--by the legislatures of the States, or conventions in the States. In
United States _v._ Sprague[15] counsel advanced the contention that the
Tenth Amendment recognized a distinction between powers reserved to the
States and powers reserved to the people, and that State legislatures
were competent to delegate only the former to the National Government;
delegation of the latter required action of the people through
conventions in the several States. The Eighteenth Amendment being of the
latter character, the ratification by State legislatures, so the
argument ran, was invalid. The Supreme Court rejected the argument. It
found the language of article V too clear to admit of reading any
exceptions into it by implication.
The term "legislatures" as used in article V means deliberative,
representative bodies of the type which in 1789 exercised the
legislative power in the several States. It does not comprehend the
popular referendum which has subsequently become a part of the
legislative process in many of the States, nor may a State validly
condition ratification of a proposed constitutional amendment on its
approval by such a referendum.[16] In the words of the Court: "* * * the
function of a State legislature in ratifying a proposed amendment to the
Federal Constitution, like the function of Congress in proposing the
amendment, is a federal function derived from the Federal Constitution;
and it transcends any limitations sought to be imposed by the people of
a State."[17]
Authentication and Proclamation
Formerly official notice from a State legislature, duly authenticated,
that it had ratified a proposed amendment went to the Secretary of
State, upon whom it was binding, "being certified by his proclamation,
[was] conclusive upon the courts" as against any objection which might
be subsequently raised as to the regularity of the legislative procedure
by which ratification was brought about.[18] This function of the
Secretary, purely ministerial in character, was, however, derived from
an act of Congress, and was recently transferred to a functionary called
Administrator of General Services.[19] In Dillon _v._ Gloss,[20] the
Supreme Court held that the Eighteenth Amendment became operative on the
date of ratification by the thirty-sixth State, rather than on the later
date of the proclamation issued by the Secretary of State, and doubtless
the same rule holds as to a similar proclamation by the Administrator.
JUDICIAL REVIEW UNDER ARTICLE V
Prior to 1939, the Supreme Court had taken cognizance of a number of
diverse objections to the validity of specific amendments. Apart from
holding that official notice of ratification by the several States was
conclusive upon the courts,[21] it had treated these questions as
justiciable, although it had uniformly rejected them on the merits. In
that year, however, the whole subject was thrown into confusion by the
inconclusive decision in Coleman _v._ Miller.[22] This case came up on a
writ of certiorari to the Supreme Court of Kansas to review the denial
of a writ of mandamus to compel the Secretary of the Kansas Senate to
erase an endorsement on a resolution ratifying the proposed child labor
amendment to the Constitution to the effect that it had been adopted by
the Kansas Senate. The attempted ratification was assailed on three
grounds: (1) that the amendment had been previously rejected by the
State legislature; (2) that it was no longer open to ratification
because an unreasonable period of time, thirteen years, had elapsed
since its submission to the States, and (3) that the lieutenant governor
had no right to cast the deciding vote in the Senate in favor of
ratification. Four opinions were written in the Supreme Court, no one of
which commanded the support of more than four members of the Court. The
majority ruled that the plaintiffs, members of the Kansas State Senate,
had a sufficient interest in the controversy to give the federal courts
jurisdiction to review the case. Without agreement as to the grounds for
their decision, a different majority affirmed the judgment of the Kansas
court denying the relief sought. Four members who concurred in the
result had voted to dismiss the writ on the ground that the amending
process "is 'political' in its entirety, from submission until an
amendment becomes part of the Constitution, and is not subject to
judicial guidance, control or interference at any point."[23] Whether
the contention that the lieutenant governor should have been permitted
to cast the deciding vote in favor of ratification presented a
justiciable controversy was left undecided, the Court being equally
divided on the point.[24] In an opinion reported as "the opinion of the
Court," but in which it appears that only three Justices concurred,
Chief Justice Hughes declared that the writ of mandamus was properly
denied because the question as to the effect of the previous rejection
of the amendment and the lapse of time since it was submitted to the
States were political questions which should be left to Congress.[25] On
the same day, the Court dismissed a writ of certiorari to review a
decision of the Kentucky Court of Appeals declaring the action of the
Kentucky General Assembly purporting to ratify the child labor amendment
illegal and void. Inasmuch as the governor had forwarded the certified
copy of the resolution to the Secretary of State before being served
with a copy of the restraining order issued by the State court, the
Supreme Court found that there was no longer a controversy susceptible
of judicial determination.[26]
Notes
[1] II Madison, Journal of Debates in the Constitutional Convention,
385-386 (Hunt's ed., 1908).
[2] Cong. Globe, 1263 (1861).
[3] Ames, Herman V., Proposed Amendments to the Constitution, 363
(1896).
[4] Rhode Island _v._ Palmer, 253 U.S. 350, 386 (1920).
[5] Leser _v._ Garnett, 258 U.S. 130 (1922).
[6] Annals of Congress 433-436 (1789).
[7] Ibid. 717.
[8] Ibid. 430.
[9] Rhode Island _v._ Palmer, 253 U.S. 350, 386 (1920).
[10] Ibid.
[11] Hollingsworth _v._ Virginia, 3 Dall. 378 (1798).
[12] 256 U.S. 368, 375 (1921).
[13] 307 U.S. 433 (1939).
[14] 256 U.S. 368, 375 (1921).
[15] 282 U.S. 716 (1931).
[16] Hawke _v._ Smith, 253 U.S. 221, 231 (1920).
[17] Leser _v._ Garnett, 258 U.S. 130, 137 (1922).
[18] Leser _v._ Garnett, 258 U.S. 130, 137 (1922).
[19] 64 Stat. 979 (1950).
[20] 256 U.S. 368, 376 (1921).
[21] Leser _v._ Garnett, 258 U.S. 130 (1922).
[22] 307 U.S. 433 (1939). _Cf._ Fairchild _v._ Hughes, 258 U.S. 126
(1922), wherein the Court held that a private citizen could not sue in
the federal courts to secure an indirect determination of the validity
of a constitutional amendment about to be adopted.
[23] 307 U.S. 433, 459 (1939).
[24] Ibid. 446, 447.
[25] Ibid. 450, 456.
[26] Chandler _v._ Wise, 307 U.S. 474 (1939).
ARTICLE VI
MISCELLANEOUS PROVISIONS
Page
Clause 1. Validity of debts and engagements 721
Clause 2. Supremacy of the Constitution, etc. 721
National supremacy 721
Marshall's interpretation of the clause 721
Supremacy Clause versus Tenth Amendment 722
Status of the issue today 723
Task of the Supreme Court under the clause 724
Federal instrumentalities and the State police power 725
Obligation of State courts under the Supremacy Clause 726
Immunity of the federal judicial process 727
Effect of laws passed by States in insurrection 728
Doctrine of tax exemption 728
McCulloch _v._ Maryland 728
Applicability of doctrine in re federal securities, etc. 729
Taxability of government contractors 730
Status of doctrine today 731
Ad valorem taxes under doctrine 732
Public property and functions 732
Fiscal institutions; legislative exemptions 733
Atomic Energy Commission 734
Royalties; a judicial anticlimax 734
Immunity of lessees of Indian lands 735
Summation and evaluation 735
Clause 3. Oath of office 736
Power of Congress in respect to oaths 736
National duties of State officers 736
MISCELLANEOUS PROVISIONS
Article VI
Clause 1. All Debts contracted and Engagements entered into, before the
Adoption of this Constitution, shall be as valid against the United
States under this Constitution, as under the Confederation.
Clause 2. This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.
National Supremacy
MARSHALL'S INTERPRETATION OF THE CLAUSE
Although the Supreme Court had held prior to Marshall's appointment to
the Bench, that the supremacy clause rendered null and void a State
constitutional or statutory provision which was inconsistent with a
treaty executed by the Federal Government,[1] it was left for him to
develop the full significance of the clause as applied to acts of
Congress. By his vigorous opinions in McCulloch _v._ Maryland[2] and
Gibbons _v._ Ogden[3] he gave the principle a vitality which survived a
century of vacillation under the doctrine of dual federalism. In the
former case, he asserted broadly that "the States have no power, by
taxation or otherwise, to retard, impede, burden, or in any manner
control, the operations of the constitutional laws enacted by Congress
to carry into execution the powers vested in the general government.
