Constitutional Principles of Taxation

C.   Constitutional Principles of Taxation

“The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant, or the harm which will come from breaking down recognized standards.”⁸⁹

1.   THE LAW OF CONSTITUTIONS

A first step in understanding a constitutional view of federal taxation is to discover what a constitution is. If there are any fixed principles of federal taxation, it would be prudent for the document creating the federal government to be conducive to securing those principles. In other words, it would seem to be necessary for any constitution to itself be of a permanent nature. However, the permanence of a constitution cannot be derived merely from its own terms, but must be derived as well from the legal context within which it is framed.

A constitution provides the framework within which a nation’s law is administered. Yet, the law itself is derived from the legal context which is acknowledged, not created, by the constitution’s framers. The purpose of a constitution is not to specify every particular of the law, but rather to mark its great outlines and designate its important purposes, from which the particulars can be deduced.⁹⁰ Thus, the U.S. Constitution cannot be divorced from the legal context within which it was framed. Only when its legal context is recognized can it be truly said, that “[t]he government of the United States has been emphatically termed a government of laws, and not of men.”⁹¹ Even when a constitution is modified, it does not alter the fundamental principles of law upon which it is based, because the nature of all fundamental law is fixed: it does not change with time.⁹²

In the United States, the legal context in which the Constitution was framed was established by the Declaration of Independence, the great charter of America. The Declaration explicitly acknowledges this legal context as being “the Laws of Nature and of Nature’s God.”⁹³ It is in this context that the Declaration states,

that all men . . . are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.⁹⁴

These unalienable rights are part of the fundamental laws of nature and of nature’s God, which are immutable. Since a central purpose of government, and therefore the Constitution, is to secure the unalienable rights of the people, it makes little sense for that instrument to be adopted unless it is also of a permanent nature.

A written constitution is especially well suited for permanence because it is a form of civil covenant which by nature is designed to be perpetual. A constitution is by nature irrevocably binding on the parties, which in the United States, are the people,⁹⁵ until all the parties agree to abolish the constitution. As it has been said, the Constitution was “intended to endure for ages to come.”⁹⁶

The exercise of this original right [to establish a government] is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established . . . are designed to be permanent.”⁹⁷

The government so constituted by the people cannot be altered or abolished by anyone other than the people. Even the right of the people to alter or abolish the Constitution is limited to constitutional means of amendment and the establishment of a new constitution.⁹⁸ Further, the Constitution, as properly modified, is binding not only on the people alive when it was adopted or modified, but also on their descendants.⁹⁹ Accordingly, no judicial or legislative body is authorized to alter or expand the terms of the covenant, and a court opinion or statute to the contrary is not law.¹⁰⁰

It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. . . . Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts. . . . [I]f the latter be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. . . . [I]t is [also] apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.¹⁰¹

In order for a constitution to be permanent, therefore, the meaning of its text cannot change with social conditions or every perceived necessity. The changing facts and circumstances of life may require new applications of constitutional provisions, but the rules of fundamental law do not evolve. “We must never forget, that it is a constitution we are expounding.”¹⁰²

The powers of the [government] are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if the acts prohibited and acts allowed, are of equal obligation.¹⁰³

2.   THE LAW OF ENUMERATED POWERS

Another way the Constitution secures the unalienable rights of the people is by granting only those powers to the federal government which it alone enumerates. The federal government is a creature of the people acting through the Constitution, apart from which the federal government has no existence. “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.”¹⁰⁴

Federal authority exists only to the extent it has been given by the people pursuant to the terms of the Constitution. “This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent . . ..”¹⁰⁵ Accordingly, the clauses of the Constitution pertaining to taxation necessarily circumscribe the federal taxing authority.¹⁰⁶ “We know of no rule for construing the extent of such powers, other than is given by language of the instrument which confers them, taken in connection with the purposes for which they were conferred.”¹⁰⁷

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is executed, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.¹⁰⁸

This principle is obvious from the legal context of the framing of the Constitution, but to avoid mistake, the framers expressly acknowledged the law of enumerated powers in the Ninth and Tenth Amendments to the Constitution.

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Consequently, there must be rights (i.e., authority) of the people which have not been numbered among the powers of the federal government. These rights include every unalienable right of the people, which by definition can not be given. Therefore, the federal government cannot exercise authority over those rights which have been reserved to private persons and institutions.

The law of enumerated powers is not modified or supplanted by the doctrine of plenary powers, when it is recognized that all authority of the federal government is defined in terms of the purposes, or objects, entrusted to it. Those purposes numbered within the federal jurisdiction are exclusively federal powers, and those purposes reserved to other institutions or governments are beyond federal jurisdiction. Federal jurisdiction is not determined by the status of persons (a subject approach), because every person is subject to more than one government.

