Taxation and the Constitution, Reconsidered

(Forthcoming, Tax Law Review )
John R. Brooks & David Gamage*


We have entered a new era of demand for progressive tax law reforms. Public concern about income and wealth inequality has skyrocketed in recent years. Meanwhile, scholarship, activism, and media exposés have together brought newfound attention to how billionaires and mega-millionaires can largely escape existing taxes. The essence of the problem is that our primary progressive tax instrument—the federal income tax—is no longer up to the job of managing ever-increasing concentrations of financial wealth.1 Yet reform efforts are stymied by fears that any legislative effort capable of combatting such wealth concentration would face constitutional challenges before the current Supreme Court.

This Article argues that such fears are misplaced. There is in fact a long history of federal taxes similar to wealth taxes, and a well-developed constitutional jurisprudence to go along with that history. This jurisprudence has laid mostly dormant during the past century-plus of the income tax era, but a reconsideration of taxation and the Constitution shows that we should now have multiple viable paths for taxing extreme concentrations of wealth.

To elaborate, wealth tax reform proposals gained new prominence during the 2020 Democratic Party presidential primary and thereafter, with numerous related proposals having since been introduced at both the federal and state levels.2 More recently, in October of 2021, Senator Ron Wyden, Chair of the Senate Finance Committee, introduced a Billionaires Income Tax reform, to tax billionaires annually on their unrealized gains from publicly traded assets without waiting for those assets to be sold.3 This proposal offers a fundamental transformation of the income tax that could end how billionaires currently escape taxation. This reform proposal was supported by Congressional leadership and came close to being enacted in 2021. Since then, there have been multiple similar reform proposals, including most notably, President Biden’s proposed Billionaires Minimum Income Tax Reform.

Whatever happens in the near term, it seems virtually certain that progressive wealth tax and transformative income tax reform proposals, like a tax on unrealized gains for the ultra-wealthy, will continue to play a central role in tax policy debates for years to come. However, few seem confident that the current Supreme Court would uphold a uniform federal wealth tax, and key voices similarly predict that the current Court might also strike down a uniform transformative income tax reform like the Billionaires Income Tax. The current era is thus characterized by transformative progressive tax reform proposals all struggling against fears that the current Supreme Court might strike down such reforms.

As brief background, the Constitution grants Congress the power to impose “Taxes, Duties, Imposes, and Excises,” but imposes two requirements on that power: first, “Duties, Imposts, and Excises” must be levied in a uniform manner—meaning that the same rules and rates apply to all taxpayers regardless of location; and second, that “direct taxes” must be apportioned among the states proportionally based on population—meaning that each state’s share of the revenue collected be equal to its share of the population. The challenge then is that—with the small exception of capitation taxes—no tax can be both uniform and apportioned. Uniformity is generally desirable for federal taxes, but if a wealth tax or similar reform is a “direct tax” (as many argue), it must instead be apportioned.

Most scholarship treats our current constitutional tax law as an obstacle to these sorts of transformative reforms and argues that some change in the law would be required, such as a constitutional amendment or overruling old constitutional cases. We characterize this scholarship as assigning the Constitution’s direct tax apportionment requirement with a substantive barrier function. In other words, this scholarship assumes that apportionment is a dead letter for a range of political and pragmatic reasons and that uniformity is thus the only practically viable path to the exercise of the federal taxing power. Some eminent scholars have argued that the Constitution’s provisions limiting the federal taxing power are relics that should be abandoned or at least interpreted very narrowly. Other opposing scholars have argued for interpreting these provisions broadly in order to dispute the constitutional of a variety of tax reform proposals. Numerous other scholars have struck intermediate positions, arguing for curtailed scope of the direct tax apportionment requirement, though still squarely assuming that apportionment functions as a substantive barrier such that any tax constitutionally required to be apportioned must for that reason be rejected.

