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Published online by Cambridge University Press: 02 September 2013
The work of the Supreme Court during the term concluded last June was quite unusual both in the nature of the problems involved and the importance of certain of the results achieved. The center of interest in constitutional interpretation has swung, for the time being at least, decidedly from questions of state power to those of national power. This is partly the aftermath of the war, partly the corollary of recent amendments to the Constitution. By the same sign, the court has been confronted in recent months with not a few problems of considerable novelty—some indeed being questions of first impression—with the result that it has been called upon to enunciate principles which must guide its interpretation of important provisions of the Constitution for years to come. In preparing this review, the unique quality of the court's work during the period under consideration ought to determine the procedure. Accordingly the greater part of the space is devoted to a few outstanding cases, all of which involve questions of national power, while less striking results have received much briefer consideration, often only cursory mention.
1 “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.”
By article 1, section 9, of the Constitution, “No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.” It was held in Pollock v. Farmers Loan and Trust Co., 158 U. S. 601, that a general tax on incomes derived from property amounted to a “direct tax.” The Sixteenth Amendment was designed to overcome the effect of this decision, but leaves the general provision respecting “direct taxes” standing. Whether income taxes are now to be regarded as “indirect” seems to be still a moot question. Compare Justice Pitney's opinion in the instant case with the Chief Justice's opinion in Brushaber v. Union P. R. Co. 240 U. S. 1.
2 252 U. S. The case was decided, after reargument, March 8, Justices Day, Holmes, and Brandeis, of whom the two latter prepared opinions, dissenting.
3 A clearer comprehension of the issue between the majority and minority of the court in this case will perhaps be aided by conceiving the following set of facts: The X W Z corporation, chartered under the laws of state M, is capitalized at one million dollars. A buys one hundred shares of stock at par, which is $100. Later the company accumulates a surplus of $200,000, with the result that A's stock is now worth $120 per share. At this moment the directors take up the question of what should be done with the surplus, and five possible courses are found to be open: 1. The surplus, which is at present held, let us suppose, in stock of the A B C corporation, may be liquidated and paid in cash to the stockholders of the X Y Z corporation. By Lynch v. Hornby (247 U. S. 339), A's share of the dividend, though extraordinary in amount and based upon earnings, or even upon increase in the value of the corporation assets, which accrued before the Sixteenth Amendment was added to the Constitution, is taxable income under the amendment. 2. Or the surplus may be paid in the stock held in the A B C company, in which case A's share of it is, by Peabody v. Eisner (247 U. S. 347), still taxable as income, under the same conditions as before. 3. Or the directors may decide that it is desirable to increase the capital assets of the company to the amount of the surplus, and with that end in view, they may arrange for an increase of stock to the amount of $200,000, to be offered to the stockholders pro rata at par at the same time that the cash dividend is paid as under “1.” In this case too, it appears, A would be taxed on his share of the dividend whether he availed himself of the option to subscribe for his prorata of the new stock or not (see J. Brandeis' dissenting opinion in Eisner v. Macomber). 4. Or the directors might decide to transfer the surplus directly to the capital account of the company and vote no dividend at all. In this case A's share of the benefit would still appear in the fact that his original stock stood at a premium, but probably would be taxable as income only if he sold this stock and then only to the extent that the proceeds of the sale represented a profit accruing to him—not the company—since 1913, the date when the Sixteenth Amendment was added to the Constitution (see Justice Pitney's opinion in Eisner v. Macomber). 5. Or finally, the directors might decide to transfer the surplus to the capital account of the company by issuing $200,000 worth of new stock against it, the new shares to be distributed among the stockholders prorata. A's share of the distribution would be 200 shares, representing a value of $20,000; and by Macomber v. Eisner would not be taxable as income under the Sixteenth Amendment, that is, without apportionment.
