The framers were anti-tax, and it is no accident they failed to provide for income taxes in the Constitution.
“No taxation without representation” was the rallying cry of the Revolution, but the purpose of the Constitution was to create an effective government, and for that to happen, the framers granted Congress broad powers of taxation. This would be taxation with representation – the cornerstone of any viable republican government. All taxes were permitted, although some were regulated. The framers made no specific mention of income taxes because in those days, the overwhelming majority of Americans grew, raised, or made most of what they needed and traded farm commodities for much of the rest. Taxing income was not on the framers’ radar (“radar,” of course, was also not on their radar) when few people made their living by salaries, wages, or other measurable transfers of money.
When fifty-five American statesmen gathered in Philadelphia in May of 1787, their young nation faced fiscal ruin. Under the Articles of Confederation, the only way Congress could receive funds was to requisition the states, but without any means of enforcement, this amounted to no more than begging. From the previous October through March, the thirteen states had turned over a grand total of $663 to the federal treasury to keep the Confederacy afloat.[i] Try governing and defending a nation stretching from the Atlantic to the Mississippi on that budget and you’ll understand why the framers were so set on giving Congress ample powers of taxation.
Taxation was the prime order of business, upon which all else hinged. In Article 1, Section 8, the framers listed the powers of Congress, and the first one mentioned was the power to tax. Taxes would be used, they said, “to pay the Debts and provide for the common Defence and general Welfare of the United States.”
Following the custom of the times, the framers divided all taxes into two general categories, both of which they permitted Congress to levy. The first included duties, imposts, and excises, which were considered “indirect” because they applied to voluntary activities, the sale or purchase of certain goods. The second, called “direct” taxes, included head taxes and property taxes. Considered more onerous, the framers stipulated that these would need to be apportioned according to the population of each state. Without this proviso, northern representatives in Congress might try to finance the federal government by levying a tax on slaves, which would fall unduly on the South, while southern representatives might prefer taxing fishnets, more common in the North.
When the framers sent the proposed Constitution to the states for ratification, however, many and perhaps most of the folks back home objected to giving a new and distant government such broad powers to seize their treasure. Indirect taxes were okay, but before levying direct taxes, they said Congress should first ask the states for the sum they needed and let each state figure out how to raise that amount; only if a state failed to deliver should a direct tax take effect. This was basically a return to requisitioning, but with an enforcement procedure. All seven states that offered amendments to the Constitution at their ratification conventions included a variant of this proposal.
Proponents of the Constitution opposed this change. Any system of requisitioning would be accompanied by undue delays at the very least, and this in itself would hinder the effectiveness of government, their primary object. For George Washington, federal taxation was the bottom line, the one provision in the Constitution that could not be tinkered with. “There are scarcely any of the amendments which have been suggested, to which I have much objection,” he wrote to Jefferson, “except that which goes to the prevention of direct taxation.”[ii]
Washington and the pro-tax Federalists won the first and critical round of this debate: the Constitution was ratified without any amendment weakening Congress’s power to tax.
The debate was not over, however. In August of 1789, when the First Federal Congress considered which amendments it would send off to the states, Thomas Tudor Tucker of South Carolina resurrected the one that demanded requisitions prior to any direct taxes. This amendment, argued Samuel Livermore of New Hampshire, was “of more importance than any yet obtained,” and if Congress failed to include it, “he knew his constituents would be dissatisfied.” They would value all the others – the eventual Bill of Rights – as no more “than a pinch of snuff,” he said. Although Tucker and Livermore might have spoken for the majority of Americans, within Congress they were a distinct minority. Their motion to check federal taxation failed by an overwhelming vote of 9 to 39. Round two, again, went to the pro-tax Federalists. Congress would retain its sweeping powers of taxation.[iii]
Constitutionally speaking, the matter was resolved, but historically and politically, it was not. In 1794 farmers in western Pennsylvania and other trans-Appalachian regions attacked tax collectors and even considered secession, but that fell apart when President Washington, at Hamilton’s urging, rode at the head of an army to suppress it.