This is, we think, the unavoidable consequence of that supremacy which
the Constitution has declared."[4] From this he concluded that a State
tax upon notes issued by a branch of the Bank of the United States was
void. In Gibbons _v._ Ogden, the Court held that certain statutes of New
York granting an exclusive right to use steam navigation on the waters
of the State were null and void insofar as they applied to vessels
licensed by the United States to engage in coastwise trade. Said the
Chief Justice: "In argument, however, it has been contended, that if a
law passed by a State, in the exercise of its acknowledged sovereignty,
comes into conflict with a law passed by Congress in pursuance of the
Constitution, they affect the subject, and each other, like equal
opposing powers. But the framers of our Constitution foresaw this state
of things, and provided for it, by declaring the supremacy not only of
itself, but of the laws made in pursuance of it. The nullity of an act,
inconsistent with the Constitution, is produced by the declaration, that
the Constitution is the supreme law. The appropriate application of that
part of the clause which confers the same supremacy on laws and
treaties, is to such acts of the State legislatures as do not transcend
their powers, but though enacted in the execution of acknowledged State
powers, interfere with, or are contrary to the laws of Congress, made in
pursuance of the Constitution, or some treaty made under the authority
of the United States. In every such case, the act of Congress, or the
treaty, is supreme; and the law of the State, though enacted in the
exercise of powers not controverted, must yield to it."[5]
SUPREMACY CLAUSE VERSUS TENTH AMENDMENT
The logic of the supremacy clause would seem to require that the powers
of Congress be determined by the fair reading of the express and implied
grants contained in the Constitution itself, without reference to the
powers of the States. For a century after Marshall's death, however, the
Court proceeded on the theory that the Tenth Amendment had the effect of
withdrawing various matters of internal police from the reach of power
expressly committed to Congress. This point of view was originally put
forward in New York _v._ Miln,[6] which was first argued, but not
decided, before Marshall's death. The Miln Case involved a New York
statute which required the captains of vessels entering New York Harbor
with aliens aboard to make a report in writing to the Mayor of the City,
giving certain prescribed information. It might have been distinguished
from Gibbons _v._ Ogden on the ground that the statute involved in the
earlier case conflicted with an act of Congress, whereas the Court found
that no such conflict existed in this case. But the Court was unwilling
to rest its decision on that distinction. Speaking for the majority,
Justice Barbour seized the opportunity to proclaim a new doctrine. He
wrote: "But we do not place our opinion on this ground. We choose rather
to plant ourselves on what we consider impregnable positions. They are
these: That a State has the same undeniable and unlimited jurisdiction
over all persons and things, within its territorial limits, as any
foreign nation, where that jurisdiction is not surrendered or restrained
by the Constitution of the United States. That, by virtue of this, it is
not only the right, but the bounden and solemn duty of a State, to
advance the safety, happiness and prosperity of its people, and to
provide for its general welfare, by any and every act of legislation,
which it may deem to be conducive to these ends; where the power over
the particular subject, or the manner of its exercise is not surrendered
or restrained, in the manner just stated. That all those powers which
relate to merely municipal legislation, or what may, perhaps, more
properly be called _internal police_, are not thus surrendered or
restrained; and that, consequently, in relation to these, the authority
of a State is complete, unqualified, and exclusive."[7] Justice Story,
in dissent, stated that Marshall had heard the previous argument and
reached the conclusion that the New York statute was
unconstitutional.[8]
Status of the Issue Today
The conception of a "complete, unqualified and exclusive" police power
residing in the States and limiting the powers of the National
Government was endorsed by Chief Justice Taney ten years later in the
License Cases.[9] In upholding State laws requiring licenses for the
sale of alcoholic beverages, including those imported from other States
or from foreign countries, he set up the Supreme Court as the final
arbiter in drawing the line between the mutually exclusive, reciprocally
limiting fields of power occupied by the National and State
Governments.[10] This view has, in effect, and it would seem in theory
also, been repudiated in recent cases upholding labor relations,[11]
social security,[12] and fair labor standards acts[13] passed by
Congress.
TASK OF THE SUPREME COURT UNDER THE CLAUSE
In applying the supremacy clause to subjects which have been regulated
by Congress, the primary task of the Court is to ascertain whether a
challenged State law is compatible with the policy expressed in the
federal statute. When Congress condemns an act as unlawful, the extent
and nature of the legal consequences of the condemnation are federal
questions, the answers to which are to be derived from the statute and
the policy which it has adopted. To the federal statute and policy,
conflicting State law and policy must yield.[14] But Congress in
enacting legislation within its constitutional authority will not be
deemed to have intended to strike down a State statute to protect the
health and safety of the public unless its purpose to do so is clearly
manifested.[15]
When the United States performs its functions directly, through its own
officers and employees, State police regulations clearly are
inapplicable. In reversing the conviction of the governor of a national
soldiers' home for serving oleomargarine in disregard of State law, the
Court said that the federal officer was not "subject to the jurisdiction
of the State in regard to those very matters of administration which are
thus approved by Federal authority."[16] An employee of the Post Office
Department is not required to submit to examination by State authorities
concerning his competence and to pay a license fee before performing his
official duty in driving a motor truck for transporting the mail.[17] To
Arizona's complaint, in a suit to enjoin the construction of Boulder
Dam, that her quasi-sovereignty would be invaded by the building of the
dam without first securing approval of the State engineer as required by
its laws, Justice Brandeis replied that, "if Congress has power to
authorize the construction of the dam and reservoir, Wilbur [Secretary
of the Interior] is under no obligation to submit the plans and
specifications to the State Engineer for approval."[18]
FEDERAL INSTRUMENTALITIES AND THE STATE POLICE POWER
Federal instrumentalities and agencies have never enjoyed the same
degree of immunity from State police regulation as from State taxation.
The Court has looked to the nature of each regulation to determine
whether it is compatible with the functions committed by Congress to the
federal agency. This problem has arisen most often with reference to the
applicability of State laws to the operation of national banks. Two
correlative propositions have governed the decisions in these cases. The
first was stated by Justice Miller in First National Bank _v._
Kentucky:[19] "[National banks are] subject to the laws of the State,
and are governed in their daily course of business far more by the laws
of the State than of the Nation. All their contracts are governed and
construed by State laws. Their acquisition and transfer of property,
their right to collect their debts, and their liability to be sued for
debts, are all based on State law. It is only when the State law
incapacitates the banks from discharging their duties to the government
that it becomes unconstitutional."[20] In Davis _v._ Elmira Savings
Bank,[21] the Court stated the second proposition thus: "National banks
are instrumentalities of the Federal Government, created for a public
purpose, and as such necessarily subject to the paramount authority of
the United States. It follows that an attempt, by a State, to define
their duties or control the conduct of their affairs is absolutely void,
wherever such attempted exercise of authority expressly conflicts with
the laws of the United States, and either frustrates the purpose of the
national legislation or impairs the efficiency of these agencies of the
Federal Government to discharge the duties, for the performance of which
they were created."[22] Instructive, too, is a comparison of two other
decisions. In the first,[23] the Court held that the fact that the Texas
and Pacific Railway Company was a corporation organized under a statute
of the United States did not remove it from the control of the Texas
railroad commission as to business done wholly within the State. In the
second,[24] the Court vetoed the attempt of Maryland to require a post
office employee to cease driving a United States motor truck in the
transportation of mail over a post road until he should obtain a license
by submitting to examination before a State official and paying a fee.
"Of course," said Justice Holmes, "an employee of the United States does
not secure a general immunity from State law while acting in the course
of his employment"; but this time the State went too far.
The extent to which States may go in regulating contractors who furnish
goods or services to the Federal Government is not as clearly
established as is their right to tax such dealers. In 1943, a closely
divided Court sustained the refusal of the Pennsylvania Milk Control
Commission to renew the license of a milk dealer who, in violation of
State law, had sold milk to the United States for consumption by troops
at an army camp located on land belonging to the State, at prices below
the minima established by the Commission.[25] The majority was unable to
find in Congressional legislation, or in the Constitution, unaided by
Congressional enactment, any immunity from such price-fixing
regulations. On the same day, a different majority held that California
could not penalize a milk dealer for selling milk to the War Department
at less than the minimum price fixed by State law where the sales and
deliveries were made in a territory which had been ceded to the Federal
Government by the State and were subject to the exclusive jurisdiction
of the former.[26]
OBLIGATION OF STATE COURTS UNDER THE SUPREMACY CLAUSE
The Constitution, laws and treaties of the United States are as much a
part of the law of every State as its own local laws and Constitution.
Their obligation "is imperative upon the State judges, in their official
and not merely in their private capacities. From the very nature of
their judicial duties, they would be called upon to pronounce the law
applicable to the case in judgment. They were not to decide merely
according to the laws or Constitution of the State, but according to the
laws and treaties of the United States--'the supreme law of the
land.'"[27] State courts have both the power and the duty to enforce
obligations arising under federal law, unless Congress gives the federal
courts exclusive jurisdiction. The power of State courts to entertain
such suits was affirmed in Claflin _v._ Houseman[28] in 1876, thus
setting at rest the doubts which had been raised by an early dictum of
Justice Story.[29] In the Claflin case Justice Bradley asserted on
behalf of a unanimous court that: "If an Act of Congress gives a penalty
to a party aggrieved, without specifying a remedy for its enforcement,
there is no reason why it should not be enforced, if not provided
otherwise by some act of Congress, by a proper action in a State court.
The fact that a State court derives its existence and functions from the
State laws is no reason why it should not afford relief, because it is
subject also to the laws of the United States, and is just as much bound
to recognize these as operative within the State as it is to recognize
the State laws."[30] When the Supreme Court of Connecticut held that
rights created by the Federal Employer's Liability Acts could not be
enforced in the courts of that State because the act was contrary to
State policy, the Supreme Court unanimously reversed that decision.
Said Justice Van Devanter: "The suggestion that the act of Congress is
not in harmony with the policy of the State, and therefore that the
courts of the State are free to decline jurisdiction, is quite
inadmissible, because it presupposes what in legal contemplation does
not exist. When Congress, in the exertion of the power confided to it by
the Constitution, adopted that act, it spoke for all the people and all
the States, and thereby established a policy for all. That policy is as
much the policy of Connecticut as if the act had emanated from its own
legislature, and should be respected accordingly in the courts of the
State."[31] Even if a federal statute is penal in character, a State may
not refuse to enforce it if Congress allows it to take concurrent
jurisdiction. In Testa _v._ Katt,[32] the Supreme Court reversed a
holding of Rhode Island's highest court that, inasmuch as a State need
not enforce the penal laws of another jurisdiction, a suit for treble
damages for violation of OPA regulations could not be maintained in the
courts of the State. Without determining the nature of the statute, it
affirmed once more without dissent that "the policy of the federal Act
is the prevailing policy in every state."[33]
IMMUNITY OF THE FEDERAL JUDICIAL PROCESS
It would seem self-evident that a State court cannot interfere with the
functioning of a federal tribunal. But this proposition has not always
gone unchallenged. Shortly before the Civil War, the Supreme Court of
Wisconsin, holding the federal fugitive slave law invalid, ordered a
United States marshal to release a prisoner who had been convicted of
aiding and abetting the escape of a fugitive slave. In a further act of
defiance, the State court instructed its clerk to disregard and refuse
obedience to the writ of error issued by the United States Supreme
Court. Strongly denouncing this interference with federal authority,
Chief Justice Taney held that when a State court is advised, on the
return of a writ of _habeas corpus_, that the prisoner is in custody on
authority of the United States, it can proceed no further.[34] To
protect the performance of its functions against interference by State
tribunals, Congress may constitutionally authorize the removal to a
federal court of a criminal prosecution commenced in a State court
against a revenue officer of the United States on account of any act
done under color of his office.[35] In the celebrated case of Cunningham
_v._ Neagle,[36] a United States marshal who, while assigned to protect
Justice Field, killed the man who had been threatening the life of the
latter, was charged with murder by the State of California. Invoking the
supremacy clause, the Supreme Court held that a person could not be
guilty of a crime under State law for doing what it was his duty to do
as an officer of the United States.
