Bench Memos

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There Are Amendments, and Then There Are Amendments


In an otherwise terrific column (as usual), Thomas Sowell writes this aside in his latest:

“Incidentally, it took a constitutional amendment to enable the federal government to impose an income tax. The people who wrote the Constitution were wise enough to understand what a dangerous thing it would be to allow government to take money from people just because those people had it.”

I’m afraid I don’t get the second sentence at all, on any level.  Governments tax; that’s what they do.  And they take the money from the people who have it for the same reason Willie Sutton robbed banks: “because that’s where the money is.”  And the men who wrote the Constitution did nothing—exactly nothing—to get in the way of government’s ability to raise proportionately more money from wealthier people than from poorer ones.  This is no endorsement of any particular tax policy.  But with very few restrictions (e.g., no taxation of exports), the taxing power given to Congress in the Constitution was pretty untrammeled.

Which brings me to Sowell’s first sentence.  To say, as he does, that enabling the imposition of an income tax “took a constitutional amendment” is to mislead by omission.  Of course the income tax is explicitly authorized by the Sixteenth Amendment (1913).  But the amendment was prompted not by anything in the original Constitution creating a barrier to a tax on incomes.  It was prompted by two erroneous decisions of the Supreme Court in 1895 (see here and here), wrongly imputing such a barrier to the Constitution.  Income taxes had been imposed earlier in our history, and had been unanimously upheld by the Court in 1881, but the majority in the divided 1895 ruling was driven by ideological animus and not by sound constitutional reasoning.

Yes, I know there are some who think the Court got it right in 1895.  But I am certain that Thomas Sowell does not hold that all Supreme Court rulings are by definition the same thing as the Constitution itself (as the Court itself likes to pretend).  So at least let it be noted that constitutional amendments can be ratified a) in order to overturn correct rulings of the Court whose results seem unpleasant; b) in order to overturn incorrect rulings of the Court when no other recourse seems feasible; or c) for other reasons entirely.  Four of our constitutional amendments have had the direct effect of reversing Supreme Court rulings.  In two cases there is a historical consensus that the reversal was one of the two types just mentioned (that the Fourteenth was type “b,” and that the Twenty-sixth was type “a”), but in the other cases (the Eleventh and the Sixteenth) there is still lively debate among legal scholars about which type each was.  I think I am in the majority of such scholars (for a change!) when I say that the Eleventh reversed a correct ruling, and the Sixteenth reversed an incorrect one.

That is to say, the Sixteenth Amendment restored a constitutional status quo ante, a principle of the original Constitution that income taxes were a permissible subject of congressional legislation.  In that sense, the amendment was not necessary in principle, only in practice—“necessary,” that is, if the object was to levy such a tax.

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