The Warren Wealth Tax: A Response To Professor Bruce Ackerman

I recently wrote about the constitutional questions raised by the wealth tax proposed by Elizabeth Warren given countervailing constitutional dictates and standing precedent. One of the early advocates of such a tax has been Yale Professor Bruce Ackerman who assured Warren that such a tax would be constitutional. In a Slate column entitled “Constitutional Critiques of Elizabeth Warren’s Wealth Tax Proposal Are Absurd,” Ackerman dismisses any possible constitutional challenge as not “serious” and “absurd.” Putting the hyperbole aside, I wanted to respond to the substance of the column since it makes reference to my earlier Washington Post column. As I have previously said, there are good-faith arguments on both sides of this issue and the outcome is likely to be a close vote. However, Ackerman reduction of countervailing arguments to absurdity not only omits key arguments but creates an incomplete account of the case against such a wealth tax.

In my Sunday column, I said that the Warren wealth tax would “at best, it would be a close call for judges” and is “probably unconstitutional.” I suggested that it could come down to the vote of Chief Justice John Roberts. The “absurdity” of such a view is shared by a range of experts and law professors. Erik M. Jensen, the Coleman P. Burke Professor Emeritus of Law at Case Western Reserve University, analyzed the constitutionality of the proposal as concluded “at best, the wealth tax would be constitutional problematic.” Harvard Professor Noah Feldman concluded that it would be close question and would likely come down to Roberts’ vote. Chicago Law Professor Daniel Hemel also thought it would be close with a swing vote likely by Roberts. Michael Graetz, a professor of tax law at Columbia University, concluded “I think a constitutional challenge to an actual tax on wealth is inevitable.That it would fail does not seem to me to be obvious.” Brian Galle, a Georgetown professor at Georgetown Law, noted, as I did, that the absence of a transaction to tax would present a problem in a constitutional challenge. He added that, while he disagreed with earlier rulings of the Court like Pollock, “the Supreme Court doesn’t think that Pollock was wrong.”  He added that Warren’s academic supporters did not reveal the full strength of arguments against such a tax under the Constitution.

Ackerman however dismisses the notion that a serious constitutional challenge could be mounted based on his analysis of Article I and prior case law. Ackerman’s analysis however is strikingly incomplete and does not address arguments raised by some of us under both the constitutional text and case law.

Any analysis should start with the text of Article I, Section 8 which permits Congress to “lay and collect taxes, duties, imposts and excises.” However, it requires that these “be uniform throughout the United States.” The next section says that “no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.” 

A wealth tax by any measure is a “direct tax.” As I noted in my column, there are various contributing factors for this language from the infamous “Three-Fourths compromise” to early forms of taxation to a desire to limit federal tax authority.

Ackerman moves quickly away from the language of Article I and highlights the “decisive precedent” of the Supreme Court’s 1796 decision in Hylton v. United States. I also addressed that case. The court reviewed a carriage tax that the Court deemed to be not a direct tax but an “indirect tax.” Thus, the Court recognized the restrictive and binding language. In fact, while Alexander Hamilton and James Madison disagreed on the constitutionality of the tax, they both agreed that the a direct tax under the Constitution would include a wealth tax. Hamilton agreed with Madison that a direct tax could be no tax “on the whole property of individuals or on their whole real or personal estate.” He later added “All taxes on expenses or consumption are indirect taxes. A tax on carriages is of this kind, and of course is not a direct tax. Indirect taxes are circuitous modes of reaching the revenue of individuals, who generally live according to their income.”

It is true that the Court found that an apportionment of such a tax would illogical. However, the decision itself was issued not as a single decision but seriatim opinions. The thrust of the Court was that this was not a direct tax at all. Chase, Paterson, and Iredell stressed this critical threshold point. One of the most interesting passages came in the opinion of Paterson. Paterson noted that “If Congress, for instance, should tax, in the aggregate or mass, things that generally pervade all the states in the Union, then perhaps the rule of apportionment would be the most proper, especially if an assessment was to intervene.” However, he said that this was not such a case. Instead, he said that this was tax on a “expenses or consumption.” Paterson then quoted Adam Smith on the proper taxing of “Consumable commodities.” Smith is quoted as saying:

“The consumable goods, which last a considerable time before they are consumed altogether, are most properly taxed in the one way, those of which the consumption is immediate or more speedy in the other; the coach tax and plate tax are examples of the former method of imposing; the greater part of the other duties of excise and customs of the latter.”

In other words, Paterson viewed this as a tax on a consumer item and not the “whole property of individuals.”