Thus, when it is said, “that the government of the Union, though limited in its powers, is supreme within its sphere of action,”¹⁰⁹ such supremacy is limited solely to the purposes for which the federal powers are granted. This is evident from the following:

This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. . . . [T]he sovereignty of the congress, though limited to specified objects, is plenary as to those objects.¹¹⁰

In other words, federal power is plenary (or, complete) as to the purposes entrusted to it, but not every purpose has been entrusted to it, and those which have not are beyond federal jurisdiction. Federal taxing power is plenary as to the purposes specified for taxation in the Constitution, but Congress does not have unlimited taxing power. Either the taxation of persons and property for anything other than an enumerated constitutional purpose is unconstitutional, or the law of enumerated powers is a lie.

[T]he power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. . . . All subjects over which the sovereign power of a State extends, are objects of taxation; but those over which it does not extend are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.¹¹¹

3.   THE LAW OF FEDERALISM

The federal taxing power is concurrent with state taxing power, but not co-extensive, because the people of the United States have not given all civil authority to any single civil government. That is, federal and state authorities operate on the same people at the same time, but in different ways and for different purposes. Because the people have covenanted with federal and state governments at different times and places, civil authority is diffuse and disparate.¹¹² For this reason, the law of enumerated powers is the underlying basis for the law of federalism. When the federal government refuses to be limited by its own enumerated powers, the inevitable result is a violation of the law of federalism.

Each citizen of the United States is concurrently a citizen of the state in which he resides,¹¹³ but there is no blending of citizenship: each is distinct from the other. A citizen’s duties to each government are owed directly to the respective civil jurisdiction, apart from the superintendence of either one of them over the other. Thus, a citizen owes different civil duties to each government, the jurisdictions of which are determined by the purposes entrusted to each. There is therefore no conflict among the state and federal jurisdictions, for the people have not given the same duty to two different civil governments.¹¹⁴

In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.¹¹⁵

That the power of taxation is to be concurrently exercised by federal and state governments according to the law of federalism is a truth which “has never been denied.”¹¹⁶

The power of taxation is . . . a power which, in its own nature, is capable of residing in, and being exercised by, different authorities, at the same time. We are accustomed to see it placed, for different purposes, in different hands. . . . [A] power in one to take what is necessary for certain purposes, is not, in its nature, incompatible with a power in another to take what is necessary for other purposes. . . . In imposing taxes for state purposes, they are not doing what congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the states. When, then, each government exercises the power of taxation, neither is exercising the power of the other.¹¹⁷

4.   THE LAW OF SPENDING AUTHORITY

It follows from the law of federalism and the law of enumerated powers that only certain purposes are appropriate purposes of federal taxation: these are specified by the law of spending authority. The law of spending authority is stated in the first clause of Article I, Section 8, Paragraph 1 of the Constitution:

The Congress shall have the power to lay and collect taxes . . . to pay the debts and provide for the common defence and general welfare of the United States.

The law of spending authority has two parts. First, Congress is authorized to raise revenues solely for the purpose of spending. If the purpose of any tax is not primarily to fund federal services, but is designed to penalize or regulate activities which the Constitution leaves to be regulated by another government, the tax violates the law of spending authority. The test is not whether any tax incidentally affects the conduct of activities outside of the regulatory authority of Congress, but whether the purpose of the levy is within the purposes entrusted to Congress.

“It is the high duty and function of this court . . . to decline to recognize or enforce seeming laws of Congress, dealing with subjects not intrusted to Congress, but left or committed by the supreme law of the land to the control of the states. . . . The difference between a tax and a penalty is sometimes difficult to define, and yet the consequences of the distinction . . . often are important. Where the sovereign enacting the law has power to impose both tax and penalty, the difference . . . may be immaterial; but not so when one sovereign can impose a tax only, and the power of regulation rests in another.”¹¹⁸

Thus, a federal plan to regulate matters reserved to the states is “but [a] means to an unconstitutional end.”¹¹⁹

[T]he Court cannot shut its eyes to what is obviously, because designedly, an attempt to control conduct which the Constitution left to the responsibility of the States, merely because Congress wrapped the legislation in the verbal cellophane of a revenue measure.¹²⁰

The second part of the law of spending authority is that tax revenues can be expended only to pay for services which the federal government may lawfully render. Much of the discussion of this proposition has historically centered around the meaning of the phrase, “provide for the . . . general welfare.”¹²¹ The modern view of Congressional spending authority can be summarized as follows:

It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use of any purpose narrower than the promotion of the general welfare.”¹²²

In other words, the modern view bases the power of Congress on promotion of the general welfare. However, despite its appearance, this view is based neither on the text nor the context of the Constitution which relates to leglislative power. The phrase “promote the general welfare” appears only in the preamble to the Constitution, which grants no powers.¹²³ The actual grant of Congressional authority is limited to providing for the general welfare, and the difference between “provide” and “promote” is all important. The perceived power to promote the general welfare is limited only by public officials’ perception of the need of the moment. The power to provide, however, is limited by the actually enumerated powers in Article I of the Constitution. Consitutionally, Congress cannot appropriate funds for every purpose which meets a demonstrated need, for Congress is restricted to those purposes which have been given to it, no matter what the need.