EFFECT OF LAWS PASSED BY STATES IN INSURRECTION
Since the efforts of States to depart from the Union, if successful,
would have been _pro tanto_ a destruction of the Constitution,[37] the
ordinances of secession adopted by the Confederate States,[38] and all
acts of legislation intended to give effect to such ordinances,[39] were
treated as absolute nullities. The obligation of every State, as a
member of the Union, and the obligation of every citizen of the State,
as a citizen of the United States, remained perfect and unimpaired.[40]
But acts necessary to peace and good order among citizens, such, for
example, as acts sanctioning and protecting marriage and domestic
relations, governing the course of descents, regulating the conveyance
of property, real and personal, and providing remedies for injuries to
person and estate, and other similar acts, which would be valid if
emanating from a lawful government, were regarded in general as valid
when proceeding from an actual, though unlawful government.[41]
The Doctrine of Tax Exemption
McCULLOCH _v._ MARYLAND
Five years after the decision in McCulloch _v._ Maryland that a State
may not tax an instrumentality of the Federal Government, the Court was
asked to and did reexamine the entire question in Osborn _v._ Bank of
the United States.[42] In that case counsel for the State of Ohio, whose
attempt to tax the Bank was challenged, put forward two arguments of
great importance. In the first place it was "contended, that, admitting
Congress to possess the power, this exemption ought to have been
expressly asserted in the act of incorporation; and, not being
expressed, ought not to be implied by the Court."[43] To which Marshall
replied that: "It is no unusual thing for an act of Congress to imply,
without expressing, this very exemption from state control, which is
said to be so objectionable in this instance."[44] Secondly the
appellants relied "greatly on the distinction between the bank and the
public institutions, such as the mint or the post-office. The agents in
those offices are, it is said, officers of government, * * * Not so the
directors of the bank. The connection of the government with the bank,
is likened to that with contractors."[45] Marshall accepted this
analogy, but not to the advantage of the appellants. He simply indicated
that all contractors who dealt with the Government were entitled to
immunity from taxation upon such transactions.[46] Thus not only was the
decision of McCulloch _v._ Maryland reaffirmed but the foundation was
laid for the vast expansion of the principle of immunity that was to
follow in the succeeding decades.
APPLICABILITY OF DOCTRINE _IN RE_ FEDERAL SECURITIES, ETC.
The first significant extension of the doctrine of the immunity of
federal instrumentalities from State taxation came in Weston _v._
Charleston,[47] where Chief Justice Marshall also found in the supremacy
clause a bar to State taxation of obligations of the United States.
During the Civil War, when Congress authorized the issuance of legal
tender notes, it explicitly declared that such notes, as well as United
States bonds and other securities, should be exempt from State
taxation.[48] A modified version of this section remains on the statute
books today.[49] The right of Congress to exempt legal tender notes to
the same extent as bonds was sustained in People _v._ Board of
Supervisors[50] over the objection that such notes circulated as money
and should be taxable in the same way as coin. But a State tax on checks
issued by the Treasurer of the United States for interest accrued upon
government bonds was sustained since it did not in any wise affect the
credit of the National Government.[51] Similarly, the assessment for an
_ad valorem_ property tax of an open account for money due under a
federal contract,[52] and the inclusion of the value of United States
bonds owned by a decedent, in measuring an inheritance tax,[53] were
held valid, since neither tax would substantially embarrass the power of
the United States to secure credit.
Income from federal securities is also beyond the reach of the State
taxing power as the cases now stand.[54] Nor can such a tax be imposed
indirectly upon the stockholders on such part of the corporate dividends
as corresponds to the part of the corporation's income which is not
assessed, i.e., income from tax exempt bonds.[55] A State may
constitutionally levy an excise tax on corporations for the privilege of
doing business, and measure the tax by the property or net income of the
corporation, including tax exempt United States securities or the income
derived therefrom.[56] The designation of a tax is not controlling.[57]
Where a so-called "license tax" upon insurance companies, measured by
gross income, including interest on government bonds, was, in effect, a
commutation tax levied in lieu of other taxation upon the personal
property of the taxpayer, it was still held to amount to an
unconstitutional tax on the bonds themselves.[58]
TAXATION OF GOVERNMENT CONTRACTORS
In the course of his opinion in Osborn _v._ Bank of the United
States,[59] Chief Justice Marshall posed the question: "Can a contractor
for supplying a military post with provisions, be restrained from making
purchases within any state, or from transporting the provisions to the
place at which the troops were stationed? or could he be fined or taxed
for doing so? We have not yet heard these questions answered in the
affirmative."[60] One hundred and thirteen years later, the Court did
answer the last part of his inquiry in the affirmative. In James _v._
Dravo Contracting Company[61] it held that a State may impose an
occupation tax upon an independent contractor, measured by his gross
receipts under contracts with the United States. Previously it had
sustained a gross receipts tax levied in lieu of a property tax upon the
operator of an automobile stage line, who was engaged in carrying the
mails as an independent contractor,[62] and an excise tax on gasoline
sold to a contractor with the Federal Government and used to operate
machinery in the construction of levees in the Mississippi River.[63]
Subsequently it has approved State taxes on the net income of a
government contractor,[64] income[65] and social security[66] taxes on
the operators of bath houses maintained in a National Park under a lease
from the United States; sales and use taxes on sales of beverages by a
concessionaire in a National Park,[67] and on purchases of materials
used by a contractor in the performance of a cost-plus contract with the
United States,[68] and a severance tax imposed on a contractor who
severed and purchased timber from lands owned by the United States.[69]
STATUS OF DOCTRINE TODAY
Of a piece with James _v._ Dravo Contracting Co. was the decision in
Graves _v._ O'Keefe,[70] handed down two years later. Repudiating the
theory "that a tax on income is legally or economically a tax on its
source," the Court held that a State could levy a nondiscriminatory
income tax upon the salary of an employee of a government corporation.
In the opinion of the Court, Justice Stone intimated that Congress could
not validly confer such an immunity upon federal employees. He wrote:
"The burden, so far as it can be said to exist or to affect the
government in any indirect or incidental way, is one which the
Constitution presupposes; and hence it cannot rightly be deemed to be
within an implied restriction upon the taxing power of the national and
state governments which the Constitution has expressly granted to one
and has confirmed to the other. The immunity is not one to be implied
from the Constitution, because if allowed it would impose to an
inadmissible extent a restriction on the taxing power which the
Constitution has reserved to the state governments."[71] Chief Justice
Hughes concurred in the result without opinion. Justices Butler and
McReynolds dissented and Justice Frankfurter wrote a concurring opinion
in which he reserved judgment as to "whether Congress may, by express
legislation, relieve its functionaries from their civic obligations to
pay for the benefits of the State governments under which they
live...."[72]
_AD VALOREM_ TAXES UNDER THE DOCTRINE
Property owned by a federally chartered corporation engaged in private
business is subject to State and local _ad valorem_ taxes. This was
conceded in McCulloch _v._ Maryland,[73] and confirmed a half century
later with respect to railroads incorporated by Congress.[74] Similarly,
a property tax may be levied against the lands under water which are
owned by a person holding a license under the Federal Water Power
Act.[75] Land conveyed by the United States to a corporation for dry
dock purposes was subject to a general property tax, despite a
reservation in the conveyance of a right to free use of the dry dock and
a provision for forfeiture in case of the continued unfitness of the dry
dock for use, or the use of the land for other purposes.[76] Where
equitable title has passed to the purchaser of land from the Government,
a State may tax the equitable owner on the full value thereof, despite
the retention of legal title by the Government,[77] but the equitable
title passes otherwise.[78] Recently a divided Court held that where the
Government purchased movable machinery and leased it to a private
contractor, the lessee could not be taxed on the full value of the
equipment.[79] In the pioneer case of Van Brocklin _v._ Tennessee,[80]
the State was denied the right to sell for taxes lands which the United
States owned at the time the taxes were levied, but in which it had
ceased to have any interest at the time of sale. Nor can a State assess
land in the hands of private owners for benefits from a road improvement
completed while it was owned by the United States.[81]
PUBLIC PROPERTY AND FUNCTIONS
Property owned by the United States is, of course, wholly immune to
State taxation.[82] No State can regulate, by the imposition of an
inspection fee, any activity carried on by the United States directly
through its own agents and employees.[83] An early case whose authority
is now uncertain held invalid a flat rate tax on telegraphic messages,
as applied to messages sent by public officers on official
business.[84]
FISCAL INSTITUTIONS; LEGISLATIVE EXEMPTIONS
Fiscal institutions chartered by Congress, their shares and their
property, are taxable only with the consent of Congress and only in
conformity with the restrictions it has attached to its consent.[85]
Immediately after the Supreme Court construed the statute authorizing
the States to tax national bank shares as allowing a tax on the
preferred shares of such a bank held by the Reconstruction Finance
Corporation,[86] Congress passed a law exempting such shares from
taxation. The Court upheld this measure saying, "when Congress
authorized the States to impose such taxation, it did no more than
gratuitously grant them political power which they theretofore lacked.
