The Charlotte News

Tuesday, May 23, 1939



Site Ed. Note: The case to which Cash refers in "Judges' Jest" is O'Malley v. Woodrough, 307 US 277 (1939). The dispute began when Circuit Judge Joseph W. Woodrough refused to pay $631.60 in income tax on his $12,500 annual judicial salary on the basis that Article III, Section 1 of the Constitution prohibits the diminution of the salaries of Federal judges during their tenure; thus, the contention went, the 1932 Revenue Act unconstitutionally diminished the judges' salaries by including them in "gross income" for the purpose of calculating income tax.

Justice Frankfurter simply summed the matter this way: "To subject them to a general tax is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering."

Justice Butler's dissent is interesting for its recitation of the history of the whys and wherefores for the framers' insistence upon an independent judiciary:

"[The provision preventing diminution of judges' salaries] safeguards the independence of the judiciary. The abuse against which it was intended to be a barrier is included in the list of reasons for our Declaration of Independence. 'The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States ... He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.'

"Alexander Hamilton, explaining the reasons for and the purpose of 1 of Art. III, said:

'The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment ...

'This simple view of the matter ... proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks...

'The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing...' (The Federalist, No. 78.)

'Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support... In the general course of human nature, a power over a man's subsistence amounts to a power over his will... The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that permanent salaries should be established for the judges, but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite... This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.' (The Federalist, No. 79.)

"Mr. Justice Story declared that 'Without this provision, the other, as to the tenure of office, would have been utterly nugatory, and indeed a mere mockery ....' 2 Story, 1628. Chancellor Kent said: 'The provision for the permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence. It tends, also, to secure a succession of learned men on the bench, who, in consequence of a certain undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station. The constitution of the United States, on this subject, was an improvement upon all our previously existing constitutions.' 1 Kent Com. 294..."

And, of course, to further insure the independence of the judiciary, it is always necessary for the Senate, in accordance with Article II, Section 2, to provide or not its advice and consent to the nominations by the President of Federal judges. And, to protect the minority against a fulsome majority, accomplished by one or two or three or four Senators whose majorities in their home states were accomplished by handfuls of votes, the convention of filibuster has long been of service to the country, for both major parties, to counterbalance further the otherwise potentially steamroller power of slim majorities, especially when those majorities often represent only a plurality of the entire people of the United States--indeed, sometimes a minority. Thus, the wisdom, to compensate for the notion that Senators are elected state by state, Rhode Island having the same number of two as Texas, in having the extraordinary device of filibuster. Requiring the palaver-stop to be 60 not just protects the minority of the American people, but rather provides insurance that an action undertaken of the moment is not merely by 51 men and women as distinct from the constitutencies they represent, comprised of citizens of both parties and then some. If the people don't like the flibustiers, then they've the power in the next election to release the emergency brake by increasing to 60 the majority's numbers and will to proceed. Artificially to do so, however, by the majority itself changing long-standing Senate rules of procedure is actually to thwart the reasonable expectations of the will of the people taken as a whole in electing the Senate, quod libet. For Cash's contrary take on the filibuster, see "The Filibuster", February 27, 1941. For his views, however, on the necessity generally of protecting the minority, see "Winner Take All", November 4, 1940.

If ye be tryin' that, ye royal pagans, then we'll be doin' this to stop ye--and until hell itself shall freeze, if it be necessary.

Wages Of Sin

How Boss Pendergast Acted Wisely In Doing Things The Big Way

When it was announced last Saturday that Boss Pendergast would plead guilty in Federal District Court at Kansas City to evading income taxes to the tune of $443,550, the prosecuting attorneys made a large noise to the effect that he would get no consideration for that and that he was practically going to be put under the jail. But when he did submit yesterday, he got fifteen months in a nice, cozy Federal prison, though the attorneys charge that his total income tax evasion actually ran to $1,240,746.56. Which is to say that the Boss gambled for something between $29,570 to $82,716.44 as against each month in jail--and lost. Not a bad bet. The term is somewhat less than a black man often gets, in Kansas City as well as in these parts, for stealing $20 worth of chickens.

It can be argued, of course, that the Boss is an old man and a sick one. But such considerations do not by ordinary much help the common jack when he is haled into court for his minor peccadillos. And it can be argued, too, that a great many Americans think of income tax evasion as a venial offense at the worst. Still, the Federal Government plainly doesn't think so--for it is more relentless in tracking down this crime than any other. And Boss Pendergast's whole career has been made up of a long succession of crimes that by any standard are a great deal less than venial. The very money involved in this case is said to come to him for "fixing" a gigantic insurance theft. And all his fortune and power has been built notoriously on close association with rackets.

