Central Railroad Company Of Pennsylvania v. Commonwealth Of Pennsylvania/Concurrence Black
Mr. Justice BLACK, concurring.
In holding that one State's property tax may be invalidated in part because excessive under the Commerce Clause upon the showing of a risk that some other State could impose a tax on part of the value of the same property, the Court is following principles announced in prior decisions of this Court from which I dissented.  While my views expressed in those cases remain unchanged, the necessity of this Court's deciding cases requires me to make decisions under the constitutional doctrine there declared so long as the Court remains committed to it.  Where a party seeks to invoke that doctrine, as here, I wholly agree with the Court that the burden of showing that there is a risk of multiple taxation should rest upon the party challenging the constitutionality of a state tax. I also agree with the Court that the railroad in this case his failed to show a risk of multiple taxation with reference to any cars other than the average number that are in New Jersey on any given day. It is for the foregoing reasons that I concur in the Court's judgment and its opinion insofar as it rests on the Commerce Clause.
Since I think partial invalidation of the tax as to the average number of cars in New Jersey on any given day in the taxable year is fully supported by the Commerce Clause as this Court has interpreted it. I would have been content not to discuss the due process question at all. But since the Court does rest in part on due process, I find it necessary to express my doubts about the use of the Due Process Clause to strike down state tax laws. The modern use of due process to invalidate state taxes rests on two doctrines: (1) that a State is without 'jurisdiction to tax' property beyond its boundaries, and (2) that multiple taxation of the same property by different States is prohibited. Nothing in the language or the history of the Fourteenth Amendment, however, indicates any intention to establish either of these two doctrines concerning the power of States to tax. In fact neither of these doctrines originated in the Due Process Clause at all, but were first declared by this Court long before the Fourteenth Amendment with its Due Process Clause was adopted in 1868.  And in the first case striking down a state tax for lack of jurisdiction to tax after the passage of that Amendment neither the Amendment nor its Due Process Clause nor any other constitutional provision was even mentioned; the Court simply struck down the state tax saying that to sustain it would be 'giving effect to the acts of the legislature of Pennsylvania upon property and interests lying beyond her jurisdiction.'  These cases and others that followed for many years after the adoption of the Amendment rested either on the Commerce Clause or on no constitutional provision at all.  In fact not a single state tax was struck down by this Court as a violation of the Due Process Clause until 1903 -35 years after the adoption of the Amendment and then wholly without any historical or other reasons to show why the cryptic words of the Due Process Clause justified the invalidation of otherwise lawful state taxes. Nor did the Court reveal its reasons for giving due process this meaning in the next case.  Finally, in the third case applying the Due Process Clause to strike down a state tax, the Court's complete lack of explanation led Mr. Justice Holmes to say:
'It seems to me that the result reached by the court probably is a desirable one, but I hardly understand how it can be deduced from the 14th Amendment; and as the Chief Justice feels the same difficulty, I think it proper to say that my doubt has not been removed.' 
The Court has ever since used the Due Process Clause to strike down state laws by finding in it substantially the same protection for interstate commerce as it has found in the Commerce Clause.  But there is no reference to commerce in the Fourteenth Amendment and the Court has still never adequately explained just what the basis for its constitutional doctrine is. Because of this I have long entertained many of the same doubts that Mr. Justice Holmes expressed as to the use of this flexible and expansive interpretation of due process to invalidate state tax laws,  but since the Court's holding here adequately rests on the presently prevailing interpretation of the Commerce Clause, I do not find this to be an appropriate occasion to suggest reconsideration of the applicability of the Due Process Clause to state tax laws.
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting in part.
^1 See, e.g., Gwin, White & Prince, Inc., v. Henneford, 305 U.S. 434, 442, 59 S.Ct. 325, 329, 83 L.Ed. 272; J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 316, 58 S.Ct. 913, 918, 82 L.Ed. 1365. See also Northwest Airlines v. Minnesota, 322 U.S. 292, 301, 64 S.Ct. 950, 955, 88 L.Ed. 1283 (concurring opinion).
^3 Hays v. Pacific Mail Steamship Co., 17 How. 596, 15 L.Ed. 254 (1854). See also The Apollon, 9 Wheat. 362, 370, 6 L.Ed. 111 (1824); Braniff Airways, Inc. v. Nebraska State Board of Equalization, 347 U.S. 590, 599 note 18, 74 S.Ct. 757, 762, 98 L.Ed. 967.
^4 Northern Central Railroad Co. v. Jackson, 7 Wall. 262, 268, 19 L.Ed. 88 (1869).
^5 See, e.g., City of St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 20 L.Ed. 192 (1871); State Tax on Foreign-Held Bonds, 15 Wall. 300, 21 L.Ed. 179 (1873); Morgan v. Parham, 16 Wall. 471, 21 L.Ed. 302 (1873); Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 5 S.Ct. 826, 29 L.Ed. 158 (1885). See also Tappan v. Merchants' National Bank, 19 Wall. 490, 22 L.Ed. 189 (1873); Coe v. Town of Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715 (1886); Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613 (1891).
^8 Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 211, 26 S.Ct. 36, 41, 50 L.Ed. 150 (1905). Professor Beale has said of this decision that, '(t)he dissent seemed sound as directed against the opinion that the state had no jurisdiction. Nevertheless, Judge Holmes was equally sound in saying that the result was a desirable one. It would be a rash constitutional lawyer who would argue today that an undesirable result was nevertheless constitutional.' 1 Beale, Conflict of Laws, 522. The use of the Due Process Clause as a method of striking down state tax laws remained a source of concern to Mr. Justice Holmes throughout the remainder of his service on the Court and produced quite a number of dissents. See, e.g., Safe Deposit & Trust Co. of Baltimore v. Virginia, 280 U.S. 83, 96, 50 S.Ct. 59, 62, 74 L.Ed. 180 (1929); Farmers Loan & Trust Co. v. Minnesota, 280 U.S. 204, 216, 50 S.Ct. 98, 102, 74 L.Ed. 371 (1930) (overruling Blackstone v. Miller, 188 U.S. 189, 23 S.Ct. 277, 47 L.Ed. 439); Baldwin v. Missouri, 281 U.S. 586, 595, 50 S.Ct. 436, 439, 74 L.Ed. 1056 (1930). In the Baldwin case he stated:
'I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable.' 281 U.S. at 595, 50 S.Ct. at 439. See also Mr. Justice, later Chief Justice, Stone's dissent in First National Bank of Boston v. Maine, 284 U.S. 312, 331, 52 S.Ct. 174, 178, 76 L.Ed. 313, in which he was joined by Mr. Justice Holmes and Mr. Justice Brandeis and State Tax Comm'n of Utah v. Aldrich, 316 U.S. 174, 62 S.Ct. 1008, 86 L.Ed. 1358, where the Court overruled First National Bank for the reasons expressed by the dissent in that case.