4 The first of these is Gibbons v. Mahon (136 U. S. 548) in which the court, following what is called “the Massachusetts rule,” decided that as between the holder of a life interest in an estate and the remainder man, the latter was entitled to receive a stock dividend. The decision turns of course upon the proposition that a stock dividend is not income and for this proposition the court urges several of the arguments which are reviewed above in Justice Pitney's opinion. The second precedent lies nearer to hand. It is the case of Towne v. Eisner (245 U. S. 418), in which the question at issue was whether the word “income” as used in the Act of 1913 included stock dividends. A unanimous court, speaking through Justice Holmes, who is a dissentient in Eisner v. Macomber, said no. It is true that Justice Holmes took pains to state in his opinion that the word “income” did not “necessarily” mean “the same thing in the Constitution and in the act” under review, but this does not prevent him from anticipating Justice Pitney in repeating the arguments which had been advanced in the Gibbons' case, arguments which are equally available, it would seem, to define the term “income” wherever it occurs. But the really compelling precedent is the decision in Lynch v. Hornby, which was noted above. This decision, clearly, could have been reached only by regarding the corporation and the stockholder as distinct entities, nor indeed could the tax there involved have been sustained under the Sixteenth Amendment on any other assumption. The majority of the court accordingly felt in the Macomber case, that Congress, having profited so conspicuously by this idea, ought also to shoulder its disadvantages. Indeed, Justice Brandeis himself virtually admits this degree of justification for the court's decision. He says:
“The equivalency of all dividends representing profits, whether paid in cash or in stock, is so complete that serious question of the taxability of stock dividends would probably never have been made if Congress had undertaken to tax only those dividends which represented profits earned during the year in which the dividend was paid, or in the year preceding. But this court, construing liberally not only the constitutional grant of power, but also the Revenue Act of October 3, 1913 [38 Stat. at L. 114, chap. 16, Comp. Stat. § 5291, 2 Fed. Stat. Anno 2d ed. p. 724], held that Congress might tax, and had taxed, to the stockholder, dividends received during the year, although earned by the company long before, and even prior to the adoption of the 16th Amendment. Lynch v. Hornby, 247 U. S. 339, 62 L. ed. 1149, 38 Sup. Ct. Rep. 543. That rule, if indiscriminatingly applied to all stock dividends, representing profits earned, might, in view of corporate practice, have worked considerable hardship, and have raised serious questions.”
Recurring to Gibbons v. Mahon, it should be noted that the “Massachusetts rule” has been generally rejected by the state courts in favor of the “Pennsylvania,” or as it is often called, the “American rule,” which is that “where a stock dividend is paid, the court shall inquire into the circumstances under which the fund had been earned and accumulated out of which the dividend, whether a regular, an ordinary, or an extraordinary one, was paid. If it finds that the stock dividend was paid out of profits earned since the decedent's death, the stock dividend belongs to the life tenant; if the court finds that the stock dividend was paid from capital or from profits earned before the decedent's death, the stock dividend belongs to the remainderman.” Justice Brandeis, citing Earp's Appeal, 28 Pa. St. 368. It should also be noted that the Massachusetts Supreme Judicial Court has refused to regard the “Massachusetts rule” as pertinent in determining whether a stock dividend is “income” for purposes of taxation, which is accordingly held to be the case. Trefrey v. Putnam, 227 Mass. 522.
5 See in this connection a communication by Smith, Charles Robinson in the Weekly Review, June 22, 1920.Google Scholar Retroactive income taxes—supposing there can be such a thing—are obviously a double injustice when the rate of taxation is progressive, for then the past accumulation swells the rate at which the total income is taxed.
6 252 U. S., decided June 1, Justices Holmes and Brandeis dissenting.
7 Article 3, section 1, which reads as follows: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.”
8 Quoting from the Federalist, Nos. 78 and 79; Marshall's speech in the Virginia Convention of 1829; Sparks', Writings of Washington, Vol. 10, pp. 35–36Google Scholar; Story's, Commentaries, Vol. 2, §1628Google Scholar; Kent's, Commentaries, Vol. 1, p. 294Google Scholar; Wilson's, WoodrowConstitutional Government, 17, 142.Google Scholar
9 Citing Brushaber v. union P. R. Co., 240 U. S. 1; Stanton v. Baltic Min. Co., ibid., 103; W. E. Peck & Co. v. Lowe, 247 U. S. 165; and Eisner v. Macomber supra.
