In June 2024 the Supreme Court issued its decision in Moore v. United States, a case many had predicted would be one of the most consequential tax cases of the past century. Instead, however, the Court managed to avoid deciding the most difficult and consequential issues by reframing the case and ruling on narrower, more technical grounds. Yet Moore may well still prove as consequential as expected, but for a different reason– that, for the first time, the Court explicitly utilized the “history and tradition” to interpret the taxing power, stating that “the Sixteenth Amendment expressly confirmed what had been the understanding of the Constitution before Pollock …” In doing so, Moore also serves as an invitation to to reconsider the historical record and understanding of the taxing power specifically with an eye towards shaping the Court’s modern interpretation of the Constitution.
Conor Clarke and Ari Glogower take up this cause in their new article, Apportioned Direct Taxes (ADT). The authors have two primary goals in ADT: (1) to provide a comprehensive survey of all “direct tax” legislation adopted by Congress prior to the Sixteenth Amendment including not only legislative history but administration and enforcement considerations as well, and (2) to identify what if any lessons emerge from that survey to help the courts to interpret the breadth and scope of the term “direct taxes” as used in the Constitution.
With respect to (1), by considering every direct tax adopted by Congress holistically, ADT identifies big picture themes which might not have necessarily emerged looking at each tax in isolation. Among these include: the willingness of Congress to experiment with various forms of direct taxes, the role of flexibility and responsiveness in the administration of direct taxes, and the trend over time away from direct taxes towards income taxes. These findings often complement much of the conventional wisdom regarding direct taxes but at times even contradict, or at least seriously call into question, many current assumptions regarding the scope of nature of actual direct taxes. For example, a commonly repeated adage in the tax literature provides that apportionment is unfeasible in the real world, which in turn suggests that any direct tax would be effectively unconstitutional per se. ADT challenges this assumption by describing real-world examples of Congress in fact adopting direct taxes that were actually apportioned; thus, while it may remain true that apportionment may not be practicable for Congress to adopt in today’s world, that is different than saying the historical record does not support any claim that apportioned direct taxes necessarily fall outside the scope of the taxing power itself.
Most importantly, however, ADT does not claim to be legal history qua history, nor does it claim to make the same contribution to the tax literature as an archival historian might.1 Rather, ADT utilizes history to take the “history and tradition” standard seriously as a means of guiding the scope and breadth of the modern interpretation of the Constitutional taxing power. To this end, ADT does not try to use the history to justify a particular interpretation but rather allows the descriptive history section to speak for itself and allow themes to emerge naturally from the historical narrative. In this manner, ADT could also be implicitly asking the reader to confront their own potential assumptions and/or normative priors and try, if possible, to reconsider the question from a blank slate (so to speak).
One of the most intriguing examples involves the timing of apportioning a real world tax to comply with the Constitutional apportionment requirement: at the time the tax is enacted, the time it is collected, both, or other? Perhaps surprising to some, ADT concludes that direct taxes in the past were apportioned at the time of enactment and not the time of enforcement or collection to allow the flexibility necessary to administer a real tax in the real world. The implication is that a direct tax enacted by Congress could be apportioned among the States based on population on its face and then it should be considered to satisfy the Constitutional apportionment requirement regardless how it actually ends up being collected and/or implemented In turn, ADT reaches what is perhaps a surprising conclusion to some–that under the Court’s own “history and tradition” standard the “direct tax” power may actually be broad, flexible, and pragmatic rather than impracticable and constraining as is often argued in the modern tax literature.
In this respect, ADT highlights a subtle but real internal tension within the “history and tradition” standard itself–that the more complexity and nuance is added to the historical narrative, the harder it becomes to identify any one clear lesson (or doctrinal standard) from that narrative. If true, could the inevitable conclusion of the “history and tradition” standard ultimately be doctrinal ambivalence in much the same manner as Llewellyn famously demonstrated for canons of construction?2 Further, at what point should the Court consider the historical record “closed” for purposes of interpreting the taxing power and what if new evidence is discovered after that point that would fundamentally change the historical understanding of the taxing power? Which should control–old precedent or new history? Taken to its logical extreme, rather than serve its intended purpose of anchoring or constraining judicial interpretation of the Constitutional taxing power could the “history and tradition” standard actually prove to do the exact opposite?
Of course no single article can address, let alone answer, all of these questions, and there is no way to know if the conclusion reached in ADT will ultimately win the day, but the mere fact that ADT forces the reader to confront such questions by addressing them with sincere academic rigor represents an important and valuable step in the right direction.
- There is also an excellent and rich legal history of taxation literature, for example see Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929, (2013).
- Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401–06 (1950).