Ackerman moved past this “decisive precedent” to note that Congress passed taxes to pay for the Civil War and that no challenge was made. While the character of these taxes could be debated, the absence of a judicial review leaves the matter debatable and unhelpful for the purpose of constitutional interpretation.

Ackerman then gets to Pollock v. Farmers’ Loan and Trust Company, the justices reaffirmed the prohibition of other taxes, including an income tax. That case, which has never been overturned, directly supports the view of Madison and Hamilton and directly rejects the type of wealth tax viewed constitutional by Ackerman. It was also the impetus for the Sixteenth Amendment. Yet, Ackerman quickly moved to the 1900 decision in Knowlton v. United States,  where Ackerman says “five conservative justices, executing a ‘switch in time,’ joined Harlan and the other dissenters in unanimously upholding Congress’ wealth tax.” However, this was an inheritance tax not a wealth tax. There is a difference. Indeed, while directly quoted in my column, Ackerman ignores the critical statement of the Court that an “inheritance tax is not one on property, but one on the succession.” It was viewed as a “death duty” charged on the transfer of wealth, not a wealth tax. Ackerman simply ignores the obvious distinction and the key language. The Court was reaffirming the distinction between a transaction tax and a wealth tax. Indeed, as recently as 2012, in his landmark ruling upholding Obamacare’s individual insurance mandate, Chief Justice John Roberts felt it was necessary to point out that the court “continued to consider taxes on personal property to be direct taxes.” Ackerman also ignores that statement in insisting that the Court has completely abandoned the distinction.

What is particularly curious is the Ackerman’s statement that “Knowlton set the stage for Congress’ consideration of the 16th Amendment in 1909.” If Knowlton was the complete rejection of Pollock that Ackerman wrongly suggests, why would the 16th Amendment be needed. However, the problem for Ackerman is far more significant after the 16th Amendment. Ackerman says that these cases and the limitations of Pollock  were central to the drafters of the Amendment. However, rather than simply allowing full tax authority, the amendment states a clear limitation:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

The prior cases showed ample appreciation for the range of duties, excise taxes, and income taxes. However, Congress only allowed for income to be taxed. Moreover, it made specific reference to the fact that a federal income tax would not have to be subject to “any census or enumeration” — a direct reference to the limitations under Article I. In other words, whatever the debate before 1900, the meaning was clearly established by the 16th Amendment itself that only an income tax would not be subject to the apportionment and census determinations. Ackerman again simply ignores that argument.

Ackerman concludes by saying that Congress should pass the wealth tax under the assurance that it is clearly and unassailably constitutional. Moreover, despite the views of academics across the political spectrum, Ackerman says that any other interpretation than the one he is presenting would, if accepted by the Supreme Court, “not only provoke a grave crisis but discredit their professions of fidelity to the originalist principles they claim to champion.”

Such a claim is difficult to address beyond noting the words of Supreme Court Justice Joseph Story who once marveled, “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.” 

83 thoughts on “The Warren Wealth Tax: A Response To Professor Bruce Ackerman”

  1. Just more policy to divide people with discriminatory laws. If all laws should apply equally to all people then a single rate for all is the only right thing to do with taxation. We need the investors, risk takers and we need labor. They should not be turned into adversaries by politics.

  2. One of the major points that was made throughout the first paragraph was the idea that a Supreme Court decision would come down to the vote of one individual.

    How is it that we have reached a point where the justices of the Supreme Court (or any other court) are based entirely upon personal interpretation, instead of what the actual text of our laws says? The entire basis for our nation and its laws is that we are supposed to be a nation of laws and not a nation of a unitary executive. Yet the main arguments over this issue revolve around the personalities of who gets to interpret the laws.

    “Show me the man, and I’ll show you the crime.” Lavrently Beria, former head of KGB under Stalin.

    “It’s not who votes; it’s who counts the votes.” Joseph Stalin.

    Is this where we have devolved?

    1. I’m waiting for Mueller’s sentencing memo on Manafort. IIRC, today’s the day its due. Mueller could show more of the cards in his hand. There’s really only one reason for Mueller not to show more of the cards in his hand. But I won’t trouble you that detail. Gnash would not like it at all.

