Federal Taxation in the United States:
A Biblical and Constitutional Perspective
by Gerald R. Thompson
The example of ancient Israel illustrates the application of the law of God to matters of taxation in a specific polity. However, the use of Israel as a model for modern taxation must be made with great caution, because the law of Israel only partially applies to all nations. That is, Israel’s law was derived from two sources, the first of which was the law of nature, i.e., God’s law for all nations. The second source was the covenantal law of the Mosaic code, expressed in the form of an agreement between God and the people of Israel.
To the extent Israel’s covenant verbalizes the law of nature, of course, it applies to everyone – not because the covenant makes it applicable, but because it would be applicable even without the covenant. However, not all of Israel’s covenant verbalizes the law of nature. Many of its provisions apply only to Israel.59 Just because a covenant is of divine origin does not mean that it applies to everyone, all the time, everywhere in the world. God is not constrained to relate to every nation the way He related to ancient Israel via a divine covenant.
Nonetheless, Israel’s law does, in part, exemplify the biblical principles of taxation previously discussed. For example, Israel’s law did not provide for any property taxation.60 The family government had primary jurisdiction over all property.61 Real property could not be permanently sold, thereby passing by descent to the permanent owner’s heirs without possibility of reversion or escheat to civil government.62 In this way, Israel’s law complied with the law of concurrent jurisdiction by acknowledging the rightful jurisdiction of the family institution as against the civil government.63
Commonly suggested models of taxation from the law of Israel are the head tax and the Levitical tithe.64 The key attribute of these models is a reasonably low flat amount or flat rate of taxation allowing for few deductions or exemptions.65 The claimed benefits of basing modern taxation on these models range from making the tax burden more equitably distributed to constraining the size of civil government by limiting its revenues.66 Yet, in spite of these desirable features, the application of these models in all of their particulars to nations today is not as appealing as it might first appear.
The Levitical Tithe
The Levitical tithe was not merely the payment of a tenth of one’s income to God in accordance with the precepts of the law of nature. Rather, the Levitical tithe is a creature of the covenantal law of Israel which has certain attributes unique to that nation.67 After God delivered Israel from Egypt, he set apart the entire tribe of Levi for priestly service to the nation.68 When God apportioned the promised land among the Israelites, the tribe of Levi had no share of the land but received one-tenth of all the produce of the land from the other tribes instead.69 The Israelite law of the tithe applied exclusively to the Levites. The Levitical tithe was a binding obligation to set apart a tenth of one’s total increase for the benefit of a civilly recognized priesthood, that is, a state established religion.
Still, the Levitical tithe did conform to some of the biblical principles of taxation. The collection of tithes was pursuant to a lawful delegation of authority in Israel.70 The flat rate of the levy conformed to the law of equality. Since the Levites were not required to contribute to their own support, the tithe also conformed to the law of exemption. The tithe compensated the Levites for rendering a unique service to the nation which the people could not render themselves, following the law of service debt to that extent. However, the service rendered served a religious purpose, not a civil purpose, and cannot be used as a model for modern taxation in that sense.
But, this is the limit of the tithe’s conformity with the law of taxation applicable to all nations. For example, the Levitical tithe did not conform to the law of exaction at all. No one in Israel was authorized to enforce the payment of tithes.71 The obligation to tithe was not any less mandatory because of its lack of human enforcement, but the obligation was moral, not civil. Thus, the tithe cannot properly be regarded as a tax, because all taxes require civil enforcement.
The likely reason no one was authorized to enforce the Levitical tithe is that it did not conform to the law of love, either. The Levitical tithe was imposed on all agricultural produce, as well as increases in livestock and other sources of production.72 Every fruit of personal labor, whether sold or consumed, was subject to tithes. Thus, the Levitical tithe was not limited to the proceeds from sales transactions, or income, but extended to the broader concept of any tangible increase in crops or herds – increase presumed to come from God, not human efforts. Since God enforced the Levitical tithe himself, it could extend to every form of increase which came from Him. But the civil jurisdiction does not extend to increase which is withheld from sale (i.e., goods that are never entered into commerce), for such increase is governed exclusively by the law of love.73 Accordingly, the Israelites had no right to enforce the Levitical tithe.
