Federal Taxation in the United States:
A Biblical and Constitutional Perspective
by Gerald R. Thompson
A. Lonang Principles of Taxation
[T]he book of divine revelations . . . is the Magna Charta of all our natural and religious rights and liberties and the only solid basis of our civil constitution and privileges – in short, it supports, pervades and enlightens all the ways of man, to the noblest ends by the happiest means, when and wherever its precepts and instructions are observed and followed – the usages and customs of men and the decisions of the courts of justice serve to declare and illustrate the principles of this law.3
A biblical perspective of federal taxing authority must begin with a description of the nature of civil authority generally. All authority on earth is inherent only in the truly sovereign God, the uncreated Creator, by virtue of His having created the world.4 No human authority is self-originating, or inherent, because man is the creation of God, and is entirely dependent upon his Maker.5 As one of God’s creatures, man is governed by the law of nature, that is, the will of God impressed upon all the creation.
Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. . . . [A] state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct . . . [a]nd, consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should in all points conform to his Maker’s will.6
God’s delegation of authority to man is always by covenant, the terms of which delimit the authority given.9 The authority given to man is not his right, but in each case is a manifestation of God’s grace to accomplish some divine purpose. To argue otherwise is to place man in authority over God. Since God created man, God is not obligated to give man anything, except as He pleases. It is the duty of man to fulfill God’s purpose, and his authority is always a function of a duty owed to God either directly or indirectly.
The authority given to one man to rule over another man, such as the authority of public officials, is no exception. All civil authority is delegated and established by God.10 Every public official is a minister and servant of God to do His will.11 Every public official is therefore under the law of God, not above it. This is evident from God’s dealings with the nation of Israel, as an example to all the nations.12
However, God has seen fit to allow man to participate in the establishment of civil government. When God appointed Saul as king over Israel, it was only in response to the demand of the people for a king.13 Further, Saul did not actually take office until after he was assented to by the people.14 Similarly, David was appointed to be Israel’s next king by God,15 but he did not take office until confirmed by the people.16 Hence, God has given limited authority to the governed to confirm their public officials, and by implication, to consent to the form of civil government.
Man reflects the image of God by giving his consent to government in the form of a civil covenant. God did not ordain, through the example of ancient Israel, that a monarchy was to be the only legitimate form of civil government. “They have rejected Me as king”17 suggests that God never intended to establish Israel as a monarchy, although God would not have sanctioned it unless it were lawful. Man is at liberty to establish the form of civil government he chooses, consistent with the law of God. Accordingly, it is man’s civil covenant, understood in the light of the Bible, which is the primary conferral of civil authority in nations today. In this respect, the law of delegated authority compels each nation to examine the terms of its civil covenant to know exactly what authority has been given to its government.
The law of delegated authority also prohibits any public official from becoming a tyrant. A tyrant acknowledges no limits to his authority, only his power, and rules in derogation of the limited grants of his authority from God and man. However, no one has the authority to consent to being ruled by a tyrant. People have not been given the authority to usurp God’s law by delegating duties to civil government which God requires someone else to perform. Therefore, consensual tyranny through taxation indicates that the people have abdicated their lawful duties owed to God.
God has not given all human authority to any one individual or group of people, nor has He covenanted with men only once. Rather, He has covenanted with different people throughout history, distributing authority among them severally as He wills, so that human authority is diffuse and disparate.18 Therefore, all men have multiple duties to discharge concurrently, each with its own limited jurisdiction. There are four basic concurrent jurisdictions, each with its own covenantal grant of authority: self-government,19 family government,20 church government,21 and civil government.22
This rule is summarized in the statement, “render to Caesar the things that are Caesar’s, and to God the things that are God’s.”23 This statement by Jesus does not mean that there are only two jurisdictions, or kingdoms, in the world. Rather, the distinction he drew relates to enforcement of the law. Duties owed to government are civil duties which public officials should enforce. Duties owed in connection with individuals, families and the church are owed to God. Hence, these are moral duties which public officials should not enforce – God alone holds people accountable for them. Moral duties are no less legally based than civil duties, but public officials cannot enforce all of God’s law. Only the part of God’s law which is within the civil jurisdiction can be enforced by public officials.
