WOE UNTO YOU, LAWYERS!

(Judges and others have from time to time agreed with the general principles
just quoted. So do we.)
“The challenge judgment must be
Reversed.”
(Therefore, Max Senior – remember him? – doesn’t have to pay his tax.)
And that, ladies and gentlemen, is the opinion of the Supreme Court of the
United States in the case of Senior v. Braden.
* * * * *
In order to find out what the Supreme Court was talking about – and also what
it wasn’t bothering to talk about – in the case of Senior v. Braden, it is necessary to
go back a little into the general principles of Constitutional Law that presumably
“controlled” the decision. They start in the Fourteenth Amendment – despite the
fact that the Fourteenth Amendment played very little part in the Court’s opinion.
And of course they start in the “due process” clause.
The primary principle involved is to the effect that when a state tries to tax
something which it has no “jurisdiction” to tax, that amounts to an attempt to deprive
somebody of property without due process of law. Inasmuch as “jurisdiction”
means, loosely, “power,” such a rule seems not too unreasonable. At least, it seems
not too unreasonable once you have swallowed the Court’s habit of using the
Fourteenth Amendment for other purposes than the protection of negroes, and
others, against unfair criminal trials. But obviously that leaves it entirely up to the
Supreme Court to decide what a state has power or “jurisdiction” to tax and what it
hasn’t power or “jurisdiction” to tax. And in the course of deciding, the Court has
laid down a lot of sub-principles which give “jurisdiction” a special, if sometimes
indefinite, meaning.
The first sub-principle is that a state has no “jurisdiction” to tax land outside
its borders. And that – regardless of what relation it has or hasn’t to the Fourteenth
Amendment – seems eminently sensible and fair. It also seems eminently pointless.
For New Hampshire, for instance, would no more try to slap a property tax on a farm
in Iowa than the United States would try to tax a ranch in Argentina. There wouldn’t
be any way of collecting the tax and no state would be idiotic enough to try.
But, starting from that fair, if pointless, principle, the Court has gradually built
up other principles about what a state has or hasn’t “jurisdiction” to tax. A lot of
property today, like stocks and bonds and I.O.U’s and mortgages and trust
certificates, is not so solid and stationary as land, and so, occasionally, different
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