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29 posts from October 2023


The Amars on Moore v. United States
Michael Ramsey

Recently filed, this amicus brief in support of respondent by Akhil Amar (Yale) and Vikram Amar (Davis) in Moore v. United States.  From the summary of argument: 

Most of the other briefs in this case have missed the point. The Mandatory Repatriation Tax (MRT) passed by Congress and signed into law by President Trump in 2017 does not violate the Apportionment Clause of Article I, Section 2, for the simple and decisive reason that the MRT is neither a head tax nor a real-estate tax, and thus is not a “direct tax” subject to the Constitution’s apportionment requirement. This is true regardless of the Sixteenth Amendment. In other words, it is true whether or not the MRT is an “income tax” within the meaning of that Amendment. A tax need not be an “income tax” to escape the apportionment requirement. It simply needs to be a revenue measure that is not a “direct tax,” under Article I, Section 2.

Only head taxes and real-estate taxes are direct taxes within the meaning of the Founders’ Constitution, as understood by—wow!—George Washington; Alexander Hamilton; the overwhelming majority of the 1794 Congress and later early Congresses; and every member of this Court to opine on the issue in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), the most important case this Court decided pre-Marbury. Eventually, even James Madison and Thomas Jefferson repudiated their earlier Republican allies and came to agree with their Federalist counterparts on this issue. Post Founding, our approach also has on its side President Abraham Lincoln and Justice John Marshall Harlan the Elder, among countless others. On the other side: We admit that Congressman James Madison once thought otherwise—that is, before he saw the light and forever changed his tune as President of the United States.

We hasten to add that, like many other amici (and the Respondent) in this case, we believe the MRT can indeed be upheld under the Sixteenth Amendment. But the Court need not reach that question. Were the Court to reach that question and for some reason decide that the MRT is not a proper income tax, the MRT should nonetheless survive constitutional challenge (and the judgment below should be affirmed) for precisely the same reason that one of Congress’s first major tax laws—a tax on luxury-carriage ownership—survived in Hylton: A Carriage Ownership Tax is not a direct tax—and the Mandatory Repatriation Tax is not a direct tax—because neither one taxes human heads or real estate.

If Petitioners are correct, then Hylton and the federal tax it upheld were wrong. If, instead, Hylton and its many Founding-era supporters are correct, then Petitioners are wrong. Hylton is the key, and we respectfully urge every member of this Court to read this landmark case carefully.

(Via Jason Mazzone at Balkinization.)

I agree that if the tax in Moore is not a tax on income within the meaning of the Sixteenth Amendment, it would still be constitutional if it is not a direct tax within the meaning of Article I (per Hylton).  The Amars' brief says in a footnote:

To the extent that the main or only reason that the Court granted certiorari in this case was to clarify the scope of
the Sixteenth Amendment, the Court might well consider dismissing the writ of certiorari as improvidently granted.
Alternatively, the Court could call for additional briefing on the meaning of “direct” taxes, the issue we focus on in this amicus brief. But it would be inappropriate for the Court to reverse the judgment below without engaging the fundamental question we discuss here.

I don't follow this argument, though -- especially as the briefing has mostly not engaged the direct tax issue.  It would seem that the Court could reverse the Ninth Circuit's ruling as to "income" (assuming the Ninth Circuit got that part wrong) and remand for the Ninth Circuit to consider the direct tax issue.


Brian Murray: Original Understanding, Punishment, and Collateral Consequences
Michael Ramsey

Brian Murray (Seton Hall Law School) has posted Original Understanding, Punishment, and Collateral Consequences (University of Pennsylvania Journal of Constitutional Law, forthcoming 2024) (66 pages) on SSRN.  Here is the abstract:

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose. A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not. Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.

This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment. First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine. Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach. Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive. Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes.

