The Purpose and Powers of the Senate, Part LXXXII: Change and Changeability

            What is this all supposed to mean, you may well be asking? This lengthy diversion into the nature and idiosyncrasies of the United States Supreme Court? What it means, dear reader – and I beg with you to bear with me a little longer – is that the Court changes. Justices come and go, the balance between factions shifts, and the overall character of the Court is sometimes radically transformed as a result. Accordingly, from time to time, previously established precedents get tossed out. And increasingly, over the course of the late 20^th and early 21^st centuries, the Court has found itself at the center of electoral politics. Is this how the Court is supposed to work? This is a difficult question to answer. While it would seem a fair assessment of the Framers’ intentions to say that they did not design the Supreme Court to be a political body whose character and actions are innately tied into the nation’s larger electoral processes, the fact that this has become the case regardless does not necessarily represent a failure. Rather, it is simply what is. The supposedly non-partisan nature of the Supreme Court was always merely a norm. Rather than anything established by the text of the Constitution, it was instead simply promoted as a desirable practice which anyone with good sense would see the wisdom of adhering to. Bearing this somewhat rickety foundation in mind, it was therefore arguably inevitable that some group of American political actors would at some point realize that the Court could be made to function as an extremely effective means by which certain ideological objectives could be accomplished almost entirely outside of the formal democratic process. Indeed, one might argue that it was John Adams (1735-1826) himself, only the second president of the United States, who set the process of politicization in motion by having a lame-duck Congress confirm the appointment of fellow Federalist John Marshall (1755-1835) to the post of Chief Justice in 1801. Eager to frustrate what he assumed would be a long train of Republican successors in office, Adams specifically selected Marshall because he considered him to be ideologically trustworthy and because his good health and relative youth would ensure that he served for a lengthy tenure. 

            Which is all to say that Melville Fuller’s ruling in Pollock v. Farmers' Loan & Trust Co. need not have represented the last word of the Supreme Court on the topic of federal income taxes. As it stands, the supporters of said policy opted to pursue an amendment to the Constitution explicitly authorizing Congress to collect income taxes at the federal level without needing to apportion them among the states by population. What they could have done, however – and which the proximity of the Pollock ruling to the preceding Springer ruling arguably suggested they do – was turn the idea of a federal income tax into a campaign issue centered on the Supreme Court itself. If the replacement of a few justices made the difference between declaring a federal income tax constitutional and declaring it null and void, why not build an electoral strategy around appointing Supreme Court justices more amenable to progressive ideas? Consider, by way of an answer, the following counterfactual. If, in pursuit of the enactment of a national income tax law, the nation’s progressives lined up solidly behind the eventual Democratic Party candidate for president – one William Jennings Bryan (1860-1925) – it is possible that the eventual Republican victor – one William McKinley (1843-1901) – might instead have been defeated in the Election of 1896. In that event – and provided that progressive forces also succeeded in capturing a majority in the Senate – President Bryan would only have had to wait until the retirement of Stephen Johnson Field in 1897 for the chance to appoint an Associate Justice more amenable to the notion that incomes derived from property ownership could be taxed by Congress without having to be apportioned. The Pollock decision had only been a 5-4 ruling and Field had been in the majority. His replacement, along with the passage of another federal income tax law by Congress, would therefore arguably have resulted in a 5-4 vote in the opposite direction once the validity of the law in question was put before the Court.    

Without getting into how likely or unlikely the scenario described above might have been, it will here suffice to say that it was at the very least possible. It could conceivably have happened. The fact that it didn’t is attributable to many factors, among which was a decision on the part of the supporters of a federal income tax to pursue a constitutional amendment instead of seeking to purposefully change the character of the Court. Was the levying of a federal income tax simply too important to be left to the whims of a changing and changeable judicial majority? Arguably, it was not. As previously discussed, it was not absolutely essential at the turn of the 20^th century for the United States to begin collecting income taxes at the national level. There were other avenues that the American republic could have gone down. That the nation did ultimately enact a federal income tax in 1913 ought accordingly to be regarded as simply one choice among many. A majority of Americans were successfully convinced of the utility of allowing the federal government to begin collecting taxes on incomes and the result was the passage and ratification of the 16^th Amendment. Just so, the supporters of a federal income tax also made a choice when they settled upon an amendment as their preferred objective rather than fixating upon the Supreme Court. The latter approach might have succeeded. But for whatever strategic, or legal, or political reasons, the progressives opted for an amendment instead.

Which brings us back – fiiiiiinally – to the Senate debate of March 16^th, 1962. One of the ways Mississippi Senator James Eastland had attempted to dismiss Florida Senator Spessard Holland’s proposed anti-poll-tax amendment was to claim that the means being used simply did not suit the end. “It is no small matter [,]” he said, “when the framework of the U.S. Constitution is bent and torn to accommodate a transitory purpose, no matter how worthwhile the proponents of that purpose deem the goal they seek to achieve may be.” But what was it that made the abolition of poll taxes at the national level particularly transitory? Perhaps what Eastland meant to say was that the sudden rage against poll taxes evidenced by the wide-ranging support Holland’s proposal then enjoyed in the Senate was nothing more than a passing fad. Today it was poll taxes, tomorrow it would be literacy tests; civil rights fever seemed to have gripped a goodly portion of the Congress and caused otherwise reasonable men and women to propose all sorts of measures that were more optimistic than they were sensible. Granted, he may have had a point. A constitution isn’t supposed to be a comprehensive legislative corpus representative of the sum total of the nation’s contemporary socio-legal character. That is to say, it needn’t be exhaustively specific in the subjects it seeks to cover in order to serve a useful purpose. This is what laws are for. Laws, more than constitutions, are changeable, malleable, modifiable, and repealable. They respond to the changing priorities of the public at large without being so flimsy as to be easily disrespected or ignored. Constitutional amendments are comparatively solid and immovable. Only those precepts that receive near-universal support warrant being enshrined in a nation’s governing charter, and only those again whose object is not merely a matter of taste or opinion.

