Erik M. Jensen


The Sixteenth Amendment and the direct-tax clauses have become subjects of interest in the legal academy and, as proposals for new forms of national taxation emerge on a seemingly daily basis, they could become subjects of more general interest as well. Under the direct-tax clauses, a direct tax must be apportioned among the states on the basis of population, making such a tax difficult, although not impossible, to implement. Following the Supreme Court decisions in the 1895 Income Tax Cases, which held that an 1894 income tax was a direct tax that had not been properly apportioned, the Sixteenth Amendment, ratified in 1913, exempted "taxes on incomes" from the apportionment requirement. The Amendment made the modern, unapportioned income tax become possible.

This article, part of the author's ongoing debate with Professor Calvin Johnson, defends the following propositions, among others: The direct-tax clauses were understood from the founding to have real effect, such as deterring enactment of taxes with decidedly sectional impact; the Supreme Court's decisions in the Income Tax Cases were defensible interpretations of the clauses; and, if the U.S. was going to have a national (yet unapportioned) income tax, the Sixteenth Amendment was an essential modification of the clauses. However, the Amendment, which removes only "taxes on incomes" from the apportionment rule, was not intended to repeal the direct-tax clauses: not all direct taxes were understood by proponents and ratifiers of the Amendment as "taxes on incomes." The article examines the meaning of these key terms and concludes that it is still possible for a tax to be direct but not a tax on incomes. If Congress were to enact such a tax (a wealth tax is a good example), the tax would have to be apportioned.

Along the way, the article also discusses related points, including how the direct-tax clauses' connection with slavery should affect our interpretation of the clauses; whether the Supreme Court's 1796 decision in Hylton v. United States accurately reflected the original understanding of the clauses; and, more generally, whether actions of Federalists-in-power provide us with incontrovertible evidence of original understanding. On the last point, the article discusses a 1797 revenue act to demonstrate that founders-in-power could act in decidedly unconstitutional ways.


Tax, Sixteenth Amendment, Direct-tax, "taxes on incomes, " Income Tax Cases, Hylton v. United States, Federalists-in-power, 1797 Revenue Act

Publication Date


Document Type


Place of Original Publication

Constitutional Commentary

Publication Information

21 Constitutional Commentary 355 (2004)


COinS Erik M. Jensen Faculty Bio