Put simply, there is ample evidence that Founding-era thinkers understood punishment to include state-imposed suffering that served retributive and non-retributive purposes. The meaning of punishment was informed by an array of philosophical concepts, historical practices, and an understanding of criminal law and its enforcement built from liberal premises that also are instrumentalist. Many early punishments had stigmatic, incapacitative, or rehabilitative purposes, and reformers often pointed to instrumentalist purposes to justify modification of punishment practices, leaving room for the punishment label to apply to more state-sanctioned deprivations than are currently classified as punishment. By contrast, existing doctrine narrowly conceives the meaning of the term “punishment”. If “purpose” is the lodestar, then the definition of punishment should be broader based on the historical evidence. In an era of overwhelming collateral consequences, lawmakers and judges who take the original meaning of terms seriously for purposes of constitutional interpretation should take note when either classifying or adjudicating the character of a deprivation carried out by the government. These findings furnish grounds for questioning the modern classification of many automatic collateral consequences as non-punitive measures, providing potential limits that are consistent with Founding-era conceptions of punishment.


New Book: "Law and Religion in Colonial America" by Scott Gerber
Michael Ramsey

Recently published: Law and Religion in Colonial America - The Dissenting Colonies by Scott Douglas Gerber (Cambridge University Press 2023).  Here is the book description from the publisher:

Law – charters, statutes, judicial decisions, and traditions – mattered in colonial America, and laws about religion mattered a lot. The legal history of colonial America reveals that America has been devoted to the free exercise of religion since well before the First Amendment was ratified. Indeed, the two colonies originally most opposed to religious liberty for anyone who did not share their views, Connecticut and Massachusetts, eventually became bastions of it. By focusing on law, Scott Douglas Gerber offers new insights about each of the five English American colonies founded for religious reasons – Maryland, Rhode Island, Pennsylvania, Connecticut, and Massachusetts – and challenges the conventional view that colonial America had a unified religious history.


Donald Dripps: Eavesdropping, the Fourth Amendment, and the Common Law (of Eavesdropping)
Michael Ramsey

Donald A. Dripps (University of San Diego School of Law) has posted Eavesdropping, the Fourth Amendment, and the Common Law (of Eavesdropping) (William & Mary Bill of Rights Journal, Vol. 32, 2024, forthcoming) (46 pages) on SSRN.  Here is the abstract:

Judges and scholars have long debated the Fourth Amendment’s application to eavesdropping, and the amendment’s relationship to the common law torts of trespass and false arrest. Remarkably, neither the jurisprudence, nor the commentary, has given more than cursory consideration to the common law of eavesdropping. This Article is the first to consider in detail the common law of eavesdropping as it relates to the Fourth Amendment.

The Fourth Amendment’s text does not protect “persons, houses, papers and effects” but rather protects the right to be secure in persons, houses, papers and effects. The common law treated eavesdropping as a violation of the right to the security of the home. Trespass actions were part of these protections, but only a part. The prevailing focus on founding-era tort law supports interpretations based on private-law property rights, enforced ex post by actions for damages. The common law’s indictment of eavesdroppers as a public nuisance points in very different directions.

Eavesdroppers could be arrested in flagrante as “persons of ill fame” under an ancient English statute. Eavesdroppers could also be indicted as a public nuisance under the common law of crimes. These doctrines were well-established in America as well as in England.

Eavesdropping was thought to threaten the security of all the homes in the community. The public-nuisance offense was not completed by clandestine listening alone. Indictments had to allege repeated offenses and public dissemination of the overheard conversations. There was no standing requirement, as required to recover damages in tort or obtain an injunction. The remedy was not retrospective damages, but fine and jail unless the eavesdropper recruited sureties to post bond for the eavesdropper’s good behavior going forward.

Reading the Fourth Amendment by the light of the common law does not lead inevitably to a property-based model. The common law’s treatment of eavesdropping indicates that the sanctity of the home was protected against clandestine surveillance, not just against physical invasion. The common law of crimes saw the collection and the dissemination of private information as distinct legal wrongs. The remedy aimed to prevent future violations, rather than to redress completed ones. Important implications follow for the difficult issues that face us today when we try to apply the Fourth Amendment in a digital world.


