Interpreting the Sixteenth Amendment

By Jensen, Erik M. | Constitutional Commentary, Summer 2004 | Go to article overview

Interpreting the Sixteenth Amendment


Jensen, Erik M., Constitutional Commentary


Readers of Constitutional Commentary may have missed the brouhahas, but Professor Calvin Johnson and I have been arguing for several years about the meaning of the Direct-Tax Clauses of the Constitution (1) and the Sixteenth Amendment to that Constitution. (2) I'm happy to say we disagree on almost everything, and less happy to note that neither constitutional lawyers nor tax lawyers seem to care very much about any of these issues. (3)

Our disagreements aren't only about academic trivia. For those who insist on practical consequences in legal arguments, there really may be something at stake here. The Direct-Tax Clauses, parts of the original Constitution, impose a cumbersome apportionment requirement on taxes that are "direct"--a rule tied to the apportionment rule for representation in the House of Representatives. In its original form, Article I, section 2 provided that

   [r]epresentatives 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.

The special counting conventions for slaves and "Indians not taxed" disappeared long ago, (4) but the apportionment rule remains. And Article I, section 9, clause 4 similarly provides that "[n]o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

Everyone agrees that apportionment makes direct taxes very difficult to implement. The Sixteenth Amendment, ratified in 1913, provided some relief, eliminating apportionment as a requirement for "taxes on incomes": "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." But the Amendment seemed to leave apportionment intact for other direct taxes, whatever they are. Avoiding apportionment thus requires that a levy be either indirect, in which case the Direct-Tax Clauses won't kick in at all (and the Sixteenth Amendment will be irrelevant), or a tax on incomes, which the Sixteenth Amendment immunizes.

A broad definition of "direct taxes" coupled with a narrow conception of "taxes on incomes" could leave the Direct-Tax Clauses with application broad enough to prevent significant change in the way the United States raises revenue. In the last decade, several new forms of national taxation have been proposed, including taxes on wealth (5) and various types of consumption taxes. (6) If these taxes would be direct but wouldn't be taxes on incomes, they would have to be apportioned to be constitutionally valid. And if apportionment would be required for a proposed tax, the tax probably wouldn't be enacted: it's been 142 years since Congress went to the trouble of apportioning a tax. (7)

All of this is a long-winded way of explaining why I'm discussing the Direct-Tax Clauses in an exchange on interpreting the Sixteenth Amendment. The process of interpreting the Amendment is inevitably also the process of interpreting the Clauses. You can't hope to understand the Amendment without understanding what it was a reaction to.

The scope of the Amendment and the scope of the Clauses depend on the interpretation of two terms, "direct taxes" and "taxes on incomes." The Sixteenth Amendment doesn't matter, under any theory of interpretation, unless the Direct-Tax Clauses have some substance--unless, that is, the term "direct taxes" encompasses a significant body of levies. (8) And the Direct-Tax Clauses have no remaining substance today if every levy that might otherwise have been subject to the Clauses can be characterized as a "tax on incomes."

My conclusions about the proper way to interpret the Direct-Tax Clauses and the Sixteenth Amendment are simple: constitutional provisions ought to be taken seriously, and we ought to resist interpretive principles that would have the effect of gutting those provisions. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Interpreting the Sixteenth Amendment
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.