The Fuller Court (1888–1910)


CourtSpeak: Pollock v. Farmers’ Loan & Trust Co.
General Income Tax Case (1895)

Chief Justice Melville Fuller (majority): “The power to tax real and personal property and the income from both, there being an apportionment, is conceded; that such a tax is a direct tax in the meaning of the Constitution has not been, and, in our judgment, cannot be, successfully denied, and yet we are thus invited to hesitate in the enforcement of the mandate of the Constitution, which prohibits Congress from laying a direct tax on the revenue from property of the citizen without regard to state lines, and in such manner that the States cannot intervene by payment in regulation of their own resources lest a government of delegated powers should be found to be, not less powerful, but less absolute, than the imagination of the advocate had supposed.”

Justice John Marshall Harlan (dissenting): “It thus appears that the primary object of all taxation by the general government is to pay the debts and provide for the common defence and general welfare of the United States, and that, with the exception of the inhibition upon taxes or duties on articles exported from the States, no restriction is in terms imposed upon national taxation except that direct taxes must be apportioned among the several States on the basis of numbers (excluding Indians not taxed), while duties, imposts and excises must be uniform throughout the United States.”

Justice Henry Billings Brown (dissenting): “But, however this may be, I regard it as very clear that the clause requiring direct taxes to be apportioned to the population has no application to taxes which are not capable of apportionment according to population…. While I have no doubt that Congress will find some means of surmounting the present crisis, my fear is that, in some in moment of national peril, this decision will rise up to frustrate its will and paralyze its arm. I hope it may not prove the first step toward the submergence of the liberties of the people in a sordid despotism of wealth.”

Justice Howell Jackson (dissenting): “The most natural and practical test by which to determine what is a direct tax in the sense of the Constitution is to ascertain whether the tax can be apportioned among the several States according to their respective numbers, with reasonable approximation to justice, fairness, and equality to all the citizens and inhabitants of the country who may be subject to the operation of the law. The fact that a tax cannot be so apportioned without producing gross injustice and inequality among those required to pay it should settle the question that it was not a direct tax within the true sense and meaning of those words as they are used in the Constitution.”


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