SUPREME COURT OPINIONS: The Fuller Court (1888 - 1910)

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OOOOFor each opinion, the author's name name is given first and in full, the following justices joining in the opinion. Concurring or separate opinions are those which agree with the result of the Court's opinion but differ with the reasoning, larger implications, or simply wish to add an aspect not touched on by the Court. Dissenting opinions, of course, are those which disagree with the Court's ruling. There may even be several dissenting opinions, depending on the nature of the several justices' disagreement.
1895 United States v. E.C. Knight Co., 156 U.S. 1
Chief Justice Melville W. Fuller
Dissent: Justice John Marshall Harlan
OOOThe case turns on the actions of the American Sugar Refining Company which, in 1892, bought up several of its rivals (among them the E.C. Knight Co.) giving it 98% of the sugar refining market in the United States. Under an 1890 federal statute forbidding monopolistic restraint of trade, the United States ordered the sales reversed. Writing for the Court, Chief Justice Fuller ruled that order unconstitutional under Article 1, § 8 of the Constitution regulating commerce.
OOOFuller made several distinctions in his decision. First, that while the actual sale of the companies might create a monopoly over a "necessary of life", it was not, per se, a monopoly respecting commerce or a restraint of trade. Second, that the resulting combination affected only "manufacture" - the making of sugar - not "commerce" - the trade in sugar. Third, that manufacture is not commerce, even if intended for interstate or international trade. From these distinctions he concluded that Congress had no inherent power to regulate monopolies, but only commerce, and so could only regulate monopolies as they partook of commerce, which the actions of American Sugar did not. Moreover, since the 1890 statute addressed monoplies in restraint of trade, not in necessities of life, it was inoperative in this case.
OOOAbove all, it was Fuller's intention to preserve the power of the states to regulate their internal affairs - the police power. He was not unaware of the potential harmful consequences of American Sugar's position; but sincerely believed that the power to regulate manufacture belonged to the states, not to the federal government; and that the dominance by the latter over the former represented a far greater danger to the nation than monopoly.
OOOIn dissent, Harlan rejected Fuller's distinctions. Manufacturing, he wrote, if done for interstate trade, along with that trade, is one stage in a continuum of commerce, and so was amenable to federal regulation. Moreover, he wrote, a monopoly over a necessity of life was, on its face, a restraint of trade; one need not sample intent, or wait for actual transport. He concluded that the Constitution, in giving Congress responsibility for commerce, also gave it discretion over the means it used to exercise that responsibility, and that preventing the creation of monopolies which worked to a restraint of trade and commerce was both legitimate and constitutional.
OOOThis debate over the commerce power would continue, with the Court and the nation eventually adopting Harlan's view.
1895 Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (first hearing)
Chief Justice Melville W. Fuller, J. Gray, J. Brewer, J. Brown, J Shiras
Concurrance: Justice Stephen J. Field
Dissent: Justice Edward D. White
Dissent: Justice John Marshall Harlan
Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601 (second hearing)
Chief Justice Melville W. Fuller, J. Field, J. Gray, J. Brewer, J Shiras
Dissent: Justice John Marshall Harlan
Dissent: Justice Howell E. Jackson
Dissent: Justice Henry B. Brown
Dissent: Justice Edward D. White
OOOThe case was brought by Charles Pollock against Farmers' Loan & Trust, in which he was a stockholder, to enjoin it from paying an income tax levied by an act of Congress the preceding year. Pollock sued on the grounds that the tax was unconstitutional under Art. 1, § 8 & § 9. The case was reheard because of Justice Jackson's absence during the first hearing, and also because there were constitutional issues left over from the first hearing that remained undecided.
OOOSeveral issues stand out in these cases, not all of which can be discussed here briefly. One, however, was whether the case should be heard at all. Federal law stipulated that whenever there was a question of whether a tax was legal or owing, the tax had to be paid, and then the taxpayer could appeal for relief and, if successful, repayment. In other words, not only was Pollock not the taxpayer in the first instance anyway (Farmers' Loan was perfectly willing to pay its taxes), even if he had been, he could not legally avoid paying the tax, or force anyone else to avoid it. Instead, finding no satisfactory relief in the law, Pollock sued in equity, and the Court granted the hearing.
OOOThe essence of Pollock's case was that a tax on income was a direct tax and so, under the Constitution, could not be levied by the federal government on individuals or corporations, but had to be apportioned between the states. Since the 1894 tax law failed to apportion the tax, the tax was unconstitutional. The Court agreed, basing its opinion on certain English precedents, on what the Founders had written on the subject of direct taxes and on modern economic theory of what constituted a "direct" tax.