Its sovereign power to revoke the grant remained unimpaired, the grant
of the privilege being only a declaration of legislative policy
changeable at will."[87] In Pittman _v._ Home Owners' Loan
Corporation[88] the Court sustained the power of Congress under the
necessary and proper clause to immunize the activities of the
Corporation from state taxation; and in Federal Land Bank _v._ Bismarck
Lumber Co.,[89] the like result was reached with respect to an attempt
by the State to impose a retail sales tax on a sale of lumber and other
building materials to the bank for use in repairing and improving
property that had been acquired by foreclosure of mortgages. The State's
principal argument proceeded thus: "Congress has authority to extend
immunity only to the governmental functions of the federal land banks;
the only governmental functions of the land banks are those performed by
acting as depositaries and fiscal agents for the federal government and
providing a market for governmental bonds; all other functions of the
land banks are private; petitioner here was engaged in an activity
incidental to its business of lending money, an essentially private
function; therefore Sec. 26 cannot operate to strike down a sales tax upon
purchases made in furtherance of petitioner's lending functions."[90]
The Court rejected this argument and invalidated the tax saying: "The
argument that the lending functions of the federal land banks are
proprietary rather than governmental misconceives the nature of the
federal government with respect to every function which it performs. The
federal government is one of delegated powers, and from that it
necessarily follows that any constitutional exercise of its delegated
powers is governmental. * * * It also follows that, when Congress
constitutionally creates a corporation through which the federal
government lawfully acts, the activities of such corporation are
governmental."[91] However, in the absence of federal legislation, a
state law laying a percentage tax on the users of safety deposit
services, measured by the banks' charges therefor, was held valid as
applied to national banks. The tax, being on the user, did not, the
Court held, impose an intrinsically unconstitutional burden on a federal
instrumentality.[92]
THE ATOMIC ENERGY COMMISSION; "ACTIVITIES" OF
In the recent case of Carson _v._ Roane-Anderson Co.,[93] the Court was
confronted with an attempt on the part of Tennessee to apply its tax on
the use within the State of goods purchased elsewhere to a private
contractor for the Atomic Energy Commission and to vendors of such
contractors. This, the Court held, could not be done under Section 9 b
of the Atomic Energy Commission Act, which provides in part that: "The
Commission, and the property, activities, and income of the Commission,
are hereby expressly exempted from taxation in any manner or form by any
State, county, municipality, or any subdivision thereof."[94] The power
of exemption, said the Court, "stems from the power to preserve and
protect functions validly authorized--the power to make all laws
necessary and proper for carrying into execution the powers vested in
Congress."[95] The term, "activities," as used in the Act described, was
held to be nothing less "than all of the functions of the
Commission."[96]
ROYALTIES; A JUDICIAL ANTICLIMAX
In 1928 the Court went so far as to hold that a State could not tax as
income royalties for the use of a patent issued by the United
States.[97] This proposition was soon overruled in Fox Film Corp. _v._
Doyal,[98] where a privilege tax based on gross income and applicable to
royalties from copyrights was upheld. Likewise a State may lay a
franchise tax on corporations, measured by the net income from all
sources, and applicable to income from copyright royalties.[99]
IMMUNITY OF LESSEES OF INDIAN LANDS
Another line of anomalous decisions conferring tax immunity upon lessees
of restricted Indian lands was overruled in 1949. The first of these
cases, Choctaw O. & G.R. Co. _v._ Harrison,[100] held that a gross
production tax on oil, gas and other minerals was an occupational tax,
and, as applied to a lessee of restricted Indian lands, was an
unconstitutional burden on such lessee, who was deemed to be an
instrumentality of the United States. Next the Court held the lease
itself a federal instrumentality immune from taxation.[101] A modified
gross production tax imposed in lieu of all _ad valorem_ taxes was
invalidated in two _per curiam_ decisions.[102] In Gillespie _v._
Oklahoma[103] a tax upon the net income of the lessee derived from sales
of his share of oil produced from restricted lands also was condemned.
Finally a petroleum excise tax upon every barrel of oil produced in the
State was held inapplicable to oil produced on restricted Indian
lands.[104] In harmony with the trend to restricting immunity implied
from the Constitution to activities of the Government itself, the Court
overruled all these decisions in Oklahoma Tax Comm'n _v._ Texas Co. and
held that a lessee of mineral rights in restricted Indian lands was
subject to nondiscriminatory gross production and excise taxes, so long
as Congress did not affirmatively grant them immunity.[105]
SUMMATION AND EVALUATION
Although McCulloch _v._ Maryland and Gibbons _v._ Ogden were expressions
of a single thesis--the supremacy of the National Government--their
development after Marshall's death has been sharply divergent. During
the period when Gibbons _v._ Ogden was eclipsed by the theory of dual
federalism, the doctrine of McCulloch _v._ Maryland was not merely
followed but greatly extended as a restraint on State interference with
federal instrumentalities. Conversely, the Court's recent return to
Marshall's conception of the powers of Congress has coincided with a
retreat from the more extreme positions taken in reliance upon McCulloch
_v._ Maryland. Today the application of the supremacy clause is
becoming, to an ever increasing degree, a matter of statutory
interpretation--a determination of whether State regulations can be
reconciled with the language and policy of federal enactments. In the
field of taxation, the Court has all but wiped out the private
immunities previously implied from the Constitution without explicit
legislative command. Broadly speaking, the immunity which remains is
limited to activities of the Government itself, and to that which is
explicitly created by statute, e.g., that granted to federal securities
and to fiscal institutions chartered by Congress. But the term,
activities, will be broadly construed.
Clause 3. The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several States,
shall be bound by Oath or Affirmation, to support this Constitution; but
no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States.
Oath of Office
POWER OF CONGRESS IN RESPECT TO OATHS
Congress may require no other oath of fidelity to the Constitution, but
it may superadd to this oath such other oath of office as its wisdom may
require.[106] It may not, however, prescribe a test oath as a
qualification for holding office, such an act being in effect an _ex
post facto_ law;[107] and the same rule holds in the case of the
States.[108]
NATIONAL DUTIES OF STATE OFFICERS
Commenting in The Federalist No. 27 on the requirement that State
officers, as well as members of the State legislatures, shall be bound
by oath or affirmation to support this Constitution, Hamilton wrote:
"Thus the legislatures, courts, and magistrates, of the respective
members, will be incorporated into the operations of the national
government _as far as its just and constitutional authority extends_;
and it will be rendered auxiliary to the enforcement of its laws." The
younger Pinckney had expressed the same idea on the floor of the
Philadelphia Convention: "They [the States] are the instruments upon
which the Union must frequently depend for the support and execution of
their powers, * * *"[109] Indeed, the Constitution itself lays many
duties, both positive and negative, upon the different organs of State
government,[110] and Congress may frequently add others, provided it
does not require the State authorities to act outside their normal
jurisdiction. Early Congressional legislation contains many
illustrations of such action by Congress.
The Judiciary Act of 1789[111] left the State courts in sole possession
of a large part of the jurisdiction over controversies between citizens
of different States and in concurrent possession of the rest. By other
sections of the same act State courts were authorized to entertain
proceedings by the United States itself to enforce penalties and
forfeitures under the revenue laws, while any justice of the peace or
other magistrate of any of the States was authorized to cause any
offender against the United States to be arrested and imprisoned or
bailed under the usual mode of process. Even as late as 1839, Congress
authorized all pecuniary penalties and forfeitures under the laws of the
United States to be sued for before any court of competent jurisdiction
in the State where the cause of action arose or where the offender might
be found.[112] Pursuant also of the same idea of treating State
governmental organs as available to the National Government for
administrative purposes, the act of 1793 entrusted the rendition of
fugitive slaves in part to national officials and in part of State
officials and the rendition of fugitives from justice from one State to
another exclusively to the State executives.[113] Certain later acts
empowered State courts to entertain criminal prosecutions for forging
paper of the Bank of the United States and for counterfeiting coin of
the United States,[114] while still others conferred on State judges
authority to admit aliens to national citizenship and provided penalties
in case such judges should utter false certificates of
naturalization--provisions which are still on the statute books.[115]
With the rise of the doctrine of States Rights and of the equal
sovereignty of the States with the National Government, the availability
of the former as instruments of the latter in the execution of its
power, came to be questioned.[116] In Prigg _v._ Pennsylvania,[117]
decided in 1842, the constitutionality of the provision of the act of
1793 making it the duty of State magistrates to act in the return of
fugitive slaves was challenged; and in Kentucky _v._ Dennison,[118]
decided on the eve of the Civil War, similar objection was leveled
against the provision of the same act which made it "the duty" of the
Chief Executive of a State to render up a fugitive from justice upon the
demand of the Chief Executive of the State from which the fugitive had
fled. The Court sustained both provisions, but upon the theory that the
cooperation of the State authorities was purely voluntary. In the Prigg
Case the Court, speaking by Justice Story, said: "* * * state
magistrates may, if they choose, exercise the authority, [conferred by
the act] unless prohibited by state legislation."[119] In the Dennison
Case, "the duty" of State executives in the rendition of fugitives from
justice was construed to be declaratory of a "moral duty." Said Chief
Justice Taney for the Court: "The act does not provide any means to
compel the execution of this duty, nor inflict any punishment for
neglect or refusal on the part of the Executive of the State; nor is
there any clause or provision in the Constitution which arms the
Government of the United States with this power. Indeed, such a power
would place every State under the control and dominion of the General
Government, even in the administration of its internal concerns and
reserved rights. And we think it clear, that the Federal Government,
under the Constitution, has no power to impose on a State officer, as
such, any duty whatever, and compel him to perform it; for if it
possessed this power, it might overload the officer with duties which
would fill up all his time, and disable him from performing his
obligations to the State, and might impose on him duties of a character
incompatible with the rank and dignity to which he was elevated by the
State. It is true," the Chief Justice conceded, "that in the early days
of the Government, Congress relied with confidence upon the co-operation
and support of the States, when exercising the legitimate powers of the
General Government, and were accustomed to receive it, [but this, he
explained, was] upon principles of comity, and from a sense of mutual
and common interest, where no such duty was imposed by the
Constitution."[120]
Eighteen years later, in Ex parte Siebold[121] the Court sustained the
right of Congress, under article I, section 4, paragraph 1 of the
Constitution, to impose duties upon State election officials in
connection with a Congressional election and to prescribe additional
penalties for the violation by such officials of their duties under
State law. While the doctrine of the holding is expressly confined to
cases in which the National Government and the States enjoy "a
concurrent power over the same subject matter," no attempt is made to
catalogue such cases. Moreover, the outlook of Justice Bradley's opinion
for the Court is decidedly nationalistic rather than dualistic, as is
shown by the answer made to the contention of counsel "that the nature
of sovereignty is such as to preclude the joint cooperation of two
sovereigns, even in a matter in which they are mutually concerned." To
this Justice Bradley replied: "As a general rule, it is no doubt
expedient and wise that the operations of the State and national
governments should, as far as practicable, be conducted separately, in
order to avoid undue jealousies and jars and conflicts of jurisdiction
and power. But there is no reason for laying this down as a rule of
universal application. It should never be made to override the plain and
manifest dictates of the Constitution itself. We cannot yield to such a
transcendental view of state sovereignty. The Constitution and laws of
the United States are the supreme law of the land, and to these every
citizen of every State owes obedience, whether in his individual or
official capacity."[122] Three years earlier the Court, speaking also by
Justice Bradley, sustained a provision of the Bankruptcy Act of 1867
giving assignees a right to sue in State courts to recover the assets of
a bankrupt. Said the Court: The statutes of the United States are as
much the law of the land in any State as are those of the State; and
although exclusive jurisdiction for their enforcement may be given to
the federal courts, yet where it is not given, either expressly or by
necessary implication, the State courts having competent jurisdiction in
other respects, may be resorted to.[123]
The Selective Service Act of 1917[124] was enforced to a great extent
through State "employees who functioned under State supervision";[125]
and State officials were frequently employed by the National Government
in the enforcement of National Prohibition.[126] Nowadays, there is
constant cooperation, both in peacetime and in wartime, in many fields
between National and State Officers and official bodies.[127] This
relationship obviously calls for the active fidelity of both categories
of officialdom to the Constitution.
