What a nineteenth century U.S. Supreme Court case over taxes on a bushel of green tomatoes tells us about truth in an era of fraying reality.
Every few years, an old Supreme Court case, Nix v. Hedden, pops up in the press. It even found its way into a dissenting opinion in the landmark case Bostock v. Clayton County, Georgia, where the Supreme Court concluded that an employer who fires an individual for being gay or transgender violates federal anti-discrimination laws.
The dispute in Nix was nothing special. It was a story as old as civilization itself: a dispute over taxes. Although everyone hates taxes, legal cases about them rarely garner much public interest. But Nix is different. It’s perennial because of what was taxed and why it was taxed, namely, tomatoes and whether they are properly considered fruits or vegetables.
The case reminds us of a simple truth: we can, by usage and tradition and, eventually, tacit agreement, create a new reality that is, decidedly, unreal. We decided that a tomato is a vegetable, even though it most definitely was a fruit. But it wasn’t horribly sweet. It went well in vegetable soup. And we didn’t want to think of ketchup as a fruit jam.
John Nix, the plaintiff in Nix v. Hedden, challenged that simple truth. A tomato, he said, is fruit no matter how much you think otherwise. Nix’s case is about being absolutely right but nevertheless wrong. It’s a story of how the Supreme Court affirmed that reality was subjective: that a tomato was a vegetable even though it wasn’t.
The Rise of John Nix, the International Merchant
John Nix, a New Yorker, was “broad-minded, and clear visioned.” In 1839, he established John Nix & Co., the first merchant firm, buying and selling fruits and vegetables from farms on the East Coast. He spent decades building his business not just in New York, but across the United States.
After the Civil War, the late 1800s brought a boom to the produce trade both domestically and internationally. Nix wasn’t going to pass up the money to be made. He was a mainstay at Washington Market — then between Fulton and Vesey Streets where One World Trade Center now stands — out of which he and the other produce merchants operated.
Nix, more than his competition, knew how to get ahead. Above all, he was a farmer’s merchant. He understood that if he learned the troubles farmers faced and figured out a way to fix them, they would be indebted to him. And favors owed meant money to be made for John Nix.
So when the Virginia trucking industry struggled to deliver the farmers’ take, Nix propped it up. When farmers approached him about investing in the Farmers Bank, he invested. When no one could get onions and potatoes from Bermuda, he sent a steamer to pick them up. When Floridians thought of nothing but growing oranges, he told them to plant potatoes to meet demand in the North.
He was the first and the best, considered simply as “№ 1.”
Congress and the Half-Loaf Tomato Tax
In the early 1880s, Congress argued over the terms of a new tariff bill meant to reduce exorbitant taxes on foreign good — the lingering effect of a protectionist United States after the Civil War. The bill’s critics called it “half-loaf,” and lobbed various uncouth 1800s insults at it. “Better than nothing” and “at least a beginning” was the best political spin offered.
Rather than reduce tariffs across the economy, the bill took a scattershot approach. It proposed eliminating tariffs in some places, and, in others, drastically raise them. Fruit landed on the “free list.” But the tax on vegetables was tripled. This was bad news. If it passed, Nix and his men could offload foreign fruits into the country scot-free, but when it came to vegetables, a sizable portion of his book of business, they’d pay a 10% tax.
In a letter to Congress, Nix argued that a tariff on vegetables made no sense. Domestic farmers could not keep up with the demand in the United States as it was. Americans needed foreign vegetables and were tariffs raised, they might be forced to go without any vegetables for months out of the year. He “none will be injured” if vegetables were put on the free list.
Congress did not listen. The bill passed in March 1883. Its passage was met with the same lack of enthusiasm among its supporters that met the negotiations over the bill. “Certainly it is not as good as it ought to be,” the New York Times said. “But it is not so bad as we were afraid it would be.”
Still, the economy chugged along. Americans kept buying their greens. Nix kept funneling foreign vegetables from the Caribbean into Washington Market. The tax dollars kept flowing down to Washington, D.C.
The Arrival Of Green Tomatoes Stateside
Nix was fine with all of this, except the last part. After three years of paying the tax collector, Nix renewed his protest, this time to the tax collector. In the Spring of 1886, a Nix & Co. steamer floated into New York Harbor. It was full of green tomatoes from Bermuda. The collector classified the tomatoes as “vegetables in their natural state” subject to the 10% tax.
Nix disagreed. Those green tomatoes, Nix said, should be classified as fruits because, botanically speaking, they bore seeds. But he collector was not swayed, and Nix paid the taxes under protest.
Months later, Nix filed a lawsuit to get his money back. The litigation strategy was simple. To win, Nix thought all he would need to do was prove that a tomato was, as a matter of scientific fact, a fruit.
At trial, Nix’s attorneys called two friendly merchants with decades of experience. With each in the witness box, the attorney read the definitions of “fruit” and “vegetable,” which defined each according to its botanical properties. He then asked the witnesses if either had a special meaning in trade, different from that in the dictionary. “They are correct as far as they go,” the first witness said. “I understand that the term ‘fruit’ is applied in trade only to such plants or parts of plants as contain the seeds.” The second witness agreed.
Pivoting on that testimony, Nix’s attorney then read the definition of “tomato” to the jury, which described the vine of the tomato plant as bearing “fruit,” “fleshy, usually red or yellow and glossy” and containing seeds. With that, he rested his case.
Nix lost. What mattered, the judge thought, was not whether tomatoes were a fruit as a technical matter, but whether the American people believed that the tomato was a vegetable. Although he recognized that the dictionaries and witnesses had laid down the “botanical and technical meaning” of a tomato as a fruit, he found that “the word ‘vegetable,’ in its popular and received meaning, is used to cover a class of articles which includes tomatoes.”