  3. For those of you who may be tired of taking Turley’s word for things, the link below will allow you to assess Ackerman’s arguments in Ackerman’s own words rather than Turley’s.

    https://slate.com/news-and-politics/2019/02/elizabeth-warren-2020-wealth-tax-constitutional.html

    1 day ago … The Constitutional Critiques of Elizabeth Warren’s Wealth Tax Plan Are Absurd … Elizabeth Warren’s first proposals upon joining the 2020 …

    1. here are just two crucial paragraphs excerpted from the article linked above:

      The court’s 1796 decision in Hylton v. United States served as a decisive precedent. Two years earlier, Congress had levied a direct tax on luxury carriages, imposing it uniformly on all carriages throughout the nation. The owners of fancy carriages immediately protested that this tax on their wealth was one of the “other direct taxes” that the capitation clause required to be apportioned on the basis of each state’s population.

      A unanimous court rejected their claim. In his lead opinion, Justice Samuel Chase made it clear that the “rule of apportionment is only to be adopted in such cases where it can reasonably apply.” Because luxury carriages were not equally distributed amongst the states, it was unreasonable to insist on apportionment. Hylton’s “rule of reason” prevailed throughout the early republic, with the courts repeatedly enforcing Congress’ decision to impose property taxes, except for those on slaves, at a uniform rate across the nation.

      [Repeated for emphasis}: “[The] rule of apportionment is only to be adopted in such cases where it can reasonably apply.” Because luxury carriages were not equally distributed amongst the states, it was unreasonable to insist on apportionment.

      [end excerpt]

      [Paraphrase]: Because “wealth” is not equally distributed amongst the states, it would be unreasonable to insist on apportionment for Warren’s wealth tax proposal.

  4. The other George, right on. That would be the fair tax. No write offs. Just pay a simple tax when making a purchase.

    1. Ind Bob

      Socialize costs, privatize profits. We know that rich people worked hard and the rest are just lazy.

      1. Hey Bill, I’ve always wondered whether it was possible to “accumulate” wealth without wealth being “redistributed.” I know that some people say the accumulation of wealth is the “distribution” of wealth rather than the “re-distribution” of wealth. But it seems like an awful lot of emphasis to place on a “prefix.” I mean, seriously, from where does the wealth come? I’ve heard a few rumors. But really . . . “It grows on trees” and “it falls from the sky” sound an awful lot like the Code of Hammurabi that said “My army and I stole everything fair and square and you can’t get it back. Get your own.”

        1. that spurious remark shows your ignorance of the Code of Hammurabi. it’s an insult to a venerable artifact of human heritage. This is the first time I have ever heard someone claiming to be a lawyer mock these laws. They are deserving of respect on the level of the Laws of Moses or other codices of antiquity. From Wiki:

          https://en.wikipedia.org/wiki/Code_of_Hammurabi

          The Code of Hammurabi is a well-preserved Babylonian code of law of ancient Mesopotamia, dated back to about 1754 BCE (Middle Chronology). It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code. A partial copy exists on a 2.25 meter (7.5 ft) stone stele. It consists of 282 laws, with scaled punishments, adjusting “an eye for an eye, a tooth for a tooth” (lex talionis)[1] as graded based on social stratification depending on social status and gender, of slave versus free, man versus woman.[2]

          Nearly half of the code deals with matters of contract, establishing the wages to be paid to an ox driver or a surgeon for example. Other provisions set the terms of a transaction, the liability of a builder for a house that collapses, or property that is damaged while left in the care of another. A third of the code addresses issues concerning household and family relationships such as inheritance, divorce, paternity, and reproductive behaviour. Only one provision appears to impose obligations on an official; this provision establishes that a judge who alters his decision after it is written down is to be fined and removed from the bench permanently.[3] A few provisions address issues related to military service.

          The code was discovered by modern archaeologists in 1901, and its editio princeps translation published in 1902 by Jean-Vincent Scheil. This nearly complete example of the code is carved into a basalt stele in the shape of a huge index finger,[4] 2.25 m (7.4 ft) tall. The code is inscribed in the Akkadian language, using cuneiform script carved into the stele.

          It is currently on display in the Louvre, with replicas in numerous institutions, including the Oriental Institute at the University of Chicago, the Northwestern Pritzker School of Law in Chicago, the Clendening History of Medicine Library & Museum at the University of Kansas Medical Center, the library of the Theological University of the Reformed Churches in the Netherlands, the Pergamon Museum of Berlin, the Arts Faculty of the University of Leuven in Belgium, the National Museum of Iran in Tehran, and the Department of Anthropology, National Museum of Natural History, Smithsonian Institution, the University Museum at the University of Pennsylvania, and Museum of the Bible in Washington, DC.