Notes
[1] On the supremacy of treaties over conflicting State law, _see_ pp.
414-418. The supremacy due to treaties has, within recent years, been
extended to certain executive agreements. _See_ Justice Douglas in
United States _v._ Pink, 315 U.S. 203 (1942). As to the supremacy of
Congressional legislation implementing the national judicial power,
_see_ Tennessee _v._ Davis, 100 U.S. 257, 266-267 (1880); and Ex parte
Siebold, 100 U.S. 404 (1880).
[2] 4. Wheat. 316 (1819). Marshall had anticipated his argument in this
case in 1805, in United States _v._ Fisher, 2 Cr. 358 (1805), in which
he upheld the act of 1797 asserting for the United States a priority of
its claims over those of the States. _See_ Chief Justice Taft's opinion
in Spokane County _v._ United States, 279 U.S. 80, 87 (1929), where
United States _v._ Fisher is followed; _also_ 1 Warren, Supreme Court in
United States History, 372, 538 ff.
[3] 9 Wheat. 1 (1824).
[4] 4 Wheat. 316, 436 (1819).
[5] 9 Wheat. 1, 210-211 (1824).
[6] 11 Pet. 102 (1837).
[7] Ibid. 139.
[8] Ibid. 161.
[9] 5 How. 504 (1847).
[10] Ibid. 573-574.
[11] National Labor Relations Board _v._ Jones & Laughlin Steel
Corporation, 301 U.S. 1 (1937).
[12] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._
Davis, 301 U.S. 619 (1937).
[13] United States _v._ Darby, 312 U.S. 100 (1941); _see_ especially
ibid. 113-124.
[14] Sola Electric Co. _v._ Jefferson Electric Co., 317 U.S. 173, 170
(1942); Hill _v._ Florida, 325 U.S. 538 (1945); _see also_ Testa _v._
Katt, 330 U.S. 380, 391 (1947); Francis _v._ Southern Pacific Co. 333
U.S. 445 (1918); and Bus Employers _v._ Wisconsin Board, 340 U.S. 383
(1951).
[15] Southern Pacific Co. _v._ Arizona, 825 U.S. 761 (1945); Rice _v._
Santa Fe Elevator Co., 331 U.S. 218, 230 (1947); Auto Workers _v._ Wis.
Board, 336 U.S. 245, 253 (1949); United States _v._ Burnison, 339 U.S.
87, 91-92 (1950).
[16] Ohio _v._ Thomas, 173 U.S. 276, 283 (1899).
[17] Johnson _v._ Maryland, 254 U.S. 51 (1920).
[18] Arizona _v._ California, 283 U.S. 423, 451 (1931).
[19] 9 Wall. 353 (1870).
[20] Ibid. 362.
[21] 161 U.S. 275 (1896).
[22] Ibid. 283.
[23] Reagan _v._ Mercantile Trust Co., 154 U.S. 413 (1894).
[24] Johnson _v._ Maryland, 254 U.S. 51, 56 (1920).
[25] Penn Dairies _v._ Milk Control Comm'n., 318 U.S. 261 (1943).
[26] Pacific Coast Dairy _v._ Dept. of Agriculture, 318 U.S. 285 (1943).
[27] Martin _v._ Hunter's Lessee, 1 Wheat. 304, 335 (1816).
[28] 93 U.S. 130 (1876).
[29] Martin _v._ Hunter's Lessee, 1 Wheat. 304, 335 (1816).
[30] 93 U.S. 130, 137 (1876).
[31] Mondou _v._ New York, N.H. & H.R. Co., 223 U.S. 1, 57 (1912).
[32] 330 U.S. 386 (1947).
[33] Ibid. 393.
[34] Ableman _v._ Booth, 21 How. 506, 523 (1859), followed in United
States _v._ Tarble, 13 Wall. 397 (1872).
[35] Tennessee _v._ Davis, 100 U.S. 257 (1880); _see also_ Maryland _v._
Soper, 270 U.S. 36 (1926).
[36] 135 U.S. 1 (1890).
[37] Keith _v._ Clark, 97 U.S. 454, 461 (1878).
[38] White _v._ Cannon, 6 Wall. 443, 450 (1868). _See also_ Hickman _v._
Jones, 9 Wall. 197 (1870); Dewing _v._ Perdicaries, 96 U.S. 193, 195
(1878).
[39] Ford _v._ Surget, 97 U.S. 594, 604 (1878); United States _v._
Keehler, 9 Wall. 83, 86 (1870).
[40] Texas _v._ White, 7 Wall. 700, 726 (1869).
[41] Ibid. 733. _See also_ Horn _v._ Lockhart, 17 Wall. 570, 580 (1873);
Thomas _v._ Richmond, 12 Wall. 349, 357 (1871); White _v._ Hart, 13
Wall. 646 (1872); United States _v._ Home Ins. Co., 22 Wall. 99 (1875);
Taylor _v._ Thomas, 22 Wall. 479 (1875); and Huntington _v._ Texas, 16
Wall. 402 (1873).
[42] 9 Wheat. 788 (1924).
[43] Ibid. 865.
[44] Ibid.
[45] Ibid. 866.
[46] Ibid. 867.
[47] 2 Pet. 449 (1829), followed in New York ex rel. Bank of Commerce
_v._ Comrs. of Taxes and Assessments, 2 Bl. 620 (1863).
[48] 12 Stat. 710 (1863).
[49] 31 U.S.C. Sec. 742 (1946).
[50] 7 Wall. 26 (1869).
[51] Hibernia Sav. & L. Soc. _v._ San Francisco, 200 U.S. 310, 315
(1906).
[52] Smith _v._ Davis, 323 U.S. 111 (1944).
[53] Plummer _v._ Coler, 178 U.S. 115 (1900); Blodgett _v._ Silberman,
277 U.S. 1, 12 (1928).
[54] Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 275 U.S. 136, 140
(1927).
[55] Miller _v._ Milwaukee, 272 U.S. 713 (1927).
[56] Provident Inst. for Savings _v._ Massachusetts, 6 Wall. 611 (1868);
Society for Savings _v._ Coite, 6 Wall. 594 (1868); Hamilton Mfg. Co.
_v._ Massachusetts, 6 Wall. 632 (1868); Home Ins. Co. _v._ New York, 134
U.S. 594 (1890).
[57] Macallen _v._ Massachusetts, 279 U.S. 620, 625 (1929).
[58] Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 275 U.S. 136
(1927).
[59] 9 Wheat. 738 (1824).
[60] Ibid. 867.
[61] 302 U.S. 134 (1937).
[62] Alward _v._ Johnson, 282 U.S. 509 (1931).
[63] Trinityfarm Const. Co. _v._ Grosjean, 291 U.S. 466 (1934).
[64] Atkinson _v._ Tax Commission, 303 U.S. 20 (1938).
[65] Superior Bath House Co. _v._ McCarroll, 312 U.S. 176 (1941).
[66] Buckstaff Bath House _v._ McKinley, 308 U.S. 358 (1939).
[67] Collins _v._ Yosemite Park & Curry Co., 304 U.S. 518 (1938).
[68] Alabama _v._ King & Boozer, 314 U.S. 1 (1941), overruling Panhandle
Oil Co. _v._ Knox, 277 U.S. 218 (1928) and Graves _v._ Texas Co., 298
U.S. 393 (1936). _See also_ Curry _v._ United States, 314 U.S. 14
(1941).
[69] Wilson _v._ Cook, 327 U.S. 474 (1946).
[70] 306 U.S. 466 (1939), followed in State Tax Comm'n. _v._ Van Cott,
306 U.S. 511 (1939). This case overruled by implication Dobbins _v._
Erie County, 16 Pet. 435 (1842) and New York ex rel. Rogers _v._ Graves,
299 U.S. 401 (1937), which held the income of federal employees to be
immune from State taxation.
[71] 306 U.S. 466, 487 (1939).
[72] Ibid. 492.
[73] 4 Wheat. 316, 426 (1819).
[74] Thompson _v._ Union P.R. Co., 9 Wall. 579, 588 (1870); Railroad Co.
_v._ Peniston, 18 Wall. 5, 31 (1873).
