The Volokh Conspiracy

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The Sixteenth Amendment did not "Overrule" Pollock

Constitutional amendments change the organic law. They do not overrule a decision.


In Moore v. United States, each of the separate opinions contended that the 16th Amendment (ratified in 1913) "overruled" Pollock v. Farmers' Loan & Trust Co. (1895). For example, Justice Kavanaugh's majority opinions phrased it this way:

This Court's 1895 decision in Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601, later proscribed unapportioned federal taxation of income from property, and therefore overruled that holding of Hubbard. See supra, at 7. But in 1913, the Sixteenth Amendment then overruled that aspect of Pollock.

From Justice Barrett's concurrence:

The Sixteenth Amendment overruled Pollock's second holding, stating that "Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment." But it did not overrule Pollock's first holding that taxes on personal property are direct taxes.

From Justice Thomas's dissent:

The Sixteenth Amendment was ratified to overrule that holding from Pollock, and it can therefore be understood only in the context of Pollock and the preceding history.

Justice Jackson frames the issues slightly differently:

In 1913, the People's representatives responded, using their power to overturn Pollock via constitutional amendment. The Sixteenth Amendment restored to Congress the power to tax "incomes, from whatever source derived, without apportionment."

Here, Jackson suggests that the original Constitution includes this power, and that Pollock erroneously deprived Congress of this authority. The Amendment was like hitting CTRL-Z on the Supreme Court. (Would she see the 11th Amendment and Chisholm v. Georgia in the same fashion?) To make the point, Jackson cites one of Justice Harlan's lesser-known, but equally important dissents:

I have no doubt that future Congresses will pass, and future Presidents will sign, taxes that outrage one group or another—taxes that strike some as demanding too much, others as asking too little. There may even be impositions that, as a matter of policy, all can agree are wrongheaded. However, Pollock teaches us that this Court's role in such disputes should be limited. "[T]he remedy for such abusesis to be found at the ballot-box, and in a wholesome public opinion which the representatives of the people will not long, if at all, disregard, and not in the disregard by the judiciary of powers that have been committed to another branch of the government." Pollock, 158 U. S., at 680 (Harlan, J., dissenting).

Everyone knows Lochner, Plessy, and the Civil Rights Cases. But most students do not know Pollock.

I think it is a mistake to view a constitutional amendment as overruling a case in the same fashion that the Supreme Court can overrule a case. A constitutional amendment changes the underlying organic law. The Sixteenth Amendment did not state that Pollock was wrong–although many supporters likely held that view. Instead the Sixteenth Amendment granted Congress new powers, which it could then exercise. Analogizing a constitutional amendment to a judicial decision, regrettably, breeds the cult of judicial supremacy. It presumes that the Supreme Court and the Article V process employ similar means: both institutions can change the Constitution by overruling some precedent.

I would make the same argument when Congress passes a new statute in response to a Supreme Court decision. And I have some authority here. In the spring of 2009, Justice Alito visited George Mason Law school. About two years earlier, the Court had decided Ledbetter v. Goodyear Tire and Rubber Company (2007). Justice Alito's majority opinion held that Ledbetter's claim was barred by the statute of limitations. Justice Ginsburg's dissent famously called on Congress to amend Title VII. And the first bill that President Obama signed into law was the Lilly Ledbetter Fair Pay Act of 2009. (I've heard that Justice Ginsburg had a signed copy of that bill on her chamber walls.)

Someone asked Justice Alito how he felt about Congress overruling his decision. Alito replied, as I wrote above, that Congress does not "overrule" a decision. Instead, Congress changes the law. And going forward, the courts have to apply that new law. I agree with Alito in 2009.