But the court had no right to consider anything but the charge actually proved against him? Certainly, it had no right to sentence him for these things per se. But they surely did not constitute an argument as to why he should have nearly the minimum sentence for income tax evasion instead of the maximum--such as Capone got.

Two things at least seem fairly clear: (1) if you are going in for crime in these states, go in for it on a big scale. That way you have a good chance to enjoy a long and full life with no other penalty than a few months in an exceedingly comfortable jail at the end. And (2) if you are going to evade income taxes, you might as well go hog. They'll give you no more--maybe less--for gypping them out of one million than for $50.


Trick Of The Week*

World's Greatest Spender Poses As A Cautious Man

The passion with which President Roosevelt defends his policies quite possibly may indicate his uncertainty about them. The neat little trick of calling the New Deal conservative--conservative because it dares not gamble with the safety of the nation--won't work. Too long have the American people had it driven into their heads, most vehemently by this very same proselyted apostle of frugal, Democratic fiscal practices, that there was something safe and sound in balanced budgets, and that spending orgies were downright sinful. The people may give the New Deal credit for its noble intentions. They surely cannot longer fail to perceive that it is powerless to cope and reluctant even to try to cope with the realities of the situation it has got itself into.

That situation, in one important particular, is almost a dead ringer for the situation between 1921 and 1927. That is, Mr. Roosevelt is "maintaining consumer purchasing power" by buying money in the name of the Government and spending it, just as in that earlier period the international bankers maintained prosperity by the means of lending foreign nations the money with which to buy our goods and keep the wheels turning. Mr. Roosevelt is keeping the money at home, to be sure. But it is our money he is spending. The international bankers poured out a lot of other people's money.

And an uneasy suspicion permeates our being that the denouement is going to be the same in both cases. There is going to be a day of reckoning, and the longer it is postponed, the worse it will be. A true conservative would never take so grave a chance.


Judges' Jest

They Get Their Revenge As They Make A Hard Decision

The Supreme Court yesterday stepped heroically up to the line, with only Butler, J., voting to keep his'n. It may be assumed with confidence that they did not take the step of ruling that Federal judges' salaries are subject to taxation, just like those of common men, without some private heartburning. For men, however exalted and disinterested, do not say goodbye to a thousand smackers or more--and the taxes on their income will come to at least that--without regret. Still, there wasn't much of a way out of it, save just to admit that they had the power to keep it, and by gad meant to use it! For the argument that such taxation represents a diminution of the judge's salary during his term of office, a thing forbidden by the Constitution, is an obvious sophism.

Let Butler, J., go. After all, he may have thought that way, or--what amounts to the same thing--thought that he thought that way. What really tickles us about the case is the cunning irony--amounting almost to sadism--of the judges' selection of Felix Frankfurter to figure out the argument and deliver the decision. For he is both a great liberal and a good business man, who knows both how to get it and how to keep it. And so he must have writhed a bit over that one, as the other judges must have tittered in their private minds behind their impassive faces as they heard him reject it and weep.


The Stuckey Plan

A Federal Bribe To Induce Women To Resume Their Place In The Home

Mr. J. D. Stuckey of 309 N. Caswell Road, an estimable gentleman who wants the Government to make loans ($500 to $5,000) for married couples on condition that the woman give up her job, knows what we think of his scheme. We have candidly told him so. It is plainly screwy, and the mere facts that Senator Reynolds has taken notice of it and that a White House secretary has pricked up his ears, are proof of the screwiness of the times. We pant for nostrums that will fix everything up, quick.

Mr. Stuckey, to do him justice, is more considerate than many another who aims to get married women out of jobs and back into the home. He wouldn't, that is, simply pass a law in defiance of personal rights and liberties. He would hold out the inducement of a loan, repayable over a period of years, with only the character of borrowers as security.

But suppose the couple already were borrowing money, as most of them probably are. Indeed, that's often the reason the wife works--to take care of payments on the loan--or loans. And to make them a further loan--or a first loan, to put the best face on it--and at the same time to curtail the incomes out of which they may repay the loans, would be in many cases, merely to introduce them to the misery of debt and the nightmare of not making ends meet.

Nope; it won't work. It's bad enough to have the Government spending for prosperity. It would be chaotic if married couples started doing the same thing.


Framed Edition
[Return to Links-Page by Subject] [Return to Links-Page by Date] [Return to News--Framed Edition]
Links-Date -- Links-Subj.