It does not help to declare that local conditions throughout the nation have created a situation of national concern; for this is but to say that whenever there is a widespread similarity of local conditions, Congress may ignore constitutional limitations upon its own powers and usurp those reserved to the states. If, in lieu of compulsory regulation of subjects within the states’ reserved jurisdiction, which is prohibited, the Congress could invoke the taxing and spending power as a means to accomplish the same end, clause 1 of Sec. 8 of Article I would become the instrument for total subversion of the governmental powers reserved to the individual states.¹²⁴

As explained earlier, the law of love is beyond the jurisdiction of civil government. Thus, making charitable donations is one of the more easily identifiable purposes beyond the authority of Congress to spend monies on. According to Franklin Pierce, when vetoing a bill with a charitable purpose, the matter was settled by the first clause of Article I, Section 8, Paragraph 1:

I take the received and just construction of that article, as if written to lay and collect taxes, duties, imposts, and excises in order to pay the debts and in order to provide for the common defense and general welfare. It is not a substantive general power to provide for the welfare of the United States, but is a limitation on the grant of power to raise money by taxes, duties and imposts. If it were otherwise, all the rest of the Constitution, consisting of carefully enumerated and cautiously guarded grants of specific powers, would have been useless, if not delusive.¹²⁵

5.   THE LAW OF NO TAXATION WITHOUT REPRESENTATION

Because of historical abuses of taxing power, particularly the taxation of American colonies by England, our nation’s founders required all federal taxation to be subject to the consent of the governed. The law of no taxation without representation has a long constitutional history, the roots of which trace back to the Rights of Englishmen in the Magna Carta,¹²⁶ the Confirmatio Cartarum,¹²⁷ and the English Bill of Rights.¹²⁸ This law was also embodied in many of the important documents of the revolutionary period, including the Declaration of Independence.

That it is inseparably essential to the freedom of a people . . . that no taxes should be imposed on them, but with their own consent, given personally, or by their representatives.”¹²⁹

“That the foundation . . . of all free government, is a right in the people to participate in the legislative council . . . in all cases of taxation . . ..”¹³⁰

[G]overnments are instituted among men, deriving their just powers from the consent of the governed.¹³¹

This fundamental law of our republic is secured by several clauses of the U.S. Constitution. Article I, Section 7, Paragraph 1 provides that “All bills for raising revenue shall originate in the House of Representatives.” As Congress was originally designed, the Senate represented the various state legislatures, and the House of Representatives represented the people of the United States.¹³² Thus, this provision guarantees that it will always be the representatives of the people, rather than the representatives of state government, whose consent must precede the imposition of any federal tax.

Article I, Section 8, Paragraph 1 provides that “all duties, imposts and excises shall be uniform throughout the United States.” The relation of this provision to the law of no taxation without representation is that the people of the United States must be regarded as an indivisible whole. If the representatives and Senators of more poplulous states could form a coalition and pass revenue measures levied against the people only in less populous states, it would have the effect of imposing a tax on some of the people without their consent. The representative nature of Congress would become a mockery if it could raise revenue from other than the whole people.

Article I, Section 9, Paragraph 4 provides that “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration before directed to be taken.” This provision guarantees that the burden of direct taxation will be spread among the states in proportion to their populations. The method of revenue collection may vary from state to state, but each state’s overall share is indexed according to the representation of its people in the House. Thus, the imposition of any direct tax is in essence taxation proportionate to representation, as well as being authorized through representation.

6.   THE LAW OF DIRECT AND INDIRECT TAXATION

As the previous discussion indicates, the law of no taxation without representation recognizes two basic kinds of taxation under the Constitution.

In the matter of taxation, the Constitution recognizes the two great classes of direct and indirect taxes, and lays down two rules by which their imposition must be governed, namely: The rule of apportionment as to direct taxes, and the rule of uniformity as to duties, imposts, and excises.¹³³

The term “indirect taxes” is not used in the Constitution. It is merely a label for all duties, imposts and excises taken as a group, and is commonly understood as referring to any tax which is not direct.¹³⁴ Although it has often been argued that a uniform tax is one which exhibits intrinsic equality,¹³⁵ this argument has repeatedly been rejected by the Supreme Court.¹³⁶ It is quite possible that the whole purpose of requiring indirect taxes to be uniform is to secure the law of no taxation without representation. In other words, uniformity is merely geographic, not intrinsic. This does not mean that intrinsic equality is not required by the law of equality, however. It only means that the law of equality is not the subject of the uniformity clause of Article I, Section 8, Par. 1.

