At
Defining Ideas, a journal of the Hoover Institution, Richard Epstein argues against
Louis Michael Seidman's contention that we should give up on the
Constitution.
Unfortunately, Seidman has the causation reversed. The reason why the situation today is so perilous is that Congress is not strictly bound by the Constitution, just as Seidman advocates. There are currently no constitutional constraints limiting the discretion of Congress to decide what tax burden will be placed on what groups for what reasons. In fact, the only restraint on taxation is a broken-down system of public deliberation, which results in a fruitless question to find, as Seidman puts it, “a common vocabulary to express aspirations that, at the broadest level, everyone can embrace.” Otherwise, Congress is free to dispense tax favors and impose tax burdens as though there were no tomorrow.
...
On these issues we can learn far more from James Madison than his modern critics. In Federalist Number 10, he addressed the problem of factions, writing: “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
The chief mission of government, he asserts, is to develop permanent institutional restraints to guard against factions. One of those was originally found in Article I, section 8, clause 1, of the Constitution, which stated that “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Madison took a very narrow view of that Clause in Federalist Number 41, noting that the Clause had been lifted from a parallel provision in the Articles of Confederation that in no way sought to confer unlimited powers on the federal government.
The limitations from the spending clause are one component of a constitutional system dedicated to the control of factions. But it is also necessary to insist, as a constitutional matter, that all taxes be flat, as yet another protection against the risks of redistribution through faction. This can be done through a consistent application of the Takings Clause.
Many people might be either aghast or amazed at so strong a claim. But in its short form, the argument runs as follows. There is, in principle, no watertight distinction between taxes and takings. With the latter, the government occupies property, for which it must pay compensation. With the former, it threatens to seize property, via a tax lien, if taxes are not paid. In both cases, the government is allowed to take so long as it supplies compensation.