However, this scholarship on taxation and the Constitution ultimately derives from earlier and quite different time periods ***. This Article reconsiders the Constitution’s tax provisions for the new era and resurrects a mostly forgotten, or ignored, constitutional approach to the federal taxing power. Specifically, we reject the idea that the apportionment requirement serves a substantive barrier function and argue for a return to what we call a two paths approach to federal taxation under the Constitution. This view—dominant for over a century and still clearly embodied in the case law—treats apportionment not as an insurmountable hurdle, but simply as one of the two paths—along with uniformity—set out in the Constitution for levying federal taxes. *** A workable two paths approach may well be essential for progressive federal tax reform. In particular, scholars who see the apportionment requirement as a substantive barrier to federal wealth tax generally agree that overcoming this would require the Court to overturn a key holding of Pollock v. Farmers’ Loan & Trust Co.4 (the case striking down the 1894 income tax) that taxes on both real and personal property solely because of its ownership are direct taxes that must be apportioned. There are no indications, however, that the current Court majority has no interest in overturning that holding. Under a two paths approach, this need not be the end of the story. ***

The challenge, however, of following the apportionment path is the requirement to allocate the burden of a tax act amongst the states by population, so that the percentage of the revenue collected from each state is in in proportion to each state’s share of the total population. For anything other than flat taxes on persons (called “capitations” or “poll taxes”), this then effectively requires higher tax rates in poorer states and lower tax rates in richer states. ***

But the nature of the U.S. fiscal system evolved with the New Deal and with the subsequent expansion of the income tax and of federal social welfare programs, plus similarly robust state fiscal systems. As a result, the U.S. fiscal system now regularly transfers large sums from richer states to poorer states. In this new fiscal world, we argue that it is myopic to rule out apportioned taxes due to issues of interstate inequity. As we will explain, to the extent that apportioning a new federal tax reform might create issues related to interstate inequity, this can now easily be remedied by adjusting existing interstate transfer payments or through other forms of fiscal equalization. We already rely on a basket of fiscal tools across multiple levels government to manage distribution, and our solution is just an extension of that.

Accordingly, the first key contribution underlying this Article’s argument for reviving the two paths approach is explaining that the apportionment path has today returned to being viable. However, this still leaves us with the critical question of which forms of taxation must follow the apportionment path and which the uniformity path. To address that question, we examine the history of Supreme Court caselaw ***. When viewed as a whole, we argue, the cases show a coherent and largely consistent jurisprudence explaining how to manage the two paths. In particular, the Court developed what we call the “Excise Tax Canon,” i.e., a quasi-canon of constitutional interpretation that courts should interpret “excise” broadly and “direct tax” narrowly, and particularly when a tax could plausibly be described as either.


Utimately, we argue that fear of presumed hostility by the Supreme Court should not stand in the way of legislating transformative tax reforms desired by a Congressional majority. We call for moving on from the outdated substantive barrier conception of apportionment and for a return to the two paths approach that was widely followed prior to the Civil War. By employing the two paths approach, Congress can build on the history of the early Direct Tax Acts and of the Supreme Court precedents composing the Excise Tax Canon to effectuate strategies for overcoming presumed hostility by the Supreme Court.


I. The Founding Through the Civil War: Navigating the Boundaries of Excise Taxes and Apportioned Direct Taxes


We begin with the Constitutional text itself. The portions of the Constitution relevant to the question of wealth and related taxes are as follows. First, the Constitution grants a broad general taxing power to Congress, but requires that all “Duties, Imposts, and Excises” be “uniform”:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;5

Second, the Constitution requires that any “direct taxes” be “apportioned” (the “Apportionment Clauses”):

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.6

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.7

This basic structure of the Constitution thus provides two paths for Congress to enact taxes: Any “duty, impost, or excise” must be uniform and any “direct tax” must be apportioned—that is, must be divided among the states in proportion to their shares of the population.