Robert Pushaw & Charles Silver: The Unconstitutional Assertion of Inherent Powers in Multidistrict Litigations
Michael Ramsey

Recently published, by Robert J. Pushaw (Pepperdine/Caruso School of Law) & Charles Silver (University of
Texas at Austin School of Law): The Unconstitutional Assertion of Inherent Powers in Multidistrict Litigations (48 BYU L. Rev. 1869 (2023)) (90 pages).  Here is the abstract: 

This Article examines the constitutional basis of the federal courts’ independent exercise of “inherent powers” (IPs) that Congress has not specifically authorized. Our analysis illuminates the grave constitutional problems raised by the freewheeling assertion of IPs in multidistrict litigations (MDLs), which comprise over half of all pending federal cases.

The Supreme Court has rhetorically acknowledged that the Constitution allows resort to IPs only when doing so is absolutely necessary to enable Article III courts to exercise their “judicial power,” but has then sustained virtually all exercises of IP, whether essential or not. The Court’s excessive deference has emboldened trial judges to claim an ever-expanding array of IPs. The Constitution, however, requires a sharp distinction between two kinds of IPs.

First, “indispensable” IPs are those without which courts could not properly exercise their “judicial power” — rendering a final judgment after interpreting the law and applying it to the facts. Such adjudication may require judges to fill gaps in written procedural rules; manage their cases reasonably and efficiently; maintain their authority by punishing litigation misconduct; and ensure that attorneys are competent and ethical. Article I authorizes Congress to facilitate, but not impair, such indispensable IPs.

Second, federal judges cannot legitimately claim IPs that are merely “beneficial” (i.e., helpful or convenient), but that do not affect their ability to function as independent courts. Rather, Article I empowers Congress alone to grant such IPs, regulate them, or withhold them. Moreover, courts can never assert IPs in a way that violates parties due process rights.

The proposed constitutional framework would clarify all IPs, but would be especially useful as applied to MDLs. In these complex cases, district courts have asserted an astonishing variety of IPs to regulate parties and their attorneys. Yet only one IP invoked in MDLs — the power to appoint liaison counsel to handle communications and coordinate litigation activities — is proper because it is indispensable and leaves parties substantive and procedural rights unchanged.

Other IPs asserted in MDLs should be foresworn because they are beneficial powers that Congress has not authorized. Examples include the practice of forcing parties retained lawyers to compensate court-appointed lead attorneys, caps on retained lawyers fees, sua sponte enforcement of state bar rules that govern matters unrelated to adjudication, and judicial review of settlements. Yet other IPs would exceed even Congress s powers because, by asserting them, judges deny parties due process of law. Judicial appointments of lead attorneys who displace parties retained lawyers fall into this category by saddling plaintiffs with virtual representation (VR), which the Supreme Court has for bidden. Worse, because the success of MDL s as a means of eliminating repetition and conserving resources depends upon the use of VR, the procedure itself is constitutionally infirm.

Regular readers know that I'm suspicious (to put it mildly) of claims of "inherent" powers.  Strictly speaking, I don't think there are such things under the Constitution.  There are, however, powers conveyed by the traditional understanding of the "judicial Power" vested in the federal courts by Article III.  One can call these "inherent" powers, so long as it's understood what that means.

Perhaps surprisingly, that leaves me thinking that the "inherent" (if one must use that word) powers of the federal courts may be broader than the authors indicate.  What the authors call "beneficial" powers might be within the judicial power conveyed by the Constitution if (but only if) they were part of the traditional powers of courts at the time of ratification.   (I agree that "indispensable" powers -- if truly indispensable -- would also be in this category.)

(Thanks to Professor Pushaw for the reprint.)



More from John Brooks and David Gamage on the Original Meaning of the Sixteenth Amendment [Updated]
Michael Ramsey

John R. Brooks (Fordham University School of Law) and David Gamage (Indiana University Maurer School of Law) have posted “From Whatever Source Derived”: The Sixteenth Amendment and Congress’s Income Tax Power (98 pages) on SSRN.  Here is the abstract:

The upcoming Supreme Court case of Moore v. United States raises questions that the Court has rarely had to address in the last 100 years—what is the meaning of the Sixteenth Amendment and Congress’s income tax power? Does that power only extend to realized income? And what does "realization" mean? The taxpayers in Moore (and the Ninth Circuit judges who dissented from the denial of rehearing en banc) argue that realization is necessarily a part of the meaning of “income” in the Sixteenth Amendment—i.e., that there must be some act of separation or conversion of property into cash or other property in order for there to be “income.” They are, in essence, aiming to revive a disputed reading of the discredited 1920 case of Eisner v. Macomber.

