Academic journal article Northwestern University Law Review

What a History of Tax Withholding Tells Us about the Relationship between Statutes and Constitutional Law

Academic journal article Northwestern University Law Review

What a History of Tax Withholding Tells Us about the Relationship between Statutes and Constitutional Law

Article excerpt

ABSTRACT-In this Article, I explain what a seemingly obscure statute, the Current Tax Payment Act of 1943, can tell us about the relationship between statutes and constitutional law. I use William Eskridge and John Ferejohn's notion of a "superstatute" as a lens through which to view this relationship. A "superstatute," in Eskridge and Ferejohn's conception, is a statute that has small "c" constitutional emanations, emanations that both affect interpretations of the large "C" Constitution and are entrenched against subsequent legislative change. To better understand the precise contours of the notion of a superstatute, I look at the Current Tax Payment Act of 1943, which instituted the system of federal tax withholding for wage income. I describe the history of federal income tax withholding leading up to the passage of that Act, explaining in turn how that history sheds light on the underlying notion of a superstatute.

INTRODUCTION: ENTRENCHMENT, STATUTES, AND SUPERSTATUTES

Entrenchment. It's the holy grail of constitutional theory. How exactly does a "constitution" entrench values, policies, or what have you, such that a democratically elected majority is-or, ought to be-precluded from promulgating a currently desired policy preference? In the modern American context, that question is of course often asked by framing the problem as the countermajoritarian difficulty-when can an unelected judiciary override an elected legislature? We might reformulate the problem in slightly less institutionally oriented terms and think of it-as Chief Justice Marshall first articulated it and many Americans remain wont to do-as a question of when the words of a Constitution, ratified by a group of Americans in 1787-1788 and amended twenty-something times since then (in accordance with procedures for amendment ratified at that same initial "moment" in 1787-1788), conflict with the words of a statute and must thus necessarily override that statute.1 Of course, things have always been more complicated, even in Chief Justice Marshall's day, but it can still be said that a single, focused written document that purports to entrench-at a single moment-a "higher" law remains one of the United States' most lasting contributions to legal and political theory.2 The magic of that entrenchment is of course the source of endless fascination and is why some of our greatest legal minds have spent their careers grappling with this fundamental question: when should judges use the Constitution to entrench a legal principle so as to make it more difficult for legislation to change law? Or, more descriptively, what factors entrench the Constitution-that is, why do judges decide to invalidate laws as unconstitutional?

William Eskridge and John Ferejohn's recent book A Republic of Statutes is a refreshing twist on this theme: they completely reframe the question of entrenchment. No longer is entrenchment simply an unelected judiciary overriding an elected legislature or executive. Instead, entrenchment becomes a more complex phenomenon, whereby statutes- the product of legislatures themselves-can in turn act to bind future legislatures. Simplistic American constitutional theory cannot abide such complexity. Under the basic later-in-time rule, a statute can always be repealed by a subsequent legislature. The principle dates to Roman times and is found clearly in Blackstone: "Acts of parliament derogatory from the power of subsequent parliaments bind not."3 Only "the Constitution" can entrench; only the Constitution itself can prevent a legislature from making change. Statutes cannot entrench because they cannot be made unrepealable. This relationship between past statutes and the present legislature is not inevitable, though it often seems to be so. Just ask Britain. Until recently, its "Constitution" included a series of statutes, and notwithstanding the basic premise of parliamentary sovereignty, these statutes were viewed as sacrosanct, if not entrenched. …

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