10 Citing M'Culloch v. Maryland, 4 Wheat. 316; Pacific Ins. Co. v. Soule, 7 Wall. 433; Austin v. Boston, 7 Wall. 694; Veazie Bank. v. Fenno, 8 Wall. 533; Knowlton v. Moore, 178 U. S. 41; Treat v. White, 181 U. S. 264; McCray v. United States, 195 U. S. 27; Flint v. Stone Tracy Co. 220 U. S. 107; Billings v. United States, 232 U. S. 261; Brushaber v. Union P. R. Co. 240 U. S. 1.
11 Article 2, section 1, which reads: “The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he may have been elected, and he shall not receive within that period any other emolument from the United States or any of them.”
12 11 Wall. 113. In passing the Income Tax Law of 1919 Congress refused to treat interest received from bonds issued by a state or any of its counties or municipalities as within the taxing power (Cong. Rec., Vol. 57, pp. 553, 774–777, 2988; ch. 18, §213, 40 Stat. at L. 1065, Comp. Stat. §6336⅛ ff.); and in the regulations issued under that law the administrative officers recognize that the salaries and emoluments of the officers of a state and its political subdivisions are not taxable by the United States (Reg. 45, published 1920, pp. 47, 313). Indeed, the provision pronounced void in the instant case was evidently regarded in Congress as of very doubtful constitutionality. Said the chairman of the house committee: “I wish to say, Mr. Chairman, that while there is considerable doubt as to the constitutionality of taxing … Federal judges' or the President's salaries, … we cannot settle it; we have not the power to settle it. No power in the world can settle it except the Supreme Court of the United States. Let us raise it, as we have done, and let it be tested, and it can only be done by someone protesting his tax and taking an appeal to the Supreme Court.” And again: “I think really that every man who has a doubt about this can very well vote for it and take the advice of the gentleman from Pennsylvania [Mr. Graham] which was sound then and is sound now, that this question ought to be raised by Congress, the only power that can raise it in order that it may be tested in the Supreme Court, the only power that can decide it.” Congressional Record 56: 10, 370. See also House Report, No. 767, 65th Cong., 2nd Sess., and Senate Report, No. 617, 65th Cong., 3rd Sess. These data are given in the notes to Justice Van Devanter's opinion.
13 Especially the general principle that classifications must not be arbitrary. See Chief Justice White's opinion in the Brushaber case, supra. See also Justice Strong's opinion in R. R. Co. v. Peniston, 18 Wall 5.
14 Article 4, section 4 of the Constitution, which reads: “The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature, or of the executive (when the legislature cannot be cpnvened), against domestic violence.”
15 Cf. Green v. Frazier, infra.
16 251 U. S. 146.
17 Citing Lottery Case (Champion v. Ames) 188 U. S. 321; McCray v. United States, 195 U. S. 27; Hipolite Egg Co. v. United States, 220 U. S.; Hoke v. United States, 227 U. S. 308; Seven Cases v. United States, 239 U. S. 510; United States v. Doremus, 249 U. S. 86.
18 Citing Ex parte Milligan, 4 Wall. 2; Monongahela Nav. Co. v. United States, 148 U. S. 312; United States v. Joint Traffic Asso. 171 U. S. 505; McCray v. United States, 195 U. S. 27; United States v. Cress, 243 U. S. 316.
