Why a Wealth Tax is Definitely Constitutional

13 Pages Posted: 5 Dec 2019 Last revised: 24 Mar 2022

See all articles by John R. Brooks

John R. Brooks

Fordham University School of Law

David Gamage

University of Missouri School of Law

Date Written: January 9, 2020


Wealth tax reform proposals are playing a major role in the 2020 presidential campaign. However, some opponents of these wealth tax reform proposals have claimed that a wealth tax would be unconstitutional. Other prominent critics have argued that wealth tax reforms are probably unconstitutional, so that, after review by the courts, the “likeliest outcome is that a wealth tax will raise exactly zero dollars.”

These claims are wrong. More precisely, these claims are wrong conditioned on wealth tax legislation being carefully drafted so as to ensure its constitutionality. As we will explain in this essay, properly drafted, wealth tax reform legislation is definitely constitutional and thus capable of raising substantial revenues to fund new spending programs.

Constitutional scholars disagree about whether a new federal wealth tax would need to be "uniform" or "apportioned" in order to be constitutional. We explain how wealth tax legislation could be drafted to ensure its constitutionality regardless of how the Supreme Court ultimately decides on this question. In particular, we explain how Congress could design an apportioned federal wealth tax made equitable through the use of a fiscal equalization program, and could legislate this as a fallback option in case the Supreme Court were to rule against an unapportioned federal wealth tax.

(This essay is an early draft of a research project that has been developed into the article: Brooks, John R. and Gamage, David, TAXATION AND THE CONSTITUTION, RECONSIDERED (March 18, 2022). Tax Law Review, Forthcoming, Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4061257)

Keywords: wealth tax, direct tax, indirect tax, constitution, 16th amendment

JEL Classification: K34

Suggested Citation

Brooks, John R. and Gamage, David, Why a Wealth Tax is Definitely Constitutional (January 9, 2020). Available at SSRN: https://ssrn.com/abstract=3489997 or http://dx.doi.org/10.2139/ssrn.3489997

John R. Brooks

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

HOME PAGE: http://https://www.fordham.edu/info/30655/john_brooks

David Gamage (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States

HOME PAGE: http://law.missouri.edu/person/david-gamage/

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