OOOAs to the Founders' thinking, it was clear that a direct tax included a poll tax - the "capitation" of the Constitution - and a tax on land. The latter the Court extended through English precedent and certain writings of the Founders to include the income from land, making not only a property tax a direct tax, but a tax on the rents or the product of the land a direct tax as well. In the rehearing, the Court extended this to income from any kind of property whatsoever, making a tax on investment income, for example, a direct tax. Finally, in modern economic thinking, a direct tax, as opposed to an indirect tax, was what ever could not be passed on to someone else. In other words, taxes on goods paid by the seller or manufacturer are indirect as they are passed on eventually to the purchaser; but an income tax is not passed along to anyone else, and so is direct.
OOOOther issues included the constitutionality of a $4,000 exemption in the law, which the majority argued meant that, even if the tax were to be assumed a duty or an excise under § 8, it was not uniform, and so unconstitutional; and taxes on state and municipal securities, which the entire Court deemed unconstitutional.
OOOThe dissenters agreed with the majority that poll and property taxes were direct taxes, but stopped there. First, they argued that Pollock had no standing to sue, opposing his claim in equity. Next they pointed out that while there was much discussion among the Founders on the subject of taxes, direct or otherwise, there was no settled opinion on the subject of what was or was not direct. Finally they argued that modern economic thinking was irrelevant, since the question before the Court was a legal one, not an economic one, and that definitions had to be found in the law, not in economics.
OOOThe dissent relied on Hylton v. United States a 1796 opinion in which a tax on carriages, i.e., personal property, was held not to be a direct tax, several of the justices at that time opining that the only direct taxes were capitation taxes and taxes on land, not on property, per se. The majority countered that Hylton pertained only narrowly to carriages, and the judges personal opinions mere "dicta". The dissent countered that for the previous 99 years the entire country had depended on the dispositive nature of Hylton; that in several national emergencies, most particularly the Civil War, the nation had had recourse to income tax as a matter of survival, and that if such an emergency should arise again, the majority's decision would leave the nation unable to meet it.
OOOThe dissent also pointed out the irrationality and injustice of the majority's decision. Taxes on income and personal property could not be apportioned based on population between the states in any fair manner. This was pointed out repeatedly by the dissent [1]. That said, the majority's opinion left the Constitution itself, irrational and unjust, since the Constitution did not forbid an income tax, or a direct tax, but made its collection an absurdity.
OOOMore broadly, the dissent, in particular Justice Harlan, underscored the implications of the decision. If taxes on income from property, both real and personal, could not be collected then the entire burden of taxation would fall on income not derived from property. People who owned land and buildings and charged rents, and those who owned stocks and securities and lived off their dividends and profits would live tax-free. The tax would fall, rather, on those who lived "from the labor of their hands, or the use of their brains." The relevant paragraph is telling [2]. Harlan goes on lay bare the politics of the day, and the possible motives of the majority: "It was said in argument that the passage of the statute imposing this income tax was an assault by the poor upon the rich, and, by much eloquent speech, this court has been urged to stand in the breach for the protection of the just rights of property against the advancing hosts of socialism." And, "I may say, in answer to the appeals made to this court to vindicate the constitutional rights of citizens owning large properties and having large incomes, that the real friends of property are not those who would exempt the wealth of the country from bearing its fair share of the burdens of taxation, but rather those who seek to have everyone, without reference to his locality, contribute from his substance, upon terms of equality with all others, to the support of the government." Finally, Harlan pointed out the ultimate contradiction of the decision: "Arguments that rest upon favoritism by the lawmaking power to particular sections of the country and to mere property, or to particular kinds of property, do not commend themselves to my mind, for they cannot but tend to arouse a conflict that may result in giving life, energy, and power as well to those in our midst who are eager to array section against section as to those, unhappily not few in number, who are without any proper idea of our free institutions, and who have neither respect for the rights of property nor any conception of what is liberty regulated by law."
The Issue was not laid to rest until 1913 when the ratification of the Sixteenth Amendment to the Constitution gave Congress the power to collect income taxes.