Those taxes which are direct need not be uniform, but only apportioned. That is, a direct tax presumes Congress fixes an amount of revenue it wants to raise, and then levies the people of each state with their proportionate share of the amount. A direct tax may be collected either by assessments made by federal officials, or by the states on behalf of their people, which the states can then assess and collect in any way they choose.¹³⁷ In fact, there have been only four direct taxes assessed by Congress in the history of the Constitution, the last of which terminated near the end of the Civil War.¹³⁸

Historically, the great legal issue concerning direct and indirect taxes has been to formulate a definition of the terms. Because direct taxes may affect people in different states in diverse ways, direct taxes have long been considered unpopular, and politically risky.¹³⁹ Thus, many kinds of federal taxes have been attacked as being unapportioned direct taxes, and therefore unconstitutional.¹⁴⁰

This argument has been strenuously advanced against the federal income tax. In 1895, the Supreme Court held that,

A tax upon one’s whole income is a tax upon the annual receipts from his whole property . . . and is a direct tax, in the meaning of the Constitution. . . . In England, we do not understand that an income tax has ever been regarded as other than a direct tax.¹⁴¹

This ruling of the Court was made in spite of the argument made at the bar, that

a direct tax is a tax upon every kind of property and upon every kind of person in respect of himself, or in respect of his property, either in existence or acquired, or to be acquired, and not in respect to his voluntary calling, pursuits or acts . . .. [I]ndirect taxes are levied upon consumption as it is called, always takes the thing in movement – transactions among men, in respect to which they are the masters of their own conduct . . ..¹⁴²

The Court later realized its mistake, declaring that an income tax “was direct merely on income and only indirect on property.”¹⁴³ This later holding agreed with Hamilton’s view of the subject:

The following are presumed to be the only direct taxes. Capitation or poll taxes. Taxes on lands and buildings. General assessments, whether on the whole property of individuals, or on their whole real or personal estate; all else must of necessity be considered as indirect taxes.¹⁴⁴

Thus, a direct tax is an assessment made on persons or property, merely by virtue of their status of being, whereas an indirect tax is an assessment made upon the occurrence of a voluntary transaction, such as a sale. In other words, a direct tax assesses “being,” an indirect tax assesses “doing.”

7.   THE LAW OF RELIGIOUS LIBERTY

The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These religion clauses are generally acknowledged to have adopted the same understanding of religious liberty as the understanding embraced in Virginia.¹⁴⁵ Thus, religion in this federal context is best understood as “the duty . . . we owe to our creator, and the manner of discharging it, [which] can be directed only by reason and conviction, not by force or violence.”¹⁴⁶

There are two main points regarding the law of religious liberty. The first is that Congress has no jurisdiction over religion, either to regulate it or sanction it. Congress cannot compel anyone to perform his moral duty to God, for this would redefine the duty as one owed to the federal government instead of God. An established religion is, in essence, the civil enforcement of religious moral duty. Neither can Congress deny anyone the liberty to perform his moral duty to God, for this would deny the concurrent jurisdiction of individual self-government. In other words, when public officials restrain the exercise of individual moral duties, they have prohibited the free exercise of religion.

The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right . . . because what is here a right towards men, is a duty towards the Creator. . . . This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe. . . . [E]very man who becomes a member of any particular Civil Society [must] do it with a saving of his allegiance to the Universal Sovereign.¹⁴⁷

The second point is that religion embraces so much more than mere church government and public worship. It includes every manner of thought and belief, or freedom of the mind, and the means required to effectuate that object.¹⁴⁸ Thus, religion necessarily includes all education. All education necessarily involves the transmission of truth from one person to another, whether the truth concerns the nature of God, or the nature of His creation. Every course of study, whether mathematical, physical, philosophical, historical or otherwise, is necessarily religious.

According to Madison, the civil magistrate (e.g., a state tax supported teacher) has no authority to judge the truth because that would be “an arrogant pretension falsified by the contradictory opinions of Rulers in all ages.”¹⁴⁹ Jefferson agreed:

Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishment, or burthens, or by civil incapacitations, . . . are a departure from the plan of the Holy Author of our religion . . . that the impious presumption of legislators and rulers, . . . who, . . . have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, have established and maintained false religions . . . [and] that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical. . . .”¹⁵⁰

It is axiomatic, therefore, that religion can never serve as a legitimate purpose of federal taxation. In this way, the U.S. Constitution is consistent with the law of love, dictated by the laws of nature, and embraced by the Declaration of Independence.