Law Commons^™

Unapportioned Direct-Consumption Taxes And The Sixteenth Amendment, Erik M. Jensen

Faculty Publications

The point of this essay is simple: a direct-consumption tax like the Forbes-Armey-Hall-Rabushka flat tax or the Nunn-Domenici USA tax is not a "tax on incomes" within the meaning of the Sixteenth Amendment. As a result, such a tax would be constitutional only if it were apportioned among the states on the basis of population. And since these taxes would not be apportioned-how could they be and work as they are intended to work?-they would be unconstitutional.

Taxation And The Constitution: How To Read The Direct-Tax Clauses, Erik M. Jensen

Faculty Publications

This essay responds to Professor Bruce Ackerman, who had challenged the author's understanding of the Direct-Tax Clauses of the Constitution and the Sixteenth Amendment to that Constitution.

The Apportionment Of ‘Direct Taxes’: Are Consumption Taxes Constitutional?, Erik M. Jensen

Faculty Publications

In debates about reorienting the American revenue system, nearly everyone assumes the Constitution is irrelevant. With few exceptions, the tax provisions in the original Constitution - particularly the direct-tax apportionment rule and the uniformity rule - have been interpreted to be paper tigers. And in only one major case has the Sixteenth Amendment, which excepts "taxes on incomes" from apportionment, been held to limit congressional power.

S Rejecting conventional wisdom, this Article argues that some consumption taxes would violate constitutional norms. The Article focuses on the requirement that “direct taxes” be apportioned among the states on the basis of population. …