The central constitutional tax questions *** are: What taxes are “direct taxes” that must be apportioned? And how can any necessary apportionment be done? Apportioning a tax among the states in proportion to population is non-trivial for anything other than a “capitation” (the only stated example of a direct tax in the Constitution), because no other tax bases are proportionally distributed. The per-capita amounts of income, wealth, sales, estate size, number of carriages, etc. all differ state-to-state, and so would require differentiated tax rates state-to-state. (A capitation—also known as a “head tax” or a “poll tax,” a flat per-person tax—is the only tax that could be both uniform and apportioned by population). Thus it is vital to know which taxes count as “direct” and how to apportion them.


Furthermore, deciding on a single Constitutional definition of “direct tax” is not nearly the end of the task. Other questions are just as important: Can a tax that is economically equivalent to a direct tax be constructed in an “indirect” way? And if a tax is indeed direct, how do we follow the apportionment path?


II. The Civil War Through Pollock: Apportionment as Barrier and the Development of the Excise Tax Canon

A. What Were Direct Taxes in 1881?

In opinions issued between 1869 and 1881, the Court gradually homed in on a clear constitutional meaning of “direct tax.” The first cases begin with more exclusionary holdings, that certain taxes were not direct (rather than affirmatively declaring what is a direct tax). For example, in Pacific Insurance Co. v. Soule, the Court upheld a tax on the income of insurance companies, saying that the injustice of trying to apportion such a tax required a narrow reading of the term “direct tax.”8 In Veazie Bank v. Fenno, the Court upheld a 10% tax on the value of bank notes—currency, essentially—as a tax on an object and therefore “under the head of duties.”9 Noting the “difficulty of defining with accuracy”10 the term “direct tax,” the Court relied heavily on the fact that Congress had only ever levied direct taxes on real property and enslaved persons.11 “It may be rightly affirmed, therefore, that in the practical construction of the Constitution, direct taxes have been limited to taxes on land and appurtenances, and taxes on polls, or capitation taxes. And this construction is entitled to great consideration, especially in the absence of anything adverse to it in the discussions of the Convention which framed, and of the conventions which ratified, the Constitution.”12

But in Springer v. United States,13 the Court directly confronted the question that it would face again in Pollock—is an income tax a direct tax that must be apportioned? The case concerned the 1864 tax on “income, gain, and profits.”14 As in past cases, the Court noted the ambiguity of the terms used in the Constitution15 and looked to Congress’s practice in enacting explicit direct taxes to guide its interpretations.16 As in Veazie, the Court found that the only direct taxes passed by Congress covered just real estate and enslaved people and that the determination made “by the legislative and executive departments of the government, though not conclusive, is a consideration of great weight.”17 The Court then turned to the key question—what, exactly, are direct taxes? The holding is clear:

Our conclusions are, that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate; and that the tax of which the plaintiff in error complains is within the category of an excise or duty.18
After Springer, the near-unanimous view of courts, constitutional scholars, and tax scholars was that direct taxes were only capitations and taxes on land, and that an income tax was not a direct tax. ***

B. The Excise Tax Canon: Interpreting “Excise” Broadly and “Direct” Narrowly

Recall that the Constitution describes two categories of taxes—“direct taxes” that must be apportioned, and “duties, imposts, and excises” that must be uniform. In applying the law described above—that direct taxes are only taxes on capitations and taxes on real estate—the Court necessarily upheld various taxes by finding that they were instead “duties, imposts, and excises”—and excises in particular. In developing this jurisprudence the Court applied the Excise Tax Canon; namely, the Court interpreted the phrase “excise” broadly and “direct” narrowly, in keeping with the general purpose of the Framers to give a strong taxing power to Congress.19