          1. Hammurabi’s main contribution to World History is that he organized the first standing army of professional soldiers who actually stayed behind in the land that they had conquered so as to continue being paid with the future loot and booty to be plundered from the same subjugated peoples whom they had conquered rather than just carting away with them whatever wasn’t nailed down back to where they came from somewhere in the hills far up the river. And that was the true origin of the maxim “Possession is Nine Tenths of The Law.” Hammurabi was The First Land Pirate. His predecessors were mere pillagers with sorely limited imaginations.

      2. To covet is a sin.

        A covetocracy is sinful.

        The American Thesis is Freedom and Self-Reliance.

        Charity is industry conducted voluntarily in the free markets of the private sector.

        1. George says The Dutch West India Company was a charitable organization conducting “voluntary industry” in the “free markets of the private sector” by means of jurisdiction over The Atlantic Slave Trade.

          George does NOT say that The English sinfully coveted the Dutch holdings in America in the act of waging four wars against them for control of The Atlantic Slave Trade.

          Meanwhile, Lord Tengri says you cannot directly tax that which falleth from the heavens as the gentle rain. You can only indirectly tax the grass and the clover and the chattel who graze upon it.

  5. “Ackerman however dismisses the notion that a serious constitutional challenge could be mounted based on his analysis of Article I…”

    It seems that what passes the Supreme Court today is based more on the temperament of the justices than on the Constitution. Some believe in the Constitution and some find it a nuisance.

    As far as Ackerman is concerned I was taught by people like Thomas Sowell that in business when a person is wrong they lose money and can even go bankrupt, however, in academia they frequently get promoted.

  6. Once again Turley cites the following, “Article I, Section 8 which permits Congress to “lay and collect taxes, duties, imposts and excises.” However, it requires that these “be uniform throughout the United States.” The next section says that “no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”

    Turley appears to be presenting that text as though the framers had contemplated the existence of a “direct tax” that might be “other than a capitation.” But if there ever were a “direct tax” “other than a capitation,” then why would the framers specify that such an “other direct tax” should be laid in the exact manner of a “capitation;” namely, “in proportion to the census to be taken”? If the supposed “other direct tax” is to be laid in the exact manner of a capitation (in proportion to the census to be taken), then how, exactly, and in what way, perchance, would that supposed “other direct tax” be anything “other than a capitation”?

    Suppose, instead, that, when the framers specified that a direct tax must be laid in proportion to the census to be taken, the framers were telling us what they thought a direct tax IS, and what they meant by a direct tax; namely a capitation in proportion to the census to be taken. IOW, the restriction placed on any “other direct tax” might be the key definition of a “direct tax.” If so, and if one proposes a tax that cannot be laid in proportion to the census to be taken, then maybe one has not proposed a “direct tax.” Ask yourself: Would the framers explicitly tell us that we had to do exactly that which the framers, themselves, knew could not be done? Why this coyness, Framers?

    1. Here is the same clause verbatim from Article I, Section 9–albeit with a parenthetic comment about the 16th Amendment:

      (No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.) (Section in parentheses clarified by the 16th Amendment.)

      1. Separate the clauses and then analyze the text:

        No capitation shall be laid unless in proportion to the census.

        No other direct tax shall be laid unless in proportion to the census.

        What direct tax other than a capitation might there be?

        If that direct tax other than a capitation cannot be laid in proportion to the census, then why are the framers telling us that there might be other direct taxes could be laid in proportion to the census?

        1. The theory about the color-coded avatar icons is not accurate.

          AIW, a.k.a. me, is grey & black-brown.

          All these Anonymous’s are that color as well. They are not all me.

          I do not stand by some of these Anonymous’s (grey & black-brown) opinions or comments.

          1. That is interesting. You have the gray and brown avatar even though you changed your user name from Anonymous to Alice In Wonderland, which, in turn, means that you didn’t leave the name field blank, either. Hmmm . . .

            Maybe it has something to do with the little check box followed by the words “Save my name, email, and website in this browser for the next time I comment” directly underneath the data field labeled “Website.” Otherwise, it might have something to do with whatever information gets entered into the data field for “Website.”

            The avatar color pattern assigned to me is definitely determined by the information entered into the data field for “Email.” It is not determined by the information entered into the data field for “Name.”

            1. This is a test.

              Alice in Wonderland in the “Name” field only.

              No “Email.” No “Website.”

              No ‘check mark’ on “Save my name, email . . . .”

              1. Curious. If I leave the “Email” field blank, then the browser gives me a message telling me to Go Back and the comment does not post.

