Here's another law professor's take on Brushaber:
Edward White, one of the four dissenters in Pollock, had now become Chief Justice. Understandably, he reserved to himself the task of writing an opinion for a unanimous Court in which the Justices made their peace with the progressive income tax. White rightly emphasized that the original Constitution had granted the federal government plenary powers of taxation, and that the "direct tax" provision was only a limitation on the exercise of this power in a narrow class of cases. The point of the Sixteenth Amendment was not - as the bitter-enders absurdly supposed - to impose further burdens on the taxing power, but to overrule Pollock. White resoundingly rejected the notion that the Due Process Clause might be used as a new weapon against the redistributional potential of the income tax. On the level of operational reality, the Chief Justice triumphantly led his Court into a brave new world where Congress had wide discretion to pursue distributive justice through progressive taxation.
But he paid a doctrinal price for his unanimous opinion. While his dissent in Pollock, like Harlan's, had roundly denounced the majority for departing from the constitutional tradition of restraint established by Hylton, the opinion he now wrote for the Court took a gentler view of Pollock. To see the point, recall that the Pollock majority had departed from tradition in two different ways - first, by expanding the category of "direct taxes" far beyond real estate to embrace personal property such as stocks and bonds; and second, by expanding the category yet further by tracing income back to the underlying asset, and declaring that the income was "direct" if it derived from any form of property. This two- pronged expansion gave White two rhetorical alternatives as he turned to the task of writing his opinion overruling Pollock. On the one hand, he could overrule both prongs of Pollock, and firmly return the law to the Hylton tradition of restraint that had been consistently followed before 1895. On the other, he could write a narrower opinion that only overruled the second prong.
White chose the narrower course - finding that the Sixteenth Amendment had explicitly overruled Pollock's effort to trace income back to its source when it authorized Congress to tax income "from whatever source derived" - and he did so in ringing terms, decrying Pollock's "mistaken theory." Since this narrow holding was sufficient to sustain the progressive income tax, White could afford to be more charitable concerning the other great doctrinal expansion effected by Pollock - which had broadened "direct taxes" from a narrow focus on capitation and real estate to all property, including stocks and bonds. It is here where he treated the decision with a surprising gentleness. Though White had been a dissenter in Pollock, he did not declare that the case had been incorrectly decided in the first place; nor did he construe the Sixteenth Amendment as encouraging the Court to return to the traditional Hylton view that limited "direct taxes" by the rule of reason.
To the contrary, he went so far as to suggest that "at least impliedly" the Amendment actually approved Pollock's expansionary reading of the "direct tax" clauses to sweep far beyond the traditional duo of capitation and real estate taxes. As we have seen, White's suggestion was factually incorrect - indeed, the language of the Amendment had been expressly changed to eliminate any such "implication."* Since White himself had dissented from Pollock's expansion of the "direct tax" category, it is likely that he made his historically inaccurate remarks to gain the vote of more conservative Justices and thereby win a unanimous Court on the crucial issue of the day: the legitimacy of broad-ranging and progressive income taxation. If this united front could be obtained by some surprising and inaccurate, but strictly irrelevant, praise of Pollock, it was a price worth paying.
Bruce Ackerman, Taxation and the Constitution, 99 Columbia Law. Rev. 1 (1999)(footnotes omitted)
* Ackerman is referring to the fact that one of the original versions of the Amendment, introduced by a leader of the Republican conservatives, read as follows: "The Congress shall have power to lay and collect direct taxes on incomes without apportionment among the several States according to population."
This text conceded the Progressives their minimal objective by explicitly authorizing a national income tax without state apportionment. But through a clever verbalism, it aimed to transform this tactical retreat into a long-run conservative victory. To see the trick, recall that the courts had, before Pollock, included only two kinds of taxes - capitation and real estate - within the "direct" category. By calling the income tax "direct," Brown was explicitly endorsing the Pollock majority's vast expansion of the concept. If his gambit had been successful, the Sixteenth Amendment would have been Janus-faced - authorizing Congress to levy income taxes without state apportionment, but requiring apportionment for a vastly expanded group of "direct" taxes that had, previously to Pollock, been well within Congress's power to impose on a nationally uniform basis.
The gambit was not successful. Rather than accepting Brown's formulation, Senator McLaurin, speaking for the Progressive coalition, immediately rose to propose an alternative that would have utterly obliterated the concept of "direct taxation" from our constitutional law:
Mr. McLaurin. I think if the Senator from Nebraska [Brown] will change his amendment to the Constitution so as to strike out the words "and direct taxes" in clause 3, section 2, of the Constitution, and also to strike out the words "or other direct" in clause 4 of section 9 of the Constitution, he will accomplish all that his amendment proposed to accomplish and not make a constitutional amendment for the enacting of a single act of legislation.
Mr. Brown. That may be true, Mr. President; but my purpose is to confine it to income taxes alone ...
This colloquy neatly defined the polar limits of constitutional possibility as they were perceived at the time - under the progressive scenario, Congress should explicitly repudiate the very idea of "direct" taxation; under the conservative, it should explicitly embrace Pollock, carving out an exception "confined ... to income taxes alone." But in the end, Congress embraced neither extreme.
As a formal matter of parliamentary procedure, Brown's amendment served as the basis for the entire debate on the Senate floor - serving as a symbol for the dominance of conservative Congressional leadership. But the realities were quite different. Before allowing a full-scale discussion on the floor, the Senate Committee on Finance reconsidered Brown's amendment, and made a proposal of its own:
"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States and without regard to any census or enumeration."
This text dominated floor debate, and ultimately became the Sixteenth Amendment. Its language represents a major retreat from Brown's conservative ambitions. Gone was his express vindication of Pollock's decision to expand the category of "direct" taxation; in its place we find an explicit repudiation of Pollock's effort to expand the category by insisting that an income tax, from whatever source derived, should be immune from the rule of apportionment.
To be sure, the amendment still did not go all the way to the complete repeal of the "direct tax" clauses - a point noted by Senator McLaurin, who, along with other Progressives, continued to assert the superiority of a head-on confrontation with the Supreme Court. But once Taft had joined forces with the Republican leadership, the Progressives recognized that they had no chance of succeeding with their statutory effort to force the Court to make a "switch in time." Now that the language of the constitutional amendment had been revised to eliminate all explicit endorsement of Pollock's reasoning, Progressives had no realistic choice but to go along. Representative Hull said it best: "I shall vote for the proposed amendment, but with the distinct understanding that I in no wise abandon my conviction that the decision in the Pollock case was wrong ...." The Sixteenth Amendment passed through Congress with overwhelming majorities - the conservatives jubilantly embracing it as a substitute for the real thing, the Progressives grimly accepting it as the best available compromise with reality.
"Run get the pitcher, get the baby some beer." Rev. Gary Davis