Further, Israel’s tithe was levied primarily for the benefit of an established clergy. Even when tithes were distributed to non-Levites (sojourners, orphans and widows), they were administered by the Levites.74 But this was possible in Israel only because God, as the civil head of the nation, could legislate the establishment of the Levitical priesthood.75 In other words, the whole purpose of the tithe centered around the theocratic nature of Israel’s civil polity.
The problem with using the tithe as a model for modern taxation is that no nation is, or can be, theocratic in the same sense ancient Israel was. First, God has not entered into a covenantal relationship (that is, become a party to the constitution) with any nation other than ethnic Israel. Second, God has never made Himself King over any nation other than ethnic Israel.
In addition, the law of concurrent jurisdiction prohibits any civil ruler from exercising authority over moral duties owed solely to God, such as the duty of religion. Moral duties can only be civilly enforced in a theocratic nation, which no Gentile nation can ever legitimately claim to be (notwithstanding the claims of various Islamic states to the contrary). The law of service debt requires legitimate taxation to fund only non-religious public services. Further, the law of nature prohibits civilly established religions in all non-theocratic nations. Thus, to the extent the Levitical tithe reflects the nature of a theocratic form of civil government, it cannot serve as a model for taxation today.
Similarly, the claim that the tithe constrains any civil government to taxing no more than 10% of income because it is prohibited from taxing people at a higher rate than God taxes them is without merit.76 The law of the Levitical tithe only ever applied to ethnic (or biological) Israel. The Levitical tithe was instituted as part of Israel’s civil covenant at Mt. Sinai, and is binding only upon the children of Israel and their descendants. The nation of Israel can no more bind the United States to its national covenant than the United States can bind the nation of Israel to the U.S. Constitution.
God did not preclude Gentile nations from taxing their people more than ten percent for civil purposes simply because He “taxed” Israel exactly ten percent for non-civil purposes. It may be desirable to keep income taxes below ten percent, but there is no law prohibiting public officials from taxing at a higher rate, so long as the biblical principles of taxation are otherwise followed. Those who argue for this limitation on modern nations have the burden of showing exactly where in the laws of God this limitation is written, and how and when it was legislated.
Finally, I reject the idea that there is any such thing as a law of nature of tithing. Arguments in favor of this proposition usually center on Abraham who, after he went to war and defeated his enemies, was met by Melchizedek on his way home, to whom he gave a tenth (or tithe) of the spoils of war.77
Proponents of this idea typically argue that because it preceded the Mosaic covenant, Abraham’s example is unaffected by limitations of the Mosaic covenant, and therefore it still stands’ in the Church age. Alternatively, it is argued that since Abraham tithed to God’s high priest and we are Abraham’s spiritual descendants78, the obligation to tithe to priestly ministers is eternal. The argument is buttressed by the fact that Abraham tithed to Melchizedek, and Christ’s priesthood is modeled after Him.79
I do not deny that Abraham’s act was an actual historical event. However, I deny that Abraham’s action either constituted an example his spiritual descendants must follow, or that his actions somehow evidenced the existence of a rule in the law of nature binding on everyone. I suppose, if I were inclined to be snippy, I would say that Abraham’s example is this: the next time you go to war and defeat your enemies, give a tenth of the spoils of war to Melchizedek in person when he comes out to bless you on your way home. Plus, if we are to be correct, Abraham contributed a tithe of his assets, not his income (no commerce was involved).
More to the point, Abraham’s once in a lifetime act did not have any legislative or rule making significance. He did not, by tithing once, lay down a commandment of God that all of his spiritual descendants should do likewise. Theologians often take the position that all of scripture is prescriptive, not merely descriptive, suggesting that every act done by a person at a specific time and place which appears to be approved by God establishes a pattern, or rule, for how people should act today. But that simply ignores the fact – and the law – that is not how rules of behavior are made. Rules are not made by approved examples, they are made by legislation from a lawgiver.