19 Citing Re Kemmler, 136 U. S. 436; Carroll v. Greenwich Ins. Co., 199 U. S. 401.
20 The opinion then continues as follows: “The question whether an absolute prohibition of sale could be applied by a state to liquor acquired before the enactment of the prohibitory law has been raised by this court, but not answered, because unnecessary to a decision. Bartemeyer v. Iowa, 18 Wall, 129; Boston Beer Co. v. Massachusetts, 97 U. S. 25; Eberle v. Michigan, 232 U. S. 700; Barbour v. Georgia, 249 U. S. 454. See, however, Mugler v. Kansas, 123 U. S. 623.” The problem thus suggested is recurred to in Ruppert v. Caffey, infra, and disposed of as follows:
“Plaintiff contends, however, that even if immediate prohibition of the sale of its nonintoxicating beer is within the war power, this can be legally effected only provided compensation is made; and it calls attention to the fact that in Barbour v. Georgia, 249 U. S. 454, following some earlier cases, the question was reserved whether, under the police power, the states could prohibit the sale of liquor acquired before the enactment of the statute. It should, however, be noted that, among the judgments affirmed in the Mugler Case, was one for violation of the act by selling beer acquired before its enactment (see pp. 625, 627); and that it was assumed without discussion that the same rule applied to the brewery and its product (p. 669). But we are not required to determine here the limits in this respect of the police power of the states; nor whether the principle is applicable here under which the Federal government has been declared to be free from liability to an owner ‘for private property injured or destroyed during the war, by operations of armies in the field or by measures necessary to their safety and efficiency’ (United States v. Pacific R. Co. 120 U. S. 227); in analogy to that by which states are exempt from liability for the demolition of a house in the path of a conflagration, see Lawton v. Steele, 152 U. S. 133; or for garbage of value taken, (California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306; Gardner v. Michigan, 199 U. S. 325); or for unwholesome food of value destroyed (North American Cold Storage Co. v. Chicago, 211 U. S. 306; Adams v. Milwaukee, 228 U. S. 572) for the preservation of the public health. Here, as in Hamilton v. Kentucky Distilleries & Warehouse Co. supra, there was no appropriation of private property, but merely a lessening of value due to a permissible restriction imposed upon its use.”
21 251 U. S. 264, decided January 5, Justices McReynolds (opinion), Day, Van Devanter, and Clarke dissenting. The same day was decided U. S. v. Standard Brewing Co. ibid. 210, in which the court held that the Act of November 21, 1918, did not prohibit the manufacture of malt and vinous liquors which were not intoxicating in fact, even though of greater alcoholic content than ⅛ of 1 per cent in volume. Later, in U. S. v. Simpson, — U. S. —, decided on April 19, it was held that the Reed “Bone-Dry” Amendment of March 3, 1917, covered the transportation of liquors for personal use of the owner in his own automobile.
22 An elaborate epitome of state statutes and decisions dealing with the question of what is “intoxicating” is thus summarized by Justice Brandeis: “A test often used to determine whether a beverage is to be deemed intoxicating within the meaning of the liquor law is whether it contains ½ of 1 per cent of alcohol by volume. A survey of the liquor laws of the states reveals that in six-teen States the test is either a list of enumerated beverages without regard to whether they contain any alcohol, or the presence of any alcohol in a beverage, regardless of quantity; in eighteen States it is the presence of as much as or more than ½ of 1 per cent of alcohol,” in six States, 1 per cent of alcohol; in one State, the presence of the ‘alcoholic principle’ in two States 2 per cent of alcohol. Thus in forty-two of the forty-eight States—Maryland appears in two classes above—a malt liquor containing over 2 per cent of alcohol by weight or volume is deemed, for the purpose of regulation or prohibition, intoxicating as a matter of law. Only one State has adopted a test as high as 2.75 per cent by weight or 3.4 per cent by volume. Only two States permit the question of the intoxicating character of an enumerated liquor to be put in issue. In three other States the matter has not been made clear either by decision or legislation. The decisions of the courts as well as the action of the legislatures make it clear —or, at least, furnish ground upon which Congress reasonably might conclude— that a rigid classification of beverages is an essential of either effective regulation or effective prohibition of intoxicating liquors.”
23 “Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
“Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”
24 252 U. S., decided June 1.
