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would withdraw their opposition if amendments were adopted in the nature of a bill of rights. These amendments have been called truisms, and so some of them are; but the amendment declaring that "the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people;" and that "the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people," are of cardinal importance, and derive peculiar authority from the fact that in a period when there was every opportunity for calm consideration they were unanimously adopted. The thirteenth, fourteenth, and fifteenth amendments were adopted under very different circumstances. The wounds of the civil war were still fresh ; the southern states had, it is true, abandoned all further opposition to the government, but a large majority of the previ ously dominant race had been disfranchised, and the control of these states had passed into the hands of men in thorough unison with those who desired to incorporate into the constitution provisions which would thoroughly protect the negro race in the freedom which was one of the necessary consesequences of the war. How far the withdrawal of the assents given to these amendments by the legislatures of New York, New Jersey, Ohio, and Oregon were operative2-what weight is be assigned to the position that the assent of the southern states was given by legislatures which were not freely elected under republican constitutions-are questions which were once argued with much zeal, but which have lost their interest, since the amendments have been repeatedly ratified by

1 Infra, §§ 584, 593.

2 New Jersey and Ohio assented to the fourteenth amendment, and afterwards, before three-fourths had assented, withdrew their assent. The assent of Oregon was withdrawn after the majority of three-fourths was obtained. New York, after assenting to the fifteenth amendment, withdrew her assent before three-fourths of the states had assented to that amendment. The subsequent restoration of the seceding

states, all of whom ratified the amend-
ments, made it unnecessary to deter-
mine how far the withdrawals of as-
sent above mentioned were operative.
The question, however, is now set at
rest by the acceptance by the federal
supreme court without contest of the
amendments as validly adopted, and
by a similar acceptance by all the
state courts. As to reconstruction acts,
see infra §§ 584 et seq., §§ 593-6.
3 Infra, § 593.

the supreme court of the United States, as well as by the southern states themselves after the reconstruction era closed. It may be a matter of regret that these amendments did not place around the Indians, whose ancestors occupied our land, the same safeguards as are placed around the negro. It may be, also, a matter of regret that Asiatic emigrants should not receive the same protection. But, taking them in the sense given to them by the supreme court of the United States, it may be safely asserted that the enfranchisement clauses are now sustained by a vast preponderance of sentiment both northern and southern. And the clauses prohibiting arbitrary state legislation are likely to be at least as beneficial, in their operation, as the prior amendments restraining arbitrary federal legislation.2

§ 401. From the obstacles interposed by the constitution in the way of its own amendment, several inferences. to be drawn may be drawn tending to strengthen the positions taken in previous sections.


from the

obstacles in way of amendment.

(1) The hypothesis that the majority of the aggre gate nation is to determine its destinies, as we have already seen, is negatived by the fact that the people are so distributed in states that a majority in the electoral college, and in both houses of congress, may represent what is a numerical minority of the people of the nation as an aggregate. We are here, in addition, met with the remarkable fact that a minority of a little more than one-fourth of the legislatures of the states, which may represent an even smaller minority in the popular vote, may preclude permanently the adoption of constitutional amendments.

(2) The impediments placed in the way of rapid and impulsive legislation, with which the traditions of the people had familiarized them, have here their most striking exhibition. The amendment of the constitution is thus made a long process. An amendment, if specifically proposed, must first go through each house of congress by a majority of two-thirds. It must then go to the states, and so various are the terms of tenure of the state legislatures that a period of deliberation must inter

Infra, §§ 434, 435, 585.

2 See supra, § 373, infra, §§ 584 et seq., 593-596.

vene which must necessarily block the way of hasty action. the constitution were not couched in terms less cautiously selected-if these terms were not, so far as the practical working of government is concerned, sufficiently broad and elastic to allow for the adaptation of legislation to the country's growth and development-the interposition of these checks might work serious mischief. As it is, they have worked beneficently since they have tended to strengthen three salutary and important principles. First, the constitution is an aggregate of compromises which should not be disturbed except on long deliberation and by a very large majority. It is the outgrowth, in part of past, in part of constant national conditions; and no nation can be safely separated either from its past or from its constant conditions except by slow processes caused by the change of these conditions making continuity with the past impracticable. Second, organic changes in government should be slowly made. The fewer changes of this class are made the more completely a nation is left to develop itself, within the limits of a liberal but settled system-the greater is the opportunity for growth of the people in strength and prosperity.

