Schlesinger v. Wisconsin/Dissent Wendell Holmes, Jr.
Mr. Justice HOLMES dissenting.

If the Fourteenth Amendment were now before us for the first time I should think that it ought to be construed more narrowly than it has been construed in the past. But even now it seems to me not too late to urge that in dealing with state legislation upon matters of substantive law we should avoid with great caution attempts to substitute our judgment for that of the body whose business it is in the first place, with regard to questions of domestic policy that fairly are open to debate.

The present seems to me one of those questions. I leave aside the broader issues that might be considered and take the statute as it is written, putting the tax on the ground of an absolute presumption that gifts of a material part of the donor's estate made within six years of his death were made in contemplation of death. If the time were six months instead of six years I hardly think that the power of the State to pass the law would be denied, as the difficulty of proof would warrant making the presumption absolute; and while I should not dream of asking where the line can be drawn, since the great body of the law consists in drawing such lines, yet when you realize that you are dealing with a matter of degree you must realize that reasonable men may differ widely as to the place where the line should fall. I think that our discussion should end if we admit what I certainly believe, that reasonable men might regard six years as not too remote. Of course many gifts will be hit by the tax that were made with no contemplation of death. But the law allows a penumbra to be embraced that goes beyond the outline of its object in order that the object may be secured. A typical instance is the prohibition of the sale of unintoxicating malt liquors in order to make effective a prohibition of the sale of beer. The power 'is not to be denied simply because some innocent articles or transactions may be found within the proscribed class.' Purity Extract & Tonic Co. v. Lynch, 33 S.C.t. 44, 226 U.S. 192, 201, 204, 57 L. Ed. 184; Jacob Ruppert v. Caffey, 40 S.C.t. 141, 251 U.S. 264, 283, 64 L. Ed. 260. In such cases, and they are familiar, the Fourteenth Amendment is invoked in vain. Later cases following the principle of Purity Extract & Tonic Co. v. Lynch are Hebe Co. v. Shaw, 39 S.C.t. 125, 248 U.S. 297, 303, 63 L. Ed. 255; Pierce Oil Co. v. Hope, 39 S.C.t. 172, 248 U.S. 498, 500, 63 L. Ed. 381. See further Capital City Dairy Co. v. Ohio, 22 S.C.t. 120, 183 U.S. 238, 246, 46 L. Ed. 171.

I am not prepared to say that the legislature of Wisconsin, which is better able to judge than I am, might not believe, as the Supreme Court of the State confidently affirms, that by far the larger proportion of the gifts coming under the statute actually were made in contemplation of death. I am not prepared to say that if the legislature held that belief, it might not extend the tax to gifts made within six years of death in order to make sure that its policy of taxation should not be escaped. I think that with the States as with Congress when the means are not prohibited and are calculated to effect the object we ought not to inquire into the degree of the nevessity for resorting to them. James Everard's Breweries v. Day, 44 S.C.t. 628, 265 U.S. 545, 559, 68 L. Ed. 1174.

It may be worth noticing that the gifts of millions taxed in this case were made from about four years before the death to a little over one year. The statute is not called upon in its full force in order to justify this tax. If I though it necessary I should ask myself whether it should not be construed as intending to get as near to six years as it constitutionally could, and whether it would be had for a year and a month.

Mr. Justice BRANDEIS and Mr. Justice STONE concur in this opinion. 

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