God is certainly capable of acting legislatively, and there are numerous examples in the Bible when God legislates rules. But when God acts legislatively, He expressly says, “this shall be a statute,” and it is usually accompanied by the words, “forever” or “for all generations.”80 There is no reason to suppose, if God had wanted to lay down a general rule of conduct by Abraham’s action, that He – or Melchizedek – could not have said so. It’s a question of legislation, not inspiration.
Finally, both Abraham’s tithe and the Levitical tithe were not, at root, spiritually based. Whether there exists today any rules or binding requirements for tithing is a legal question, not a theological one. We don’t say there is a spiritual connection between Abraham and believers in Christ today, which results in a legal rule and a monetary requirement. Spiritual connections are not laws.
Israel’s Head Tax
Much of the preceding analysis also applies to the Israelite head tax.81 The head tax was levied on every male in Israel who had reached age 20 and was numbered in the national census. Each man paid the same amount of tax (a half shekel), whether rich or poor. The proceeds were used to fund the operation of the tabernacle (and later the temple), to be a continual reminder for the people before God. Individually, the head tax was reckoned as paid to the Lord as an offering for an atonement for sin.82
Like the Levitical tithe, the head tax was expected but not compulsory because it was moral in nature, not civil. Hence, when Peter was asked, “Does your teacher not pay the tax?”83 the implication is that Jesus had a choice whether or not to pay it. Similarly, when Jesus told Peter to pay the tax, He said it was to avoid giving offense,84 again implying it was not compulsory.
Hence, the head tax was imposed for religious purposes and was closely linked to the theocratic nature of the polity of ancient Israel. For a civil government today to levy a head tax after the pattern of Israel – to fund a place of religious worship and/or to secure atonement for believers of a religious sect – would clearly constitute a government establishment of religion. For this reason, the head tax is not a proper model for modern taxation, especially in the United States. But I also argue it would not be appropriate in any Gentile nation which by definition cannot be a theocracy.
Yet there is another point to be made. It was observed many years ago that “[t]he sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission.”85 Let us consider a head tax – any head tax – in that light. A head (or capitation) is by definition a tax placed on an individual not because he or she has done anything, but simply because they exist. And the question is, does any person’s existence arise by government authority, or does a person have a right to continue living only because civil government permits it? The answer is clearly no.
As the Israelite head tax illustrates, the tax was based on each adult male needing to “give a ransom for his life to the LORD.”86 This makes perfect sense since God is the Creator of every person, and was also the King of Israel. Such a tax makes no sense whatever in a Gentile nation, where the government is not the creator of any person, and God is not the king of that nation. Only God can levy a head tax. Civil governments lack jurisdiction to tax that which they do not create. Any nation enacting a head tax makes itself out to be God.
59. The Mosaic law, as a matter of covenant, was never obligatory upon any nation other than ancient Israel. This is because a covenant is binding only on the parties who assented to it and their physical descendants. Since the original parties to Israel’s covenant were the Israelites, only Jewish descendants could ever have been covenantally bound by the Mosaic law. See, Exodus 19:5-8; Psalm 105:8-10.
60. Howard B. Rand, Digest of the Divine Law (Merrimac: Destiny Publishers, 1943), 93. “[T]here were no tax levies made against property, either real or personal” in Israel. Id. See also, 2 Kings 23:33-37 and 2 Chronicles 36:3, which describe an instance in which Jehoiakim “taxed the land” to pay a fine levied by the Egyptian Pharaoh Neco. However, the fine was exacted from the Israelites according to their individual valuations. In other words, the levy was a capitation tax on the people of the land, not a property tax on the land itself.
61. Genesis 1:26-28. See also, supra, note 27.
62. Leviticus 25:10,13,23.
63. This reference to Israel’s law as a model is strictly limited to the lack of property taxation. The inability to sell real property permanently is expressly disclaimed as a model for the laws of Gentile nations.
