Strange Brew: The Tea Party’s Predictable, but Misguided, Campaign to Repeal the Sixteenth Amendment

This is the fifth installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.

by David Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center

Given the anti-tax fervor in the Tea Party set, it’s not surprising that repeal of the Sixteenth Amendment is high on the Tea Party’s constitutional agenda.  The Amendment, after all, was added to the Constitution in 1913 to make clear that Congress has the “power to lay and collect taxes on incomes, from whatever source derived . . . .”  Tea Party luminaries like Senate candidate Sharron Angle of Nevada, and a host of other Tea Party activists, have called for repeal of the Sixteenth Amendment, making the claim that this grant of taxing power was a harmful addition to the Constitution that increased the size and power of the federal government at the expense of the people.

Once again, the Tea Party’s vision of the Constitution is exactly backward.  The power to tax, including the power to impose a tax on income, was a power of the federal government since the Founding.  The Sixteenth Amendment was enacted to restore this power after the Supreme Court ‘s 1896  decision in Pollock v. Farmers’ Loan & Trust Co. overturned a federal income tax, disregarding clear constitutional history and a century of the Court’s precedents to reach its desired result.  In trying to forbid Congress from imposing an income tax, the Tea Party is trying to repeal a power given by the Founders they purport to revere.  Doing so would be a serious constitutional mistake.

Article I, Section 8 of the Founders’ Constitution begins by giving to Congress the “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 . . . .” This provision was necessary to overcome one of the great problems that hindered the federal government under the Articles of Confederation – its inability to raise money to support the federal government.  As Akhil Amar’s splendid history of the Constitution shows, in the aftermath of the abject failure of the Articles of Confederation, Americans chose to “authorize a sweeping regime of continental taxes . . . .”  The Founders recognized a “decisive difference” between the imperial taxes they had protested at the Boston Tea Party, and the new taxes they authorized in the Constitution, “decided on by public servants chosen by the American people themselves – taxation with representation.”  While the Boston Tea Partiers had objected to imperial taxes imposed by a legislature in which Americans had no voice, the Founders recognized that taxation approved by the people’s representatives in Congress was necessary to ensure the federal government could fulfill its constitutional responsibilities.

The Constitution contains very few limitations on Congress’ power to tax.  The only one relevant for current purposes is the part of Article I, Section 9 that forbids a “Capitation, or other direct, Tax” unless “in proportion to the Census or Enumeration.”  According to Black’s Law Dictionary, a capitation tax is  “[a] tax or imposition upon the person,” a direct tax is “[o]ne that is imposed directly upon property, according to its value.”  The Capitation Clause was written in order to prevent Congress from imposing a head tax on slaves and to limit taxes on land, due to what Alexander Hamilton, in Federalist 21, called the “herculean task to obtain a valuation of the land.”  Neither of those limitations in any way prevented Congress from collecting an income tax.

In 1796, the Founding-era Supreme Court unanimously read the Capitation Clause according to its narrow, original meaning in Hylton v. United States, holding that a tax on carriages was not a direct tax, and questioning whether anything other than a tax on slaves or land could qualify as a direct tax.  Ninety years later, in 1881, the Supreme Court in Springer v. United States faithfully applied the principles of Hylton in unanimously upholding a federal income tax passed by Congress at the end of the Civil War, noting both the judgment of the framers and the Hylton Court ruling that direct taxes related to slaves or land.

Then, in 1896, a conservative majority on the Supreme Court in Pollock threw the Constitution’s text and the rulings in Hylton and Springer to the side in a 5-4 decision that a 2% flat tax on individual and corporate income was an unconstitutional Direct Tax.  The Justices saw the tax as an “assault on capital,” and bent the Constitution to strike it down.  As Akhil Amar has explained, “it was the very fact that the federal income tax . . . had targeted those most able to pay that rankled . . . the Pollock Court’s conservative defenders.”  The Court’s dissenters rightly charged that the ruling “cripples the just powers of the government in the essential matter of taxation.”

In the Sixteenth Amendment – ratified 17 years later – the American people rejected Pollock’s newly-minted limitation on Congress’ express power to tax, restoring the original understanding of both the taxing power and the Capitation Clause.  “The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to enumeration.”  Supported alike by Republican Presidents Howard Taft and Theodore Roosevelt and Democratic President Woodrow Wilson, the Amendment sailed through Congress, and was easily ratified by the States.  The American people recognized that a progressive income tax was essential to the effective functioning of the federal government and to ensure that all Americans, including wealthy persons and the big corporations they ran, contribute a proportionate share to the running of the government.

The arguments put forth in support of the Tea Party’s campaign to repeal the Sixteenth Amendment find no basis in the history of our Nation or our Constitution. To the contrary, they run directly counter to the judgment of the  Founders of our Nation as well as the framers of the Sixteenth Amendment that Congress needs a broad power to impose taxes so that the federal government can live up to its expansive constitutional mandate to  “provide for the common Defence and general Welfare of the United States . . . .”  While the Tea Party surely has the right to advocate stripping the federal government of the broad taxing power it has had since the Founding, the American people should understand the actual history of that power and resoundingly reject such a harmful change.