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Friday, February 22, 2019

Are the Direct Tax Clauses Still in the Constitution?

Elizabeth Warren's proposed wealth tax has stirred renewed interest in the Direct Tax Clauses of the Constitution. I have written about these clauses and about the Supreme Court's ill-considered decision in Pollock (overruled by the Sixteenth Amendment) holding that the income tax was direct. In looking at the relevant texts, though, I wonder if the Fourteenth Amendment repealed the Direct Tax Clauses.

Section 2 of the Fourteenth Amendment begins with the following sentence:

"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

This is a revision of the following sentence in Article One, Section Two 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, 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."

How are these two provisions different? One edit (the deletion of "which may be included within this Union") is stylistic. The others relate to the abolition of slavery and involuntary servitude. The Three-Fifths Clause was removed, the reference to indentured servants was removed, and the word "free" was no longer necessary to qualify "persons."

Do you see the other change? There is no reference to direct taxes in Section Two of the Fourteenth Amendment. Why not? One thought is that the rest of Section Two talks only about representation (the penalty that states would face if they disenfranchised the freed slaves) and thus there was no need to mention taxes. Another thought, though, is that direct taxes as originally understood included taxes on slaves. Thus, the abolition of slavery could have been read as eliminating the need for a special category of direct taxes that required apportionment among the states.

Is there any other evidence to support the view that Section Two of the Fourteenth Amendment repealed the Direct Tax Clauses? I don't know. Not in the Supreme Court's cases construing "direct taxes" after 1868. Whether there is anything in the debates on the Fourteenth Amendment or other commentary from that time is something I plan to check.

Sometimes reading the text closely yields new insights. Sometimes not. Which one is this?

Posted by Gerard Magliocca on February 22, 2019 at 09:38 AM | Permalink


You can't remove a provision from the Constitution just because a later amendment doesn't restate it. That's just not how it works.

The reason it doesn't mention taxes is because the first line of Clause 2 of the 14th Amendment is only there as an introduction to the rest of the clause, which limits representation of states which deny the franchise to freed slaves. The Republicans were concerned that by freeing the slaves, they had just given the Southern states more representation in the House (the blacks went from counting as 3/5 of a person to a whole person) and they wanted to guarantee that the blacks would have a right to vote (hopefully Republican) if the Southern states wanted to get their full representation.

Is there any support for your proposition that the apportionment clause had something to do with slavery? I was under the impression that it was put in to discourage states who had lost population from pushing off the census in an effort to keep their representation. By providing that states pay taxes in proportion to their population, it would encourage states who had lost people to push for a census so their apportioned taxes would go down, together with their representation. I think it was originally proposed before the requirement for a decennial census was put in, and then it was just left there.

Posted by: Biff | Feb 22, 2019 2:20:26 PM

Why can't it be both? The existence of an ambiguity does not mean that all possible interpretations of that ambiguity have equal merit. As literary scholarship demonstrated several decades ago, it's fairly easy to throw out "clearly wrong" interpretations that seem otherwise supported by reading text out of context.

It seems to me that the argument here is over defining the context, and the weight of "silence means considered and rejected" meme... in the inconsistent but simultaneous contexts of a secondary purpose, of trying to infer the intent of a nonunitary "author," of mere legislators not informed by the immense intellect and research talent of either the modern legal academy or modern think-tanks. (That last probably sounds more sarcastic than it really is: One of the purposes of scholarship of all origins is to perform gedankenexperiments to see what avenues of inquiry they open or close off even in the absence of hard or replicable data.)

In short, there is ambiguity. The task is resolving it in a defensible manner... because it is, after all, a constitution we are expounding. Even without post-philological literary theory, tools, and vocabulary, Justice Marshall was able to express that "the Text" isn't always "the text in front of us with no connection to its surroundings or other context" in a reflexively ambiguous — one might say "oracular" — fashion.

Posted by: C.E. Petit | Feb 22, 2019 1:35:04 PM

Does it matter?---"The shared responsibility payment is thus not a direct tax that must be apportioned among the several States."


A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, "without regard to property, profession, or any other circumstance." Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances — earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.

Posted by: Shared Irresponsibility | Feb 22, 2019 12:20:51 PM

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