Chief Justice John Marshall
“The power to tax is the power to destroy…”
“The Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises, …”Article 1, Section 8, Clause 1 of the United States Constitution
The first enumerated power listed in Article One, Section Eight of the U.S. Constitution is the power to tax. In other words, the founders were eager to empower the federal government with the ability to require, by force if necessary, the taxation of individuals living under this federal government.
The U.S. framers were dealing with a bit of whiplash. They’d fought a Revolutionary War for their independence on the grounds that the government they were subject to was taxing them unjustly because it was done without any representation. In other words, the issue wasn’t really taxation but rather the lack of representation for the taxation that led to the revolution. Private property should never be violated by the government created to protect it, without the consent of the governed.
So, the Americans fought for their independence over the “issue” of taxation and won their independence. While doing so, they struggled to provide the funds necessary for the war because the government the framers initially built had no power to tax whatsoever. The federal government under the Articles of Confederation was completely reliant on the state governments’ willingness to give money to the federal government. And few states, having just fought a war over taxation, were interested in giving money to the federal government.
Government is not government if it cannot function. No business can operate effectively without the means, funds, to do so. The federal government under the Articles of Confederation was effectively toothless. Without money to pay for the enforcement of its laws, its laws meant little to nothing.
The new nation rapidly went from losing liberty to an arbitrary unrepresentative tyranny to losing liberty to a chaotic anarchic state of war. Without any centralized force of power, the states and citizens of the U.S. ran roughshod over each other, and the nation as a whole sat painfully vulnerable to attacks or invasions from foreign invaders since it had no means of providing for a “common defense”.
And so the framers faced a new problem. How to create a centralized government with enough power to avoid the anarchy of the Articles of Confederation but with enough limitations on its power that it wouldn’t become the tyranny of Great Britain.
A challenge indeed.
Not to mention how to convince the rebellious American people that the government, Congress, ought to have the ability to tax them.
The first step was to give the power to tax to Congress. The power of taxation was specifically enumerated in Article One, Section Eight to the legislative branch. In other words, taxation with representation. And it’s the first power mentioned because every other enumerated power is built upon the federal government’s ability to fund itself through taxation.
So yes, our government possesses the power to tax us, individually, and that power is rather painfully broad. The founders included, “for the common Defense and general Welfare of the United States” to further establish that federal taxation was not just to be used to pay off Revolutionary War debts but to protect the citizenry and provide a service to the citizenry, namely the rest of the job description laid out in Article One, Section Eight.
One of the major questions facing the enumerated power of taxation is this: is government given the power to only “raise revenue” through taxation, or does this enumerated power also include the ability to coerce behavior from the citizenry via taxation?
That’s a big question and one that the Supreme Court (not that we should rely on their interpretation exclusively) has only partially answered.
In NFIB v. Sebelius (2012), the Court ruled that it was within Congress’s enumerated constitutional powers to tax, or financially penalize, citizens for not having healthcare insurance. The rationale for this ruling was simple: if the government is still making money from the “tax”, it’s not a penalty, per se. In other words, Americans can still choose not to have health insurance and many will–this will result in government raising revenue–as opposed to, government taxes the citizenry so hard that it stops said behavior, in which case, the government is not “raising revenue” anymore but curbing behavior.
Of course, neither the Court or Congress is necessarily against curbing behavior though taxation, but it’s perhaps less fondly looked upon or used at this point in American history — though it has been done.
There’s so much more to unpack about this one clause of this enumerated power of taxation (I haven’t even started with the spending power in this clause), but for now, I’ll leave you with what I’ve presented here. Go read my article on the 16th Amendment for a few more details on income taxation.
We have to know our government’s job description and the many ways it’s used and abused if we’re to have a chance of enforcing it.
The Liberty Belle
2 thoughts on “The Enumerated Powers Series: The Power to Tax”
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See my previous comments AI your previous https://thelibertybellenc.com/blog/the-amendments-series-the-sixteenth-amendment/