This interpretive approach was perhaps most clear in Scholey v. Rew,20 a case regarding a “succession tax”—an early form of inheritance or estate tax—imposed on the value of real estate transferred to another because of death.21 The Court held that the succession tax is “an excise tax or duty,” because it was levied on the “devolution” of the property, not the property itself, and the fact that it was computed based on the value of land and became a lien on the land did not contradict that conclusion.22 But recall that even the narrowest constructions of “direct tax” up to this point would include a tax on land. The succession tax in Scholey fell on the “devolution” of title to real property—and only real property. Of any of the taxes in question before Pollock, this would seem to be at the most risk of being declared a direct tax in the sense of the Constitution. (Indeed, Justice White said exactly this in his dissent in Pollock.23) Nonetheless, the Court held that the tax was affirmatively an excise, a tax on the act of devolution, rather than on the land itself. Even though it would have been straightforward to hold that a succession tax based on the value of real property was equivalent to a tax on land, and therefore a direct tax, the Court nonetheless upheld the formal construction of the tax as an excise tax on the act of devolution.


III. The 16th Amendment—and the Challenge of Eisner v. Macomber


IV. Revitalizing the Two Paths Approach for the Modern Era

In the prior Parts, we have shown that, read properly, the constitutional jurisprudence on taxation from the founding until today is reasonably consistent and coherent. *** Furthermore, as we discussed in Parts I and II, apportionment was for nearly a century considered to be a viable path for a federal tax on real estate and on at least certain other forms of wealth ***.

So where does this all leave us? Returning to where we began, we appear to be entering a new era of demand for progressive tax law reforms, including wealth taxes and taxes on the unrealized gains of the very wealthy. The popularity and prominence of such reforms has skyrocketed in recent years, as the public has increasingly gained awareness of how billionaires and mega-millionaires can largely escape existing taxes. However, at the same time, the Supreme Court has increasingly taken a more skeptical posture towards the congressional taxing power, leadings reformers to fear that the current Court might strike down a newly legislated uniform federal wealth tax or tax on unrealized capital gains.

This Article argues that fears of presumed hostility by the Supreme Court should not stand in the way of transformative tax reforms desired by a Congressional majority. To that end, building on our exposition of the history of constitutional tax jurisprudence, we now, in this Part, argue for revitalizing the two paths approach for the modern era. We first explain more fully why the apportionment path is today once again practically viable. Congress could thus feasibly design a wealth tax or related tax reform to follow the apportionment path. However, we acknowledge that the apportionment path remains something of an awkward fit for most or all modern federal taxes and that its added complications may make it less attractive politically. We thus also argue for why, following the Excise Tax Canon, the uniformity path should also be constitutionally available today for either a federal wealth tax or a federal tax on unrealized capital gains.

Of course, we fully acknowledge that the current Supreme Court might disagree with this latter argument ***. We thus end this Article by suggesting some practical strategies for how a Congressional majority desiring to enact a transformative tax reform can overcome fears of presumed hostility by the Supreme Court. The essence of these strategies is based on revitalizing the two paths approach. ***

A. Why the Apportionment Path is Once Again Practically Viable


In the 1800s and early 1900s, the federal government had few fiscal tools for addressing concerns about overtaxing poorer states. By contrast, the federal government today has a plethora of such tools. During and following World War II, the federal income tax evolved from a narrow “class tax” into a broad “mass tax,” dramatically increasing the revenues available for federal expenditures.24 As the Tax Foundation reports, “Between 1900 and 2012, federal government receipts increased from 3.0 percent of the economy’s output to 16.5 percent, and federal expenditures rose from 2.7 percent of economic output to 24.0 percent.”25 Large portions of these massively increased federal expenditures are now spent within or for the benefit of poorer states. According to another Tax Foundation report, in 2017, “22.9 percent of state revenues came from federal grants-in-aid,” and “States that rely heavily on federal grants-in-aid tend to have sizable low-income populations and relatively lower tax revenues.”26


Viewed in isolation, an apportioned wealth tax or income tax must take as taxes a greater percentage of the wealth or income from the residents of states with less wealth or income, and a lesser percentage from the residents of states with relatively more wealth or income. That is, a given taxpayer in a poorer state would end up paying a greater proportion of their wealth or income in tax as compared a taxpayer with the same wealth or income in a richer state. This has generally been viewed as so inequitable as to be a fatal obstacle to apportioning a wealth tax or income tax, as Congress realized as far back as 1861 when it abandoned the apportionment path.