These concurrent jurisdictions are non-hierarchical, for God never delegated authority under one covenant to enforce the provisions of another covenant.24 In other words, there is no priority or hierarchy among the basic jurisdictions. Man’s duties under each jurisdiction are owed directly to God, and no jurisdiction oversees any of the others. Thus, public officials can not lawfully interfere with the performance of moral duties. Rather, one of the purposes of public officials is to preserve the liberty of the people to freely perform their moral duties owed to God.25 Civil government is not for this reason superior to other governments, however.
Everyone, without exception, is under the authority of others to some extent. Men who rule over others for one purpose may be ruled by others for another purpose. The operation of this rule avoids any conflict between the various concurrent jurisdictions. For example, a man may be a husband and father, an employee, a church elder, and a public official. He is at the same time authorized to rule over others for some purposes, and subject to the authority of others for different purposes.26 The reason this causes no conflict is that each jurisdiction is defined not by which persons must obey it, but by the nature of the purposes it serves.
That is, an individual’s authority depends not on who he is (a person approach), but the purpose for which the authority is given to him (a purpose approach). A man may be a father, a church elder and a public official, but he cannot exercise his authority as a father or church elder in his capacity as a public official. Nor can he exercise civil authority in the home or in the church, etc. In the eyes of the law, a man is not exclusively a father, church elder or public official, because he is all of them, at the same time, for different purposes. The authority he has at any given moment depends not on who he is, but the purpose he intends to accomplish.
On the other hand, a man does not become free from his obligations as an employee, merely because he is also a church elder or city councilman. A family is not immune from police regulation merely because the family is a concurrent and coequal institution with civil government. Similarly, the jurisdictions of church officials and public officials extend over some of the same people. The law of concurrent jurisdictions does not divide a nation into mutually exclusive jurisdictional units, where some people are the family, some are the church, and others are the state. Each jurisdiction is defined by the nature of the duties assigned to it, and none has an exclusive claim on any individual. That’s what makes the jurisdictions concurrent, rather than discrete.
One example of a moral duty owed to God is the right of the family to own, use and control property. “And God blessed them; and God said to them, ‘Be fruitful and multiply, and fill the earth, and subdue it; and rule over . . . the earth.'”27 This duty of earthly dominion has not been given to civil government, or to the church, but solely to the family unit.
God made unmistakably clear that dominion authority was to be exercised by the family. Only a husband and wife were able and authorized to have children. By coupling His command to have children with his grant of dominion authority, God specified the institution through which dominion was to be exercised.28
It is true, but irrelevant, that every public official is a member of some family, and has been granted some dominion authority. No public official can, in his capacity as such, exercise dominion, for to do so usurps the jurisdiction of family members to exercise dominion in that capacity. Each person has several authority “hats,” but he wears them only one at a time.
Another moral duty owed to God is the duty every person has to love his neighbor as himself.29 Because man’s duty to love his neighbor is owed directly to God, and only indirectly to his neighbor, love is undeserved. A duty under the law of love, though morally binding, is not enforceable. Therefore, love cannot be compelled, nor can the failure to love be punished by men. Government cannot compel a person to do what by definition must be voluntary. Neither can government determine which people deserve to receive something which is undeserved. An act of love must be voluntary and undeserved, or it is not love at all.30
Although in a sense love supports the whole law of God,31 the law of love governs some acts exclusively, and over these public officials have no jurisdiction. For example, the duties to help a person in distress, to employ a person in need of income, to care for widows and orphans, and to otherwise be charitable, are governed exclusively by the law of love.32 Accordingly, every gift is governed exclusively by the law of love. “Let each one do just as he has purposed in his heart; not grudgingly or under compulsion; for God loves a cheerful giver.”33
Because every gift is voluntary and undeserved, it can never involve a mutual exchange for value, or a quid pro quo. Thus, a gift is the legal opposite of a sales contract. Generally, every gift is outside the jurisdiction of government, and every sale is outside the jurisdiction of the law of love. Government has the authority to enter into and enforce contracts, but whether it can make public gifts or regulate private charitable gifts depends on whether it has jurisdiction over the law of love. One consequence of the law of love is that every taxable transaction must at least involve a sale of some kind.