1896 Plessy v. Ferguson, 163 U.S. 537
Justice Henry B. Brown
Dissent: Justice John Marshall Harlan
OOOThe majority of the Court held that racial segregation in passenger train accomodations, so long as they were equal, did not violate either the 13th or 14th amendment to the Constitution. Brown wrote that simple separation of the races conferred no inferiority - certainly no badge of servitude. If it did, Brown wrote, it was "...solely because the colored race chooses to put that construction on it." Nor did he find any right under the 14th amendment endangered by segregation. His opinion was that the purpose of the 14th was to guarantee political equality, not social equality, or, as he put it, "...a commingling of the two races upon terms unsatisfactory to either." Indeed, he thought no legislation could achieve that kind of equality. Finally, it was the Court's opinion that as the statute regulated transportation only within the state, and that as it was a reasonable regulation, it legitimately fell within the state's police power and was outside the area of Constitutional review.
OOOHarlan's response was first that railroads were public highways even though they might be owned by private corporations, and that their public nature made their use a a matter of civil liberty; precisely the civil liberties guaranteed by the Constitution. Second, he directly rebutted the majority's contention that segregation implied no inferiority. He wrote that only someone "wanting in candor" could deny that the sole purpose of the statute was not to keep the races separate, but to keep Blacks out of white railroad cars; that so far from not being a badge of inferiority, the statute was enacted on the assumption "...that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens."
OOOToward the end of his dissent, Harlan wrote, "If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done."
OOOThe decision would be overruled in 1954 in Brown v. Board of Education.

1897 Allgeyer v. Louisiana, 165 U.S. 568
Justice Rufus W. Peckham
OOOAllgeyer was the first instance in which the Supreme Court overruled a state court's application of state law on the basis of the 14th Amendment's application of the Bill of Rights to the states: in this case, the Fifth and Fourtennth Amendments' "due process" clause.
OOOAllgeyer revolves around an insurance policy made by New Orleans cotton exporters, Allgeyer & Co., with Atlantic Mutual Insurance Co. of New York. Under the terms of the policy, it was Allgeyer's practice to inform AMIC by wire of cotton shipments from New Orleans to be insured under an open and continuing contract made in New York, with premiums to be paid in New York as well as claims, if any, to be paid there or to the intended recipient.
OOOLouisiana claimed, based on the communication from Allgeyer to AMIC, that this was a violation of state law forbidding out-of-state insurance companies doing business in Louisiana without complying with Louisiana's laws. Justice Peckham ruled that it was not.
OOOWhile conceding the state's police power within its jurisdiction, Peckham ruled that since the contract was made in New York, was operative in New York, it was therefore outside the jurisdiction of Louisiana. The communication from Allgeyer was merely incidental to the contract, and under the 14th amendment's prohibition of deprivation of liberty without due process of law, Louisiana had no right to prevent its citizens contracting outside the state. The "liberty" interest Peckham found was the same found by J. Bradley in his dissent in the Slaughterhouse Cases: "The 'liberty' mentioned in that amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned."
OOOThis liberty theory of contract tied to labor, will reach extreme proportions in the Court's 1905, Lochner v. New York, below.
1897 Bram v. United States, 168 U.S. 532
Justice Edward D. White, J. Harlan, J. Gray, J. Brown, J. Shiras, J. Peckham, J McKenna
Justice David J Brewer, C.J. Fuller, J. Brown
OOOJIn Bram the Court overturned the murder conviction of one Bram based on its finding that statements made by him during interrogation, and used against him at his trial, were not made voluntarily. The Bram decision, by applying the Fifth Amendment to police interrogations, set the stage for Miranda nearly seventy years later.
OOOJThe interrogation was conducted by a single police detective with no other witnesses present. Bram, on entering the office where he was to be questioned was first ordered to remove his clothes, with the questioning apparently continuing with Bram in a nude or semi-nude state. The detective almost immediately told Bram that there was a witness to the murder. Bram's reply, on learning of the witness' position at the time, was to point out that someone so positioned could not have seen him. That statement was used against him at trial. The detective also said to Bram, "Some of us here think you could not have done all that crime alone. If you had an accomplice, you should say so, and not have the blame of this horrible crime on your own shoulders."
OOOJWhite first pointed out that the circumstances and Bram's nudity produced an environment of fear. Next, White observed that by confronting Bram with a possible witness to his crime, the officer coerced a reply from Bram, who might reasonably fear that remaining silent would have been used against him at trial - not an impossibility at the time. Moreover, White found that the detective's subsequent statement held out an unfair hope that a confession might produce some unnamed leniency for Bram. (It must be pointed out that no confession followed, and that Bram's incriminating statement preceded the detective's solicitation of one.) White produced a plethora of precedents, mostly English, showing that confessions, or incriminating statements made out of fear or false hope engendered by an interrogating officer were inherently involuntary and, by virtue of the Fifth Amendment, inadmissible in court.
