Balkinization: Constitutional Illiteracy in the New York Times

Constitutional Illiteracy in the New York Times

Mark Tushnet

I just got around to reading Zev Chafetz's profile of Governor Mike Huckabee in last Sunday's New York Times Magazine, which has attracted some attention for reasons other than the one that caught my eye. Describing Governor Huckabee's plan for a 23% consumption tax to replace the income tax, Chafetz adds parenthetically, "(For starters, it would require repealing the 16th Amendment to the Constitution.") So, turn to the 16th Amendment, and one finds: "The Congress shall have the power to lay and collect taxes on incomes, etc." It doesn't take legal training to notice that this says that Congress has the power to do something. Repealing it would take that power away from Congress (maybe -- it depends on what residual powers Congress would have), but as far as I can tell enacting a consumption tax that would survive constitutional challenge doesn't require that the 16th Amendment be repealed.

Maybe Chafetz (or the experts he talked to and apparently didn't understand) has in mind the proposition that nothing in the Constitution gives Congress the power to enact a consumption tax. Here we can get technical: I'm reasonably sure that a decent tax attorney could structure a consumption tax so that in form it was a tax on incomes from whatever source derived. Or maybe we could take the adoption of the 16th Amendment as a repudiation of the Supreme Court's earlier interpretation of the requirement in Art. I, sec. 9, that an income tax is a "direct" tax that has to be collected in proportion to a state's population. We would then have to figure out whether, on the interpretation of "direct" tax that we are left with -- the correct one, after the 16th Amendment -- implies that a consumption tax is a direct tax. (Bruce Ackerman outlined the problem about a decade ago.)

But, whatever we end up thinking about the constitutionality of a consumption tax, Chafetz's throwaway line certainly doesn't advance the ball. His mistake is, in one sense, a minor one, but I think it symptomatic: Journalists are good at many things, but they rarely have the capacity to understand a real constitutional argument. That a journalist says something about the Constitution should, in general, be given no weight at all when their readers think about the Constitution.

Posted 6:07 PM by Mark Tushnet [link]

Comments:

I wondered about that too, but I think I figured out what Chafetz means (or at least, what he should mean). Huckabee's plan "requires" repealing the Sixteenth Amendment in the sense that repeal is part of the FairTax plan, not in the sense that a consumption tax cannot be implemented without repeal (i.e., is prevented by the Sixteenth Amendment). The concern, as explained by, e.g., the Wall Street Journal, is that if a consumption tax is implemented and the Sixteenth Amendment stays in place, there would be a risk (or possibility, depending on how one feels about taxes) of having a consumption tax and an income tax simultaneously. Chafetz's parenthetical certainly isn't clear, but I think, if one reads it charitably, it's not quite wrong either.

Sarah Lawsky

# posted by

Sarah Lawsky : 7:29 PM

On the face of it, there is no reason at all to suppose that ratification of the 16th amendment, which merely says,

"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

did anything AT ALL to alter the legal definition of a "direct" tax. All the 16th amendment did was authorize one particular type of direct tax to be levied without respect to apportionment or population.

If words are to have any meaning, the 16th amendment does not free the federal government to levy any other type of direct tax without regard to such apportionment, nor does it have anything to say about what else might constitute a direct tax.

I believe Sarah has correctly pointed out the connection between the Fair Tax plan and repeal of the 16th amendment: The Fair Tax is supposed to replace the income tax, and nobody would trust the federal government not to end up with both unless the 16th was repealed.

# posted by

Brett : 8:15 PM

So maybe it's not constitutional illiteracy, but just illiteracy: Surely the way to say what Sarah Lawsky says the parenthetical means is, "For starters, the plan *includes* repealing the 16th Amendment."

# posted by

Mark Tushnet : 8:45 PM

Don't we have a federal gas tax? Don't we have fees on all kinds of government services, like going to a National park?

But, in general, it seems to me that before the 16th amendment the government didn't have the ability to tax income. When you think about it, a consumption tax allows citizens to maintain their privacy. As long as both parties keep private records of the transaction, nobody has to reveal what they bought to the government. As long as the law is that the seller is responsible for the tax, all consumers are anonymous.

# posted by

rmadilo : 9:00 PM

FWIW, I had the same reaction: I did not understand why a repeal of the 16th Amendment was relevant to moving to a consumption tax.

On the other hand, a consumption tax strikes me as a highly suspicious and problematic policy: inherently regressive, fairly easy to avoid for many transactions, and remarkably disruptive to current economic practices.

# posted by

Chausovsky : 9:32 PM

"and remarkably disruptive to current economic practices."

Pretty much a given, in as much as current economic practices are warped to accommodate a substantial income tax. Any major structural change in how taxes are collected is going to be disruptive.

# posted by

Brett : 9:49 PM

I had the same reaction as Mark and tried to figure out how anyone might have told Chafets what he printed. I decided the argument was something like this:

The framers of the 16th Amendment, instead of simply saying that "Congress can tax whatever it wants at whatever rate it wants," overruled Pollack only to the extent of allowing an income tax. Otherwise, the direct/indirect distinction remains alive and well and some lawyers would indeed argue that a consumption tax is a direct tax. (Bruce Ackerman has written on this, as has my colleague Calvin Johnson.) So perhaps Chafets should have written instead that "some lawyers believe that a constitutional amendment would be necessary to legitimize a consumption tax, just as the 16th Amendment was thought to be necessary to legitimize an income tax."

But Mark's general point certainly holds: Except when Linda Greenhouse or Joan Biskupic or a very few other journalists are writing, there's no good reason to bleieve that journalists know what they're talking about with regard to constitutional doctrines.

# posted by

Sandy Levinson : 10:29 PM

"there's no good reason to believe that journalists know what they're talking about with regard to constitutional doctrines."

There's no reason to believe that journalists know what they're talking about with regards to ANYTHING. Period. You just tend to notice it when the subject at hand is something you're confident in your knowledge of. Understand this: They're just as wrong on the subjects you don't specialize in, it merely doesn't leap out at you.

Anybody who interacts significantly with journalists comes to be terrified at the thought that the public gets most of it's 'information' from them.

# posted by

Brett : 11:18 PM

Let s/he who has never sinned (journalistically or otherwise) cast the first stone. Not all constitutional scholars are in full or even substantial accord with one another on consititutional matters, perhaps 5/4 like SCOTUS often is. At least the journalist has an excuse when s/he may be wrong on a constitutional question.

Now tell me, what does the Second Amendment really, really mean?

# posted by

Shag from Brookline : 6:37 AM

Anybody who interacts significantly with journalists comes to be terrified at the thought that the public gets most of it's 'information' from them.

# posted by Brett : 11:18 PM

As opposed to lawyers? The fact that Baghdad Bart has not starved to death is a pretty sad commentary on the legal profession.

# posted by

Bartbuster : 9:52 AM

You can't even trust journalists to be accurate on a simple matter such as which judge authored a given opinion.

# posted by

Stuart Buck : 1:52 PM

"Journalists are good at many things, but they rarely have the capacity to understand a real constitutional argument."

I hope they can understand the requirements of the 'thin constitution' though, Professor!

# posted by

Paul Daly : 2:02 PM