In this Article, we show that explicit and well-understood purpose of the Sixteenth Amendment was to overrule the Supreme Court case of Pollock v. Farmers’ Loan & Trust Co. and restore the “complete and plenary power of income taxation” as it was understood at the time. The Amendment did not create Congress’s power to tax income, which it had been doing since the Civil War; it merely removed the impediment Pollock had introduced. This public meaning of the Amendment was communicated clearly both in Congress and in the press.

Thus, to understand the power the Amendment authorized, it is necessary to look at the practice and experience of income taxation at that time. Federal (and state) income taxes prior to the time of ratification explicitly included items of “unrealized” income. In particular, federal tax law included undistributed corporate earnings in shareholders’ income. We also show—we believe for the first time in the literature—that the federal corporate income tax law at the time of the Sixteenth Amendment’s ratification explicitly included unrealized gain from the appreciation of assets as gross income for tax purposes. Given this evidence, it is clear that realization could not have been a necessary and required element of the original meaning of “income” in the Sixteenth Amendment.

This Article also explains how income should be affirmatively understood under the Sixteenth Amendment. We endorse the standard view of an economic-gain conception of income, consistent with the Haig-Simons income concept. That conception is also consistent with the existing law, aligns with the historical distinction courts between income and capital, and is workable for courts. But we also explain why an economic-gain conception is better suited to protect against backdoor wealth taxation than alternative conceptions.

(This paper is different from this earlier paper by the same authors, also on the original meaning of the Sixteenth Amendment, also noted on this blog.)

The authors have also filed this amicus brief (with assistance from the Constitutional Accountability Center) in Moore v. United States.

UPDATE:  At Legal Theory Blog, Larry Solum comments:

Highly recommended. 

In this version of their important article, Brooks and Gamage argue that "income" should be understood as a term of art, citing the influential work of John McGinnis and Michael Rappaport.  The ordinary meaning of "income" was likely different and more restrictive. See Corpus Linguistics and the Original Public Meaning of the Sixteenth Amendment, by Thomas Lee, James Phillips, Jesse Egbert, and myself.


Chad Squitieri: Placing Legal Context in Context
Michael Ramsey

Chad Squitieri (Catholic University of America Columbus School of Law) has posted Placing Legal Context in Context (16 pages) on SSRN.  Here is the abstract:

In Biden v. Nebraska, Justice Barrett authored a concurrence in which she characterized the major questions doctrine as a linguistic canon that accounts for the “legal context” surrounding delegations of power. Some scholars have critiqued Justice Barrett’s concurrence on the grounds that empirical research suggests that ordinary readers do not account for “majorness” in the way that the major questions doctrine requires. This Essay argues that those critiques miss the mark because they conflate factual context with legal context.

Justice Barrett’s concurrence should be considered within the broader textualist tradition of understanding “ordinary meaning” as a legal concept, and not simply an empirical fact. But to say that Justice Barrett’s concurrence should be understood within that broader textualist tradition is not to say that her concurrence is immune from criticism. To the contrary, this Essay contends that Justice Barrett’s concurrence does not account fully for legal context concerning the President’s lawmaking functions. The upshot is that textualists eager to embrace the major questions doctrine are better off reconceptualizing the doctrine as a substantive canon that polices the precise lines delineating the lawmaking powers vested in the President and Congress.


Marc DeGirolami: Establishment as Tradition
Michael Ramsey

Marc O. DeGirolami (St. John's University - School of Law) has posted Establishment as Tradition (Yale Law Journal Forum, forthcoming) (22 pages) on SSRN.  Here is the abstract:

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this area? Second, is traditionalism more a mood or disposition than a theory, more a matter of the heart than of the head?