                1. Curses. Foiled again. I have no idea what’s going on. Except that I got the gray and brown avatar by leaving the “Email” field blank. Other than that, I’m still in the dark.

                2. Weird. I have never been required to leave an “Email.” I have always posted without an “Email.” I never click the ‘Save my name, email . . . . ‘ either. I do see that your avatar switched colors to grey and brown though.

                  I clicked on the avatar icon and it now appears to be pink and red before I click ‘Post Comment.’

                3. “the browser gives me a message telling me to Go Back and the comment does not post”.
                  It’s highly probable that this site has a spam filter that is weeding out some of her comments.

              2. This is not a test….. to repeat, this is NOT a test.😉
                I’ll neglect to fill in the email address and name in the boxes below this comment.
                At times, if I’m using a mobile device, their are no boxes displayed to fill in that information.
                Here, I’ll intentionally skip entering the info even though the boxes are available…..they usually are, but about 5-10% of the time they aren’t present. ( At least when I use the smartphone….I’ve never seen that happen on a desktop or a laptop).
                It’ll show up as “anonymous” with the “traditional avatar” associated with the anonymouses.
                I usually remember to put my name, Tom Nash, on the comments that will post as “anonymous”.
                This time, maybe I won’t.😏😀

                1. Sould be “THERE” are no boxes, not “their” are no boxes.
                  The point is that the screen display can show up differently, depending on the device used.
                  The closest thing to what I experience, with narrow, unusable gutters, has also been noted by DB Benson.
                  I assume that he was also using a mobile device when he experienced those limitations on the screen displays.

            2. This is a test.

              Anonymous in the “Name” field only.

              No “Email.” No “Website.”

              No ‘check mark’ on “Save my name, email . . . .”

            3. This is a test.

              Completely blank.

              “Name” field left blank.

              No “Email.” No “Website.”

              No ‘check mark’ on “Save my name, email . . . .”

            4. Okay…so, I would need to designate myself then with information entered into the data field for “Email” to receive a designated avatar.

              That is, if I do not want to be confused with other person(s) on here posting as “Anonymous” (whether they actually write out “Anonymous” in the data field (like I did) for “Name” OR just click ‘Post Comment’ with everything else left blank).

              1. As for most of those other persons posting here as Anonymous, “Why, they’re all just a pack of cards.”

                There is still at least one person posting here as Anonymous who remains . . . er . . . a diamond in the ruff.

                    1. That’s okay.

                      The Cheshire Cat is the logical one, with all the answers.

                      Here to teach the ‘rules’ of Wonderland.

                    2. As long as you “flesh it out,” and yet, keep some “skin in the game.” 😉

                      If you know what I mean…

                    1. Late4Dinner says: February 21, 2019 at 4:05 AM

                      “There is still at least one person posting here as Anonymous who remains . . . er . . . a diamond in the ruff.”

                      I should have know that I couldn’t fool the one and only original anonymous. When will I learn?

          2. Alice, are you still having problems? If so reboot your computer start with totally different data in all the sectors. Send a test and if it works replace the data one by one.

    2. I think your reading here is tautologically obscure in a way that is not supported by plain English, or the fact that the Framers felt it necessary to include this provision in the first place. “No capitation or other direct tax” clearly implies both that capitation taxes are direct taxes, and that there are direct taxes other than capitation taxes that may or may not have the same characteristics of capitation taxes. “Unless in proportion to the census or enumeration herein before directed to be taken” is a condition of such capitation or other direct taxes to be imposed, which further implies that it is possible to apportion these taxes without reference to the census, or not to apportion them at all – say, by aiming them at some subset of the population which is less than the entire population revealed by the census, and then making the exaction. This possibility was the stuff of the tax controversies that reached the Supreme Court, that Turley has addressed. Unless you know of some other definition of direct tax, or general contemporary understanding of them, which contradicts Turley’s claim about what Hamilton and Madison agreed direct taxes could comprise (a wealth tax), then I think your interpretation is too obscure for prime time.

      1. Excerpted from the article linked above:

        Direct taxes are based on the ability-to-pay principle. This principle is an economic term that states that those who have more resources or earn higher income should pay more taxes. The ability to pay taxes is a way to redistribute the wealth of a nation. Direct taxes cannot be passed onto a different person or entity; the individual or organization upon which the tax is levied is responsible for the fulfillment of the full tax payment.

        [Repeated for emphasis]: Direct taxes cannot be passed onto a different person or entity; the individual or organization upon which the tax is levied is responsible for the fulfillment of the full tax payment.

