Federal Power to Tax

As I read Robin Einhorn's American Taxation, American Slavery, I realize I have only the dimmest understanding of what taxes and duties the Constitution originally authorized the federal government to lay, other than a uniform import duty. This post is simply my attempt to lay out, for my own use, the relevant provisions, what they seem to say and suggest, and issues about which I need to think about and on which I need to focus on (see my post from earlier today, "The world in which we live in").

Article I, Section 8 of the Constitution provides:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises . . .; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Article I, Section 9 originally provided in relevant part:

No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

The phrase "unless in Proportion to the Census or Enumeration herein before directed to be taken" was a reference to Article I, Section 2, which provided in relevant part:

. . . [D]irect Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Putting these provision together:

A. The federal govenment had the power to lay and collect "Duties," "Imposts" and "Excises," provided they were "Uniform throughout the United States."

Questions:

1. Presumably, the "Uniformity" requirment was another way of expressing the limitation contained in Article I, Section 9, to the effect that "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."

2. Did the "Uniformity" requirement impose any other limitations? If so, what?

B. The federal government had the power to lay and collect "Taxes." If those "Taxes" were "direct Taxes" (and a "capitation Tax" was a species of "direct Tax"), then those taxes had to be apportioned among the States based on population (as modified by the Three-Fifths Clause).

Questions

1. What is a "direct Tax"?

2. What is a "capitation Tax"? Is it the same as a poll tax, that is, a flat tax per person?

3. Are "direct Taxes" subject to other limitations?

C. Because the federal government had the power to lay and collect "Taxes," presumably it had the power to lay and collect "Taxes" that were not "direct Taxes."

Questions

1. Is this correct?

2. Could the federal government lay any "Tax," whatever its form? (I recognize that there were a handful of specifically-mentioned taxes that the federal government was forbidden to lay, such as taxes on exports, and taxes on imported slaves over $10 per slave.)

3. Does this mean that if a "Tax" was not a "direct Tax," then it was not subject to the limitation of uniformity (because it was not a "duty," "impost" or "excise"), and it was also not subject to the limitation of "apportionment among the several States" (because it was not a "direct Tax")?

4. Does this mean that if a "Tax" was not a "direct Tax," then it was not subject to any limitations at all (provided it was laid for a proper purpose)?

Some hints, all per Einhorn, at 160-61:

Hylton v. United States (1796) involved a federal tax on pleasure carriages. "The Court ruled that the carriage tax was not a direct tax because an apportionment would produce absurd results." Assume, for example, that an apportionment indicated that $55,000 of the tax should come from Delaware and $71,000 from Georgia. Resident of Delaware, with 15 carriages per 1,000 population, would owe $0.73 per carriage. Residents of Georgia, with 2 carriages per 1,000 population, would owe $5.69 per carriage.

Thus, the Court ruled that the carriage tax could not possibly be a "direct tax" under the Constitution: "As all direct taxes must be apportioned, it is evident that the Constitution contemplated none as direct but such as could be apportioned." The justices added that only a land tax or a poll tax definitely would count as a direct tax under the Constitution.

In Pollock v. Farmers' Loan and Trust Co. (1895), the Court held that

[i]ncome taxes were "direct taxes" and therefore had to be apportioned by population. The Court was not proposing that income taxes be evied in accordance with [Einhorn's] table 1 [at 159]. It was saying that because the income tax was a direct tax that could not be apportioned, the Constitution prohibited Congress from levying it.

I'm not sure I get it. The income tax could be apportioned; the problem is that the apportionment would have produced an absurd result.