Constitutional Amendment?

Given the recent Supreme Court decision expanding Congress’ powers to tax, would it be worthwhile to get behind an effort to amend the Constitution to clarify what a direct tax is? The mandate is hated enough that there might be enough states that would get on board. We need not reach issues like repealing the 16th Amendment, but just to clarify that any tax applied directly to individual citizens or property, and not relating to the sale or purchase of goods (excise taxes), importations or exportations (tariffs), and other than taxes explicitly authorized by the Constitution (taxes on incomes), are forbidden to Congress. Note that this would also eliminate the apportionment requirement, but has Congress ever even used that? What would be good proposed language? Here’s a quick off the cuff stab:

Section 1. The power of Congress to weigh and levy taxes shall under no circumstance be interpreted to allow persons or their property, to be directly taxed, regardless of whether such a tax is apportioned among the several States. Direct taxation shall include all taxes levied directly upon a person, regardless of purpose, and shall include, but is not limited to, capitations, taxes on real and personal property, and any tax levied against an individual directly, whether a capitation or not, which is intended to be punitive in nature, or not intended specifically for the purpose of raising revenue.

Section 2. The first section shall not be construed to interfere with Congress’ power to weigh and levy indirect taxes, such as excise taxes on the sale or manufacture of goods, tariffs on importation or exportation of goods, nor interfere with the power to tax incomes in the manner explicitly authorized by this Constitution.

Section 3. Nothing in the first section shall be construed to interfere with Congress’ power to set fines or other criminal penalties in the exercise of its enumerated powers under this Constitution.

Much like Progressives in the first part of the 20th century, I think in the 21st, those in the center-right coalition ought not fear amending the Constitution to deal with excesses of government. Feel free to debate this language, or add your own in the comments.

12 thoughts on “Constitutional Amendment?”

  1. Why do you want to exclude the income tax? This tax has proved to be the single greatest intrusion to personal privacy, and the single greatest enabler of Big Government, in the last two hundred years!

    If privacy and small government mean anything, we should get rid of the income tax as well.

    1. Oh, and I would add that, unless we have an amendment forbidding income tax, I will NOT support the so-called “Fair Tax” Proposal (among the other things wrong with it).

      Do not doubt that Congress will happily create a new tax, without repealing the income tax…or, if they do repeal it, a later Congress won’t hesitate to re-institute it…unless there’s an amendment (and a sympathetic Court, of course! :-( ) stopping them.

    2. The main purpose is to shut down Congress being able to enact putative schemes under the guise of taxation like ACA. The purpose isn’t to get rid of the income tax. We’ve been living with income taxes for a century, pretty much. I’d support an effort to limit the 16th Amendment, but I think it’s too important to prevent Congress from doing things like ACA under the taxing power to risk it by including a repeal of the income tax in its entirety.

      1. I disagree; We’ve been taxed based on income for the last century or so, and in that time everything has gone to shit. I argue that this is in large part due to how we are taxed. Taxation based on income penalizes people for earning money, while doing nothing to encourage saving.

        Systems that solely tax expenditures result in encouraging people to acquire wealth, while simultaneously discouraging frivolous spending.

        1. and in that time everything has gone to shit.

          Really? We’re orders of magnitude more wealthy a country than we were in 1913. If you’re black, things definitely look better today than they did for you in 1913. I generally don’t buy golden age thinking. I’d be happy to repeal the 16th Amendment, and undo a good deal of the New Deal political order, but we’re not descended from any golden age. We’re freer and wealthier today than we’ve ever been, on balance. I’m not happy with much of that balance, but with the exception of a handful of periods, the post 9/11 world being one of them, I think we’ve moved forward rather than backwards, despite the bureaucrats.

  2. Not being a smart@ss here..but seriously, what’s the point? SCOTUS could just as easily ignore any new amendment just like they ignore the current ones. Roberts and his ilk will take 59 pages to write up a convoluted legalese explanation on why your amendment doesn’t say what you and I clearly think it says. There is no fixing this thing within the current framework. As long as there are progressives in the govt/power things will just be getting worse and worse. There is no compromise..we can’t live with those that seek to take our freedom. Compromise to them is simply us giving up tad less of our property and freedom. The ONLY viable solution is an amicable “divorce”. Divide up the country(it’s assets and debts) and let the freedom loving people live in one part and the progressive have their socialist utopia.

    1. You still have to get good justices on the Court and the lower federal courts, but if you give them less weasel room, you can get better rulings. The Amendment process is not a panacea, but few justices are so completely unbound by the rule of law that they will nullify a Constitutional Amendment recently enacted in its entirety.

  3. They can still use excise tax to effect behavior.

    The NFA tax is an example. The anti-slavery excise on cotton exports pre-1860 is another.

    A 400% excise on medical goods, drugs, and care, unless paid for by approved insurance, would have exactly the same effect as Obamacare does now.

  4. According the Abel P. Upshur’s “A Brief Inquiry…”, there were only four instances of direct taxes by apportionment at the time the book was published (around 1850).

    I highly recommend this book, by the way. It’s a point-by-point rebuttal to Joseph Story’s Commentaries.

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