In 1798 Congress levied its first avowedly direct tax. To pay for a military mobilization in anticipation of a war with France, it passed “An act to lay and collect a direct tax within the United States,” to be “assessed upon dwelling-houses, lands, and slaves.” The tax on slaves was straightforward: fifty cents per head, with no distinctions. The tax on houses and lands, though, was sharply graduated, starting at two-tenths of one percent for houses and land worth $100 to $500, then three-tenths of one percent for property valued at $500 to $1,000, and so on, ending at a full percent for holdings over $30,000. Anti-war German-speaking farmers in eastern Pennsylvania rebelled, bullying the tax collectors and causing President John Adams to order the suppression of the uprising by force. Like the liquor tax before it, the direct tax of 1798 had severe political repercussions, but constitutionally, Congress was simply using the authority it had been granted.[iv]
Tax protests have continued to this day. Politically, the issues are real, but constitutionally, there is no legitimate complaint. The framers made certain Congress possessed sweeping powers of taxation, even though many people at the time objected.
What about the income tax? Once income taxes became viable, they were always deemed constitutional by the Supreme Court. The only issue was whether to consider them as indirect taxes, which were unrestricted, or direct taxes, which needed to be apportioned according to state populations.
The federal income tax made its debut during the Civil War, when the Union Congress taxed “the annual gains, profits, or income of every person residing in the United States, whether derived from any kind of property, rents, interests, dividends, salaries, or from any profession, trade, employment, or vocation carried on in the United States or elsewhere.” The rates were mildly progressive: three percent for incomes between $600 and $10,000, and five percent tax on incomes in excess of $10,000.[v]
The Supreme Court considered the Civil War income tax “indirect.” It was perfectly constitutional in the Court’s opinion, and because it was not “direct,” it did not need to be apportioned among the states. Three decades later, however, in Pollock v Farmers’ Loan and Trust (1895), a conservative Supreme Court declared that since rent, interest, and dividends derived from property, any tax on such income was “direct” and had to be apportioned among the states according to their populations. In practice, however, this was unworkable. Since poor states were required to contribute as much per capita as rich states, the tax rate on each individual needed to be higher in a poor state than in a rich one. (Today, for instance, incomes for residents of Mississippi, the poorest state in the Union, would be taxed at a per capita average rate of 17.9%, whereas incomes from residents of Connecticut, who can better afford to pay taxes, would be charged an average rate of only 9.2%.)[vi] Taxes on wages and salaries, meanwhile, did not need to be treated this way. Money earned by labor could be taxed more readily than money earned by possession of property.
Unfair? Of course, and that’s what led to the Sixteenth Amendment, ratified in 1913, one hundred years ago. The contorted distinction between “direct” and “indirect” taxes had to go, and that amendment, composed of a single sentence, whisked it away.
The first part says that Congress has the “power to lay and collect taxes on incomes.” Taxes on wages and salaries were already considered constitutional, even after the 1895 Pollock decision, as were taxes on rent, interest, and dividends if they followed the apportionment provision of the Constitution, but this lead clause obliterates any doubt or confusion with a simple, clear declaration.
The next phrase gets to the point: incomes “from whatever source derived” will be treated the same, whether stemming from labor or property.
The final phrase states that no income taxes require “apportionment among the several States,” because that is what made taxing rents, interest, and dividends unfeasible.
So that’s it. The Sixteenth Amendment merely simplified and streamlined the tax code, rendering federal taxation more workable and at least potentially more balanced, not favoring property over labor or vice versa.
Which brings us to the here and now, as we Americans prepare for the dreaded April 15, when income taxes are due. We might groan and complain about the amount we must pay or how our tax monies will be used, but these are political issues, not constitutional ones. Historically, to enable the federal government to function with “vigor” and “energy” (favorite words of theirs), the framers granted Congress sweeping powers of taxation. Congress might use those powers for better or worse, and we have every right to try to influence their decisions, but Congress’s power to levy taxes, including an income tax if it so decides, has been in effect since June 21, 1788, when New Hampshire became the ninth state to ratify the Constitution.
[iv] Administration of the 1798 direct tax followed the long-standing custom of assessing the value of a house according to the number and size of windows. Because windows had to be purchased whereas other primary building materials – wood, stone, or brick – could be obtained from the land, they were a better measure than square footage of the owner’s ability to pay. In common parlance, the 1798 direct tax became known as the “window tax,” even though the statute did not specifically mention windows.
[v] Statutes at Large, 37th Congress, 2nd Session, 12:473. The income tax was an integral component of a sweeping tax bill that included a stamp tax, an inheritance tax, and all sorts of excises and licensing fees.