Government lacks authority to love or be charitable because it has not been given to that institution. Public officials have the authority to encourage good among the people, but not to actually perform charity as a public service.34 Further, every resource government has available to it has been conscripted from people involuntarily. If any of these resources are given away, the people have effectively been compelled to be charitable, which is a legal contradiction. Of course, public officials can recognize that a completed gift has been made between individuals for some purposes, such as identifying the rightful owner of disputed property, but this is not the same as government acting out of love or being charitable with its own resources.
The passing of an estate or inheritance from one person to another is a gift, not a sale or a contract, and is therefore governed exclusively by the law of love. There is no quid pro quo which can compensate the testator for the passing of his estate, and the testator is free to bestow his estate upon the beneficiaries of his choice as an act of love. The transfer of an estate may serve the testator’s purpose, but it does not take effect until after he dies. So, he gains nothing, and the beneficiaries give nothing to receive their bequests.
There is one point . . . we must insist on granting: the heir’s money is unearned. . . . In a world of grace, we are all heirs: we have received unearned wealth without any work or works on our part. Heirship imposes upon us a major task of stewardship. The whole of the law gives us the pattern of stewardship for the heirs of grace. Our Lord sums it up in six words: ‘freely ye have received, freely give.'(Matt. 10:8).35
When a man becomes indebted to another, he may have to pay the debt by rendering personal service, regardless of how the debt originated.36 Conversely, when a man renders personal service to another, it may result in a debt being imputed to the recipient.37 Similary, when government renders the services required to discharge its civil duties, which only it may perform, it confers a benefit upon the people. Since government has no authority to be charitable, the benefit it confers is in the nature of a debt, not a gift. This debt is paid by the collection of taxes.
For because of this you also pay taxes, for rulers are servants of God, devoting themselves to this very thing. Render to all what is due them: tax to whom tax is due; custom to whom custom; fear to whom fear; honor to whom honor.38
The legal justification of taxation is therefore based on service debt, not the civil creation or ownership of wealth. God is the ultimate Creator of all wealth, and He has placed its use, control, and ownership in the hands of the family, not civil government.39 Public officials have no first claim to the wealth of the family, or of the nation. As a result, the law of service debt places limitations on the authority to tax.
That is, all lawful taxes must relate to a service which public officials are authorized to confer. First, a valid tax levy must raise revenue solely for the purpose of paying for civil services rendered.40 If the purpose of any tax is not to pay for civil services rendered, but is for some other purpose, such as the redistribution of wealth, the tax violates the law of service debt.
Second, no tax revenues may be expended except to pay for services which public officials may lawfully render.41 If the purpose of any tax is to permit government to fund religious or charitable services, for example, the tax violates the law of service debt. However, any service which public officials may lawfully render is an appropriate object for compensation by taxation.
A peculiar attribute of all taxation is that its payment may be compelled by forcible means. The payment of a tax is an exaction, not a gift. Once a civil government has been constituted, it is obligated to render civil services, triggering application of the law of service debt. The people do not choose to pay for these services – they must pay, or else suffer the wrath of public officials as avengers of God.42 Thus, all taxing authority is uniquely a civil power, for only civil government has been given the authority to use force against evildoers.43
Other types of relationships give rise to self-enforcible payment obligations, but none of these would be properly termed a tax. The family has right to use corporal punishment, but no right to use lethal force.44 The church has no right to use any kind of physical force against anyone.45 Private contracts can be self-enforced, but forcible means can be used only by public officials after a judicial proceeding.46 Thus, the only payment obligation which is truly a tax is one which may be forcibly exacted by public officials as compensation for their services.
