A Historical Examination of the Constitutionality of the Federal Estate Tax

30 Pages Posted: 12 Apr 2019

See all articles by Henry Lowenstein, Ph.d.

Henry Lowenstein, Ph.d.

Coastal Carolina University

Kathryn Kisska-Schulze

Clemson University College of Business

Date Written: October 1, 2018


During the 2016 presidential debate, Hillary Clinton vowed to raise the estate (death) tax to 65%, while Donald Trump pledged to abolish it as part of his overall tax reform proposal. An interesting question resonates as to whether the tax is even constitutional. This paper takes a fresh look at the Estate Tax, appropriate in an era of a U.S. Supreme Court consisting of a majority of adherents to a more “strict constructionist” view of constitutional interpretation. Although historically regarded by the U.S. Supreme Court as being a constitutional excise tax, it can be theorized that the estate tax is an unconstitutional overreach of taxing power by the Federal government and constitutes a “taking” of private property banned by the 5th Amendment. This article directly confronts the constitutionality of the federal Estate Tax from a purely bedrock perspective. To meet this objective, were review the enumerated powers of Federal taxation as allowed by the U.S. Constitution; dissect the scope of the estate tax, to include an analysis of the judicial and legislative history supporting its constitutionality; theorize that the tax does not have a constitutional basis legitimizing its inclusion in the Federal tax code; and conclude that the estate tax violates the U.S. Constitution and should therefore be repealed.

Keywords: Federal estate tax, U.S. Supreme Court, 5th Amendment, U.S. Constitution

JEL Classification: K

Suggested Citation

Lowenstein, Henry and Kisska-Schulze, Kathryn, A Historical Examination of the Constitutionality of the Federal Estate Tax (October 1, 2018). William & Mary Bill of Rights Journal, Vol. 27, No. 1, 2018, Available at SSRN: https://ssrn.com/abstract=3367177

Henry Lowenstein (Contact Author)

Coastal Carolina University ( email )

P.O. Box 261954
Conway, SC 29528-6054
United States
(843) 349-2827 (Phone)
(843) 349-2455 (Fax)

HOME PAGE: http://www.coastal.edu

Kathryn Kisska-Schulze

Clemson University College of Business ( email )

Clemson, SC 29631
United States

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