The next day’s papers covered Nix’s defeat only in passing, “The tomato was decided to be a vegetable in the United States Circuit Court yesterday.” (The same day, the circuit court also concluded that beer was, in fact, a “liquor in the eyes of the law,” a less controversial opinion.)
To The United States Supreme Court
Convinced that the judge got it wrong, Nix appealed to the Supreme Court. The wheels of justice ground slowly — even back then. It took seven years from the time the green tomatoes hit the docks to get to the Court. But once Nix was there, it did not take long for the Court to show him the exit.
Just two weeks, in fact. “The single question in this case is whether tomatoes, considered as provisions, are to be classed as ‘vegetables’ or as ‘fruit,’” Justice Horace Gray wrote in a short opinion for a unanimous court.
The Court noted that witnesses “at the trial testified that neither ‘vegetables’ nor ‘fruit’ had any special meaning in trade or commerce, different from that given in the dictionaries.” Those dictionaries defined a fruit “as the seed of plants, or that part of plants which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed.”
“Botanically speaking,” the Court then admitted, “tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans and peas.” Nevertheless, it found that that conclusion, a scientifically correct one, had “no tendency to show that tomatoes are ‘fruit,’ as distinguished from ‘vegetables,’ in common speech, or within the meaning of the Tariff Act.”
Instead, Congress must have, when it passed the Tariff Act, meant vegetables under an “ordinary meaning” of that term:
In the common language of the people, whether sellers or consumers of provisions, all these are vegetables, which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery and lettuce, usually served at dinner in, with or after the soup, fish or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.
Turning to other culinary opinions, the Court drew an analogy to an earlier case that posed a similar question: whether beans should be classed as “seeds.” True enough, beans were “seeds in the language of botany or natural history, but not in commerce nor in common parlance.” But, as with Nix’s tomatoes, the Court concluded, “In speaking generally of provisions, beans may well be included under the term ‘vegetables.’” Beans, “an article of food on our tables, whether baked or boiled, or forming the basis of soup,” “are used as a vegetable.”
Nix, at long last, lost — for good.
The End for John Nix
John Nix died in 1895, three years after his trip to the Court. After his death, Nix & Co. ended up in the Supreme Court once more in a different case. It lost that one too. Still Nix’s business survived for decades longer, and celebrated its hundred-year anniversary. Good wishes were sent by President Roosevelt’s secretary and the governor of New York.
Nix’s son, George, eventually shuttered the business (sometime in the early 40s, it’s not clear) and left the city for the countryside of New Jersey. Again, the Nix family was ahead of its time. The Washington Market was torn down in the 1960s as supermarkets took over the landscape. The World Trade Center replaced it. And, the market? Well, it moved to Hunts Point in the Bronx, where, today, you can still buy tomatoes in bulk.
Tomatoes, Information, And The War For Reality
Nix has left two things in his wake. One is a vegetarian restaurant named Nix off Union Square (of course) that I’m sure has some nod to Nix on the back of the menu… because why not I guess? It’s New York and bars and restaurants are, often, the only remembrances of what things were.
But beyond that, the thing that outlasted it all? Outlasted all of the bushels of tomatoes and steamers from Bermuda, all of the eager customers navigating the narrow aisles of Washington Market, and all of Nix’s business acumen? The inescapable fact that a tomato is a vegetable even though it’s definitely a fruit.
Nix teaches us that we define our reality through a common agreement on what is real not necessarily though what is real. In an era of fraying political realities, where two individuals standing on two opposite sides cannot possibly understand how the other believes what they believe, Nix reminds us why. Reality is a construct.
And, what we are realizing probably too late, is that the Nix rule applies with special force to politics. Reality is especially susceptible to manipulation when it comes to politics. People are motivated to believe what is not true when it comes to politics. To explain this problem or that; to find a scapegoat; to deflect blame; to hold on to some past that never existed.
But it’s one thing to all agree on a tomato being a vegetable even if it’s not. It’s an informed agreement; it makes sense; in a way, by eliding reality, we elucidated it. And even if there are some who refuse to come along on the blurring of lines between the tomato as a fruit or vegetable, we can disagree about our dinner and still run a functioning democracy.
It’s another thing entirely to create a reality that obscures what actually matters and prevents us from addressing problems in front of our faces. We have the power to do that too though. We live in a world were there’s no need for quantum physics to consider — even visit — alternate realities. They are here; they exist; and they are shredding our ability to all live in the same world for a very basic reason: we do not all live in the same world.
Nix’s fight over a tomato, while a harbinger for what was to befall our democracy, is also quaint in a way. Nix was not wrong in arguing that a tomato was a fruit. And the Court was not wrong for holding that a tomato was better thought of as a vegetable. Both were right about reality, just in different ways.
But now there are disinformation merchants whose goal is to create new realities to serve their own purposes — ones that are, unlike Nix’s, wholly without any basis. So it’s not just a lie here or a lie there. It’s a tidal wave of disinformation that wipes the landscape of yesterday completely off the map so that it can be replaced with something else entirely.
In these realities, tomatoes are not vegetables or fruits. They are conspiracies, and the deep state, and some completely fantastical new world order the likes of which Dan Brown could not have dreamed up. These disinformation merchants are terraforming new realities through the mass acceptance of deception.
And what is scary is that if Nix teaches us anything it’s that given enough time, and given enough desire to make sense of the world, humans will give in to objectively wrong views of the world to make things “easier.” And no matter how hard you try to convince them otherwise, they will never believe that the world you see is the right one. They will never believe what is in front of them because they simply can’t see it any longer.