25 The opinion further says: “At an early day this court settled that the submission of a constitutional amendment did not require the action of the President. The question arose over the adoption of the 11th Amendment. Hollingsworth v. Virginia, 3 Dall. 378. In that case it was contended that the amendment had not been proposed in the manner provided in the Constitution, as an inspection of the original roll showed that it had never been submitted to the President for his approval, in accordance with article 1, §7 of the Constitution. The Attorney-General answered that the case of amendments is a substantive act, unconnected with the ordinary business of legislation, and not within the policy or terms of the Constitution investing the President with a qualified negative on the acts and resolutions of Congress. In a footnote to this argument of the Attorney General, Justice Chase said: ‘There can surely be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition, or adoption, of amendments to the Constitution.’ The court by a unanimous judgment held that the amendment was constitutionally adopted.”
26 State of Rhode Island, Complainant, v. A. Mitchell Palmer, Attorney General, et al. (No. 29, Original.) State of New Jersey, Complainant, v. A. Mitchell Palmer, Attorney General, et al. (No. 30, Original.) George C. Dempsey, Appt., v. Thomas J. Boynton, as United States Attorney, et al. (No. 696.) Kentucky Distilleries & Warehouse Company, Appt., v. W. V. Gregory, as United States Attorney, et al. (No. 752.) Christian Feigenspan, a Corporation, Appt., v. Joseph L. Bodine, as United States Attorney, et al. (No. 788.) Hiram A. Sawyer, as United States Attorney, et al., Appts., v. Manitowoc Products Company. (No. 794.) St. Louis Brewing Association, Appt., v. George H. Moore, Collector, et al. (No. 837.) The cases were decided June 7. Earlier in the term, on January 12, the court had refused jurisdiction of an original suit brought by a citizen of New Jersey, to enjoin the Attorney-General and certain other officials of the United States, as well as the state of New Jersey, from enforcing the Eighteenth Amendment. Duhne v. United States, 251 U. S. 311. The decision rests on Marbury v. Madison, 1 Cranch 129 and Hans v. La., 134 U. S. 1.
27 “1. The adoption by both Houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution, sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration.
“2. The two-thirds vote in each House which is required in proposing an amendment is a vote of two thirds of the members present,—assuming the presence of a quorum,—and not a vote of two thirds of the entire membership, present and absent. Missouri P. R. Co. v. Kansas, 248 U. S. 276.
“3. The referendum provisions of state constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Hawke v. Smith, 252 U. S., decided June 1, 1920.
“4. The prohibition of the manufacture, sale, transportation, importation, and exportation of intoxicating liquors for beverage purposes, as embodied in the 18th Amendment, is within the power to amend reserved by Article 5 of the Constitution.
“5. That Amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument.
“6. The first section of the Amendment—the one embodying the prohibition— is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers, and individuals within those limits, and of its own force invalidates every legislative act—whether by Congress, by a state legislature, or by a territorial assembly—which authorizes or sanctions what the section prohibits.
“7. The second section of the Amendment—the one declaring ‘the Congress and the several states shall have concurrent power to enforce this article by appropriate legislation’—does not enable Congress or the several states to defeat or thwart the prohibition, but only to enforce it by appropriate means.
“8. The words ‘concurrent power’ in that section do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several states or any of them; nor do they mean that the power to enforce is divided between Congress and the states along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs.
“9. The power confided to Congress by that section, while not exclusive, is-territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation, and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states or any of them.
“10. That power may be exerted against the disposal for beverage purposes of liquors manufactured before the Amendment became effective, just as it may be against subsequent manufacture for those purposes. In either case it is a constitutional mandate or prohibition that is being enforced.
“11. While recognizing that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, we think those limits are not transcended by the provision of the Volstead Act (title II. §1), wherein liquors containing as much as ½ of 1 per cent of alcohol by volume, and fit for use for beverage purposes, are treated as within that power. Jacob Ruppert v. Caffey, 251 U. S. 264.”
