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32 J. Sup. Ct. Hist. 162 (2007)
The Four Good Dissenters in Pollock

handle is hein.journals/jspcth32 and id is 166 raw text is: The Four Good Dissenters in Pollock CALVIN H. JOHNSON* The overall theme ofthis lecture series is great dissenters. This contributionto the series is on the dissenters in the 1895 case of Pollock v. Farmers' Trust & Loan Co. In Pollock, the Supreme Court decided, by a vote of 5-4, that the 1894 federal income tax was unconstitutional. The four dissenters-Justice Henry Brown of Michigan, Justice John Marshall Harlan of Kentucky, Justice Howell Jackson of Tennessee, and future Chief Justice Edward D. White-would have upheld the tax. Dissenters appeal to future historians, or, as Justice Jackson said, dissenting in Kore- matsu, to the moral judgments of history.2 As to Pollock, we have become the history that makes the judgments. This small slice of his- torical judgment concludes that the four dis- senters in Pollock did just fine. These four are conservative, sound, good Justices, loyal to set- tled doctrine, good sense, history and the orig- inal intent of the Constitution. Under the Constitution, direct taxes have to be apportioned among the states by popula- tion. Originally, the formula was population counting slaves at three-fifths-and, indeed, taxing slaves was the original reason why ap- portionment came into the Constitution. The dissent and the majority in Pollock disagreed on whether the income tax was a direct tax. The four dissenters in Pollock would have followed existing case law. The Supreme Court had twice before held that an income tax was not a direct tax.3 Under the established doc- trine going back to the time of the Founders, apportionability was a necessary element of direct tax. If apportionment was not reason- able, therefore, the tax was not direct.4 The rationale for the line of cases with the most cogency and force, said Joseph Story, was that no tax could be a direct one, in the sense of the constitution, which was not capable of apportionment according to the rule laid down in the constitution.' All four of the dissenters said that the century of precedents settled the issue.6 The majority in Pollock decided that the income tax was a direct tax that failed for want of apportionment. The majority believed that the function of allocation by population was to prevent an assault on wealth, so they ap- plied the allocation requirement aggressively. In April 1895, the majority decided that a tax on land was a direct tax, and then decided that

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