On the first matter, traditionalism did not materialize out of thin air in the 2021 term, and it has had unusual power in the interpretation of the Establishment Clause for decades. The question is why, and answering it has implications for constitutional theory more generally. For if some domains of constitutional law are more amenable than others to traditionalist interpretation, the same may be true of other theories. The answer for the Establishment Clause is that establishments are made up of politically foundational traditions. Political establishments are constituted by the concrete, authoritative, and enduring practices and institutions that make up the essential settlements of a polity. To interpret the phrase, “Congress shall make no law respecting an establishment of religion,” is immediately to be directed by the text not to an idea or an abstraction, but to something solid, authoritative, and lasting—“an establishment.” This is a reading supported by the other uses of “establishment” and its cognates in the Constitution. “An establishment of religion,” therefore, is a political practice that sits outside the limits of the constitutionally permissible practices of American political establishment. Unconstitutional establishments of religion depend upon the prior existence of constitutional establishments, and those establishments are often instantiated in a people’s most powerful political traditions. More than certain other domains of constitutional law, the text of the Establishment Clause is inherently traditionalist because its meaning takes shape against a network of concrete, authoritative, and enduring institutional, political practices. And the practices of establishment are essential to fostering the civic trust that is necessary for any polity’s survival. Without them, the political community fractures. In time, it dies.

As for the second question, some critics have argued that traditionalism is not a full-fledged theory so much as a mood or disposition, and that traditions are too manipulable and insubstantial to form the raw material for a theory of constitutional meaning or constitutional law. The question matters because it concerns whether traditionalism is an independent constitutional theory in its own right or instead at most a feature of others, dependent on their methods and justifications. I will argue that traditionalism is as much a constitutional theory as any of its rivals, though that claim will depend on just what it means to count as a theory. It is, in fact, its application in Establishment Clause cases that most clearly demonstrates its comparative systematicity, generality, and predictability of application, three critical elements for qualifying as a constitutional theory. Traditionalism is, to be sure, not a decisional algorithm, but neither is any attractive constitutional theory; it acknowledges and even welcomes reasonable disagreement within shared premises, as do other plausible theories. Still, the critics are in a sense correct: traditionalism has a characterological or dispositional component that other approaches may lack and this, too, is illustrated in its application to the Establishment Clause. Its character, and the kind of disposition it develops in interpreters subscribing to it, is preservative and custodial. That is not a flaw but a distinguishing virtue. It makes traditionalism preferable to other interpretive possibilities because it makes traditionalism more than just an interpretive theory, reflecting and shaping character even as it provides a coherent framework for adjudicating constitutional cases.

I continue to struggle with how (and whether) this sort of traditionalism is different from originalism (in the sense of: when would it produce different outcomes?).


Bruce Ackerman et al. on Moore v. United States and the Original Meaning of Income
Michael Ramsey

In Moore v. United States, the Supreme Court's pending Sixteenth Amendment case, Professors Bruce Ackerman, Joseph Fishkin and William Forbath have submitted this originalist-oriented amicus brief defending the challenged tax.  Here is the summary of argument: 

The petitioners’ argument requires this Court to repudiate the original understanding of the Sixteenth Amendment.2 The historical sources demonstrate that both the framers and the ratifiers of the Amendment had a clear aim. They were determined to restore the broad congressional power over taxation that the Supreme Court had consistently upheld in an unbroken line of precedents going back to the 1790s—but which had been repudiated by a 5-to-4 majority in a single case in 1895, Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895) (Pollock II).3 Pollock refashioned the Constitution’s “direct tax” clauses into a ban on income taxation—a role these clauses had never before played. Indeed, only fifteen years earlier, the Court had unanimously upheld an income tax statute of the kind that five Justices rejected in Pollock.

FN2 The government’s brief in this case conclusively demonstrates that tax provisions like the one at issue here fall within a long tradition of taxing undistributed earnings, and that the Sixteenth Amendment imposes no realization requirement. But we think it is important for the Court to understand that the Amendment’s original public meaning cuts squarely against what petitioners are asking the Court to do. Far from imposing a realization requirement, the Sixteenth Amendment was framed and ratified to halt once and for all judicial misuse of the direct tax clauses: No longer could those clauses be invoked to narrow Congress’s power to tax. Yet that is the error of Pollock that petitioners are now urging this Court to repeat.

