It’s Constitutional

As most readers who follow the 2020 campaign proposals are aware, Elizabeth Warren has proposed an annual wealth tax of 2% for wealth greater than $50 million and 3% for wealth greater than $1 billion. Various pundits have said that the tax is “probably unconstitutional”1 and that the Supreme Court could “stop the wealth tax dead in its tracks.”2

Warren’s wealth tax is constitutional under the standards laid down by the Founders, as this article will demonstrate. Apportionment of a wealth or land tax by population would now require the injustice of substantially higher tax rates in poorer states: when that happens, under the Founders’ standards, the tax is not a direct tax for which apportionment is required. Apportionment was not written to protect wealth from assault, as proponents of its unconstitutionality now claim, but rather to reach wealth by what was thought to be the best then available measure of wealth.

The Constitution, Article I, section 9, clause 4, requires that a “direct tax” must be apportioned among the states by population.3 For the Founders, a necessary element to be a direct tax is that apportionment among the states by population must be reasonable and just. Thus import taxes (the impost), excise taxes, duties, carriage taxes and now real estate and wealth taxes have been expelled from the definition of direct tax, sometimes by the operation of ordinary language and sometimes by Supreme Court decision.

Real estate and wealth taxes were once considered direct taxes because they were the taxes that the states would use to satisfy a requisition and because real estate and wealth were presumed to be equal among the states. Today, however, apportionment of a wealth tax among the states by population is neither just nor reasonable. Wealth per capita in poor Mississippi is under half of the per capita wealth in relatively rich District of Columbia.4 Apportionment by population would mean that tax rates in Mississippi would have to be more than twice the rates in DC. The result would tax residents of poor states much more harshly than residents of wealthy states. That result has no justification in history or policy: it would simply arise by necessity from the fact that Mississippi has a smaller tax base over which to spread its quota. Thus, when it was recognized that wealth and real estate are not equally distributed per capita so that apportionment forced substantially higher tax rates in poorer states, the taxes on wealth and real estate could not be treated as direct taxes. Apportionment would not be just or reasonable.

The Founders believed in wealth taxes: they considered that they would need taxes on wealth for the common defense in the inevitable next war. Various leaders made this clear. The power to provide for the common defense, one J. Choate told the Massachusetts ratification convention, “can be no other than an unlimited power of taxation, if that defence requires it.”5 “Wars have now become rather wars of the purse than of the sword,” Oliver Ellsworth told Connecticut. “A government which can command but half its resources is like a man with but one arm to defend himself.”6 Hamilton put it quite clearly.

A constitution cannot set bounds to a nation’s wants; it ought not, therefore, to set bounds to its resources. Unexpected invasions, long and ruinous wars, may demand all the possible abilities of the country. Shall not your government have power to call these abilities into action? The contingencies of society are not reducible to calculations. They cannot be fixed or bounded, even in imagination.7

No hobble that made wealth taxes impossible would have been tolerated at the time, and apportionment, which was only intended to provide a reasonable formula for calculating tax shares when workable, would have been a hobble. The idea that Congress would nonetheless have to raise federal taxes by an intolerable injustice when it badly needed the tax revenues misunderstands what the Constitution is about. The consequences of apportionment by population when the per capita tax base is uneven rebuts the use of apportionment.