[75] Susquehanna Power Co. _v._ State Tax Comm'n., 283 U.S. 291 (1931).
[76] Baltimore Shipbuilding & Dry Dock Co. _v._ Baltimore, 195 U.S. 375
(1904).
[77] Northern P.R. Co. _v._ Myers, 172 U.S. 589 (1899); New Brunswick
_v._ United States, 276 U.S. 547 (1928).
[78] Irwin _v._ Wright, 258 U.S. 219 (1922).
[79] United States _v._ Allegheny County, 322 U.S. 174 (1944).
[80] 117 U.S. 151 (1886).
[81] Lee _v._ Osceola & L. River Road Improv. Dist, 268 U.S. 643 (1925).
[82] Clallam County _v._ United States, 263 U.S. 341 (1923). _See also_
Cleveland _v._ United States, 323 U.S. 329, 333 (1945).
[83] Mayo _v._ United States, 319 U.S. 441 (1943).
[84] Western U. Teleg. Co. _v._ Texas, 105 U.S. 460, 464 (1882).
[85] Des Moines Nat. Bank _v._ Fairweather, 263 U.S. 103, 106 (1923);
Owensboro Nat. Bank _v._ Owensboro, 173 U.S. 664, 669 (1899); First Nat.
Bank _v._ Adams, 258 U.S. 362 (1922).
[86] Baltimore Nat. Bank _v._ State Tax Comm'n., 297 U.S. 209 (1936).
[87] Maricopa County _v._ Valley National Bank, 318 U.S. 357, 362
(1943).
[88] 308 U.S. 21 (1939).
[89] 314 U.S. 95 (1941).
[90] Ibid. 101.
[91] Ibid. 102; _cf._ 9 Wheat. 738, 864-865 (1824).
[92] Colorado Nat. Bank _v._ Bedford, 310 U.S. 41 (1940).
[93] 342 U.S. 232 (1952).
[94] 60 Stat. 765; 42 U.S.C. Sec. 1809 (b).
[95] 342 U.S. 232, 234.
[96] Ibid. 236.
[97] Long _v._ Rockwood, 277 U.S. 142 (1928).
[98] 286 U.S. 123 (1932).
[99] Educational Films Corp. _v._ Ward, 282 U.S. 379 (1931).
[100] 235 U.S. 292 (1944).
[101] Indian Territory Illuminating Oil Co. _v._ Oklahoma, 240 U.S. 522
(1916).
[102] Howard _v._ Gipsy Oil Co., 247 U.S. 503 (1918); Large Oil Co. _v._
Howard, 248 U.S. 549 (1919).
[103] 257 U.S. 501 (1922).
[104] Oklahoma Tax Comm'n _v._ Barnsdall Refiners, 296 U.S. 521 (1936).
[105] 330 U.S. 342 (1949). Justice Rutledge, speaking for the Court,
sketched the history of the immunity of lessees of Indian lands from
State taxation, which he found to stem from early rulings that tribal
lands are themselves immune (The Kansas Indians, 5 Wall. 737 (1867); The
New York Indians, 5 Wall. 761 (1867)). One of the first steps taken to
curtail the scope of the immunity was Shaw _v._ Gibson-Zahniser Oil
Corp., 276 U.S. 575 (1928), which held that lands outside a reservation,
though purchased with restricted Indian funds, were subject to State
taxation. Congress soon upset the decision, however, and its act was
sustained in Board of County Comm'rs _v._ Seber, 318 U.S. 705 (1943).
[106] McCulloch _v._ Maryland, 4 Wheat. 316, 416 (1819).
[107] Ex parte Garland, 4 Wall. 333, 337 (1867).
[108] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867).
[109] The Federalist No. 27, p. 123; I Farrand Records, 404.
[110] _See_ Article I, Section III, Paragraph 1; Section IV, Paragraph
1; Section X; Article II, Section I, Paragraph 2; Article III, Section
II, Paragraph 2; Article IV, Sections I and II; Article V; Amendments
XIII, XIV, XV, XVII, and XIX.
[111] 1 Stat. 73 (1789).
[112] 5 Stat. 322 (1839).
[113] 1 Stat. 302 (1793).
[114] 2 Stat. 404 (1806).
[115] _See_ 2 Kent's Commentaries, 64-65 (1826); 34 Stat. 590, 602
(1906); 8 U.S.C. Sec. 357, 379; 18 ibid. Sec. 135 (1934); _also_
Holmgren _v._ United States, 217 U.S. 509 (1910).
[116] For the development of opinion especially on the part of State
courts, adverse to the validity of the above mentioned legislation,
_see_ 1 Kent's Commentaries, 396-404 (1826).
[117] 16 Pet. 539 (1842).
[118] 24 How. 66 (1861).
[119] 16 Pet. at 622.
[120] 24 How. at 107-108.
[121] 100 U.S. 371 (1880).
[122] Ibid. 392.
[123] Claflin _v._ Houseman, 93 U.S. 130, 136, 137 (1876); followed in
Second Employers' Liability Cases, 223 U.S. 1, 55-59 (1912).
[124] 40 Stat. 76 (1917).
[125] Jane Perry Clark, The Rise of a New Federalism, 91 (Columbia
University Press, 1938).
[126] _See_ James Hart in 13 Virginia Law Review, 86-107 (1926)
discussing President Coolidge's order of May 8, 1926, for Prohibition
enforcement.
[127] Clark, New Federalism, cited in note 2 above; [Transcriber's
Note: Reference is to Footnote 125, above.] Corwin, Court Over
Constitution, 148-168 (Princeton University Press, 1938).
ARTICLE VII
RATIFICATION
Article VII
The Ratification of the Conventions of nine States, shall be sufficient
for the Establishment of this Constitution between the States so
ratifying the Same.
IN GENERAL
In Owings _v._ Speed,[1] the question at issue was whether the
Constitution of the United States operated upon an act of Virginia
passed in 1788. The Court held it did not, stating in part:
"The Conventions of nine States having adopted the Constitution,
Congress, in September or October, 1788, passed a resolution in
conformity with the opinions expressed by the Convention, and appointed
the first Wednesday in March of the ensuing year as the day, and the
then seat of Congress as the place, 'for commencing proceedings under
the Constitution.'
"Both Governments could not be understood to exist at the same time. The
new Government did not commence until the old Government expired. It is
apparent that the Government did not commence on the Constitution being
ratified by the ninth State; for these ratifications were to be reported
to Congress, whose continuing existence was recognized by the
Convention, and who were requested to continue to exercise their powers
for the purpose of bringing the new Government into operation. In fact,
Congress did continue to act as a Government until it dissolved on the
1st of November, by the successive disappearance of its Members. It
existed potentially until the 2d of March, the day preceding that on
which the Members of the new Congress were directed to assemble.
"The resolution of the Convention might originally have suggested a
doubt, whether the Government could be in operation for every purpose
before the choice of a President; but this doubt has been long solved,
and were it otherwise, its discussion would be useless, since it is
apparent that its operation did not commence before the first Wednesday
in March 1789 * * *"
Notes
[1] 5 Wheat. 420, 422-423 (1820).
AMENDMENTS TO THE CONSTITUTION
AMENDMENTS NOS. 1-10
Bill of Rights
Page
History 749
Ordinance of 1787 749
Formulation and adoption of the bill of rights 750
Bill of rights and the States: Barron _v._ Baltimore 750
Bill of rights and Amendment XIV 750
AMENDMENTS TO THE CONSTITUTION
AMENDMENTS NOS. 1-10
Bill of Rights
HISTORY: THE ORDINANCE OF 1787
While the Constitutional Convention was engaged in drafting the
Constitution, the Congress of the Confederation included in the
Ordinance for the government of the Northwest Territory, adopted July
13, 1787, the following provisions:
"It is hereby ordained and declared by the authority aforesaid, that the
following articles shall be considered as articles of compact between
the original States and the people and States in the said territory and
forever remain unalterable, unless by common consent, to wit:
"Art. 1. No person, demeaning himself in a peaceable and
orderly manner, shall ever be molested on account of his mode of worship
or religious sentiments, in the said territory.
"Art. 2. The inhabitants of the said territory shall always be
entitled to the benefits of the writ of _habeas corpus_, and of the
trial by jury; of a proportionate representation of the people in the
legislature; and of judicial proceedings according to the course of the
common law. All persons shall be bailable, unless for capital offenses,
where the proof shall be evident or the presumption great. All fines
shall be moderate; and no cruel or unusual punishments shall be
inflicted. No man shall be deprived of his liberty or property, but by
the judgment of his peers or the law of the land; and, should the public
exigencies make it necessary, for the common preservation, to take any
person's property, or to demand his particular services, full
compensation shall be made for the same. And, in the just preservation
of rights and property, it is understood and declared, that no law ought
ever to be made, or have force in the said territory, that shall, in any
manner whatever, interfere with or affect private contracts or
engagements, _bona fide_, and without fraud, previously formed.
"Art. 3. Religion, morality, and knowledge, being necessary to
good government and the happiness of mankind, schools and the means of
education shall forever be encouraged.
* * * * *
"Art. 6. There shall be neither slavery nor involuntary
servitude in the said territory, otherwise than in the punishment of
crimes whereof the party shall have been duly convicted: * * *"[1]
FORMULATION AND ADOPTION OF THE BILL OF RIGHTS
Two months later, at the very end of its labors, the Constitutional
Convention rejected, with scant consideration, a proposal by Gerry and
Mason, to prepare a bill of rights.[2] This omission furnished the
principal argument urged against ratification of the Constitution.