The compulsory nature of taxation does not eliminate the existence of tax-exemption, however. The law of exemption is revealed in Jesus’ statements concerning the two-drachma temple tax, also known as the half-shekel head tax.47
And when they had come to Capernaum, those who collected the two-drachma tax came to Peter and said, “Does your teacher not pay the two-drachma tax?” He said, “Yes.” And when he came into the house, Jesus spoke to him first, saying, “What do you think, Simon? From whom do the kings of the earth collect customs or poll-tax, from their sons or from strangers?” And upon his saying, “From strangers,” Jesus said to him, “Consequently the sons are exempt.”48
Government collects taxes only from those not of its own “household.” The members of the civil household are exempt because they are the ones whose service is compensated through the payment of taxes: they are the beneficiaries of the tax, not the beneficiaries of the service. Thus, a civil government never taxes its own receipts.49 Similarly, a national government rarely desires to tax one of its political subdivisions, for these governmental units are of the same household as the nation. A tax levied on a political subdivision is equivalent to the civil government taxing itself.
The law of exemption is the exclusive rule by which anyone can be considered immune from tax, merely because of who they are. This law, together with the law of concurrent jurisdiction, negates the concept of civil tax immunity with respect to anyone other than the civil government or its political subdivisions. Under the law of concurrent jurisdiction, taxation is a function of the purpose of a transaction (object analysis), not the status of a person (subject analysis). Thus, all other exemptions from taxation granted by public officials are a matter of grace, not legal obligation.50 No church government can be tax immune as a matter of law unless it is of the same household as the civil government.
This has been a matter of considerable confusion. The concept of church immunity is usually based on the principle that the church owes its duty solely to God, not civil government, because Jesus is the King of the church.51 But the same is true for the family, which owes all of its duties to God, not government. Yet, the family is not immune from all civil taxation. In fact, every individual owes certain duties to God under the laws of self-government. If the church immunity argument is correct, no individual can be taxed at all, since every person is a coequal self-government with the civil government before God. This can only result in anarchy.
The root problem of the church immunity argument is that it fails to account for the concurrent nature of all jurisdictions, each of which is defined on the basis of its purpose, not personal status. If the purpose of an activity is religious, it is beyond the civil jurisdiction, no matter who is doing it. Organized church worship is no more or less religious than the individual or family worship of God. But, if the purpose of an activity is commercial, it is subject to the same civil regulation no matter who is doing it. A church-owned business is no less commercial than an individually or family owned business. Immunity from civil regulation is a function of the purpose of an activity, not the personal status of the actor. Except for government’s own household, there is no such thing as an immune person; there are only immune transactions.
The law of exemption applies to the church in its sphere as much as it applies to government in the civil sphere. God is no more willing to tax Himself than any earthly king. Therefore, it is impossible for the church to tax its members. Not only does the church lack the power to physically enforce any tax (by virtue of the law of exaction), the only people it might tax (i.e., church members) are all exempt. Jesus, the Son of God, was exempt from the temple tax because He was of the household of the King in whose name the tax was levied. Although Jesus paid the temple tax, He did so not out of obligation, but merely to avoid giving offense.52 Similarly, every Christian, as a member of God’s household of faith and a joint heir with Christ,53 is exempt from any so-called tax levied in God’s name or the name of the church.
No tax levy is truly just unless it is equally applied to all taxpayers. The law of equality is rooted in the way man is treated by God, for God is no respecter of persons, and He judges each man without partiality.54 As the bearer of God’s image, man is to judge his fellow man, when he has authority to do so, according to the same standard.55 The impartiality of righteous judgment plays no favorites: specifically prohibited is favoring either the rich or the poor over the other.56 The equal application of the law to all persons is necessary to avoid the perversion of justice which otherwise would result.57 In each case, the command is to judge according to what a person does (a purpose approach), not who they are (a person approach). Each person has the equal opportunity to prove his innocence, and the equal opportunity to pay the penalty for his misdeeds.
