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George Will's Frivolous Argument for Repealing the 16th Amendment

18 Apr 2010
Posted by Bruce Bartlett

In his column today, George Will excoriates supporters of a value-added tax. Among the points he makes is that the VAT should only be implemented in conjunction with abolition of the 16th Amendment to the Constitution in order to avoid double taxation of income and consumption.

This is a frivolous argument because it shows no knowledge of what the 16th Amendment actually did. As historian David B. Levenstam explained in the libertarian magazine Reason, repeal of it would do nothing to prohibit Congress's ability to tax incomes because Congress clearly had that power before its enactment. As he explains:

Contrary to popular belief, repealing the 16th Amendment wouldn't eliminate Congress' power to impose an income tax, because not all income taxes were held unconstitutional by the Supreme Court before the 16th Amendment was ratified. From 1861 to 1872, Congress imposed income taxes without any interference from the high court. In fact, in the 1881 case, Springer v. United States, the Court upheld the 1864 income tax. From 1862 to 1870, Congress imposed inheritance taxes, which applied to certain gifts as well. In 1874 the Supreme Court upheld the Civil War inheritance taxes in Scholey v. Rew, categorizing an inheritance tax as an excise or impost rather than a direct tax.
At the core of the Pollock decision [which found the 1894 income tax unconstitutional] is the distinction between direct and indirect taxes. Article I, Section 9, paragraph 4 of the Constitution stipulates that "No Capitation [head], or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." "Publius" (presumed to be Alexander Hamilton), in Federalist 22, held that taxes "of the direct kind, which principally relate to land and buildings, may admit a rule of apportionment. Either the value of the land, or the number of the people, may serve as a standard." In the 1796 case, Hylton v. U.S.,Hamilton, as chief counsel for the government, persuaded the Supreme Court that only head taxes and taxes on real estate should be considered direct taxes. A tax on tangible personal property, such as carriages, was not a direct tax.
So in ruling on the constitutionality of the 1894 income tax in Pollock, the Court faced a century-old precedent holding that the only taxes Congress could not impose without doing so proportionately among the states were head taxes and real property taxes. Opponents of the income tax argued that taxing income from property was the equivalent of taxing the property itself.
But the Supreme Court did not say that the remaining provisions of the law, had they passed independently, would have been unconstitutional. To the contrary, the Court made clear that Congress could impose a tax on income from wages, salaries, and other compensation for personal services, as well as on income from intangible property such as stocks, bonds, patents, and copyrights. The Court ruled the law unconstitutional because it taxed income from tangible property without apportionment.
So even without the 16th Amendment, Pollock would allow Congress to impose a tax on a broad range of income. The Supreme Court clarified the point in a series of cases, including Brushaber v. Union Pacific Railroad (1915), Stanton v. Baltic Mining Company (1916), and Eisner v. Macomber (1920). In these cases, the Court ruled that the 16th Amendment granted Congress no new power to tax; the 16th Amendment simply reclassified an income tax on tangible property as an indirect tax. Demonstrating that the 16th Amendment granted no new power, the Court held that Congress still couldn't tax interest earned on state and local bonds--much to the chagrin of not only Progressives but also of Secretary of the Treasury Andrew Mellon and other tax cutters, who believed that the tax-exempt status of state and local bonds was redirecting capital from efficient allocation in the private marketplace into bloated state and local government bureaucracies.
Even before the 16th Amendment, the PollockSpreckles, and Flint decisions gave a clear signal to Congress that it could impose a tax on wages, salaries, professional service fees, interest, dividends, royalties from intellectual property, estates, gifts, gross receipts, and any income earned by corporations. Congress could even double tax corporate income.
Eliminating Congress' power to tax income, as many supporters of a national sales tax propose, would require more than merely repealing the 16th Amendment. We would have to ratify an amendment prohibiting Congress from imposing any income tax as well as estate, gift, and gross receipts taxes. 
In short, even if it were possible to repeal the 16th Amendment it would not lead to abolition of the income tax on constitutional grounds. I think it's reasonable to say that the consensus view among constitutional scholars today is that the Pollock decision was an aberration, one that would never be duplicated. In fact, many scholars argued that the 16th Amendment was unnecessary to enact an income tax in 1913 because it was extremely unlikely that the Supreme Court would uphold the Pollock decision. Some historians suggest that the amendment was put forward by Republican William Howard Taft in 1909 as a political ploy to divert conservative opposition away from him.
The 16th Amendment issue should be seen for what it is: a red herring. If people don't think we should have both an income tax and a broad-based consumption tax at the national level, fine. That's a good debate to have and I for one don't oppose abolishing the income tax and replacing it with a VAT. But the idea that we must repeal the 16th Amendment as a precondition for consideration of a VAT in order to prevent the possibility of having both an income tax and a VAT is not a serious proposal. It's just a trick to put up an insurmountable barrier to adoption of a VAT without addressing the questions of how we will stabilize the national debt without higher revenues or why a VAT is a better way to raise those revenues than higher income tax rates, which is the default option in the absence of a VAT.
I'm disappointed to see Will make such a frivolous argument against the VAT.
Good comment here.

