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Consistency further required that the party in power introduce the proposition. Therefore, and with further appositeness, Nelson W. Aldrich [R. I.), the Republican leader in the Senate on the tariff bill, on June 28, 1909, while the tariff bill was still under discussion, reported from the Committee on Finance a joint resolution proposing the submission to the States of the following amendment to the Constitution:
Article XVI. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States and without regard to any census or enumeration.
The resolution was based on one which had been offered on April 27 by Norris Brown [Neb.] and referred to the committee.
The resolution came up for discussion on July 3.
THE INCOME Tax [CONSTITUTIONAL AMENDMENT)
SENATE, JULY 3, 1909
ANSELM J. McLAURIN (Miss.).-Mr. President, I do not believe that there is any necessity for any constitutional amendment to authorize the Congress of the United States to enact an income tax. Whatever may be the intention in bringing forward the proposed amendment, I think the effect will be to defer the enactment of any law providing for an income tax. I think the effect of it will be that there will be probably more than fourth of the States of the Union which will refuse to ratify the action of Congress when this proposed amendment to the Constitution is presented to the States for ratification, and then I think that will be presented to the Supreme Court of the United States as an argument why an income tax should be held to be unconstitutional. I think it would be urged as a very plausible argument before the Supreme Court of the United States that the people are not in favor of an income tax and do not believe that an income tax would be constitutional.
I cannot conceive that there can be any necessity for any constitutional amendment. If I understood the vote yesterday, the proponent of this proposed constitutional amendment voted against the income tax.
SENATOR BROWN.-I voted for an income tax.
SENATOR MCLAURIN.—The Senator from Nebraska, as I heard it, voted to substitute the corporation tax for the income tax.
SENATOR BROWN.-I did. A corporation tax is a tax on incomes, which the court has sustained. I voted for that which the court sustained and rejected that which the court rejected.
SENATOR McLAURIN.—I do not see that the Congress of the United States should be called upon to zigzag around the inconsistent rulings of the Supreme Court of the United States. Without intending any reflection upon that tribunal, it is composed of men just exactly as the Congress of the United States is composed of men. I believe there are just as good lawyers in the House of Representatives and in the Senate of the United States as there are on the Supreme Bench.
SENATOR BROWN.—That is true; but they are not on the bench.
SENATOR McLAURIN.—I know that the members of the Senate and the members of the House are not on the Supreme Bench, but that does not necessitate nor argue for the abnegation of the right of the Senators and Representatives in Congress to pass their judgment upon a constitutional question. It is for us to pass that which we consider to be a constitutional law, and it is for the Supreme Court to undo it or not, as it sees proper.
On July 5 William J. Stone [Mo.) supported the Brown resolution.
I wish to read a declaration contained in the Democratic national platform which was promulgated at Denver in 1908. It is as follows:
We favor an income tax as part of our revenue system, and we urge the submission of a constitutional amendment specifically authorizing Congress to levy and collect a tax upon individual and corporate incomes, to the end that wealth may bear its proportionate share of the burdens of the Federal Government.
That declaration, clear and explicit, is alone sufficient to determine my attitude with regard to the resolution to be voted upon to-day. I am gratified to note this one more example, in addition to those I have heretofore pointed out, of Republicans following in the wake of Democratic leadership and along lines blazed by our Democratic pioneers. The President has taken his stand on the Denver platform, and a Republican Senator has culled one of its declarations and formulated it into the legislative proposition now before the Senate.
Mr. President, fear has been expressed that more than onefourth of the States will withhold their consent to the amendment and reject it, and then it is apprehended that an argument will be based on that circumstance to induce the Supreme Court to adhere to the doctrine announced in the Pollock case if ever the constitutionality of an income tax is again before that tribunal.
Mr. President, I cannot persuade myself that more than onefourth of our American States will reject this proposed amendment to the Constitution. But if 12 States should by bare majorities in each reject the proposition, and 33 States should agree to it, as they would by large majorities, it would still be manifest that the great body of the people favored the amendment. If the Supreme Court should be called upon to review the Pollock case, and should be inclined to return to its earlier and, I think, sounder rulings, namely, that an income tax was within the Constitution, I can see no good reason why the court would hesitate to adopt that course even if this amendment should fail of ratification.