The biblical standard of equality is one of legal opportunity, not economic position.58 This standard of legal equality results in a rule of proportionality. That is, everyone has the same legal opportunity to enjoy the fruit of their own labor, so that the more one labors, the greater his enjoyment (or wealth accumulation) is. Only by applying the rule of proportionality or opportunity can the law of equality be satisfied. God has not given people the right to equalize human economic status. Accordingly, taxation may not be used for the purpose of redistributing or equalizing wealth.59
The biblical standard of equality undergirds all English and American law, as embodied in the concept of common law. “Inherent in the word, common, as it is used in the common law is an endorsement of the principle of legal equality.”60 The principle that all men are created equal before the law was acknowledged as a self-evident truth in the Declaration of Independence.61 The Declaration thus affirmed “that the common good could be achieved only through a faithful adherence to the principle of equality for all men.”62 Further, the Declaration declares only that the pursuit of happiness is an unalienable right, not the achievement of happiness. Thus, the perspective of the Founders was one disposed towards equal legal opportunity for happiness, not its equal factual attainment.
Federal taxation in the United States is governed by this same law of equality. This conclusion rests upon the fact that the Constitution created neither the legal context of the nation nor the nation itself. Our Constitution presupposes both the legal context of “the Laws of Nature and of Nature’s God” set forth in the Declaration, and also that the nation was formed by the Declaration. To maintain that an unequal exercise of the taxing power is constitutional is to hold that the Constitution may contradict the Declaration. Such a position denies that the Declaration is legally relevant to the founding of America and its legal context, as well as denying the Declaration’s understanding of equality.
The preceding discussion of biblical principles does not exhaustively describe the rules of biblical law affecting taxation, but includes those rules of primary significance for the applications made herein. Before proceeding with a discussion of the primary constitutional principles of taxation, it may be helpful to discuss the relation of biblical principles to taxation in ancient Israel as a means of exploring whether the latter adds anything to the application of biblical principles today.
* Copyright © 1986, 2006 Gerald R. Thompson. Used with permission.
3. Jesse Root, The Origin of Government and Laws in Connecticut, 1798, quoted in Perry Miller, ed., The Legal Mind In America: From Independence to the Civil War. (Ithaca: Cornell University Press, 1962), 32 at 36.
4. Genesis 1:1; Isaiah 45:8-13; Jeremiah 18:1-11; Romans 9:6-24; Colossians 1:16-17.
5. Genesis 1:26-28; 2:7.
6. William Blackstone, Commentaries on the Law of England. (Oxford: Clarendon Press, 1765; reprint ed., Birmingham: The Legal Classics Library, 1983), 39.
7. Genesis 1:27; 5:1; 9:6.
8. See, e.g., Matthew 28:18-20; Romans 13:1-2; 1 Timothy 1:8.
9. See, e.g., Genesis 9:1-17, the Noahic covenant, which bestowed man with the authority to administer capital punishment.
10. Romans 13:1-2.
11. Romans 13:4-6.
12. Deuteronomy 17:14-20.
13. 1 Samuel 8:1-22.
14. 1 Samuel 10:17-24.
15. 1 Samuel 16:1-13.
16. 2 Samuel 2:4-7; 5:1-5.
17. 1 Samuel 8:7.
18. See, e.g., Genesis 9:1-17 (Noahic covenant), Genesis 17:1-14 (Abrahamic covenant), Exodus 20:1-17; 24:1-8 (Mosaic covenant), and Hebrews 8:6-13 (Church covenant).
19. See, e.g., Genesis 2:15-17; Luke 10:25-37; Romans 8:12-13; 12:1-2; Galatians 5:16-21. All of these scriptures reflect man’s individual responsibility before God, and his willingness, as a free agent, “to choose obedience for the sake of obedience alone.” O. Palmer Robertson, The Christ of the Covenants (Phillipsburg: Presbyterian and Reformed Publishing Co., 1980), at 84.
20. Genesis 1:26-30; 2:18-24.
21. Matthew 28:18-20; Hebrews 8:6-13.
22. Romans 13:1-2. See also, Genesis 9:6.
23. Luke 20:25. See also, Matthew 22:15-22; Mark 12:13-17; Luke 20:20-26.
24. See, 1 Corinthians 14:33.
25. Romans 13:3-4.
26. See, 1 Peter 2:13-17.
27. Genesis 1:28.
28. Herbert W. Titus, “The Dominion Mandate: The Family, Private Property and Inheritance” (Virginia Beach: Regent University, 1985), 9.
