Turley To Debate The Constitutionality Of The Wealth Tax

Today, I will be debating the constitutionality of the wealth tax. The Federalist Society has organized today’s debate with Indiana Law Professor David Gamage who co-authored Why A Wealth Tax Is Definitely Constitutional.

The event titled “Would a Wealth Tax Pass Constitutional Muster” is open to public for registration and will be held virtually at 1:30 ET.

Update: Here is the podcast.

I have previously discussed different aspects of the wealth tax from its constitutionality to its imposition what I called a “captivity tax.” I also responded to counterarguments raised by Yale Professor Bruce Ackerman.

We are very fortunate to have two highly respected individuals managed the event.  Eileen J. O’Connor of the Law Office of Eileen J. O’Connor, PLLC will serve as the moderator and Robert Carney, Senior Counsel of Caplin & Drysdale will serve as the interlocutor.

As I have previously written, I do not believe that the wealth tax is definitely constitutional and that this is a much closer question. Like so many questions, it ultimately comes down to your default position on such interpretative questions.

On its face, the wealth tax would seem to be a “direct tax” that runs against the language of Article I, Section 2, Clause 3 of the Constitution requires that “direct taxes shall be apportioned among the several States.” However, I am eager to hear Professor Gamage’s insights.  He writes and teaches in the area of tax law and policy.  My focus is on constitutional law and history.  Thus, we come to this question from different academic perspectives but that should only make this discussion even more interesting. The wealth tax controversy is fascinating because it intermingles a tax and constitutional law elements.

You can register for the event here.

9 thoughts on “Turley To Debate The Constitutionality Of The Wealth Tax”

  1. Since everyone supports the U.S. Constitution – a wartime governing charter – all “official duties/authorities” are also required to be “constitutional”. Wouldn’t sovereign immunity (or qualified immunity) only apply to “constitutional” authorities? So unconstitutional practices would NOT be a protected action by constitutionally oath-sworn officials.

    In a “constitutional” system, where laws are subordinate to the U.S. Constitution [Article VI of the Constitution] citizens could seek court relief from unconstitutional searches (“Stop & Frisk”), unconstitutional computer searches, unconstitutional surveillance (“Carpenter v. US) and any unconstitutional practice. Congress and state legislatures would be required to overturn all unconstitutional authorities under Judicial Review (“Marbury v. Madison).

    Most Americans would support such a system but we can’t cherry-pick only the parts we agree with.

  2. Is there any way to get a recap or transcript of this debate, as I was unable to attend? Would be fascinating to hear both sides. In truth, I would like to read Professor Turleys educated position on this issue, As I sense the left won’t abandoned this issueuntil thoroughly defeated by the court.

  3. One doesn’t have to go that far to debate the unconstitutionality of a fascist tax. Income tax just as fascist in that it’s entire purpose was and still is to control Citizens.

    It makes a lie not out of the Constitution but the entire socialist dictatorship and has since 1909 or so when Woodrow Wilson’s progressive liberal (aka socialist) party took over the former democratic party. There is nothing democratic about the liberal progressives nor their true name socialist the creator of Marxist Leninism which has never supported the individual citizen and that includes their RINO agents.

    Income Tax is a creature of those whose intent was and is control of the masses which works when the mentality is at low ebb. It does not work for the Self Governing, independent Citizen who in the Constitution are considered the fountain of all power.

    The only tax that isn’t fascist is one where the citizen controls the government the End User Tax where the choice of buying or not buying is ours as it should be.

    Continuing to turn up the unbearable light of freedom and the American Way on egg sucking dog liberals in Honor of Ken Hamblin.

  4. Understanding that taxation for an appropriate level of security is set, Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual or specific welfare, redistribution of wealth or charity. General welfare is infrastructure, although, checks to each and every citizen in the same amount in an economic crisis also constitute general welfare.

    Wanton and unconstitutional spending is the problem.

    The wealth tax is unnecessary, inequitable, purely punitive and for the unconstitutional purposes of providing largesse to favored individuals, which is not provided for in the Constitution.

  5. I fail to see how anyone who diligently saves for retirement can maintain his or her independence when the Tax Hounds are eyeing those savings as being “wealth.”