        1. And now for the scandalous part: It is, in fact, possible to renounce one’s wealth and to give all or a portion of one’s worldly possessions way. In some cases there are gift taxes levied. In other cases there are charitable deductions from one’s personal income tax. But it is, nonetheless, possible to avoid paying a “wealth tax” even though one might or might not pass that wealth tax burden onto a different person or entity in the act of giving it all away.

          Warning: The remainder of the discussion veers off into “theology.” Oh! Nooooo!

        2. Here it comes. Yea though thou shalt NOT belabor the point too far past point of sweating:

          https://biblehub.com/genesis/3-19.htm

          In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out … You will sweat all your life to earn a living; you were made out of soil, and you …. our labour and travail: for labouring night and day, because we would not be …

        3. “ability to pay” is also how blackmailers, thieves, burglars, and extortionists select their marks

          Fan BingBing is an example of a person who had the apparent “ability to pay” as a successful actress, and the Chinese Communist tax collectors, made it clear to her, through arrest and detention, that her “ability to pay” had better match the additional taxes they extorted out of her

          https://www.koreaboo.com/news/fan-bingbing-paid-off-130-million-within-two-days/

          Is this what the Democrats like Late and Warren have planned for us who have the misfortune of apparently higher “ability to pay?”

          1. Genesis 3: 18–“Both thorns and thistles it will yield you, and you will eat the plants of the field.”

            Some theologians are of the opinion that we are supposed to know that we are being punished and behave accordingly. If we all run around claiming to have been “gifted” God’s Grace in the form “Wealth,” it really starts to sound more like bragging and boasting about Earthly Rewards than any such Divinely Inspired Biblical Punishment.

      2. This excerpt just came in over the transom from the investopedia entry on the 16th Amendment:

        Article I, section 2, clause 3 of the Constitution: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers….” In U.S. constitutional law, a “direct tax” is a tax on property “by reason of its ownership.”

        [end excerpt]

        At a quick glance, this looks a lot like the old slogan “No Taxation without Representation.” Personally, I’ve always thought that that slogan should work both ways; as in, “No Representation without Taxation, either.” Even so, it certainly seems to be the case that Article I, Section 2, Clause 3 is asserting some sort of connection between the apportionment of Representatives and the apportionment of direct Taxes. And, for that reason, I very strongly suspect that the direct Taxes that had to be apportioned among the several states were direct Taxes on the property known as Slaves.

        1. Ha-Ha! Here’s the entire sentence including, especially the part that investopedia elided:

          Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

          [Repeated for emphasis]: “. . . three fifths of all other Persons.”

          Well, well, well . . . Now that they are no longer allowed to own Slaves, maybe the super-rich can avoid the wealth tax by posing as “Indians not taxed.” What would Elizabeth Warren do?

        2. ” Personally, I’ve always thought that that slogan should work both ways; as in, “No Representation without Taxation, either.””

          Interesting comment, Diane.

              1. Excerpted from the Bruce Ackerman article in Slate magazine currently linked at the top of this thread:

                Critics assert that the tax is barred by a special constitutional exception, which requires that a “Capitation, or other direct, Tax” should not be imposed uniformly, but should be allocated on the basis of each state’s population. This proviso was part of the notorious Three-Fifths Compromise, in which the South agreed to pay a head tax on its slaves in exchange for gaining extra seats in the House of Representatives and the Electoral College. From the very beginning of the republic, however, the Supreme Court read the capitation clause narrowly, to permit Congress to impose nationwide taxes on wealth outside of such head taxes.

                [end excerpt]

                FTR, that’s what I meant by the slogan “No Representation without Taxation.” Don’t get me wrong. I’m not in favor of the Three-Fifths Compromise any more than I’m in favor the peculiar institution of chattel slavery. I oppose both in equal measure. Which is admittedly moot, these days. But, then, that’s the larger point. Because the capitation (head tax) on slaves violated the uniformity rule, therefore it had to be laid proportionate to the census to be taken. But Warren’s proposed wealth tax would NOT violate the uniformity rule if it were NOT laid in proportion to the census. Therefore, Warren’s proposed wealth tax is not a capitation and it would be unreasonable to apply the apportionment rule to Warren’s proposed wealth tax.

                In order to declare Warren’s proposed wealth tax unconstitutional, SCOTUS will have to find some other reason to give besides an unreasonable application of the apportionment rule to a tax that would not otherwise violate the uniformity rule except under just such an unreasonable application of the apportionment rule.