Hamilton replied with the following ingenious argument: "* * * bills of
rights are in their origin, stipulations between kings and their
subjects, abridgments of prerogative in favor of privilege, reservations
of rights not surrendered to the prince. * * * It is evident, therefore,
that according to their primitive signification, they have no
application to the constitutions professedly founded upon the power of
the people, and executed by their immediate representatives and
servants. Here, in strictness, the people surrender nothing; and as they
retain everything, they have no need of particular reservations."[3]
The people did not find this line of reasoning persuasive. Several
States ratified only after Washington put forward the suggestion that
the desired guarantees could be added by amendment.[4] No less than 124
amendments were proposed by the States.[5] Shortly after the First
Congress convened, Madison introduced a series of amendments,[6]
designed "to quiet the apprehension of many, that without some such
declaration of rights the government would assume, and might be held to
possess, the power to trespass upon those rights of persons and property
which by the Declaration of Independence were affirmed to be unalienable
* * *"[7] After prolonged debate seventeen proposals were accepted by
the House two of which were rejected by the Senate. The remainder were
reduced to twelve in number, all but two of which were ratified by the
requisite number of States.[8]
THE BILL OF RIGHTS AND THE STATES: BARRON _v._ BALTIMORE
One of the amendments which the Senate refused to accept--the one which
Madison declared to be "the most valuable of the whole list"[9]--read as
follows: "The equal rights of conscience, the freedom of speech or of
the press, and the right of trial by jury in criminal cases, shall not
be infringed by any State."[10] The demand for assurance of these rights
against encroachment by the States would not die. In spite of the
deliberate rejection of Madison's proposal the contention that the first
Ten Amendments were applicable to the States was repeatedly pressed upon
the Supreme Court. By a long series of decisions, beginning with the
opinion of Chief Justice Marshall in Barron _v._ Baltimore[11] in 1833,
the argument was consistently rejected. Nevertheless the enduring
vitality of natural law concepts encouraged renewed appeals for judicial
protection. Expression such as the statement of Justice Miller in
Citizens Savings and Loan Association _v._ Topeka that: "It must be
conceded that there are * * * rights in every free government beyond the
control of the States"[12] probably account for the fact, reported by
Charles Warren that: "In at least twenty cases between 1877 and 1907,
the Court was required to rule upon this point and to reaffirm
Marshall's decision of 1833, * * *"[13]
THE BILL OF RIGHTS AND AMENDMENT XIV
After the adoption of the Fourteenth Amendment, a fresh attack was
launched on that front. The rights assured against encroachment by the
Federal Government were claimed as privileges and immunities which no
State may deny to any citizen.[14] As early as 1884 the further
contention was made that the procedural safeguards prescribed by these
articles are essential ingredients of due process of law.[15] For many
years, the Court continued to reject these arguments also, over the
vigorous and prophetic dissents of Justice Harlan. With respect to the
due process clause it held that these words have the same meaning in the
Fourteenth Amendment as in the Fifth, and hence do not embrace the other
rights more specifically enumerated in the latter, there being no
superfluous language in the Constitution.[16] In 1897, however, it
retreated from this position to the extent of holding that the Fifth
Amendment's explicit guarantee against the taking of private property
without just compensation is included in the due process clause of the
Fourteenth.[17] Later cases have established that the terms, "liberty"
and "due process of law" as used in Amendment XIV, render available
against the States certain fundamental rights guaranteed accused persons
in the Bill of Rights[18] and the substantive rights which are protected
against Congress by Amendment I.[19]
Notes
[1] 1 Stat. 51 n.
[2] Elliot, The Debates in the Several State Conventions on the Adoption
of the Federal Constitution, V, 538 (1836).
[3] The Federalist No. 84.
[4] McLaughlin, A Constitutional History of the United States, 203
(1936).
[5] Ames, The Proposed Amendments to the Constitution, 19 (1896).
[6] Annals of Congress, I, 424, 433.
[7] Monongahela Navigation Co. _v._ United States, 148 U.S. 312, 324
(1893).
[8] Ames, _op. cit._, 184, 185 (1896).
[9] Annals of Congress, 1, 755.
[10] Ibid.
[11] 7 Pet. 243 (1833); Lessee of Livingston _v._ Moore, 7 Pet. 469
(1833); Permoli _v._ New Orleans, 3 How. 589, 609 (1845); Fox _v._ Ohio,
5 How. 410 (1847); Smith _v._ Maryland, 18 How. 71 (1855); Withers _v._
Buckley, 20 How. 84 (1858); Pervear _v._ Massachusetts, 5 Wall. 475
(1867); Twitchell _v._ Pennsylvania, 7 Wall. 321 (1869).
[12] 20 Wall. 655, 669 (1875).
[13] Warren, The New "Liberty" Under the Fourteenth Amendment, 39 Harv.
L. Rev., 431, 436 (1926).
[14] Slaughter-House Cases, 16 Wall. 36 (1873); Spies _v._ Illinois, 123
U.S. 131 (1887); O'Neil _v._ Vermont, 144 U.S. 323 (1892); Maxwell _v._
Dow, 176 U.S. 581 (1900); Patterson _v._ Colorado, 205 U.S. 454 (1907);
Twining _v._ New Jersey, 211 U.S. 78 (1908).
[15] Hurtado _v._ California, 110 U.S. 516 (1884).
[16] Ibid. 534, 535.
[17] Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897).
[18] _See_ Twining _v._ New Jersey, 211 U.S. 78 (1908); Adamson _v._
California, 332 U.S. 46 (1947).
[19] _See_ Gitlow _v._ New York, 268 U.S. 652 (1925); Beauharnais _v._
Illinois, 343 U.S. 250, 288 (1952).
AMENDMENT 1
RELIGION, FREE SPEECH, ETC.
Page
Absorption of Amendment I into the Fourteenth Amendment 757
"An establishment of religion" 758
"No preference" doctrine 758
"Wall of separation" doctrine 759
Zorach Case 762
Permissible monetary aids to religion 763
Free exercise of religion; dimensions 764
Parochial schools 765
Free exercise of religion; federal restraints 765
Free exercise of religion; State and local restraints 766
Free exercise of religion; obligations of citizenship 768
Freedom of speech and press 769
Blackstonian background 769
Effect of Amendment I on the common law 769
Amendment XIV and Blackstone 771
Clear and present danger rule, meaning 772
Contrasting operation of the common law rule 772
Emergence of the clear and present test 773
Gitlow and Whitney Cases 775
Acceptance of the clear and present danger test 777
Police power and clear and present danger 777
Public order 777
Public morals 779
Picketing and clear and present danger 781
Contempt of court and clear and present danger 783
Freedom of speech and press in public parks and streets 784
Censorship 786
Clear and present danger test: judicial diversities 788
Taxation 792
Federal restraints on freedom of speech and press 792
Regulations of Business and Labor Activities 792
Regulation of political activities of federal employees 793
Legislative protection of the armed forces and the war power 794
Loyalty regulations: The Douds Case 794
The Case of the Eleven Communists 795
Subversive organizations 801
Recent state legislation 801
Loyalty tests 801
Group libel 802
Censorship of the mails 804
Rights of assembly and petition 805
Restraints on the right of petition 806
The Cruikshank Case 807
Hague _v._ C.I.O. 808
Recent cases 809
Lobbying and the right of petition 810
RELIGION, FREE SPEECH, ETC.
Amendment 1
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
Absorption of Amendment I Into the Fourteenth Amendment
Eventually the long sought protection for certain substantive personal
rights was obtained by identifying them with the "liberty" which States
cannot take away without due process of law. The shift in the Court's
point of view was made known quite casually in Gitlow _v._ New York,[1]
where, although affirming a conviction for violation of a State statute
prohibiting the advocacy of criminal anarchy, it declared that: "For
present purposes we may and do assume that freedom of speech and of the
press--which are protected by the First Amendment from abridgment by
Congress--are among the fundamental personal rights and 'liberties'
protected by the due process clause of the Fourteenth Amendment from
impairment by the States."[2] This dictum became, two years later,
accepted doctrine when the Court invalidated a State law on the ground
that it abridged freedom of speech contrary to the due process clause of
Amendment XIV.[3] Subsequent decisions have brought the other rights
safeguarded by the First Amendment, freedom of religion,[4] freedom of
the press,[5] and the right of peaceable assembly,[6] within the
protection of the Fourteenth. In consequence of this development the
cases dealing with the safeguarding of these rights against infringement
by the States are included in the ensuing discussion of the First
Amendment.