However, consider that, for the existing U.S. income tax, combined federal- and state-level tax rates already differ dramatically among the states. For instance, the highest combined capital gains tax rate is currently 13.3 percentage points higher in California than in Florida. Because all existing federal taxes are uniform, federal-level tax rates are currently set the same in every state; but combining federal taxes with state-level “piggyback” taxes then makes the combined tax rates unequal.

Tax rates varying by state is a natural result of a federal system wherein both state governments and the federal government have discretion over their own tax rates. But this is not generally considered to be inequitable because each state government then receives the revenues raised by its own tax rates to fund its own spending, which in turn largely benefits its own taxpayers. An apportioned federal-level tax differs from this because the federal government would receive the revenues raised by the tax rates that vary by state instead of the state governments receiving those revenues. For an apportioned federal-level wealth tax or income tax, this then means that the federal government would take a greater percentage of the wealth or income of poorer states as compared to richer states. This, rather than the mere fact of tax rates varying by state, is the heart of the inequity.

Understanding that this is the heart of the inequity shows how the inequity can be resolved. All that is needed is for the federal government to spend the extra revenues raised from the tax rates varying by state for the benefit of the poorer states, just as higher-tax states already do. This could be accomplished in a number of ways, including by just funding a federal spending program that would primarily benefit poorer states. Indeed, for those who think that existing federal tax and spending programs already redistribute too much from richer states to poorer states, this “problem” has already been solved by existing federal tax and transfer programs.

Accordingly, to the extent that the sponsors of a new apportioned tax reform think that more should be done to resolve potential interstate inequities, the federal government today has many fiscal tools for accomplishing this. The most comprehensive solution might be to establish a new fiscal equalization system. As Kirk Stark has explained, “Australia, Canada, Germany, India, South Africa, and numerous other federations through the world have in place a complex system of ‘equalization grants’ whereby the central government makes fiscal transfers to ensure that resources available to state or provincial governments do not exhibit significant variation.”27 Such fiscal equalization systems typically involve the federal government measuring the fiscal capacities of state governments and then providing block grants to the state governments with lower fiscal capacities.

Although the United States has never implemented a comprehensive fiscal equalization system like those in other federal nations, the U.S. federal government has implemented many programs that are in essence partial fiscal equalization systems. For instance, existing federal grants to state governments, such as through Medicaid and Title I of the Elementary and Secondary Education Act, already operate as a form of partial fiscal equalization, and “General Revenue Sharing” under the State and Local Fiscal Assistance Act of 1972 made unrestricted grants directly to states and municipalities based in part on income and need, prior to its repeal under President Reagan.28 Moreover, between the early 1960s and 1995 (when it was terminated by Congress), the Advisory Commission on Intergovernmental Relations periodically published a fiscal capacity study of the U.S. states. Since then, private researchers have continued to publish similar studies using the same methodology.

It would thus not be especially difficult for a new apportioned tax reform to be accompanied by a more limited form of fiscal equalization, like these existing programs. For instance, if the new tax reform was apportioned using the residual tax method, the revenues raised by the residual tax could be channeled into block grants given to states with lesser fiscal capacities, perhaps measured by reviving the Advisory Commission on Intergovernmental Relations and its studies of state fiscal capacities.29

State legislatures could then be granted the discretion for how to use these block grant funds. For instance, state governments might opt to use these funds to rebate some or all of the apportioned taxes that state residents pay to the federal government. This would be similar to how state governments piggyback on existing federal taxes by levying supplemental state taxes on the what is essentially the same base,30 but in reverse, as the state legislatures would be rebating some or all of the federal-level apportioned tax liabilities of state residents rather than levying additional state-level taxes. For example, under the residual tax method, the federal government could rebate to each state its share of the residual tax on land or real estate value, and the state could further rebate that payment to the individual taxpayers who paid the residual tax, thus completely offsetting the inequities caused by apportionment. Alternatively, state legislatures might opt to reduce other state-level taxes or fund state-level spending programs.