                1. Diane, you brought up “head scratching”. Instead of searching Slate you would do better by going to the pharmacy and getting something to kill the lice in your hair. Perhaps that is what makes you so confused and your writing so illogical.

                  1. The Three-Fifths Compromise is no more. Because the peculiar institution of chattel slavery is no more. Therefore the clause in Article I, Section 8 requiring any Capitation, or other direct, Tax to be laid in proportion to the census to be taken is . . . also moribund–as in a dead letter of the law.

                    The only way forward is forward. Backwards is NOT forward.

                    1. Diane, you are not making much sense. According to your reasoning the Constitution was dead and buried years ago.

  7. “However, this was an inheritance tax not a wealth tax. There is a difference. Indeed, while directly quoted in my column, Ackerman ignores the critical statement of the Court that an “inheritance tax is not one on property, but one on the succession.” It was viewed as a “death duty” charged on the transfer of wealth, not a wealth tax. Ackerman simply ignores the obvious distinction and the key language.”
    ********************************
    Ackerman not only missed the boat, he couldn’t find the harbor. The plain language of the 16th Amendment controls. “Incomes” means
    incomes”; it does not mean “wealth.” To argue a tax on succession is analogous to one on wealth takes some contortions of the tongue that even Stormy Daniels wouldn’t try.

    1. News flash! Law professors specializing in ‘constitutional law’ are generally pretentious shysters. There was a contribution to Constitutional Commentary about 20 years back which was a parody of an article by Bruce Ackerman (the piece was a sophistic demonstration that the President could veto his own impeachment). Not everyone is so enamored of professional courtesy that they pretend liberal academics write in good faith.

  8. The constitution authorizes excises (sales tax) for the “general Welfare.” The only source of wealth is agreed upon exchange of value. The value may be goods or services. There is no other source of wealth.
    Off the wall: We judge the success of our economy by calculating GDP. How about the federal government institutes an excise or sales tax on each state’s GDP — they could then collect it as they wish.
    Income tax taxes money when earned while sales tax taxes money when spent. There are wealthy individuals who hire tax lawyers to get their income tax to zero. Children of the wealthy who earn nothing. But these people still spend; let’s tax that. Instead of income.

  9. “…GENERAL WELFARE…”

    GENERAL = ALL

    WEL = GOOD AND SATISFACTORY

    FARE = ADVANCE, PROGRESS, PROCEED
    _______________________________________________________________________________________

    “…INDIVIDUAL WELFARE…”

    INDIVIDUAL = A SINGLE HUMAN BEING AS DISTINGUISHED FROM A GROUP – SINGLE, PARTICULAR, SEPARATE

    WEL = GOOD AND SATISFACTORY

    FARE = ADVANCE, PROGRESS, PROCEED
    ___________________________________

    Article 1, Section 8

    “Congress shall have Power To lay and collect Taxes,…to…provide for the…general Welfare of the United States…”

    1. The Constitution provides Congress the power to tax merely for “…general Welfare…”
      ___________________________________________________________________

      Read it and weep.
      ______________

      “You can lead a horse to water but you can’t make him drink.”

      – Anonymous

  10. Trump will announce his retirement and resign on March 4th. Bye bye, Miz American Pie. Drove my Chevy to the levee but the levee was dry….

  11. Putting aside the Constitutional problem of a wealth tax for a moment, the larger problem will manifest once a wealth tax is enacted. As Congress’ penchant to use taxes as their own personal checkbook to conduct unfettered abuse, retaliation and punishment of American Citizens spirals out of unaccountable control, it will take no time before they begin revising definition of wealth downward to the low end of middle class income.
    After all, for the Communists in the House and Senate, the middle class is the real problem with America and the only true solution is to get rid of it.
    .
    “The immediate aim of the Communist is the same as that of all the other proletarian parties: formation of the proletariat into a class, overthrow of the bourgeois supremacy, conquest of political power by the proletariat.”
    -Friedrich Engels, The Communist Manifesto

    bour·geoi·sie
    /ˌbo͝orZHwäˈzē/
    noun
    the middle class, typically with reference to its perceived materialistic values or conventional attitudes.
    .
    Even thought the Communist Democrats in Congress are evil and crazy, that does not mean they are also stupid……well not most of them anyway. (●) (●)