An Establishment of Religion
THE "NO PREFERENCE" DOCTRINE
The original proposal leading to the First Amendment was introduced into
the House of Representatives by James Madison, and read as follows: "The
civil rights of none shall be abridged on account of religious belief or
worship, nor shall any national religion be established, nor shall the
full and equal rights of conscience be in any manner, or on any
pretence, infringed."[7] This was altered in the House to read:
"Congress shall make no law establishing religion, or to prevent the
free exercise thereof, or to infringe the rights of conscience."[8] In
the Senate the above formula was replaced by the following; "Congress
shall make no law establishing articles of religion."[9] The conference
committee of the two houses adopted the House proposal, but with the
neutral term "respecting an establishment," etc., taking the place of
the original sweeping ban against any law "establishing religion."[10]
Explaining this phraseology, in his Commentaries, Story asserted that
the purpose of the amendment was not to discredit the then existing
State establishments of religion, but rather "to exclude from the
National Government all power to act on the subject." He wrote: "The
situation, * * *, of the different States equally proclaimed the policy
as well as the necessity of such an exclusion. In some of the States,
episcopalians constituted the predominant sect; in others,
presbyterians; in others, congregationalists; in others, quakers; and in
others again, there was a close numerical rivalry among contending
sects. It was impossible that there should not arise perpetual strife
and perpetual jealousy on the subject of ecclesiastical ascendency, if
the national government were left free to create a religious
establishment. The only security was in extirpating the power. But this
alone would have been an imperfect security, if it had not been followed
up by a declaration of the right of the free exercise of religion, and a
prohibition (as we have seen) of all religious tests. Thus, the whole
power over the subject of religion is left exclusively to the State
governments, to be acted upon according to their own sense of justice
and the State constitutions; and the Catholic and the Protestant, the
Calvinist and the Arminian, the Jew and the Infidel, may sit down at the
common table of the national councils without any inquisition into their
faith or mode of worship."[11]
For the rest, Story contended, the no establishment clause, while it
inhibited Congress from giving preference to any denomination of the
Christian faith, was not intended to withdraw the Christian religion as
a whole from the protection of Congress. He said: "Probably at the time
of the adoption of the Constitution, and of the amendment to it now
under consideration, the general if not the universal sentiment in
America was, that Christianity ought to receive encouragement from the
state so far as was not incompatible with the private rights of
conscience and the freedom of religious worship. An attempt to level all
religions, and to make it a matter of state policy to hold all in utter
indifference, would have created universal disapprobation, if not
universal indignation."[12] As late as 1898 Cooley expounded the no
establishment clause as follows: "By establishment of religion is meant
the setting up or recognition of a state church, or at least the
conferring upon one church of special favors and advantages which are
denied to others (citing 1 Tuck. Bl. Com. App. 296; 2 _id._, App. Note
G.). It was never intended by the Constitution that the government
should be prohibited from recognizing religion, * * * where it might be
done without drawing any invidious distinctions between different
religious beliefs, organizations, or sects."[13]
THE "WALL OF SEPARATION" DOCTRINE
In 1802 President Jefferson wrote a letter to a group of Baptists in
Danbury, Connecticut in which he declared that it was the purpose of the
First Amendment to build "a wall of separation between Church and
State,"[14] and in Reynolds _v._ United States,[15] the first
Anti-Mormon Case, Chief Justice Waite, speaking for the unanimous Court,
characterized this as "almost an authoritative declaration of the scope
and effect of the amendment," one which left Congress "free to reach
actions which were in violation of social duties or subversive of good
order."[16] Recently the Court has given Jefferson's "almost
authoritative" pronouncement a greatly enlarged application. Speaking by
Justice Black, a sharply divided Court sustained in 1947 the right of
local authorities in New Jersey to provide free transportation for
children attending parochial schools,[17] but accompanied its holding
with these warning words, which appear to have had the approval of most
of the Justices: "The 'establishment of religion' clause of the First
Amendment means at least this: Neither a state nor the Federal
Government can set up a church. Neither can pass laws which aid one
religion, aid all religions, or prefer one religion over another.
Neither can force nor influence a person to go to or to remain away from
church against his will or force him to profess a belief or disbelief in
any religion. No person can be punished for entertaining or professing
religious beliefs or disbeliefs, for church attendance or
non-attendance. No tax in any amount, large or small, can be levied to
support any religious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or practice religion.
Neither a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations of groups and
_vice versa_."[18] And a year later a nearly unanimous Court overturned
on the above grounds a "released time" arrangement under which the
Champaign, Illinois Board of Education agreed that religious instruction
should be given in the local schools to pupils whose parents signed
"request cards." The classes were to be conducted during regular school
hours in the school building by outside teachers furnished by a
religious council representing the various faiths, subject to the
approval or supervision of the superintendent of schools. Attendance
records were kept and reported to the school authorities in the same way
as for other classes; and pupils not attending the religious-instruction
classes were required to continue their regular secular studies.[19]
Said Justice Black, speaking for the Court: "Here not only are the
State's tax-supported public school buildings used for the dissemination
of religious doctrines. The State also affords sectarian groups an
invaluable aid in that it helps to provide pupils for their religious
classes through use of the State's compulsory public school machinery.
This is not separation of Church and State."[20]
Justice Frankfurter presented a concurring opinion for himself and
Justices Jackson, Rutledge and Burton. "We are all agreed," it begins,
"that the First and Fourteenth Amendments have a secular reach far more
penetrating in the conduct of Government than merely to forbid an
'established church.'"[21] What ensues is a well documented account of
the elimination of sectarianism from the American school system which is
reinterpreted as a fight for the secularization of public supported
education.[22] Facing then the emergence of the "released time"
expedient,[23] Justice Frankfurter characterizes it as a "conscientious
attempt to accommodate the allowable functions of Government and the
special concerns of the Church within the framework of our
Constitution."[24] Elsewhere in his opinion he states: "Of course,
'released time' as a generalized conception, undefined by
differentiating particularities, is not an issue for Constitutional
adjudication. * * * The substantial differences among arrangements
lumped together as 'released time' emphasize the importance of detailed
analysis of the facts to which the Constitutional test of Separation is
to be applied. How does 'released time' operate in Champaign?"[25] And
again: "We do not consider, as indeed we could not, school programs not
before us which, though colloquially characterized as 'released time,'
present situations differing in aspects that may well be
constitutionally crucial. Different forms which 'released time' has
taken during more than thirty years of growth include programs which,
like that before us, could not withstand the test of the Constitution;
others may be found unexceptionable."[26] Justice Jackson added further
reservations of his own as follows: "We should place some bounds on the
demands for interference with local schools that we are empowered or
willing to entertain. * * * It is important that we circumscribe our
decision with some care."[27]
In a dissenting opinion Justice Reed took exception to the extended
meaning given to the words "an establishment of religion." "The phrase
'an establishment of religion,'" said he, "may have been intended by
Congress to be aimed only at a state church. When the First Amendment
was pending in Congress in substantially its present form, 'Mr. Madison
said, he apprehended the meaning of the words to be, that Congress
should not establish a religion, and enforce the legal observation of
it by law, nor compel men to worship God in any manner contrary to their
conscience.' Passing years, however, have brought about the acceptance
of a broader meaning, although never until today, I believe, has this
Court widened its interpretation to any such degree as holding that
recognition of the interest of our nation in religion, through the
granting, to qualified representatives of the principal faiths, of
opportunity to present religion as an optional, extracurricular subject
during released school time in public school buildings, was equivalent
to an establishment of religion."[28] He further pointed out that "the
Congress of the United States has a chaplain for each House who daily
invokes divine blessings and guidance for the proceedings. The armed
forces have commissioned chaplains from early days. They conduct the
public services in accordance with the liturgical requirements of their
respective faiths, ashore and afloat, employing for the purpose property
belonging to the United States and dedicated to the services of
religion. Under the Servicemen's Readjustment Act of 1944, eligible
veterans may receive training at government expense for the ministry in
denominational schools. The schools of the District of Columbia have
opening exercises which 'include a reading from the Bible without note
or comment, and the Lord's Prayer.'"[29]
THE ZORACH CASE; THE McCOLLUM CASE LIMITED
In a decision handed down July 11, 1951 the New York Court of Appeals,
one Judge dissenting, sustained the "released time" program of that
State, distinguishing it from the one condemned in the McCollum Case as
follows: "In the New York City program there is neither supervision nor
approval of religious teachers and no solicitation of pupils or
distribution of cards. The religious instruction must be outside the
school building and grounds. There must be no announcement of any kind
in the public schools relative to the program and no comment by any
principal or teacher on the attendance or non-attendance of any pupil
upon religious instruction. All that the school does besides excusing
the pupil is to keep a record--which is not available for any other
purpose--in order to see that the excuses are not taken advantage of and
the school deceived, which is, of course, the same procedure the school
would take in respect of absence for any other reason."[30] On appeal
this decision was sustained by the Supreme Court, six Justices to
three.[31] Said Justice Douglas, speaking for the majority: "We are a
religious people whose institutions presuppose a Supreme Being. We
guarantee the freedom to worship as one chooses. We make room for as
wide a variety of beliefs and creeds as the spiritual needs of man deem
necessary. We sponsor an attitude on the part of government that shows
no partiality to any one group and that lets each flourish according to
the zeal of its adherents and the appeal of its dogma. When the state
encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events to sectarian
needs, it follows the best of our traditions. For it then respects the
religious nature of our people and accommodates the public service to
their spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous
indifference to religious groups. That would be preferring those who
believe in no religion over those who do believe. Government may not
finance religious groups nor undertake religious instruction nor blend
secular and sectarian education nor use secular institutions to force
one or some religion on any person. But we find no constitutional
requirement which makes it necessary for government to be hostile to
religion and to throw its weight against efforts to widen the effective
scope of religious influence. The government must be neutral when it
comes to competition between sects. It may not thrust any sect on any
person. It may not make a religious observance compulsory. It may not
coerce anyone to attend church, to observe a religious holiday, or to
take religious instruction. But it can close its doors or suspend its
operations as to those who want to repair to their religious sanctuary
for worship or instruction. No more than that is undertaken here."[32]
A few weeks earlier, moreover, the Court had indicated an intention to
scrutinize more closely the basis of its jurisdiction in this class of
cases. This occurred in a case in which the question involved was the
validity of a New Jersey statute which requires the reading at the
opening of each public school day of five verses of the Old
Testament.[33] The Court held that appellant's interest as taxpayers was
insufficient to constitute a justiciable case or controversy, while as
to the alleged rights of the child involved the case had become moot
with her graduation from school.[34]
PERMISSIBLE MONETARY AIDS TO RELIGION
In 1899 the Court held that an agreement between the District of
Columbia and the directors of a hospital chartered by Congress for
erection of a building and treatment of poor patients at the expense of
the District was valid despite the fact that the members of the
Corporation belonged to a monastic order or sisterhood of a particular
church.[35] It has also sustained a contract made at the request of
Indians to whom money was due as a matter of right, under a treaty, for
the payment of such money by the Commissioner of Indian Affairs for the
support of Indian Catholic schools.[36] In 1930 the use of public funds
to furnish nonsectarian textbooks to pupils in parochial schools of
Louisiana was sustained,[37] and in 1947, as we have seen, the case of
public funds for the transportation of pupils attending such schools in
New Jersey.[38] In the former of these cases the Court cited the State's
interest in secular education even when conducted in religious schools;
in the latter its concern for the safety of school children on the
highways; and the National School Lunch Act,[39] which aids all school
children attending tax-exempt schools can be similarly justified. The
most notable financial concession to religion, however, is not to be
explained in this way, the universal practice of exempting religious
property from taxation. This unquestionably traces back to the idea
expressed in the Northwest Ordnance that Government has an interest in
religion as such.
FREE EXERCISE OF RELIGION: DIMENSIONS