  6. “On its face, the wealth tax would seem to be a “direct tax” that runs against the language of Article I, Section 2, Clause 3 of the Constitution requires that “direct taxes shall be apportioned among the several States.” However, I am eager to hear Professor Gamage’s insights.”
    He’s a tax lawyer. Those guys can find a pulse on a cadaver and get a deduction for it. Plain meaning is an anathema to them. Expect an obfuscated yet breezy version of history, a “work-around” the plain language and perhaps an appeal to that great god of tax: the Infernal Revenue Service for whom the Constitution is but a hindrance to the much sought after 100% tax rate. Good luck in unraveling the Gordian Knot.

    1. Here’s the gobbledygook I found in Gamage’s paper on the topic:

      “Our [John Brooks, too] view is that, even if a comprehensive wealth tax would have been a “direct tax” at the
      founding, the 16th Amendment should be interpreted broadly to encompass wealth tax reforms—as well as encompassing mark-to-market reforms, progressive consumption tax reforms, and other reform proposals designed to assess tax based on comprehensive measurements of ability to pay. In essence, this is because the lines between what is “income” and what is “wealth” (and, for that matter, what is “consumption”) are fluid and contingent, and it is likely impossible to give Congress the tools it needs to tax income without also thereby giving it the tools to tax wealth or other measures of ability to pay.”

      Oh so it’s facially unconstitutional but the Court should “interpret it broadly” (so much so that the language is unrecognizable) ’cause Congress needs the “tools” to tax wealth since it already taxes “income.” Sort of like we ought to interpret the First Amendment to hold that Congress can suppress free speech elsewise we can’t enforce noise ordinances in DC. Non-sequitur/False Choice anyone?

      There’s also a warped description of the Civil War era Direct Tax of 1861 and its consequences. (Told you the history would be “breezy”) Here’s the author’s history lesson: ” The first four of these direct taxes worked reasonably well. But the fifth—the Direct Tax of 1861—created numerous problems. The reason was the Civil War.” And what were those “problems”: “Consequently, although the Direct Tax of 1861 was largely successful in raising revenues from the Union states, questions of what to do about taxpayers in the
      Confederate states created lingering controversy.” So the problem was a section of the country in open rebellion against the taxing authority wouldn’t pay. What? Inreality the 1861 tax collected no net revenue because the cost of collection exceeded the money collected. Treasury Sect’y Chase though it unwise and urged Congress to reconsider. They did in 1862.

      Here’s the real story of the Revenue Act of 1861. In reality, the reason FOR the act was to finance the Civil War. It strains the imagination to figure out how the problem the act was designed to address created “numerous problems” yet was “largely successful” in raising money for the war effort. The direct tax component was repealed the following year but was ruled unconstitutional in 1892.

      Well, JT this one ought to be easy!


      1. The legal basis, the rationale for the taxation is untenable and unconstitutional. Various titles of taxation are prevarication and red-herrings as taxes and funds are commingled. Massive amounts of Social Security funds were squandered long ago leaving Congress to acquire new funds to perpetuate the old program.

        No nation in history ended slavery through war. Denial of secession is omitted and, therefore, excluded from the Constitution – secession is fully constitutional by omission. Slavery must have been terminated through advocacy, boycotts, divestiture and other legal means.

        Denial of secession, the Civil War, suspension of Habeas Corpus, issuance of a proclamation, confiscation of legal and deeded private property, “fixing” the 1864 election to tamper with the vote and stop the anti-war effort, etc., were all unconstitutional and must have been immediately struck down by the Supreme Court, while imposition of amendments under the duress of brutal post-war military occupation constitutes improper ratification and is not prescribed as a legitimate part of the amendment process in the Constitution. None of the Lincoln contribution is constitutional or otherwise legitimate.

  7. As to the law, I can’t say, but I know this started with Piketty. I read his book advocating wealth taxes, and I remember it didn’t take long for critics to take him apart. Nobody cites Piketty anymore.

    The left has hung onto the idea of wealth taxes in Europe because they’ve taxed incomes to the breaking point, so they need to find some other way to feed the leviathan. It’s no longer an intellectual argument. It’s just the left grabbing you pocketbook (as always). It will start with soaking the rich, but ultimately, they’ll be taxing 401k’s, too. They really should call themselves “Regressives.”

    I recognize that wealth disparity has become a worrisome thing, but the greatest perps when it comes to disparity are the globalists and tech monopolists, and they are the ones who want to decide who will be taxed and who will get loopholes. The Democrats are listening to their corporate overlords, so beware.

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