29. Leviticus 19:18; Luke 10:27.
30. See, e.g., Ephesians 2:8-9, which supports the proposition that a gift is unmerited.
31. Matthew 22:37-40; Romans 13:8-10.
32. See, e.g., Matthew 25:34-46, which indicates that charity is an attribute of individual righteousness, not civil obligation.
33. 2 Corinthians 9:7.
34. See, Romans 13:1-7.
35. Rousas John Rushdoony, Wealth and Heirship (Chalcedon Position Paper No. 27). Accord, Gary DeMar, God and Government. Issues in Biblical Perspective (Atlanta: American Vision Press, 1984), 96. “Inheritance is a type of gift. The one receiving an inheritance has not earned it through labor.” Id.
36. See, e.g., Leviticus 25:39-43; Proverbs 22:7.
37. See, Genesis 14:14-24. When Abram rescued the people of Sodom, the king of Sodom was obligated to compensate Abram, though he refused it.
38. Romans 13:6-7.
39. Genesis 1:26-28.
40. See, Romans 13:1-7, which describes generally the lawful scope of civil services.
41. Obviously, the civil ruler cannot compel the people to fund unlawful activities.
42. Romans 13:4.
43. Id. See also, Genesis 9:6, which applies solely to civil rulers.
44. See, Deuteronomy 21:18-21.
45. See, Matthew 5:38-48. The only form of correction administered by the church is excommunication. See, 1 Corinthians 5:9-13.
46. Romans 12:19.
47. Infra, note 86.
48. Matthew 17:24-26.
49. The law of exemption does not imply that a civil employee is exempt from taxation on his wage income. No civil employee is the personal recipient of tax revenues. Rather, his compensation is exchange for services rendered to the civil government, the nature of which are no different than services rendered to a private employer. The income of an individual civil employee is not a revenue of the civil government, but a revenue of the employee’s family government.
50. This does not mean that the church is necessarily subject to every kind of taxation. Its taxation depends upon the operation of other biblical principles, but at least the church is not generally immune from all taxation merely because of its status.
51. Gary North, “The Churches as ‘Social Overhead Capital’.” Tentmakers, Vol VI, No. 6 (November/December, 1983). “The church is not to be taxed, because of its sovereignty. Before God, it is tax-immune.” (Emphasis in original.) Id. He also refers to “the common-law principle of the immunity of the church from the State . . ..” Id. Rousas John Rushdoony, Politics of Guilt and Pity (Fairfax: Thoburn Press, 1978), 333. “The church, directly under God, cannot submit itself to any government other than that of Jesus Christ. . . . The church is an independent sphere and kingdom, and although residing within a state, is not part of that state: it has extra-territorial status. It is comparable to a foreign embassy: the law of the church alone is applicable on that soil.” Id. See also, DeMar, supra note 35, at 139-140. “Jesus Christ is the head of the church; therefore, the church’s domain is outside the state’s jurisdiction and taxing authority. . . . Churches are not exempt from taxes but immune and therefore do not need to be declared exempt by the state.” Id.
52. Matthew 17:27.
53. Romans 8:16-17.
54. Deuteronomy 10:17.
55. Deuteronomy 1:17; 16:18-19.
56. Leviticus 19:15.
57. Id. See, Leviticus 19:33-34.
58. This may be inferred from the mandate to treat rich and poor alike, without any corresponding mandate to make the rich less rich, or the poor less poor. See, Colossians 3:22-25; James 2:1-9.
59. All “redistributed” wealth is unearned by the recipient, i.e., there is no quid pro quo. Thus, all civil charity violates the law of equality, as well as the law of love, because it substitutes equality of status for equality of opportunity.
60. Herbert W. Titus, God, Man, and Law: The Biblical Principles (Virginia Beach: Regent University, 1984), at 168.
61. The Declaration of Independence, July 4, 1776.
62. Titus, The Biblical Principles, supra note 60.