No, Taxes are Not the Price We Pay for Civilized Society

No, Taxes are Not the Price We Pay for Civilized Society

Former Supreme Court Justice Oliver Wendell Holmes Jr. once posited in 1904:

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Aside from having a bitching mustache that would put Sam Elliott's to shame, Holmes was a Civil War veteran of the Union, a Harvard Law scholar, renowned author, and hero to many progressives simply for this line taken from a dissenting opinion in a 1927 case.  Actually, truth be told, FDR actually popularized the quote in several speeches but nonetheless it has become gospel for many on the left and even on the right.

But are taxes the reason we have a civilized society?  After all, these United States were founded on an objection to taxation without representation.  Our states have a long history of objecting to taxes of all shapes from the Stamp Act to the Whiskey Tax to the Obamacare penalty mandate fine tax. Did our Founders really intend to have a system of government in which the general government orchestrated society by confiscating a portion of our incomes and then redistributing it as they deemed fit?
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Firstly, although Article 1, Section 8 gives Congress the authority to levy taxes it does so only in order to explicitly 1) Pay all the debts of the general government and 2) to provide for the general defense and welfare* of the United States.  That’s it.

Several originalist scholars actually question if Section 8 actually gives Congress the power to directly tax any citizen except through indirect taxes.  It explicitly said its powers of indirect taxation are through “Duties, Imposts, and Excises” as understood by the structure of the sentence separated by commas as where taxation was explicitly being defined.  Furthermore, Article 1, Section 9, Clause 4-5 states, “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State.”  

So, the question is what is a “direct tax”?  Well, many of the Founders pondered this at the time of the Constitutional Convention. According to Madison’s account, Rufus King even asked this to no reply. George Mason actually added the word to Governeur Morris’s original proposal but it is within the subject of slavery and representation, specifically within the  three-fifth’s clause, which most of the contention was drawn.  Article 1, Section 3 states, “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”  This was a way to account for the number of slaves in regards to both representation and a state’s direct tax apportionment.  So, if a southern slave state had a higher census population because of slaves, they would therefore take on a high burden of the taxes.  Southerns of course objected to this because they believed the north was trying to tax slavery out of the union, thus they compromised on the infamous three-fifths rule.  Furthermore, southern representatives explicitly argued against all export duties as a means to punish goods produced through slave labor hence why Section 9, Clause 5 and Section 10, Clause 2 strictly prohibited such action by states and the federal government.  Likewise, Section 9, Clause 1 did impose a tariff on the importation of slaves into southern states.

But what direct taxes were in play here?  Well, like with the Articles of Confederation, the main concept was capitation taxes (poll taxes) apportioned based on census population and real-estate taxes.  Although there was no real common definition if whether direct taxes had a limited definition or not, nearly all the Founders believed that indirect taxes were voluntary taxes on consumption such as the outlined Section 8 as “Duties, Imposts, and Excises”.  This was meant to be the main funding mechanism of the general government.

Now, it was under this general assumption that the general government more or less played by for many years in which it only applied taxation such as excises, duties, imposts, poll, land, estate, and later through treasury securities. In fact, most revenue was comprised of excises, duties, and the sale of western land.  It was not until the Revenue Act of 1861 when the federal government decided to impose a temporary flat income tax as a form of direct taxation to pay for the Northern army in the Civil War.  They followed it up the next year with an even steeper progressive income tax in the Revenue Act of 1862, followed again by the Revenue Act of 1864, as well as the issuance of a federal green back through the unconstitutional Legal Tender Act. This was all despite a successful issuance of voluntary war bonds towards the end of the war that raised more than the income taxes did.  

Oh, and the Revenue Act of 1862 also created the abomination known as the Internal Revenue Service. It’s important to point that out.

It was not until 1895 in Pollock v. Farmers’ Loan & Trust Co., that the income tax was finally struck down as an unconstitutional direct tax because they were in fact not apportioned as outlined under Article 1, Section 2, Clause 3.  The Court decided: “First. We adhere to the opinion already announced—that, taxes on real estate being indisputably direct taxes, taxes on the rents or income of real estate are equally direct taxes.  Second. We are of opinion that taxes on personal property, or on the income of personal property, are likewise direct taxes. Third. The tax imposed by sections 27 to 37, inclusive, of the act of 1894, so far as it falls on the income of real estate, and of personal property, being a direct tax, within the meaning of the constitution, and therefore unconstitutional and void, because not apportioned according to representation, all those sections, constituting one entire scheme of taxation, are necessarily invalid.”  You’ll notice this unfortunately did not cover income taxes on wages which is now the most egregious forms of direct taxation on income followed by payroll and the death tax.

After Pollock, the progressive movement, led by socialists and populists who had infiltrated the Democratic Party, were finally able to put a blanket provision on the direct taxation of all portions of income through the ratification of the abominable Sixteenth Amendment.

Needless to say, we have come a long way from the taxation of indirect taxes that were meant to be the primary funding mechanism of the general government, as even Alexander Hamilton (as Publius) even called self-limiting in nature in Federalist No. 21:

It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, “in political arithmetic, two and two do not always make four.” If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them.

Now, we have essentially handed the unlimited spending power to the federal government, which we fund through the discretionary power of Congress, to confiscate as much of our hard-earned income directly through our crooked progressive income tax.  This was never the conceptualization of the Framers of the Constitution and it should be undone for the tyrannical misappropriation of government power that it is.  

The government’s purpose is to protect person and property, which includes the fruit of one’s labor; not to confiscate it to fund any number of positive rights it deems somehow necessary for the rest of society. There are better voluntary means of funding the national government as intended by our Founders and we should not only repeal the Sixteenth Amendment but also ratify an Amendment that permanently undoes all previous Supreme Court rulings involving direct taxation on citizens and prohibiting any future ones as well.

* The “general welfare” clause does not mean ‘anything the government wants’ nor does it mean actual 'financial welfare' designed to alleviate poverty.

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