WOE UNTO YOU, LAWYERS!

the income tax amendment gave Congress the power to tax incomes “from whatever
source derived.” The words could scarcely be plainer or stronger, and part of the
reason for writing them in was to put an end to the immunity rule so far as the federal
income tax was concerned. But the Court still says that it is unconstitutional for the
federal government to tax the income from state bonds. Thus, the unwritten piece of
the Constitution that the Court discovered all by itself carries more weight with the
Court than the written words of the document.
Finally, there was the time the Court was called upon to decide the delicate
question whether the salaries of federal judges could be taxed under the federal
income tax. The judges were not part of any state government, so they could not
come in under the mutual immunity rule. But there was another opening. The
Constitution says that the salaries of federal judges may not be reduced while the
judges are in office. Aha, said the Court; to make us pay an income tax on our
salaries the way everybody else does would clearly be just the same thing as making
us take a salary cut. And that, obviously, would be unconstitutional. Of course,
there was still that little phrase in the amendment – about incomes “from whatever
source derived.” But by a strange reversal of customary reasoning, the Court
seemed to feel that the old no-salary-cuts clause amended the amendment instead of
vice versa. Again, doubtless, a matter of principle.
So runs in brief the story of how Constitutional Law, the Highest Law of the
Land is laid down by the Supreme Court of the Land. Here is The Law at its best;
here are the lawyers at their most distinguished, their most powerful. Still
comparing piles of abstract, indecisive, and largely irrelevant principles as though
they were matching pennies on a street corner. Still draping in the longiloquent
language of a generalized logic the answers – some good, some bad – to specific
social problems. And purposing all the while to be applying the commands and
prohibitions of the U.S. Constitution. No wonder Charles Evans Hughes, long
before he became the Supreme Court’s Chief Justice, once blurted out with a
bluntness that is rare in lawyers” – “We are under a Constitution, but the
Constitution is what the judges say it is.”
And of course the judges themselves, as could scarcely fail to occur when the
rules of the game are so vague, are forever disagreeing about what the Constitution
is. Every man-on-the-street has heard of five-four decisions and dissenting
opinions. But a dissenting opinion, though it may make its author feel a lot better for
having written it, is in essence no more than a critical and occasionally literary essay.
What is said by the five or six or seven or eight justices who voted the other way is
The Law. It is just as much The Law so far as that case is concerned as if the
decision had been unanimous.
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