Joseph W. Bailey [Tex.] offered an amendment to the Brown resolution.
I move to strike out the word “legislatures,” in line 5, and to substitute the word “conventions"; and in line 9, after the word "incomes," I move to add the words "and may grade the same.
Mr. President, of course the Senate will at once understand that the purpose of the first amendment is to submit the ratification of this proposed amendment to conventions called in each State for that purpose, rather than to the legislatures. Legislatures are elected with reference to many questions. Legislatures may be chosen upon local issues. The members may change their opinions, as members of the Senate have done upon this very question, between the time they are chosen to the legislature and the time when they are required to vote.
The second amendment, Mr. President, gives distinct and specific authority to graduate an income tax, and I think that necessary only as a matter of abundant caution. I would not, perhaps, have thought it necessary at all, except for the statement of Judge Brewer, in the case of Knowlton vs. Moore, where he dissents from the opinion of the court sustaining the validity of the inheritance-tax law upon the ground that Congress had no power to grade it.
SENATOR McLAURIN.—There are many Senators who believe that it is not necessary to have any amendment to the Constitution.
The mischief in reference to an income tax in every discussion of it before the court has grown out of six words, three of them in clause 3 of section 2 of Article I of the Constitution, and three of them in clause 2 of section 9 of Article I of the Constitution. In the first place it says:
Representatives and direct taxes shall be apportioned among the sev. eral States
The words "and direct taxes' in that instance, and in the next
No capitation or other direct tax shall be laid.
The words “or other direct” are the words that make the mischief in this clause 4 of section 9. With these six words stricken out of the Constitution in the places where they occur, as I have indicated, there could be no trouble about the levying and collecting of an income tax.
Senator McLaurin therefore proposed as a substitute for the Brown resolution to strike out of the Constitution the words indicated.
Joseph M. Dixon [Mont.] opposed the submission of the Amendment to State conventions.
In many of the States the expense of holding elections for delegates to a constitutional convention will be so large that the question of expense will be used as an argument against it. I think in my State it will cost the State $100,000 to hold its constitutional convention and the election for the choosing of delegates.
I am convinced this will complicate matters. On the other hand, if the joint resolution passes both the Senate and House, as it will undoubtedly, the governor of each State in the Union will certify to the next general assembly of the States the fact that the joint resolution has passed both Houses of Congress, and it will be brought directly and forcibly to the attention of the people in every State.
I for one believe that this amendment will carry in nearly every State of the Union. Suppose, as it has been intimated, that influences should be used in a State with the members of the legislature against it and that legislature returns and goes home without adopting the amendment, it makes it the burning live issue in that State. The joint resolution of Congress does not become functus officio because one legislature of a State at that time has not adopted it. It will rest on the legislatures that will assemble in the future, and whenever three-fourths have finally ratified it, whether it be one, two, three, five, or ten years, it then becomes a part of the fundamental law of the United States. I am thoroughly convinced that the convention method will complicate more than it will help.
WELDON B. HEYBURN (Ida.).-Does the Senator contend that it might be submitted to an indefinite number of subsequent legislatures, or would the action, either positive or negative, of the legislature to which it was first submitted exhaust the right?
SENATOR Dixon.—I presume if the legislative action were positive or negative it would be exhausted in that State.
SENATOR HEYBURN.— Then, if the legislature to which it was submitted failed to act that would be the equivalent of a rejection of the amendment.
SENATOR DIXON.-No; if the legislature failed to act, I do not think for a moment it would be.
SENATOR BROWN.—Unless some good controlling reason is presented why we should change our method of amending the Constitution, I do not think we can justify our vote against following the usual method. The legislature is an existing institution in every State. A convention would have to be arranged for. The legislatures, by virtue of the several State constitutions, meet every two years in most of the States. We do not have to wait for somebody to call a convention. The legislature is already called. We do not have to worry about the expense of the legislature, because the expense is already incurred.
In addition to all these objections, Mr. President, there is one other which ought to cause Senators in this body to vote against the proposed amendment for ratification by conventions. I know the fight that has been made in a large majority of the States of this country for a primary law. There has been a fight of the people in a majority of the States of the Union to get away from legislators who are nominated in conventions, and in many States they are now nominated at a primary. Members of Congress who used to be nominated in