Fixing the Constitutional Absurdity of the Apportionment of Direct Tax

Fixing the Constitutional Absurdity of the Apportionment of Direct Tax argues that the Constitutional requirement that “direct tax” be apportioned among the states according to population should never be used to make any federal tax impossible. “Direct tax” is a word like “trash” defined by what you are going to do with it, and “direct tax” originally meant “apportionable tax.” Before the Constitution, “direct tax” included both excises and duties,…
Andrews & Kurth Centennial Professor of Law, University of Texas at Austin - School of Law, USA


  1. I disagree with the idea that the Apportionment of Direct Tax Clause of the U. S. Constitution is “absurd”. There were very good reasons why this Clause was negotiated as part of the compromises between the States. High among these were ameliorating the concern of States with relatively high levels of landed wealth (e.g., Virginia) that they would always end up shouldering most of the Federal tax burden.

    Without the Apportionment Clause, it is likely that Virginia would have not joined the Union.

    I also disagree with the statement that Hylton v. United States (1796) held that a tax did not have to be apportioned because apportionment was unreasonable. Beyond the conclusion that the tax in question was not a direct tax, there was no majority decision by the Court. This is because, at the time, each Justice wrote their own opinion.

    Further, although some parts of the Constitution use relative language — such as the prohibition on unreasonable searches — the Apportionment Clause does not use relative terms.

    Even assuming, purely for the sake of argument, that the Apportionment Clause only applies to “reasonable” taxes, it is not clear that all direct taxes are reasonable.

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