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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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