You get used to it...

Being disappointed in Will must be a little bit like being let down by the Chicago Cubs...

Are Not All of George Will's Arguments Frivolous?

Hi Bruce,

1) Find something Republicans hate.
2) Write a highbrow op-ed piece to the anger seem intellectual.
3) Wear a dorky bow tie to seem like an intellectual from an earlier age, not like those slovenly, leftist intellectuals of today (crucial for enabling Republicans to avoid otherwise shooting the messenger).

OK, I deserve retribution for this; I'm just tired and not making a very good case -- especially since it's the intellectual in George Will that I like, and not most of the substance.

Still, the bow ties scream frivolity.

Best regards,

Will's arguemnts frivolous

You forgot to add "use rarely used mulisyllable words to make you seem smart." Otherwise, spot on

Even the arguments against

Even the arguments against double-taxation are silly. Whether income is taxed twice at 10% or once at 20% is completely irrelevant.

The things that really matter in tax policy are:
1. The level of spending (which drives eventual taxation)
2. The relative economic damage caused by different forms of taxation (e.g. income vs. consumption, personal vs corporate)
3. The distribution of the tax burden (who pays)

Both political parties pay only lip service to restraining spending (including the Tea Party brigade, which exempts most major budget item from their mythical spending cuts).

On economic efficiency, there does not seem to be much appetite on either side of government. A handful on the right support flat taxes, but are disingenuous about what it would cost. On the left many support carbon taxes (the best tax of all, one that actually improves economic efficiency!), but then loaded the bill with enough exemptions to destroy any improvements.

At least on the distribution of the tax burden there is a clear difference. Both parties support progressive taxation, but Democrats prefer somewhat higher taxes on those with higher incomes.


Carbon Tax is a bad joke

On the left many support carbon taxes (the best tax of all, one that actually improves economic efficiency!)

What undiluted bullcrap. The Carbon Tax is merely the vehicle for the replacement for the CDO market, as the newest way for Goldman Sachs and the rest of the Wall Street Banksters to create money out of thin air for themselves. The middle and upper-middle classes get taxed to drive our cars, heat our homes and cook our frigging food; this money goes into the Carbon offset trading market (can you say Derivatives? I knew you could!), and then GS manipulates that market to make even more billions rain down into their own pockets.

For. Free.

ANYONE who supports Carbon Taxes is stupid. Yeah, that's right, I said it.

Carbon Tax probably better

Carbon Tax probably better than Cap'N'Trade - they are not the same thing...

John, I think you are

John, I think you are confused between cap-and-trade and carbon tax proposals. Two totally separate things.

FYI, did you know that cap-and-trade is an old Gingrich/Cato/Heritage concept from the 1990s? Now it's the devil. Fascinating, isn't it?

Frivolity and bow ties

Hey, Jim, at least they never dangle in his soup or get caught in the paper shredder.

By the way, I searched this post in vain for the refutations of Wills's frivolous arguments against the VAT; but I guess that must be scheduled for a future installment.


Touche, Rodney!

Hi Rodney,

Well, Bruce's more recent post on the VAT probably covers most of Will's frivolity without specifically addressing him (or reminding me of the bow tie).

As an equal opportunity offender, I would make the same critique of former Senator Paul Simon, regardless of his point of view.

I actually love bow ties, when they're boiled, strained and covered with a nice sauce ...

Best regards,

Wow, talk abou Epistemic Closure...

Your commentors have decided that since you can quote *one* Constitutional Lawyer that claims that the income tax was legal without the 16th amendment that clearly means that George Will is always stupid.

Which side of the political spectrum judges the other only on crass stereotypes?

The decision is Pollock v.

The decision is Pollock v. Farmers Loan and Trust -- no Pollack is involved. What sort of tax expert is this historian if he can't get the name of the case right? But to Will's point: why would adding a clearly permitted indirect tax -- a VAT -- require anything at all in regard to an amendment having to do with the levy of a particular direct tax (the individual income tax). The feds levy bunches of indirect taxes (excises) now without any conflicts with the 16th Amendment.

It is Pollock

I have edited this post to correct a misspelling both in the quoted material and my comment.

Bruce: Not your problem.

Bruce: Not your problem. The case name was misspelled in the original.

Replace the 16th amendment

Yes. Repeal of the 16th Amendment would not prevent the Federal government from implementing an income tax.

So the solution should be to repeal the 16th Amendment and with the repeal, implement a new amendment that states:

"Congress shall not lay or collect taxes on incomes from any source."

