Prof. Eastman wrote, in part: "...Are there any constitutional limits on the taxing power at all? Anything to prevent a 90 or 100% confiscatory estate tax?..."
*** Funny you should ask. For final exam purposes I hypothesized a local (as in San Francisco, where something like this is afoot) minimum "living-wage ordinance" that quadruples the present minimum wage, and is payable to certain designated groups of the population, racial, gender, political, every suspect class I could think of, etc., but not to others. While the latter portion of the question was designed to prompt discussion of various EP issues, the former, a confiscatory minimum wage (which I'm analogizing to a tax) exaction or mandate was large enough either to drive most employers out of business or to fire workers. It raised Lochner issues including post-Lochner rationality level review, as well as mid- and strict. It seems that the higher a government mandated exaction is, the closer it seems to come to being irrational in the sense it appears arbitrary, capricious, unrelated to any sensible standard, and contrary to the purpose it presumes to support or accomplish. The closer to confiscation of wealth upon death a tax comes, the less rational it appears in terms of encouraging people to work hard, invent, strive, save, invest, and accumulate, with a view toward providing for their family after they're gone, educate children, grandchildren, fund charities, etc. Killing incentive makes the tax irrational, in short. The Soviet system would be the good example of what not to do. Maybe there was something to the Lochner era after all. Whether that helps in the estate tax field I have no idea, but there you go. Perhaps people who leave large bequests are a discrete and insular minority needing special protection from the judicial branch, altho' perhaps not this week. Bob Sheridan SFLS -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Eastman, John Sent: Wednesday, May 28, 2003 10:58 PM To: [EMAIL PROTECTED] Subject: Re: Statistics Cornell Clayton's position below really is preposterous. Talk about double taxation -- the money left via a will has already been taxed, of course (often several times!). I'm curious, though, how far he would go with it. If I give my kids $100,000 over 4 years for college tuition, would he tax that as "income" to my kids? How about room and board for the 18 years before that? But to bring this back to constitutional law. Are there any constitutional limits on the taxing power at all? Anything to prevent a 90 or 100% confiscatory estate tax? In the Federalist 10, James Madison counted it "the first object of government" to protect the diversity in the faculties of men, from which the rights of property originate. Is there anything in the Constitution that is designed to further this purpose? John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -----Original Message----- From: Cornell Clayton [mailto:[EMAIL PROTECTED] Sent: Friday, May 23, 2003 12:58 PM To: [EMAIL PROTECTED] Subject: Re: Statistics Glenn Reynolds wrote: >2. It would be ironic, if people's right to pass their property on to >their descendants were generally regarded as unfair and illegitimate. I, for one, do think that laws allowing inheritance of massive amounts of property or wealth (or economic advantage) are unfair and illegitimate. Following a Rawlsian conception of equality -- which I believe is the best interpretation of our constitutional commitment to equality -- I can see no difference theoretically between one inheriting arbitrary advantages (or disadvantages) on the basis of birth-family as opposed to color of skin. One does nothing to merit either one, so one has no more just expectation to inherit privilege on the basis of the family you are born into than to inherent privilege on the basis of the skin color you happen to be born with. This is one of the reasons I think the Republican attack on the estate tax is so egregious. It is not a "death tax", but a tax on income that is not deserved or merited! Not only should we not eliminate the estate tax, we should tax inheritance at a much higher level than earned income. Of course, I readily concede Glen's other point, that as a matter of history (as opposed to theory) the US experience with race discrimination is quite different than thinking about problems created by economic inheritance. Cheers, Cornell Clayton
