Did the Sixteenth Amendment Ever Matter? Does It Matter Today?

27 Pages Posted: 26 May 2013 Last revised: 22 Oct 2014

See all articles by Erik M. Jensen

Erik M. Jensen

Case Western Reserve University School of Law

Date Written: May 25, 2013


This article, prepared for a symposium on the centennial of the ratification of the Sixteenth Amendment, argues that the Amendment was legally and politically necessary in 1913, if there was going to be a modern income tax, and that it remains significant today. The Amendment provides that “taxes on incomes” need not be apportioned among the states on the basis of population, as would otherwise be required for direct taxes. An apportioned income tax would be an absurdity, and, if there were no Amendment, Congress could not enact an unapportioned tax on income from property, the sort of tax that was struck down by the Supreme Court in 1895 in Pollock v. Farmers’ Loan & Trust. The Pollock result was changed by the Sixteenth Amendment, but the core of the case has never been overturned. Indeed, in 2012, in National Federation of Independent Business v. Sebelius, Chief Justice Roberts favorably cited Pollock on a constitutional issue. All of that is to say that, without the Amendment, an unapportioned tax on the income from property would continue to be invalid, which makes the Amendment quite important indeed. Furthermore, a tax on property that is not a “tax on incomes” remains subject to the apportionment rule (and therefore almost certainly an impossibility). The Amendment remains important not only for what it says, but also for what it does not say.

Keywords: Sixteenth Amendment, taxes on incomes, direct taxes, apportionment, Hylton v. United States, Pollock v. Farmers' Loan & Trust, Eisner v. Macomber, National Federation of Independent Business v. Sebelius

JEL Classification: K34

Suggested Citation

Jensen, Erik M., Did the Sixteenth Amendment Ever Matter? Does It Matter Today? (May 25, 2013). 108 Northwestern University Law Review 799 (2014); Case Legal Studies Research Paper 2013-12. Available at SSRN: https://ssrn.com/abstract=2270199

Erik M. Jensen (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3613 (Phone)
216-368-2086 (Fax)

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