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CRS Annotated Constitution

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What Constitutes Punishment.—An act of Congress that prescribed as a qualification for practice before the federal courts an oath that the attorney had not participated in the Rebellion was found unconstitutional since it operated as a punishment for past acts.1729 But a statute that denied to polygamists the right to vote in a territorial election was upheld even as applied to one who had not contracted a polygamous marriage and had not cohabited with more than one woman since the act was passed, because the law did not operate as an additional penalty for the offense of polygamy but merely defined it as a disqualification of a voter.1730 A deportation law authorizing the Secretary of Labor to expel aliens for criminal acts committed before its passage is not ex post facto since deportation is not a punishment.1731 For this reason, a statutory provision terminating payment of old–age benefits to an alien deported for Communist affiliation also is not ex post facto, for the denial of a non– contractual benefit to a deported alien is not a penalty[p.352]but a regulation designed to relieve the Social Security System of administrative problems of supervision and enforcement likely to arise from disbursements to beneficiaries residing abroad.1732 Likewise an act permitting the cancellation of naturalization certificates obtained by fraud prior to the passage of the law was held not to impose a punishment, but it was simply to deprive the alien of his illgotten privileges.1733

Change in Place or Mode of Trial.—A change of the place of trial of an alleged offense after its commission is not an ex post facto law. If no place of trial was provided when the offense was committed, Congress may designate the place of trial thereafter.1734 A law which alters the rule of evidence to permit a person to be convicted upon less or different evidence than was required when the offense was committed is invalid,1735 but a statute which simply enlarges the class of persons who may be competent to testify in criminal cases is not ex post facto as applied to a prosecution for a crime committed prior to its passage.1736

Clause 4. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

Direct Taxes

The Hylton Case.—The crucial problem under this section is to distinguish “direct” from other taxes. In its opinion in Pollock v. Farmers’ Loan & Trust Co., the Court declared: “It is apparent . . . that the distinction between direct and indirect taxation was well understood by the framers of the Constitution and those who adopted it.”1737 Against this confident dictum may be set the following brief excerpt from Madison’s Notes on the Convention: “Mr. King asked what was the precise meaning of direct taxation? No one answered.”1738 The first case to come before the Court on this issue was Hylton v. United States,1739 which was decided early in 1796. Congress has levied, according to the rule of uniformity, a specific tax upon all carriages, for the conveyance of persons, which were to be kept by, or for any person, for his own use, or[p.353]to be let out for hire, or for the conveying of passengers. In a fictitious statement of facts, it was stipulated that the carriages involved in the case were kept exclusively for the personal use of the owner and not for hire. The principal argument for the constitutionality of the measure was made by Hamilton, who treated it as an “excise tax,”1740 while Madison both on the floor of Congress and in correspondence attacked it as “direct” and so void, inasmuch as it was levied without apportionment.1741 The Court, taking the position that the direct tax clause constituted in practical operation an exception to the general taxing powers of Congress, held that no tax ought to be classified as “direct” which could not be conveniently apportioned, and on this basis sustained the tax on carriages as one on their “use” and therefore an “excise.” Moreover, each of the judges advanced the opinion that the direct tax clause should be restricted to capitation taxes and taxes on land, or that at most, it might cover a general tax on the aggregate or mass of things that generally pervade all the States, especially if an assessment should intervene, while Justice Paterson, who had been a member of the Federal Convention, testified to his recollection that the principal purpose of the provision had been to allay the fear of the Southern States lest their Negroes and land should be subjected to a specific tax.1742

From the Hylton to the Pollock Case.—The result of the Hylton case was not challenged until after the Civil War. A number of the taxes imposed to meet the demands of that war were assailed during the postwar period as direct taxes but without result. The Court sustained successively, as “excises” or “duties,” a tax on an insurance company’s receipts for premiums and assessments;1743 a tax on the circulating notes of state banks,1744 an inheritance tax on real estate,1745 and finally a general tax on incomes.1746 In the last case, the Court took pains to state that it regarded the term “direct taxes” as having acquired a definite and fixed meaning, to wit, capitation taxes, and taxes on land.1747 Then, almost one hundred years after the Hylton case, the famous[p.354]case of Pollock v. Farmers’ Loan & Trust Co.1748 arose under the Income Tax Act of 1894.1749 Undertaking to correct “a century of error,” the Court held, by a vote of five–to–four, that a tax on income from property was a direct tax within the meaning of the Constitution and hence void because not apportioned according to the census.


1729 Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867).
1730 Murphy v. Ramsey, 114 U.S. 15 (1885).
1731 Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 228 U.S. 585 (1913); Marcello v. Bonds, 349 U.S. 302 (1955). Justices Black and Douglas, reiterating in Lehman v. United States ex rel. Carson, 353 U.S. 685, 690–691 (1957), their dissent from the premise that the ex post facto clause is directed solely to penal legislation, disapproved a holding that an immigration law, enacted in 1952, 8 U.S.C. Sec. 1251 , which authorized deportation of an alien who, in 1945, had acquired a status of nondeportability under pre–existing law is valid. In their opinion, to banish, in 1957, an alien who had lived in the United States for almost 40 years, for an offense committed in 1936, and for which he already had served a term in prison, was to subject him to new punishment retrospectively imposed.
1732 Flemming v. Nestor, 363 U.S. 603 (1960).
1733 Johannessen v. United States, 225 U.S. 227 (1912).
1734 Cook v. United States, 138 U.S. 157, 183 (1891).
1735 Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1798).
1736 Hopt v. Utah, 110 U.S. 574, 589 (1884).
1737 157 U.S. 429, 573 (1895).
1738 J. Madison, The Debates in the Federal Convention of 1787 (G. Hunt & J. Scott eds.) (Greenwood Press ed. 1970), 435.
1739 3 Dall. (3 U.S.) 171 (1796).
1740 The Works of Alexander Hamilton, J. Hamilton ed. (New York: 1851), 845. “If the meaning of the word excise is to be sought in the British statutes, it will be found to include the duty on carriages, which is there considered as an excise, and then must necessarily be uniform and liable to apportionment; consequently, not a direct tax.”
1741 4 Annals of Congress 730 (1794); 2 Letters and Other Writings of James Madison (Philadelphia: 1865), 14.
1742 3 Dall. (3 U.S.) 171, 177 (1796).
1743 Pacific Insurance Company v. Soule, 7 Wall. (74 U.S.) 433 (1869).
1744 Veazie Bank v. Fenno, 8 Wall. (75 U.S.) 533 (1869).
1745 Scholey v. Rew, 23 Wall. (90 U.S.) 331 (1875).
1746 Springer v. United States, 102 U.S. 586 (1881).
1747 Id., 602.
1748 157 U.S. 429 (1895); 158 U.S. 601 (1895).
1749 28 Stat. 509, 553 (1894).
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