does not seriously question the constitutional power of the
Congress to impose this tax on corporations?

Mr. Bailey: Mr. President, I answer the Senator frankly that I
do not.... I think the rule was and is that Congress can levy
any tax it pleases except an export tax. Of course a direct
tax must be apportioned and an indirect tax must be uniform.
But the uniformity rule simply requires that wherever the
subject of taxation is found, the tax shall operate equally
upon it.

I believe that Congress can tax all red-headed men engaged in
a given line of business if it pleases.... I have no doubt if
the tax fell upon every red-headed man in Massachusetts the
same as in Mississippi or Texas and all other states, the law
imposing such a tax would be perfectly valid.

[Footnote 1: _Congressional Record_ for July 6, 1909, pp. 4251 to 4252.]

The difficulty with this reasoning is that it overlooks the fact that
the privilege of being red-headed is not a franchise granted by a
sovereign state. From the viewpoint of constitutional law it may well be
that Congress can tax a privilege conferred by the gods where it would
be powerless to tax a franchise granted by the Legislature of New
Jersey.




XI