B. Why the Uniformity Path Should Also Be Constitutionally Available for Taxes Constructed as Excises


The term “wealth tax” can potentially be applied to many different forms of taxation. For instance, the real property taxes levied by local governments in the United States are sometimes called a form of wealth tax. But, again, these local government real property taxes are levied on the real property itself, primarily based on characteristics of the property itself Thus, were Congress to enact a new federal tax on real property constructed in the same manner as existing local government real property taxes—as a tax on the gross value of a piece of property, regardless of other relevant taxpayer characteristics—we would view this as a direct tax that must be apportioned ***.

By contrast, recent federal wealth tax reform proposals have been fashioned quite differently. For instance, both Senator Elizabeth Warren’s and Senator Bernie Sanders’s wealth tax reform proposals have been fashioned as only reaching a taxpayer’s net worth above some high exemption threshold (above $30 million of net worth for Senator Sanders’ proposals, and above $50 million for Senator Warren’s proposals) and with graduated rates then applying to wealth holdings above even higher threshold levels.31


[C]onsider that a person with wealth of, say, $51 million, would be subject to these recently proposed taxes, but these taxes would very clearly not be levied on all of the property owned by that person. In other words, these taxes are not levied on the property itself. Indeed, any property subject to these taxes could easily be made exempt simply by transferring the property to another person with less total net worth. Ultimately, only a small portion of the property owned by the nation’s taxpayers would be taxed under these reform proposals, and the primary trigger for making property taxed would be based on the overall economic activities or privileges engaged in by the owners, rather than being based on any characteristics of the property itself. We thus view both Senator Warren’s and Senator Sanders’s recent proposals for uniform federal taxes on net worth above extremely high thresholds as falling squarely within the overlap of taxes that both (1) burden property and (2) are formally levied on uses or activities or privileges related to that property.



Economic inequality may well be among the central problems of our time. In prior scholarship, we have argued that the existing U.S. income tax is broken, and that something like a wealth tax or a tax on unrealized capital gains is required to fix it.32 Yet these reform proposals are being stymied by fears of constitutional challenges before the current Supreme Court.

In this Article, we have argued that such fears are based on an outdated conception of the Constitution’s tax provisions. We have thus called for returning to the two paths approach that previously reigned during the era prior to the Civil War. To that end, we have explained why the apportionment path is once again practically viable due to the availability of modern fiscal instruments. We have also explained how the jurisprudence we label as the Excise Tax Canon should make a properly constructed uniform wealth tax or tax on unrealized capital gains constitutionally available.

We view these arguments as synergistic, in part because we hope that convincing relevant actors that the apportionment path is once again practically viable may ultimately make the use of that path unnecessary. We acknowledge that the apportionment path is an awkward fit for most or all modern forms of federal taxation, and that practically accessing that path requires some cumbersome extra steps that serve no apparent policy rationale. Yet we also acknowledge the uncertainties surrounding the constitutional availability of the uniformity path and that the current Supreme Court might well reject our arguments as to the best interpretations of existing doctrines. In a world where the uniformity path is thought to be the only practically viable option for enacting a transformative progressive tax reform, we expect the opponents of such reforms to have strong motivation for arguing that the constitutional uncertainties should be interpreted in a manner that would block such reforms from accessing the uniformity path. By contrast, in a world where blocking access to the uniformity path would not thwart such reforms, but would instead just result in them being enacted in a somewhat more awkward and cumbersome fashion (to follow the apportionment path), we hope that there would be less motivation for opponents of such reforms to resist the Excise Tax Canon and our associated arguments for why existing doctrines should be interpreted to permit such reforms to follow the uniformity path.

