Justice Thomas Denounces Wealth Taxation – At the Cost of Transforming “Originalism” into a Parody of Itself

Bruce Ackerman

       My Initial Reactions to Justice Thomas' Sweeping Denunciation of Wealth Taxation

    These comments remain provisional, of course, and I would very much appreciate hearing your own reactions – since Moore may well serve only as a preliminary to a more fundamental confrontation by the Court, and the American people,with the constitutional issues raised by wealth taxation in the years ahead:

    Justice Kavanaugh's majority opinion in Moore upholds the very special tax on wealth at issue in this particular case. Yet Justice Thomas' responds with a lengthy and outraged dissent (joined by Justice Gorsuch). He argues that the taxation provisions of the original constitution reflected a "delicate compromise" without which "the Constitution could easily have been rejected," and which the Sixteenth Amendment "only slightly altered" – and that, even in the special case raised  by Moore, the government’s taxation effort is unconstitutional.

          In presenting his sweeping arguments, Thomas cites a key section, at the beginning of Article one, which explicitly states that the tax provisions are only part a larger "three-fifths" compromise guaranteeing the Slave States dramatically enhanced representation in the House of Representatives. Nevertheless, he utterly fails to consider the extent to which the Reconstruction Amendments destroyed the very foundations of his "delicate compromise." Instead, he treats the 13th, 14th, and 15th Amendments as if they were minor modifications of the Original Understanding.

          This is not the first time that Thomas has engaged in the trivialization of the Reconstruction Amendments. But the historical evidence in this case is particularly compelling – establishing that Americans of the 1860s self-consciously repudiated the "delicate compromise” of the 1780s when committing themselves to  transformative principles under which We the People reconstructed their democracy on the basis of political and social equality. In ignoring this fundamental point, Thomas and Gorsuch transform “originalism” into ancestor worship of the Founding Fathers.

          At the very least, they owe it to their readers to explain why the efforts by Radical Republicans to redeem the full promise of Lincoln’s Emancipation Proclamation did not sweep away the Founders’ “delicate compromise.”  Yet they utterly fail to do so. For more elaborate discussions of the constitutional revolutions of the 19th century, see Joseph Fishkin & William Forbath, The Anti-Oligarchy Constitution (Harvard: 2022), as well as volume 2 of my We the People: Transformations, especially chaps. 6-8 (1998).

          All three of us also submitted an amicus brief that confronts other lawyerly efforts to evade the implications of the original understanding of Reconstruction.