Progressive-Democratic Party Presidential candidates and Senators Elizabeth Warren (D, MA) and Bernie Sanders (I, VT) have proposed taxes on the wealth of Americans—2% on individuals worth more than $50 million and 3% on billionaires in Warren’s case, and from 1% on married couples worth $32 million, rising to 8% on those with wealth over $10 billion in Sanders’.
These are direct taxes, which would make them unconstitutional. Their unconstitutionality does not arise from their directness but from their lack of State proportionality. Proportionality—apportionment in the Constitution’s terms—means that such taxes can only be assessed in accordance with a State’s population relative to the other States’ populations, just as Representation in the Federal government House of Representatives is.
Naturally, Warren and Sanders presented their tax proposals armed with economists’ arguments in favor of them. Two such arguments are these, proffered by Yale Sterling Professor of Law and Political Science Bruce Ackerman, but they fail early. Ackerman’s first, as paraphrased by FoxBusiness, is that a direct tax, as authorized in our Constitution, was
part of a compromise with the slave-holding South…. The purpose of it was to prevent the North from imposing a “head tax” on slaves, because that could not be apportioned equally across the states.
“Given this history, it is extremely unlikely that the justices will cite the founders’ original compromise with slavery to bar a tax that would serve the cause of economic equality and democratic legitimacy[.]”
This is an idle sophistry, though. As the Constitutional authorization for direct taxes currently stands—since ratification of the 14th Amendment—all references to slavery and to slaves have been removed from the nature of direct taxes. The 14th changed the definition of apportionment to referencing only the whole number of persons in each State, excluding Indians not taxed. That’s the sum and substance of the plain text of the Constitution on the matter of direct taxes. The historical origin of the direct tax authorization not only is irrelevant, it’s been wholly and explicitly excised from our Constitution as it stands.
Ackerman’s other argument is this that claim that the Warren/Sanders direct tax proposals serve the cause of economic equality and democratic legitimacy. This, though, is an oxymoron. Forcing economic equality, even government merely pushing toward it via tax law, is antithetical to democratic legitimacy. Forcing equal outcomes denies each man his opportunity to show the best that there is in him. It blocks him from realizing the full outcome from his efforts under his right to equal opportunity. Indeed, demanding equal outcomes utterly cancels not only each man’s equal opportunity, but his very right to that equality of opportunity.
The Progressive-Democrat candidates’ proposals are wholly unconstitutional—and completely undemocratic.