(3) The elaborate processes of amendment prescribed give an additional proof that the constitution was intended to be, to recur again to the words of Chief Justice Chase, an indestructible union of indestructible states. Perpetual protection against subversion, coupled with the power of self-amendment on great emergencies when required by the general sense of the community, are here guaranteed. The right of voluntarily setting aside the whole system by the action of a single state cannot coexist with the solemn and anxious stipulations here introduced that if more than one-fourth of the states object to a change, no change is to be made.


§ 404. The first power specifically given to congress is as follows: "The congress shall have the power to lay

and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and

Power of

taxation congress,

vested in

but taxing

must be uniform.

general welfare of the United States, but all duties, imposts, and excises shall be uniform throughout the United States." The first observation to be made on this clause, is that the words " provide for the common defence and general welfare of the United States," are a qualification of the taxing power. The taxation is "to pay the debts and provide for the common defence," etc. Congress, at least by this clause, has not power to "provide for the common defence and general welfare." How far it can do this is determined by subsequent clauses. Whatever it has power to do under such clauses, this clause authorizes it to impose taxes! to pay for. The next observation to be made is that such taxes are to be uniform. This, however, does not make it necessary that each state should have only a fixed quota in proportion to its wealth to pay. A stamp tax, for instance, will bear much more harshly on a commercial than on a farming community; but a tax on stamps is not thereby unconstitutional. The only limitation, therefore, on taxation, so far as concerns its operation, is that of formal uniformity. The object of the limitation is to prevent capricious or oppressive discriminations such as those which during the middle ages made the Jews and other odious classes the parties on whom peculiar burdens were to be imposed. But the limitation does not preclude the taxing of particular lines of business. It merely requires that particular sections, or particular lines of popu lation, should not be singled out as such for peculiar taxation.2

1 Const., Art. I. § 8, cl. 1.

2 That taxing must be uniform, and that the fourteenth amendment makes this obligatory on the states, see infra, §§ 588, 599; Cummings v. Bank, 101 U. S. 153; Weightman v. Clark, 103 U. S. 256; State v. Runyon, 41 N. J. L. 98; Wiggins Ferry Co. v. East St. Louis, 102 III. 560; Appeal Tax Ct. v. Rice, 50 Md. 302; North Carolina R. R. v. County, 82 N. C. 259. Under a state constitution prescribing that taxing must be uniform, unequal valuations by a board of assessors are unconstitu

tional, and such unequal action may be restrained in equity. Cummings r. Bank, 101 U. S. 153; see Livingston v. Darlington, 101 U. S. 407. As to uniformity in reference to state laws, see infra, §§ 482, 588. As to effect of fourteenth amendment, see § 588. Under the Federal constitution, a tax levied by act of congress on the deposits in savings banks is a tax on the banks, and not on the depositors, and is therefore uniform and not unconstitutional. German Savings Bk. v. Archbold, 15 Blatch. 398. That the

"Tax" a


405. So far as concerns its nature, it may be stated that "tax," in its general sense, includes all imposition laid by sovereign on subject for the purpose of generic revenue. In the clause before us, however, are added, as if by way of explanation, "duties, imposts, and excises." "Duties" and "imposts" have the same meaning, being taxes levied on articles imported or exported.' But the term "tax" is to some extent explained by the more technical terms "duties, imposts, and excises." It is wrested by this association from the general range to which it might otherwise be assigned, and placed among terms of art used to express stated government levies for public support. Taken by itself it might include benevolences or other exactions, such as the Tudor sovereigns occasionally imposed. As qualified, however, by the succeeding terms, and as restrained by the provision as to uniformity, it is to be regarded as denoting a uniform levy on persons or property made in conformity with preannounced law.


sarily conditioned on


§ 406. Notwithstanding the position taken by leading statesmen in this country during the Revolutionary war, the supreme court of the United States has not necesheld that there is no such necessary connection between taxation and representation that the taxa- representation of an unrepresented section is of itself unconstitutional. It is competent, therefore, for congress to tax the District of Columbia and persons on land ceded to the United States for naval or military purposes, though such sections are not represented in congress; and the same power extends to unrepresented territories. Perhaps the two positions may be reconciled by holding that while in all widely extended countries there are exceptional or transitional cases in which unrepresented areas of territory are not taxed, it is a general rule of liberal politics that no taxes can be imposed on a country as an aggregate unless they have been imposed by the aggregate representatives of the country.

distinctions in the text were accepted

on all sides on the adoption of the constitution, see Madison Papers, 302509.

1 See National Bank v. U. S., 101 U. S. 1

2 Loughborough v. Blake, 5 Wheat. 317. As to Indians, see supra, § 26.

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