64. Joseph R. McAulliffe, “Tax Tyranny,” Dominion Work, No. 2 (December, 1985). “The Scriptures provide us with a distinctive model for civil taxation with the nation of Israel. There were primarily two kinds of taxes in Israel: the poll tax (Exo. 30:11-16) and the tithe (Lev. 17:32).” Id. I am not aware of anyone advocating the apparently one-time only war (booty) tax of Num 31:25-30 as a model. Further, I expressly disclaim any of the Gentile taxes in the scriptures as a model for modern taxation, including the tax of King Darius the Mede for rebuilding the Jewish temple (Ezra 6:8; 7:24), and the “famine tax” of Pharaoh in the time of Joseph (Genesis 41:34).
65. See, Rushdoony, Politics, supra note 51, at 334. “The tithe was the original pattern of all taxation. . . . The words tithe and tax were once equivalent: they referred also to the same thing, a tax on increase.” Id. See also, Rand, supra note 60, at 91, 127. “God has decreed how tax levies shall be made and the method of collection as well as the amount each citizen shall pay. . . . Governments must have revenue and in conformity with the Divine law it is required that the tithe be collected from all the people for this purpose.” Id.
66. McAulliffe, supra note 64. “The fixed rate system of taxation had several other advantages, not the least being that it was a constraint on the size of government.” Id. See also, DeMar, supra note 34, at 103. “The tithe also diversifies power and authority.” Id.
67. A separate consideration of the so-called “Melchizedekal tithe” (Genesis 14:18-20) is unnecessary for the present discussion. Melchizedek was not a civil ruler, nor was his tithe recognized by any civil law. Consequently, the “Melchizedekal tithe” has not, to my knowledge, been suggested as a model for modern taxation. For a detailed examination of this topic, see my essay on “Tithing and the Law of God” at https://lonang.com.
68. Exodus 28:1; 29:9; Numbers 3:45; 18:2.
69. Numbers 18:21-24.
70. But this same authority has not been delegated to any other civil ruler. See, supra note 59.
71. DeMar, supra note 35, at 116-117. “The Word of God does not give any human agency the power to force compliance to God’s laws of taxation, because whoever claims such power is virtually claiming to be as God on earth. . . . This does not mean, however, that the tithe is not enforced. God is the enforcing agent when His tithe is not paid.” Id.
72. Leviticus 27:30; Deuteronomy 14:22-23.
73. That most dastardly of cases, Wickard v. Filburn, 317 U.S. 111 (1942) to the contrary notwithstanding. Fortunately, U.S. Supreme Court opinions do not form the basis of the laws of nature and nature’s God.
74. Deuteronomy 14:28-29.
75. See, 1 Sam 8:7. Only if God were the civil head of Israel could He say, “they have rejected Me from being King over them.” Id. God’s civil rule is demonstrated, among other things, by the intermixing of civil and religious national authority. Only in a theocracy could national law prescribe the manner of religious ceremony and regulation, or establish an official priesthood.
76. See, e.g., DeMar, supra note 34, at 108. “For the state to tax citizens more than God taxes His children is to say that the state has a prior and greater claim over us.” Id. Whereas I answer no, the state merely has a different claim for different purposes. If a Gentile nation cannot enact or enforce a law of tithing, neither is it constrained by such.
77. Genesis 14:17-20.
78. Galatians 3:14.
79. Hebrews 7:1-6,17.
80. See, Exodus 12:14, 17, 24; Leviticus 16:34, 17:7; Numbers 19:2, 10; Deuteronomy 6:1, 24; etc.
81. Exodus 30:12-16. Biblically, this head tax was also known as the half shekel or two-drachma tax. See, Matthew 17:24-27. Historically, any head tax may also be referred to as a capitation tax.
83. Matthew 17:24.
84. Matthew 17:27.
85. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), at 429.
86. Exodus 30:12.