WOE UNTO YOU, LAWYERS!

Thus, the reasoning of the Court in Senior v. Braden boils down to something
like this: -- The nine judges who held our jobs almost 20 years ago, in deciding a
problem of federal court procedure, expressed the general principle that certain
pieces of paper, giving their owner certain rights, were not, technically, “choses in
action.” Therefore, what Max Senior, whose trust certificates read something like
those pieces of paper, really owns is land. Some of that land is outside Ohio. Ohio is
trying to tax some of the profits Max Senior made out of his stake in that land. The
tax, even though it is measured by the profits so that it works like an income tax, is
called a property tax in the statute. Therefore it is a property tax. Since it is a
property tax it is a tax on what Max Senior owns. But what Max Senior really owns
is land, some of it outside Ohio. Therefore Ohio is trying to tax land outside Ohio.
But we have a principle that no state has “jurisdiction” to tax land outside its own
borders. We also have a principle that a state tax on something which the state has
no “jurisdiction” to tax deprives the taxpayer of his property without due process of
law and so violates the Fourteenth Amendment. Therefore, Ohio’s attempt to collect
a tax from Max Senior is forbidden by the Constitution. Therefore, Max can keep
his hundred-odd dollars.
Nor, if you can hold on just a little longer, is that all there is to Senior v.
Braden – although it is all that can be explained even by the circular, irrelevant
abstractions of legal logic. For Max was allowed to keep every cent of the
hundred-odd dollars that Ohio was trying to take from him in taxes. Yet part of the
land that Max had a stake in was not outside Ohio at all; it was inside Ohio. So even
if it was a property tax, and even if what Max owned was really land, why couldn’t
Ohio tax the land inside its own borders? What was unconstitutional about that?
There isn’t even a legal answer. The Supreme Court’s “jurisdiction”
principles under the Fourteenth Amendment allow – as they would obviously have
to allow – a state to tax its own land. True, the Ohio land that Max had a stake in had
already been taxed once that year under a regular property tax. So, considering the
tax in the case as a property tax, that made two property taxes on the same land. But
there is nothing in the Constitution that forbids a state to do that if it wants to. There
is not even a Supreme Court principle that forbids it, the Court’s rule against double
taxation applying only to taxation of the same thing by two states. The Ohio
constitution might well have forbidden it. But the job of saying what the Ohio
constitution forbids or doesn’t forbid is, in legal tradition, exclusively the job of the
Ohio courts. And the Supreme Court of Ohio had said that, so far as it was
concerned, the tax on Max Senior was entirely constitutional.
Of course, there was that double-dare of the state’s lawyers in the case, to the
effect that if the Supreme Court was crazy enough to call the tax a tax on land, then
the Court might just as reasonably throw out the whole tax. Apparently what the
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