And really, weren’t poll taxes a fad in themselves? Over the course of American history up to 1962, they’d been adopted and repealed in a number of states at various points in time. Even in the post-Reconstruction Southern states controlled by segregationist majorities, the popularity of poll taxes had waxed and waned between the end of the 19^th century and the beginning of the 20^th. Indeed, while all of them adopted some form of poll tax between 1870 and 1902, the majority then went on to repeal these same measures between 1920 and 1953. Small comfort for those who suffered in the interim, of course, but also arguable proof that poll taxes were something of a transitory notion. States had adopted them and disposed of them as their opinions of their utility changed, and it was not necessarily unreasonable to conclude – circa 1962 – that the remaining five states in which poll taxes remained in force would sooner or later follow suit. In the meantime, if there existed a majority in Congress desirous of forcing the issue and banning poll taxes at the level of federal elections, said majority could always attempt to enact a federal statute. Naturally, the resulting law would be subject to later modification or repeal. But given the fact that only five states would be affected, the emergence of the required majority in favor of reinstating the poll tax would seem more than a little unlikely.

Yes, Eastland may indeed have had a point. It would have represented an oddly specific use of the amending power enshrined in the Constitution to ban something as demonstrably transitory as poll taxes had proven to be, particularly at a time when they appeared very much on their way out. Does this necessarily mean, however, that Eastland was right and Holland was wrong? That Congress should not have been pursuing a constitutional amendment banning poll taxes? No, it does not. The various powers possessed by the different branches of the United States Government are there to be used. Norms and traditions may be held up, at times, as a form of de facto regulation, but the only authorities that really matter are the Supreme Court and the Constitution itself. And as long as they give sanction for a particular actor or institution to act in a particular way, no other authority need realistically be consulted. Did it make sense for Congress to approve an amendment to the Constitution in 1919 banning the manufacture and sale of intoxicating liquors? Not particularly. In spite of the obvious political power that had been amassed by the temperance movement by the end of the 1910s, the consumption of alcoholic beverages was still an extremely common occurrence in almost all regions of the United States. It was therefore arguably inevitable that while a constitutional ban on the manufacture and sale of intoxicating liquors was likely to meet with ardent support among certain communities in certain states, the general response among the American people at large was going to be one of disobedience. Though it might accordingly be fair to describe the supporters of the 18^th Amendment as rather foolish in their estimation of this selfsame measure’s likelihood of success, it would nevertheless be incorrect to declare as a result that their pursuit of a constitutional amendment was fundamentally wrong.

Circa 1918, temperance advocates had the support of enough state legislatures to ensure that a prohibition amendment, once approved by Congress, would be ratified within the year. And they had enough support in Congress to ensure that a prohibition amendment would be approved by significant margins. This is all that has ever been required for anyone to secure an amendment on any subject at all. So long as the numbers add up, it doesn’t matter if they’re being foolish, or thoughtless, or even outright discriminatory. The Constitution does not differentiate between sensible amendments and senseless ones. Which is what made Senator Eastland’s comment about Senator Holland’s objective being “transitory” so rich. He was entitled, of course, as a member of the Senate to raise objections to the proposed anti-poll-tax amendment and give voice to his concerns in an attempt to sway his fellow legislators. And within the limits of decorum and good taste – as established by the Senate’s official rules of debate – he was allowed to say whatever he wanted in pursuit of his desired objective. It’s just that claiming an amendment banning poll taxes represented a transitory purpose would seem to be somewhat ineffective as a strategy.

            Not that long before – in living memory, in fact, for men like Eastland, Hill, and Russell – Congress had approved and the states had ratified an amendment to the Constitution making the consumption of alcohol functionally illegal. And then, even more recently – within the Senate tenures of sitting members Harry F. Byrd (1887-1966) and Carl Hayden (1877-1972) – Congress and the states had cooperated to pass another amendment whose only purpose was to repeal that selfsame prohibition amendment. Was this not the very definition of transitory? The 18^th Amendment had been in force for less than fifteen years when it was repealed in 1933. Suffice to say, that was all the time it took for the supporters of temperance to lose all of the influence they had accrued during the previous half-century. Was it not possible, then, for the supporters of Senator Holland’s anti-poll-tax amendment to likewise exhaust all their political capital once their objective was actually accomplished? Could the nation, as it had turned against prohibition, not turn against civil rights as well? Absolutely. Functionally speaking, however, this makes no difference as to whether or not a given amendment proposal could or even should be approved. Simply put, if the numbers are on its side, it will be approved. History had shown this, failures and all, and notwithstanding Eastland’s protestation to the contrary. “It is no small matter [,]” he said, “when the framework of the U.S. Constitution is bent and torn to accommodate a transitory purpose [.]” As of 1962, however, the horse was long since out of the barn. Senator Holland had the numbers. Practically speaking, nothing else really mattered.