Supreme Court has been the stronghold of Federalism and conservatism.

The determining influence affecting Supreme Court decisions outside of the realm of pure law are not entirely economics as certain writers seem to indicate. Economic influences and motives are apparent at all times in the decisions of the court. At times these motives have a determining influence which greatly affects decisions. This attitude is particularly noticeable in the general policy of the Supreme Court reflecting as it did a very strong feeling of investors and property owners that land grants and titles for land acquired through public agencies should be protected at all hazards regardless of whether such grants may have been fraudulent and as to whether the government and public interests might thereby suffer severely."

50

Though politics in the ordinary sense is often a determining influence in judicial decisions, judges frequently do not follow political inclinations in rendering their decisions. Instead of being subservent to political and economic views it is more likely that judges are influenced by conservative and traditional doctrines which have been inculcated through their training and experience. "Whilst our tribunals, or judges of whom they are composed, are swayed by

case in any European country . . . there are certain clauses in that instrument [Constitution] which have been even more effective in securing the property holders against adverse legislation than the Convention itself intended or expected . . . clauses which were first intended to prevent sectional strife, and to protect the people of one locality against arbitrary legislation in another, became a means of strengthening vested rights as a whole against the possibilities of legislative or executive interference . . . They indirectly became a powerful means of establishing the American Courts in the position which they now enjoy as arbitrators between the legislature and the property owner... It is to the work of judges like Marshall and Story and Kent that the actual position of the courts under the American Constitution is mainly due." Arthur T. Hadley, Undercurrents in American Politics, 33 ff.

50See Fletcher v. Peck, 6 Cranch 87, Warren, I, 392-399; United States v. Clarke, 8 Pet. 436 and United States v. Arrendondo, 6 Pet. 691, II, 241-245; Mitchell v. United States, 9 Pet. 711, II, 262-263; also III, 71-72; also, Gustavus Myers, History of the Supreme Court.

the prevailing beliefs of a particular time, they are also guided by professional opinions and ways of thinking which are to a certain extent independent of and possibly opposed to the general tone of public opinion. The judges are the heads of the legal profession. They are advanced in life They are for the most part persons of a conservative disposition . . . They are most likely to be biased by professional habits and feeling than by the popular sentiment of the hour."51

It has long been discovered that judges may be selected who are in every respect honorable and above reproach so far as personal influences and motives are concerned and that at the same time these judges, owing to their bias and traditional views, may become through those views the best agents to formulate and express doctrines favorable to property rights, vested interests and corporate privileges. It is for this reason that strong efforts have been made to secure appointments on the Supreme Court of men whose views along the lines of property and contracts are well known in advance. Another influence which has vitally affected the decisions of the Supreme Court is that of the extreme individualism developed in the West and under frontier conditions. This individualism has resulted in an over-emphasis on individual rights and liberties and has occasioned the lining up of Democratic appointees on the Court with some of the conservative members in the protection of property and vested rights. Thus Field, a Democratic appointee of Lincoln, joined with his Republican associates in extending due process so as to become a most effective restraint on state legislatures in regulating property interests and vested rights.52 Democrats united with Republicans in extending due process so as to remove from legislative bodies and commissions established by them the final power to fix the rates and charges of public service companies. In addition to such influences, judicial decisions are frequently affected by an unfamiliarity with eco

51A. V. Dicey, Law and Public Opinion in England, 361, 362. 52See note 46a.

nomic and social conditions. The members of the Supreme Court having received their training and a large part of their experience in an earlier generation are called upon to deal with economic conditions which are radically different from those with which they are familiar. Such unfamiliarity with or lack of sympathetic consideration of economic and social conditions is apparent in the decision of the Court in Lochner v. New York,53 which was later modified in the case of Muller v. Oregon and seems again to have been followed in the recent Minimum Wage decision.55 The characteristics of American traditional law are conservatism, individualism and certain capitalistic or commercialistic tendencies. These characteristics have been upheld in large part by the members of our courts who through training and experience, imbibed conservative and traditional dogmas and principles. These influences have a much more direct effect upon judicial opinions than what is regarded as ordinary partisan politics. The issues involved in this conflict and the part which the Court takes in the development of a conservative and commercialistic regime has been quite generally ignored by historians of the Supreme Court.

Viewed then from the standpoint of the underlying controversies in American history and from a fair and relatively impartial consideration of those controversies in relation to the Supreme Court, the work of Mr. Warren is open to serious criticism. An author, of course, is at liberty to write as a defender or advocate, presenting opposing ideas. and doctrines for the purpose of demolishing them, and, systematically aiming to give an impression of public men acting as if removed from the influences that affect men in the ordinary walks of life. From this point of view a distinct contribution has been made to American judicial history, whether one is disposed to agree or disagree with the author's bias.

53198 U. S. 45 (1905). 54208 U. S. 412 (1908).

55 Adv. Sh. Sup. Ct. (1922) 440.

Those who believe in the doctrine of constitutional interpretation of James Wilson, Hamilton, Marshall, Root,56 and Roosevelt57 namely, that as matters become national in importance, the President, Congress and the Supreme Court are expected by progressive interpretations to change the Constitution to accord the federal government power to regulate them, will, of course, agree with Mr. Warren that "the nation owes most of its strength to the determination of the judges to maintain the national supremacy" and will rejoice with him that the Court's actual decisions at critical periods have "steadily enhanced the power of the national government." On the other hand, those who believe in or are sympathetic with the Democratic point of view, or those who desire an impartial survey of American judicial history will find these volumes disappointing.

56 Address before Pennsylvania Society in New York, December 12, 1906: "Sooner or later constructions of the Constitution will be found to vest additional power in the national government."

57 Address at Harrisburg, Penn., October 4, 1906; "Federal governmental power should be increased through executive action

and through judicial interpretation and construction of the law."

STATE INCOME AND TAXATION1

E. T. MILLER

University of Texas

The term "state income" is an ambiguous one, as it may mean either the revenues of a state or the income of all persons who are domiciled in the state. latter sense in this paper.

It is used in the

Taxes are sometimes described as derivative revenue, because they are derived from the income of the taxpayers. In the last analysis they are deductions from the income of individuals. Today when there is, on the one hand, so much agitation for an increase of public expenditures for education, highways, etc., and, on the other hand, so much complaint about the weight of existing taxes, it is most essential that there should be considered what is the income of the people of the state, what proportion of this is actually taken by taxation, and how much may reasonably be taken.

The people in their sovereign capacity, through their constitutions, may or may not set limits to the taxing powers of their governments. As a matter of fact, there are limits to property taxes set in most state constitutions. But constitutional limits on, and governmental exercise of, the taxing power are simply products of political, economic, psychological, social and other factors. Some of these factors are the predominant political theory as to the scope of the functions of the state or as to how far state activity should succeed to, or interfere with, individual effort; the wealth and income of the people of the state, and those mental moods or attitudes which are called psychological. In so far as the extent of taxation is a matter of political expediency, the actual or feared reaction of the public mood is the most important factor. Wealth and income may re

1Paper read at the Fourth Annual Meeting of the Southwestern Political Science Association, Dallas, Texas, April 4, 1923.