At Volokh Conspiracy, Steven Calabresi: The Amar Brief in Moore Should Not Be Embraced: Part 2. From the introduction:
In an earlier post on the Volokh Conspiracy, I described Professors Akhil Reed Amar's and Vikram David Amar's disagreement with an amicus brief that former Attorney General Edwin Meese III, Professor Gary Lawson, and I filed in Moore v. United States. An issue in that case is whether a wealth tax is a "direct tax", which has to be apportioned among the states according to their respective populations. The Amar brothers claim that the only things that are direct taxes are capitation (head) taxes and land taxes. They say falsely that on their side they have George Washington, Alexander Hamilton, the three Supreme Court justices who wrote opinions in the 1796 case, Hylton v. United States, 3 U.S. 171, Abraham Lincoln, and Chief Justice John Roberts. I completely and totally disagree.
First, all that George Washington did or said that is relevant to this case is that he asked Alexander Hamilton to defend in the Supreme Court a federal tax statute that said it imposed a duty, which is an indirect tax, on the use of carriages, which in the 1790's were luxury goods subject to duties in England and Massachusetts. Washington expressed no opinion whatsoever on the line between direct and indirect taxes.
And from later on:
What really matters is what was said and understood at the state ratifying conventions since it was those conventions, and not the back room deals that were made about slavery at Philadelphia, which made the Constitution the supreme law of the land. Future Chief Justice John Marshall speaking at the Virginia Ratifying convention said: "The objects of direct taxes are well understood." Marshal listed them as "Lands, slaves, stock [i.e., business capital] of all kinds, and a few other articles of domestic property." Future Chief Justice Oliver Ellsworth speaking at the Connecticut Ratifying Convention said that targets of direct taxes included (he did not say "were limited to" the "tools of a man's business … necessary utensils of his family" thus corroborating Marshall's references to "stock" and "domestic property." After the Pennsylvania Ratifying Convention, delegates in the Anti-Federalist minority, which cared deeply about the direct/indirect taxes line, issued a statement that identified the subjects of direct taxes as those on polls (as confirmed by the Constitution) and on "land, cattle, trades, occupations, etc." The "Federal Farmer", a highly regarded Anti-Federalist paper lists as objects of Congress power of direct taxation, "polls, lands, houses, labour, etc." See generally, Robert Natelson, What the Constitution Means by "Duties, Imposts, and Excises" – and "Taxes" (Direct or Otherwise), 66 Case West. L. Rev. 297, 308-09 (2015). See also Erik M. Jensen, The Apportionment of "Direct Taxes": Are Consumption Taxes Constitutional?, 97 Colum. L. Rev. 2334 (1997).
The Supreme Court oral argument in Moore is tomorrow (Tuesday, 12/5).
Posted at 6:09 AM