Georgetown Center for the Constitution

Reviewing the original meaning of the terms “duties, imposts, and excises” and “taxes” and arguing that the Founders adopted this clause for many reasons, but slavery was not a major reason.

Arguing that capitation taxes embraced a wider range of taxes than traditionally thought, and that apportionment “may have fallen far short of its goal, but it is not just a vestigial trace of the Founders’ long-since repudiated ‘bargain with slavery.’”

Arguing that the penalty associated with the ACA’s individual mandate, if considered a tax, may constitute a direct tax (and is unlikely to be exempt from apportionment under the 16th Amendment as a tax on income).

Arguing that apportionment retains vitality despite being part of the three-fifths compromise, and that it was not impliedly repealed by the 14th Amendment.

Arguing that “apportionment is still alive, but (apart from requisitions and capitation taxes) is confined to federal taxes on real estate and tangible personal property.”

Arguing that the Direct Tax Clause was meant to be a significant limitation on federal taxing power and that the phrase “taxes on incomes” in the 16th Amendment should not be interpreted to eviscerate that limitation.

Arguing that “nothing in the original meaning of apportionment justifies treating apportionment as a barrier to any federal tax” because “direct taxes” were understood as a proxy for the proposition that Congress must include slave populations in Southern taxes should it choose to apportion a tax.

Arguing that “a broad interpretation of ‘direct taxes’ is consistent with original understanding” because “if a proposed tax doesn’t have the built-in protections characteristic of taxes on articles of consumption, congressional power to impose the tax should be subject to the apportionment rule. That was the original understanding, consistent with the ‘nature’ of things: cabin the dangerous taxes and leave the safe taxes unconstrained, except for the uniformity rule.”

Arguing that apportionment has “no constitutional weight” because it was imported into the Constitution as a vestige of the Articles of Confederation’s requisition system and to settle a controversy as to the relative power of the slave states.

Arguing that “[d]irect taxes are not duties, imposts, or excises, and they are imposed by the national government on individuals rather than on the states.”