Yes, Virginia, the Income Tax Is Constitutional

I take part in a peace vigil that is held every Friday evening. One day, a group of excited young people, all of them high school graduates, came up to us at vigil to tell us that the income tax is unconstitutional. Fortunately, I always carry a copy of the U.S. Constitution with me, so I was able to give them a dose of truth. 

I showed them that U.S. Constitution, as originally ratified, gave the federal government the power to lay and collect taxes. (See Article I, Section 8, Clause I, which is called the Taxing and Spending Clause.) Originally, this power was limited by the Apportionment Rule (Article 1, Section 9, Clause 4), which stated that the total amount of direct federal taxes (such as a tax on an individual’s property or income) from the people of any state had to be proportional to that state’s population. So if the census showed that a state accounted for 5% of the U.S. population, then the people of that state would end up paying 5% of the total income tax, regardless of whether the state was rich or poor. I showed them that the apportionment rule was dropped in 1913, with the passage of the 16th Amendment.

The apportionment rule had become a big problem. Imagine, for example, that you have a tiny handful of people, such as mine owners, who are getting fantastically rich from the work of other people, such as coal miners. The millionaires will end up living in fancy places like Boston and New York City. As a result, some people in the richer states (Massachusetts and New York) were getting rich off the work of poor people in poorer states (e.g., West Virginia and Kentucky). But because of the apportionment rule, the amount of federal income tax that you could get from the millionaires in New York or Boston would be limited by the amount of taxes that you could wring out of West Virginia and Kentucky.

During its first few decades, the federal government was supported mainly by internal taxes, such as taxes on distilled spirits (thus sparking the Whiskey Rebellion), refined sugar, slaves, and corporate bonds. To finance the War of 1812, the federal government collected sales taxes on other luxury goods, such as gold, silverware, and watches. After 1817, Congress did away with the internal taxes and turned instead to tariffs on imported goods to finance the federal government.

The import tariffs turned out to be one of the major causes of the Civil War. By raising the costs of imports, the tariffs reduced competition for domestic manufacturers, which were mainly in the North. However, the Southern planters resented paying high prices for manufactured goods. Thus, they felt that they were being unfairly exploited by the Yankees. (Of course, the plantation owners did not think it was unfair to exploit their slaves.) The Southern states seceded from the Union for several reasons. One was to protect the “peculiar institution” of chattel slavery, which had already been abolished in the Northern states (starting with Vermont, in 1777), as well as in Mexico and the British and French Empires. Another reason was to allow the Southern states to develop their own trade policy.

To finance the war, both the Union and the Confederacy imposed income tax plans that did not follow the apportionment rule. The federal income tax helped the Union finance the Civil War, but it was repealed a few years after the war ended. The income tax was revived briefly in 1894, but the Supreme Court overturned it in 1895, arguing that it was unconstitutional because it violated the Apportionment Rule. So the federal income tax really was ruled unconstitutional in 1895. However, the 16th Amendment, which was ratified in 1913, did away with the apportionment rule. Since then, the Supreme Court has repeatedly ruled that the federal income tax on individuals and corporations is constitutional.

To my surprise, the young people had heard of the 16th Amendment. They gave the usual explanations of why it was invalid. One is that the 16th Amendment “conferred no new power to tax.” (But the Taxing and Spending Clause had already given the federal government the power to tax. The 16th Amendment simply voided the Apportionment Rule.) Another argument is that there were typographical errors in the version of the amendment that was ratified by one or more of the states. The Supreme Court has rejected these objections as frivolous. The people who made those arguments in court ended up having to pay their taxes, plus penalties.

The young people were still not convinced. So I pointed out that if the income tax really were unconstitutional, rich people could simply refuse to pay. Maybe that argument persuaded them, but I doubt it.

Two things bothered me about the conversation. The first is that these young people were clearly hungry for knowledge about history, but they had somehow learned remarkably little about history in school. The second was that they were so well-versed in fake history. They “knew” that the income tax was unconstitutional. They had heard of the 16th Amendment, and they “knew” that it had never been ratified and would have made no difference if it had been ratified.

These kids clearly had enough curiosity and brain-power to memorize and articulate complex statements of fact. They just hadn’t been given statements of fact that were actually true. I hope that they don’t end up in trouble with the IRS as a result of their miseducation.

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