Henry Lowenstein (Coastal Carolina University – Management and Law) and Kathryn Kisska-Schulze (Clemson University College of Business) have posted A Historical Examination of the Constitutionality of the Federal Estate Tax (William & Mary Bill of Rights Journal, Vol. 27, No. 1, 2018) (30 pages) on SSRN. Here is the abstract:
During the 2016 presidential debate, Hillary Clinton vowed to raise the estate (death) tax to 65%, while Donald Trump pledged to abolish it as part of his overall tax reform proposal. An interesting question resonates as to whether the tax is even constitutional. This paper takes a fresh look at the Estate Tax, appropriate in an era of a U.S. Supreme Court consisting of a majority of adherents to a more “strict constructionist” view of constitutional interpretation. Although historically regarded by the U.S. Supreme Court as being a constitutional excise tax, it can be theorized that the estate tax is an unconstitutional overreach of taxing power by the Federal government and constitutes a “taking” of private property banned by the 5th Amendment. This article directly confronts the constitutionality of the federal Estate Tax from a purely bedrock perspective. To meet this objective, were review the enumerated powers of Federal taxation as allowed by the U.S. Constitution; dissect the scope of the estate tax, to include an analysis of the judicial and legislative history supporting its constitutionality; theorize that the tax does not have a constitutional basis legitimizing its inclusion in the Federal tax code; and conclude that the estate tax violates the U.S. Constitution and should therefore be repealed.
Posted at 6:32 AM