Or some such verbiage that expressly prohibits any income tax.

How about cutting *ucking spending?

"how we will stabilize the national debt without higher revenues"


I don't see graft-inspired spending as something a country with a future surrenders to.

I guess that now you do.

I'm sure history is going to remember who took which side (particularly now that the internet provides a record).

"I don't see graft-inspired

"I don't see graft-inspired spending as something a country with a future surrenders to."

So which "graft-inspired" spending would you like to cut? National defense? Social Security? Medicare/Medicaid?

Or maybe you'd like the Treasury to stop paying interest on the national debt?

Because if you're serious about cutting spending enough to make a real dent in the deficit, those are basically your choices -- given that they account for about 85% of the federal budget.

Where would you cut?

Be specific. Ready to make big cuts in SocSec, Medicare, and Defense? If you're not, then you're not really serious about "cutting f*cking spending." You're just another angry Tea Partier.

No other areas of the government budget (education, arts, foreign aid, etc.) come anywhere near as close as these three in crippling our budget.

If we don't tax income, you can say goodbye to Social Security. How's that 401k doing? Got enough equity in that house? Got plenty of health care insurance? Got money put away for your kids' college? 'Cuz they won't be getting any Pell Grants or student loans when the time comes. Medicare Part D will go away really fast, and doctors will be sending you those bills faster than it will take you to get your stitches out.

Sick of the condition of your local highway? Forget about fixing it once income tax goes away.

The VAT is needed because we need to increase revenue AND cut spending. Since no one in Washington has the courage to make the tough cuts we really need, and since the Tea Party is more motivated by racism and fear than true tax reform, making more money is the only way to cut the deficit and pay down the debt.


1. Let the Bush and Obama tax cuts expire.

2. Cut defense by $100 billion versus CBO baseline

3. End all industry specific preferences in the tax code

4. Means test SS and Medicare so that seniors with a net worth of more than $500k don't receive benefits

5. Put a nominal freeze on all other spending in aggregate (not program by program).

Balanced budget in 5 years and no VAT.

Ok, instead of repealing the

Ok, instead of repealing the 16th amendment, just create a new amendment that prohibits the Federal government from taxing income.


Now how about coming up with a response to Will's actual argument? In exchange for a VAT, the Fed's should no longer tax income.

Is that a fair or worthwhile trade-off? Why?

Whatever the machinery....

I'll be obstinately and vocally opposed to any significant "tax reform" (ie, hike) until and unless Congress institutes a serious and reality-based reduction in entitlement expenditures.

In other words, once Congress and the defenders of our ridiculously over-extended entitlement infrastructure tell me that it's time for me to do with less, I'll have a very simple response:

You first.

Thanks for the link

Dear Mr. Bartlett:

Thanks for the addendum that linked to my website. Imagine my surprise when I got home today from work to find the traffic on my blog increased 20x!

Anyway, I am a big fan of your work.


Ryan Dawkins
My Political Alter Ego

Is anybody seriously proposing a VAT?

I've seen multiple conservative columnists write about the VAT as if it were inevitable, simply so they could rile up the right-wing base against it. But I haven't seen that Obama or any major Democratic leader has seriously proposed it.

Rather than engage Will in this hypothetical discussion, why not call him and other conservatives out for repeatedly whipping up hysteria about things that aren't actually likely to happen? We've got enough real debates to settle or issues to solve.

"Rather than engage Will in

"Rather than engage Will in this hypothetical discussion, why not call him and other conservatives out for repeatedly whipping up hysteria about things that aren't actually likely to happen? We've got enough real debates to settle or issues to solve."

I have come to believe that solving problems is what the Republican Party wants to *prevent.* At least until after Election Day. Distracting people into arguments against things no one is proposing, is simpler than calculating wheter preventing a solution to yet another problem will cost too many votes this November.

George Will and VAT

Some time ago, at a different blog site, I read that we have a problem competing with Europe in international trade because they have a VAT and we don't. I lack good judgement in these things, but the argument seemed to have some merit. So I thought that rather than complaining that Europe was being 'unfair' because they have a VAT, we should solve our trade problems by establishing our own VAT. We wouldn't have to do a lot of research to figure out what clauses the law should contain. We could just copy what the Europeans have, and it would "level the playing field."

Now I have another good reason. Will, and political conservatives in general, have hissy-fits over things from the recent past that don't fit with their peculiar view of history. There might be a better way to deal with trade imbalances, but hissy-fits of these wack-os are fun to watch.

Thanks for a fairly

Thanks for a fairly intelligent discussion. It's far better than most on the internet.
We will continue to argue about taxes and spending until we're blue in the face.
It seems to me that we need to get to the bottom line - what is the role of the federal government? Should it be restricted to only the most essential things like national defense? Or, should it get involved in social issues like Medicare and Social Security?

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