OOOJIn dissent, Brewer found nothing inherently coercive in the interrogation, pointing out that part of what White found coercive - the detective's request that Bram share the guilt by revealing his accomplice - produced no culpatory statement whatsoever. In reviewing the interrogation, Brewer concluded, "...there is nothing which by any possibility can be tortured into a suggestion of threat or a temptation of hope. Power [the detective] simply stated the obvious fact that they were trying to unravel a horrible mystery, and the further fact that Brown had charged the defendant with the crime, and the replies of Bram were given as freely and voluntarily as it is possible to conceive. It is strange to hear it even intimated that Bram up to this time was impelled by fear or allured by hope caused in the slightest degree by these statements of Power."
OOOJA further issue in the case was the relevance to appeals of the defence's timing of objections during the trial. Defense objected twice; once when the detective was called to testify, and once when the detective was about to relate the substance of the interrogation of Bram. In the latter instance, Bram's counsel specifically challenged the voluntary nature of Bram's statements. Based on the rule that questions not arising in the original trial cannot form the basis for appeal, White found the defense's objections sufficient. Brewer did not; writing that since defense council did not object to the detective's testimony after it was given, the actual content of the testimony could not become a matter for appeal.
1905 Lochner v. New York, 198 U.S. 45
Justice Rufus W. Peckham, C.J. Fuller, J. Brewer, J. Brown, J. White, J McKenna, J. Day
Dissent: Justice John Marshall Harlan
Dissent: Oliver Wendell Holmes
OOOJJoseph Lochner, a bakery owner in Utica, New York, was fined for requiring his bakers to work more than sixty hours per week in violation of a New York statute forbidding such a requirement. The case came before the Court which ruled on the constitutionality of the statute. The majority found it unconstitutional.
OOOPeckham, while agreeing that a state's police power allowed it to regulate certain private activities directly effecting the health or morals of the community found no such basis for New York's statute. The profession of a baker, he wrote, was no more or less healthy than any other, and the state had no reason to single it out for regulation. Nor, Peckham continued, was there any question of coercion, or of involuntary labor, as there was no evidence of physical force applied against the bakers to get them to work. Indeed, as far as Peckham was concerned, the statute interfered with the voluntary and implied "contract" between the bakery owners and the bakers for the bakers' labor.
OOOIt is telling that Peckham emphasized this "contract" as a boon to the bakers, guaranteeing to them the right to work as much as they wanted: "The employee may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it." While that may have been literally true, it is unlikely to have described the reality of the time. It was probably not true that bakers clamored to work more than sixty hours a week until their employer "permitted" them to do so. It was more likely that, outside of "physical force" employers had ways of coercing their employees' labor. Peckham rejected this idea without directly confronting it: "There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State."
OOOPeckham's extention of the "liberty of contract" (in this case where no real contract existed) was meant to establish the legal idea that both employers and employees were equal partners in the labor market - an idea contradicted by reality - and also, through the contract clause of the Constitution, to remove the entire issue from interference by the state. According to Peckham, the actual intent of the statute, and what the Court was to do about it, was clear: "It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives....It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employees...Under such circumstances, the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with without violating the Federal Constitution."
OOOUnderlying Peckham's opinion was his own abhorrence, and likely that of the majority as well, for a "paternal" state's interference with the liberty of the individual acting in a free market, an attitude which colored his entire legal career.
OOOIn dissent, Harlan, conceded much to Peckham, but gave a nod to reality: "It may be that the statute had its origin, in part, in the belief that employers and employees in such establishments were not upon an equal footing, and that the necessities of the latter often compelled them to submit to such exactions as unduly taxed their strength. Be this as it may, the statute must be taken as expressing the belief ...that...labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor." For Harlan, aside from any economic theory, that was enough to take the state at its word: "We are not to presume that the State of New York has acted in bad faith...We cannot say that the State has acted without reason, nor ought we to proceed upon the theory that its action is a mere sham. Our duty, I submit, is to sustain the statute as not being in conflict with the Federal Constitution..." and later, "The responsibility therefore rests upon legislators, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom, annul statutes that had received the sanction of the people's representatives."
OOOIn short, the "paternalism" of the state - how and whether it legislates for the health, safety and well-being of its citizens - was for the citizens themselves to decide through their legislatures, and not to be second-guessed as a matter of correcting what the Court believed to have been an erroneous social or economic policy.
OOOHolmes' dissent was brief, but more direct. "This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.", and later, "Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.", and finally, "I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us."