  12. The last quotation is right on the money, particularly as a commentary on liberal wishful thinking about politics, and especially recently after they all went Trump crazy. I’m curious about that census part, however, that would make a direct tax on wealth ok. What does the phrase, “unless in proportion to the census or enumeration herein before directed to be taken” mean? Is that some concept of a flat tax, or something else? Anyway, seems like a potential loophole to me. Could Warren use it to tax wealth? If she can, then she should. If she can’t, then she should attack (though I do not think she would) the outrageous wealth of the rich with as many indirect weapons as possible, e.g., increasing the estate tax or taxing stock transactions, the latter being an idea that is never even raised in American political discourse (except by the Green Party), even though regular people who do not play the stock market have all their routine sales transactions taxed. Failing that, she should pursue a constitutional amendment (yes indeed, someone on the Democratic side needs to think big, even though the party will not) to cap net worth at $20,000,000. No one could possibly be deserving of more than that, if the measure of wealth is actual one’s economic contribution to society. Of course, the measure of wealth is not this, and if Trump’s rant in Miami against socialism is any indicator of how the oligarchy is sizing up this issue (it is an indicator), then we can be sure that the oligarchy is long past getting nervous about whatever the next pitchforks may be.

  13. “Congress shall have Power To lay and collect Taxes,…to…provide for the…general Welfare of the United States…”

    deliberately omitting and, thereby, excluding any power to lay and collect taxes for individual Welfare.

    Any and all forms of redistribution of wealth are unconstitutional.
    __________________________________________________

    Article 1, Section 8

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
    ________________________________________________________________________________________________________

    The entire communistic American welfare state is unconstitutional. Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.
    ___________________________________________________________________________________________________________

    The government the Founders established exists solely to facilitate freedom and free enterprise through “general Welfare,” which means “ALL well proceed,” as in roads, post office, water, sewer, electricity, natural gas, telecom, etc.

    Individual Welfare is charity as industry conducted in the free markets of the private sector wherein citizens may voluntarily contribute.

    1. “Individual Welfare is charity as industry conducted in the free markets of the private sector wherein citizens may voluntarily contribute”

      what if the citizens are not interested in voluntarily contributing?
      What if they are self-absorbed, selfish, greedy, prideful, consumed with appetites (physical and spiritual), all the while their immediate surroundings descends into chaos? Where is the sense of “ought”?

      The Founding Fathers weaved consistently throughout the many foundational documents the notion of “our Creator” and “our fellow man”.

      1. …and the Constitution states “…general Welfare…” omitting and, thereby, excluding individual Welfare.

        Surely you can read and grasp the dominion of the U.S. Constitution.

        You may like the principle of communism, redistribution of wealth or individual Welfare, but Congress cannot tax for it.

        All Americans are free to start a charitable organization in the free markets of the private sector.

        This is free America and there is ALWAYS a free market solution to every concern.

        1. That’s so true, George. If any American with more $50 Million worth of assets wants to avoid paying Warren’s proposed wealth tax, then all that that American would need to do is to give away enough of his or her wealth to possess less than $50 Million worth of assets and thereby become free from the burden of Warren’s proposed wealth tax.

          It would be strictly voluntary, of course.

          If that same American does not want to give away enough of his or her wealth to possess less than $50 Million worth of assets, then all that that American would need to do is to pay either 2% or 3% per year in Warren’s proposed wealth tax. I’m guessing that paying 2% or 3% per year would be far more attractive to those Americans than giving away enough of their wealth to become free and clear of the tax burden. Come to think of it, the value of a fair number of those assets probably grow at rates higher than 2% or 3% per year.

              1. Diane, you are suggesting is that a Walmart be given when the tax collector knocks on the door. Now what? How are you going to handle it? Quote Wikipedia? What have you accomplished?

      2. Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.

  14. “Ackerman says that any other interpretation than the one he is presenting would,… “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.”

    Saint Bernard of Clairvaux: “L’enfer est plein de bonnes volontés ou désirs” (hell is full of good wishes or desires).

    Virgil’s Aeneid: “facilis descensus Averno (the descent to hell is easy)

    Everyone has an opinion. I’m not particularly interested in feel-good platitudes by others but rather being the master of my own journey. Leftists want to pave other peoples journeys as they dictate while exempting theirs (e.g. Nicolas Maduro, Hugo Chavez, Fidel Castro, Joseph Stalin, Adolph Hitler, Hillary Clinton, Nancy Pelosi, et al)

  15. I’m recalling what Robert Bork said in 1999: that the relentlessly result-oriented jurisprudence of appellate courts had destroyed constitutional law as an authentic intellectual discipline. So, Bruce Ackerman earns his living expounding on a spurious discipline, and plays adolescent rhetorical games in the process.

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