Murdock v. Pennsylvania, 319 U.S. 105 (1943)

              Commentary by Jon Roland

The decision in this case is correct, but although the opinion is 
substantially correct, it contains some dangerous language that reflects 
sloppy thinking on the issues involved.

This can be seen from two quotes:

     The power to tax the exercise of a privilege is the power to control or 
     suppress its enjoyment. Magnano Co. v. Hamilton, 292 U.S. 40, 44, 45 
     S., 54 S.Ct. 599, 601, and cases cited.

     A state may not impose a charge for the enjoyment of a right granted by 
     the federal constitution. Thus, it may not exact a license tax for the 
     privilege of carrying on interstate commerce (McGoldrick v. Berwind-
     White Co., 309 U.S. 33, 56-58, 60 S.Ct. 388, 397, 398, 128 A.L.R. 876).

The dangerous language comes in part from the cited cases, but should have 
been corrected. The problem lies in treating the terms "right" and 
"privilege" as synonymous. This has a long history in English law, in which 
originally all "rights" were considered privileges granted by the sovereign, 
that is, the monarch. But with independence of the American colonies, making 
the people the sovereign, and their adoption of the Constitution, came 
recognition in law that the rights recognized and protected in the 
Constitution precede the Constitution, and are either natural, preceding 
society and government, or arise out of the social contract that created the 
society, and are therefore not "granted" by the Constitution, but only 
recognized and protected by it, and would exist even if the Constitution did 
not.

This sloppy thinking can be seen in the second quote, which makes a confused 
connection between the exercise of the rights to publish and practice 
religion with engaging in interstate commerce. No government, federal or 
state, may impose a charge on the exercise of a right, or otherwise 
legislatively restrict it. That is what "right" means. A right may only be 
disabled, or restricted, by due process, that is, on an individual case to 
case basis, either in punishment for a crime, or upon proof beyond a 
reasonable doubt to a unanimous jury of twelve that if not disabled, the 
person would cause harm to himself or others.

As for the regulation of interstate commerce, one can find no basis in 
original understanding that even the federal government, under the commerce 
clause, has the authority to make it a privilege to engage in such commerce. 
The power to regulate commerce is the power to impose legislative 
restrictions on the modality of tangible commodities and the trade in them, 
item by item, and not on the persons who might engage in such trade.


