57 Pages Posted: 16 Nov 2005
Fixing the Constitutional Absurdity of the Apportionment of Direct Tax argues that the Constitutional requirement that "direct tax" be apportioned among the states according to population should never be used to make any federal tax impossible. "Direct tax" is a word like "trash" defined by what you are going to do with it, and "direct tax" originally meant "apportionable tax." Before the Constitution, "direct tax" included both excises and duties, but the scope of "direct tax" contracted because "excises" and "duties" were impossible to apportion among the states. The courts have also expanded "excises" and "duties" opportunisticly so as appropriately to prevent apportionment. I call for affirmation of Hylton v. United States (1796), which held that a tax did not have to be apportioned because apportionment was unreasonable. I also call for overruling of the last vestiges of Pollock v. Farmer's Trust (1895) which illegitimately used apportionment to overturn the income tax with a rationale that was not accurate to the original history.
This article also reviews the history of the 16th Amendment to the Constitution and argues that it was intended to bury the apportionment requirement in the last small area in which it could be said to have still been alive.
Suggested Citation: Suggested Citation
Johnson, Calvin H., Fixing the Constitutional Absurdity of the Apportionment of Direct Tax. Constitutional Commentary, Vol. 21, pp. 295-349, 2004; U of Texas Law, Public Law Research Paper No. 76. Available at SSRN: https://ssrn.com/abstract=821351