28 “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
29 Chief Justice White, however, in his concurring opinion, rejects all three views of “concurrent power,” arguing that the “supremacy” clause is not operative in this instance, since the power of Congress and of the states to act comes equally from the Constitution itself, indeed from the same section of it. His own theory is that the power to define “intoxicating liquors” comes not from the second section of the amendment but from the first, and so rests exclusively in Congress, and that all that was sought by the second section was “to unite national and state administrative agencies in giving effect to the Amendment and the legislation of Congress enacted to make it complete.” The argument is ingenious, but not altogether convincing. The “supremacy” clause takes no account of the source of the right of the state to act; it simply decrees that when both state and nation have the right to act the national view shall prevail.
Furthermore, it may well be contended, in view of Amendment 10 (see note 45, later) that all state powers are of constitutional rank. The term “concurrent powers” originated in Federalist No. 32 (Lodge's edition). It was given the significance attached to it by government's counsel in the present litigation in Justice Curtis's opinion in Cooley v. Board of Wardens, 12 How. 299 (1851). See also Southern R. Co. v. Reid, 222 U. S. 1.
30 There may also be a reason in constitutional theory why the court should not attempt to pass upon the validity of amendments to the Constitution which have been adopted in due form. Unless the authority which “ordained and established” the Constitution originally has in some unaccountable manner disappeared, it must today be vested in the body which amends the Constitution. But this authority, having assumed to bestow all kinds of power, legislative, executive, and judicial, must be possessed of all kinds of power, with the result that the principle of the separation of powers, and therefore judicial review, are inapplicable to its acts. In other words, like the High Court of Impeachment, the body which amends the Constitution is the only court of its character, and, therefore, is the final judge of its own jurisdiction.
31 The First Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
33 14 American Political Science Review, 65.
34 250 U. S. 616, decided November 10, 1919.
35 See Interpretations of War Statutes, Bulletins 4, 49, 52, 79, 83, 112, 116, 133, 142, 148, 149, 156, 191, etc.
36 See the debate of May 4, 1918. Congressional Record, 65th Cong., 2nd Sess., pp. 6039–6043.
37 Thus Justice Holmes's opinion continues: “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger, and at any rate would have the quality of an attempt. So I assume that the second leaflet, if published for the purposes alleged in the fourth count, might be punishable. But it seems pretty clear to me that nothing less than that would bring these papers within the scope of this law. An actual intent in the sense that I have explained is necessary to constitute an attempt, where a further act of the same individual is required to complete the substantive crime, for reasons given in Swift & Co. v. United States, 196 U. S. 375, 396, 49 L. ed. 518, 524, 25, Sup. Ct. Rep. 276. It is necessary where the success of the attempt depends upon others, because if that intent is not present, the actor's aim may be accomplished without bringing about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged.” All this assumes that Congress may punish only utterances which constitute criminal attempts, and no proof is adduced of this assumption. The same idea had been put forward earlier by Professor Zechariah Chafee in an article in 32 Harvard Law Review, 947, where it is taken from a passage in Stephen's, History of the Criminal Law, Vol. 2: 300.Google Scholar Stephen characterizes it as an “extreme” view, a characterization which Professor Chafee omits. See also Justice Holmes's earlier opinion in Patterson v. Col., 205 U. S. 454.
38 See the present writer's article, “Freedom of Speech and Press: a Résumé,” in the Yale Law Journal (Nov., 1920); also 33 Harvard Law Review, 442 ff., which sets forth essentially the same point of view. See also, for a somewhat different point of view, Vance, W. R. in 2 Minnesota Law Review, 239 ff.Google Scholar
39 Billings v. United States, 232 U. S. 261; Brushaber v. Union P. R. Co., 240 U. S. 1.
40 251 U. S. 466, decided March 1.
41 252 U. S., decided March 8.
42 See, in this connection, Goldman v. United States, 245 U. S. 474, 477.
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