Erik M. Jensen


This article, prepared for a symposium on the centennial of the ratification of the Sixteenth Amendment, argues that the Amendment was legally and politically necessary in 1913, if there was going to be a modern income tax, and that it remains significant today. The Amendment provides that “taxes on incomes” need not be apportioned among the states on the basis of population, as would otherwise be required for direct taxes. An apportioned income tax would be an absurdity, and, if there were no Amendment, Congress could not enact an unapportioned tax on income from property, the sort of tax that was struck down by the Supreme Court in 1895 in Pollock v. Farmers’ Loan & Trust. The Pollock result was changed by the Sixteenth Amendment, but the core of the case has never been overturned. Indeed, in 2012, in National Federation of Independent Business v. Sebelius, Chief Justice Roberts favorably cited Pollock on a constitutional issue. All of that is to say that, without the Amendment, an unapportioned tax on the income from property would continue to be invalid, which makes the Amendment quite important indeed. Furthermore, a tax on property that is not a “tax on incomes” remains subject to the apportionment rule (and therefore almost certainly an impossibility). The Amendment remains important not only for what it says, but also for what it does not say.


Sixteenth Amendment, taxes on incomes, direct taxes, apportionment, Hylton v. United States, Pollock v. Farmers' Loan & Trust, Eisner v. Macomber, National Federation of Independent Business v. Sebelius

Publication Date


Document Type


Place of Original Publication

Northwestern University Law Review

Publication Information

108 Northwestern University Law Review 799 (2014)


COinS Erik M. Jensen Faculty Bio