690
Scalia, J., dissenting
and indeed no one ever thought, prior to our decisions in Elrod and Branti, that patronage contracting could violate the First Amendment. The Court's attempt to contest this point, or at least to becloud the issue, by appeal to obnoxious and universally condemned patronage practices simply displays the feebleness of its case.
In each case today, the Court observes that we "have long since rejected Justice Holmes' famous dictum, that a policeman 'may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.' " Umbehr, ante, at 674 (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E. 517 (1892)); see O'Hare, post, at 716-717 (quoting same). But this activist Court also repeatedly rejects a more important aphorism of Justice Holmes, which expresses a fundamental philosophy that was once an inseparable part of our approach to constitutional law. In a case challenging the constitutionality of a federal estate tax on the ground that it was an unapportioned direct tax in violation of Article I, § 9, Justice Holmes wrote:
"[The] matter . . . is disposed of . . . , not by an attempt to make some scientific distinction, which would be at least difficult, but on an interpretation of language by its traditional use—on the practical and historical ground that this kind of tax always has been regarded as the antithesis of a direct tax . . . . Upon this point a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921) (emphasis added).
II
The Court's decision to enter this field cannot be justified by the consideration (if it were ever a justification) that the democratic institutions of government have not been paying adequate attention to the problems it presents. The American people have evidently decided that political influence in government contracting, like many other things that are
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