Most importantly, we argue that the constitutional uncertainties should not stand in the way of legislating transformative tax reforms desired by a Congressional majority. Despite the awkwardness of the uniformity path for most or all modern federal taxes, we think that jumping through the extra hoops it requires should be relatively quite manageable, both administratively and politically, if doing so ultimately becomes necessary for enacting a transformative progressive tax reform. Consequently, as we have explained, revitalizing the two paths approach for the modern era offers strategies for how a Congressional majority desiring to enact transformative progressive tax reforms can overcome the constitutional uncertainties and associated fears of presumed hostility by the Supreme Court.

* John Brooks, Professor of Law, Fordham University School of Law; David Gamage, Professor of Law, Indiana University Maurer School of Law.

1. E.g., David Gamage & John R. Brooks, Tax Now or Tax Never: Political Optionality and the Case for Current-Assessment Tax Reform, 100 N.C. L. REV. 487, 489-504 (2022).
2. E.g., Gamage & Brooks, supra note 1, at 494 n.32-33 (listing some such proposals).
3. For discussion, see John R. Brooks, Brian D. Galle, David Gamage, Ari D. Glogower, Emmanuel Saez, & Gabriel Zucman, 219 Economists, Law Professors & Other Academics Urge Congress to Include the ‘Billionaires Income Tax’ in Build Back Better Act, Indiana University Maurer School of Law Legal Studies Research Paper Series No. 470 (December 10, 2021).
4. 157 U.S. 429 (1895), aff’d on rehearing, 158 U.S. 601 (1895).
5.U.S. Const. art. I, § 8, cl. 1.
6. Id. art. 1, § 2, cl. 3.
7. Id. art 1, § 8, cl. 4.
8. 74 U.S. (7 Wall.) 433, 446 (1869).
9.75 U.S. (8 Wall.) 533, 546–47 (1869).
10.Id. at 540.
11.Id. at 542–43.
12.Id. at 544.
13.102 U.S. 586 (1881).
14.Id. at 592.
15.Id. at 596–98.
16.Id. at 598–99.
17.Id. at 596.
18.Id. at 602.
19.Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533. 540 (1869) (“And nothing is clearer, from the discussions in the Convention and the discussions which preceded final ratification by the necessary number of States, than the purpose to give this power to Congress, as to the taxation of everything except exports, in its fullest extent.”).
20.90 U.S. (23 Wall.) 331 (1875).
21.Id. at 346.
22.Id. at 346–47. We note that the earlier cases relied more on a sort of rule of exclusion, that the taxes were indirect because they were not clearly direct. In Scholey the Court instead describes the succession tax as affirmatively an excise tax.
23.Id. at 648.
24.Carl Shoup & Roy Blough, The Birth Pangs of the Modern Income Tax — An Early Treasury Study (Part 1), Tax History Project Article Archive 1 (1996).
25.Michael Schuyler, A Short History of Government Taxing and Spending in the United States, Tax Foundation Fiscal Fact No. 415 (2014).
26.Janelle Cammenga, Which States Rely the Most on Federal Aid?, Tax Foundation, February 12, 2020.
27.Kirk J. Stark, Rich States, Poor States: Assessing the Design and Effect of a U.S. Fiscal Equalization Regime, 63 Tax L. Rev. 957, 957 (2010).
28.See Staff of the Joint Comm. on Tax’n, General Explanation of the State and Local Fiscal Assistance Act and the Federal-State Tax Collection Act of 1972 (JCS-1-73) 1–4 (Feb. 12, 1973).
29.See David Gamage & Darien Shanske, Tax Cannibalization and Fiscal Federalism in the United States, 111 Nw. U. L. Rev. 295, 370–71 (2017) (arguing for this on the merits, unrelated to apportioning taxes).
30.Id. at 337–38.
31.Huaqun Li & Karl Smith, Analysis of Sen. Warren and Sen. Sanders’ Wealth Tax Plans, Tax Foundation, Jan. 8, 2020.
32.Gamage & Brooks, supra note 4; Brian Galle, David Gamage & Darien Shanske, Solving the Valuation Challenge: The ULTRA Method for Taxing Extreme Wealth, 72 Duke L.J. ___ (forthcoming).