Dispelling the Fog about Direct Taxation

Abstract

A full interpretation of capitation taxes in their historical context is here used as the key to a fresh understanding of the nature and practice of apportioned direct taxation under the Constitution. Contrary to common misconceptions, it appears that none of the key elements of the Federal powers of direct taxation – capitations, other direct taxes, and apportionment – are of uncertain meaning, or no longer of any relevance because of the abolition of slavery. Evidence for these conclusions is drawn from historical studies of taxation, records of the Constitutional Convention, Federal and state tax statutes of the period, contemporaneous economic and reference works, and from legal arguments presented in Hylton v. United States (1796). The decision in Hylton is analyzed on the basis of new documentary evidence, and found wanting – especially in the matter of the oft-repeated dicta of its Justices. Some recent discussions of direct taxation are critiqued from the vantage point of recognizing both Hylton’s misconstruals and the historical contexts of state taxation within which the provisions governing Federal taxation emerged. A clarification of the implicit criteria of indirect taxation is derived from Adam Smith’s demonstrable influence on the Founders. It is then combined with a documented tripartite definition of capitation to critique recent tax proposals, as well as the controversial individual mandate penalty of the Patient Protection and Affordable Care Act of 2010. The body of the investigation is presented in four Parts, while the Introduction and Epilogue focus on the contemporary relevance of its insights.

Keywords: direct taxation, apportionment, Constitition