I suppose I was being a wee bit sarcastic using the term "ironic" rather than, say, "irrational."
But in a sense it is not irrational to make an argument that taxes should be as high as necessary to generate benefits for those demanding the benefits. Such an argument is a product of the so-called "selfish gene", that is, the urge to acquire, however possible, a maximum of wealth for the most minimally possible effort. We're born that way, and the degree to which we mature and become "civilized" dictates the parameters of that basic quest for survival. So I'm not so sure that those who clamor for high taxes and redistribution of wealth are being irrational, especially if they are or have been on the less advantaged side of the transfer. During certain periods of this nation's history the tax rates (income, estate, etc) were very high... up in the 90 percent range. For example, during World War Two taxation (and rationing) curtailed almost all consumer spending (and thus consumer choice). It is logical and rational to consider that level of taxation and regulation to be appropriate to the situation, which in a sense involved survival of the nation (back to that "selfish gene" again). In contrast, there are those who do not think such levels of taxation are appropriate to effectuate wealth shifting. It comes down to a matter of values. Does the Constitution prefer one set of values over another? For certain values, yes, it does. For other values, it does not speak to the question. When there is such silence, what becomes the framework for identifying rational versus irrational? Something outside the Constitution? Something found within value patterns imbedded in the Constitution? I'm not sure. Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist & Genealogist (www.maulefamily.com) >>> [EMAIL PROTECTED] 05/29/03 11:36PM >>> Jim Maule wrote: "...As for the constitutional question, it would be ironic if one could successfully argue that confiscatory taxation (to the extent of taking everything) did not violate the constitution, because it was on that very question that the revolution took place...." *** I think we're still looking (one of us is, anyway) for some positive (as opposed to, say, 'ironic') authority for the proposition that government exactions or mandates to pay money in the form of taxes, or minimum wage laws, or whatever, can be held unconstitutional on their face, illegal per se, because the amount, level, or proportion is so high as to be confiscatory, unconscionable, whatever. I've suggested failure on rationality grounds, but that was simple guesswork. In a post-Lochner world where the Constitution is not supposed to prefer one economic system over another, according to the Holmes dissent in Lochner, on what theory may one attack the LEVEL of a tax imposition legally, i.e., in constitutional law theory, as opposed to fomenting a revolution, other than on rationality grounds? Perhaps 'ironic' is another way of expressing that something is irrational when considered in light of the reasons that prompted the revolution. Bob Sheridan SFLS -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of James Maule Sent: Thursday, May 29, 2003 5:13 PM To: [EMAIL PROTECTED] Subject: Re: Statistics Tax type here. Double taxation, as you analyze it, is what you describe, but I'd support a definition that applies your explanation to the same sort of tax. So your corporate shareholder example is a good one, as is your example of earning income, paying tax, and then paying a lawyer (my students instinctively see that as "double taxation" when they start the course.....<G>) But if there are two different types of taxes, then it is problematic to use the term "double taxation." So if a person earns income and pays an income tax, that is one tax. Suppose the person invests some of the "after tax" income and then is subjected to a wealth tax. That is not "double taxation" because neither tax is applied twice. It is "serial taxation." The person spent some of the "after (income) tax" income... and perhaps paid a sales tax. Double taxation? No. The same for a gift or estate or inheritance tax. In theory, the person's income could end up in three buckets: taxes, consumption, and investment. The issue is whether taxes ought to be set in ways (serial taxation) that cause a person's investment at the time of death (or earlier) to be zero or minimal so that redistribution can occur. This is a very old debate, and what I see in this thread is a new reason advanced in favor of redistribution. As for the constitutional question, it would be ironic if one could successfully argue that confiscatory taxation (to the extent of taking everything) did not violate the constitution, because it was on that very question that the revolution took place. Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist & Genealogist (www.maulefamily.com) >>> [EMAIL PROTECTED] 05/29/03 02:19PM >>> Just on the multiple taxation issue: all the money in circulation has been taxed many times. That doesn't mean future transfers shouldn't be taxed. The argument about multiple taxation has force when the ultimate recipient of the money seems to have had a claim on it at the time the first tax was imposed. Shareholders own a corporation; they own the money it earns, on which it pays taxes. Should they have to pay a tax again when that money is distributed to them? This is plausibly described as double taxation. When I earn money and pay tax on it, then use my after tax earnings to pay a lawyer (for example), it doesn't look like double taxation to require her to pay tax. So the question of whether the inheritance tax is an instance of double taxation comes down to the question of whether children have this sort of pre-existing claim on a parent's wealth. You can take this as a question directed either to your philosophical intuitions, or to our current legal system, but in either case I don't think it's preposterous to say the answer is no. Eastman, John wrote: >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 > -- Kermit Roosevelt Assistant Professor University of Pennsylvania Law School 3400 Chestnut Street Philadelphia PA 19104 215.898.5185
