I have here in my hand “An argument respecting the constitutionality of the carriage tax; which subject was discussed at Richmond, in Virginia, in May, 1795. By John Taylor.” He wrote: "No Capitation, or other direct Tax, shall be laid, unless in proportion to the Census or Enumeration. The spirit of justice and equity breathes through every word of this inhibition. It is the most important stipulation of the whole compact. It is the strongest band of the union, he wrote. Words more comprehensive than other direct tax could not have been formed by our language, tax: the genus including all government impositions, expounded by the accurate Mr. Johnson to mean an impost, a tribute, an excise. Hence, it is impossible to maintain that a direct duty or a direct excise does not fall within the express words of the inhibition. As to the intention of the Constitution, it will be shown throughout the argument that such a doctrine would entirely undermine the design of the restriction. It will appear to be an evasion, which would leave Congress unrestrained upon the subject of taxation, in violation of the plainest words." Most lawyers are educated about the Constitution not by actually studying the Constitution but by reading a large body of court precedents. Over time, we’ve had people on federal courts decide that essentially the federal government can do more or less anything it wants, and that includes in the area of taxation. Taylor was exactly right that the rest of the Constitution’s careful delegation of powers of Congress would have been surplus if the point was that the very introduction to Article I, Section 8 gave Congress all the powers in the world. Madison actually responded to another classic early Supreme Court decision, McCulloch v. Maryland in which John Marshall essentially said Congress could do anything it wanted to under the Necessary and Proper Clause by saying if the people had known the Necessary and Proper Clause would be read this way, they would never have ratified the Constitution. The Constitution was barely ratified in Virginia, New York, New Hampshire, Rhode Island and North Carolina. It was only ratified on the basis that Congress would have very few powers, [mocking] “Here they are listed and in case you don’t trust us, we’ll promise to adopt an amendment in the first Congress reiterating this point,” which is, of course, the Tenth Amendment. That was the main argument that the federalists made in the ratification discussions, that Congress would only have these few powers. Again, if all you knew about the Constitution were constitutional law, that is if you learned what you know about it just by going to law school or going to college and taking a course in opinions of dead judges, you’d have no idea of any of what I just said. You’d have no idea that Congress’ powers were supposed to be few and enumerated.
Posted on: Mon, 23 Sep 2013 03:23:24 +0000
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