By redefining income taxes as “direct,” the Pollock majority precluded Congress from enacting them at all, since they were not, and could not practically be, apportioned by population. As the Pollock dissenters explained, this meant that the majority was inserting into the Constitution a scheme that would protect the property of some of the wealthiest Americans from any plausible form of taxation. The Pollock majority was disabling Congress from building a tax system that spread the burdens of taxation fairly across the entire society; one class would be privileged with a Courtmade constitutional exemption.

Justice John Marshall Harlan wrote the main Pollock dissent. In his famous dissent a year later in Plessy v. Ferguson, Harlan would argue that the Constitution “neither knows nor tolerates classes among citizens” but ensures that “[t]he humblest is the peer of the most powerful.” 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). His Pollock dissent likewise argued that it was wrong for the Court to create a special class of privileged people who, alone among Americans, would be constitutionally immune from seeing their fortunes taxed.

The public response to Pollock was shock and outrage at this sudden reversal of century-long Congressional practice and judicial precedent, catalyzing a direct legislative challenge to the decision. In 1898, Congress passed another progressive tax—this time on inheritances, rather than income—and in Knowlton v. Moore, 178 U.S. 41 (1900), the Court refused to stand behind Pollock. Instead, it issued a unanimous opinion upholding the inheritance tax, despite the appellants’ compelling argument that Pollock’s rationale applied even more powerfully in Knowlton.

This demonstration of judicial restraint failed to deflect the broad-based popular opposition to Pollock itself—which led a bipartisan supermajority in Congress to frame the Sixteenth Amendment in the specific terms necessary to reverse Pollock and thereby restore the broad power to tax that Pollock had undermined. To that end, the Amendment granted Congress plenary “power to lay and collect taxes on incomes,” rather than specifically authorizing other forms of taxation, whose constitutional legitimacy had not been directly assaulted. U.S. CONST., am. XVI. As state legislatures considered the Amendment, the Supreme Court itself reinforced the point. In Flint v. Stone Tracy Co., 220 U.S. 107 (1911), the Court again refused to extend the reasoning of Pollock, unanimously upholding the corporate income tax against constitutional challenge. In doing so, the Justices were reinforcing the argument repeatedly made in the course of the ratification debate in the states, which added the Sixteenth Amendment to the Constitution in 1913. In short, by reversing Pollock, the American People were reaffirming Congress’s plenary power over taxation.

In Congress and in the states, the Sixteenth Amendment’s advocates repeatedly invoked the language of the Pollock dissents to justify their initiative—especially Justice Harlan’s demonstration of the imperative need to restore the long-standing principle under which no class has a special constitutional exemption  from tax. During the proposal and ratification of the Amendment, the overriding aim of the American People was to reaffirm an understanding of the Constitution that assigned to the political branches, not the courts, the duty of constructing a broad-based and equitable tax system. Once the text made it clear that Congress could impose “taxes on incomes, from whatever source derived,” the political branches could once again proceed with this work unfettered by restrictions invented by Supreme Court Justices, as the nation confronted the challenges of the twentieth century.

Given this original understanding, it would be truly unprecedented if this Court nevertheless resurrected the 5-to-4 decision in Pollock. It was one thing for Pollock to repudiate a century of history and tradition. It would be quite another thing for this Court to repudiate the self-conscious decision by the American People to restore Congress’s plenary power of taxation—especially at a time when Congress is struggling to deal with its constitutional responsibility to “raise and collect taxes” in a manner that will fulfill the nation’s fiscal responsibilities in the twenty-first century.

We urge the Court to affirm the decision below. 

Again, I note that various law professors believe the Constitution's original meaning can provide definite answers to modern litigated issues.  The claim that originalism is a fundamentally flawed methodology, either because no definite original meaning exists or because we cannot identify it, is inconsistent with the common practices of constitutional scholarship.

(Via Balkinization, where Professor Ackerman is especially definitive: "I have submitted an amicus brief that seeks to establish that [Moore] confronts the originalists on the Court with a crucial test – they can protect the wealthy from taxation only at the price of repudiating the Original Understanding of the Income Tax Amendment.")

On the merits in Moore, I haven't reached a firm conclusion.  But I'm not much persuaded by originalism in the style of Professor Ackerman's brief, which seems to me to be attempting to discern an intent of the drafters and ratifiers that goes beyond the text of the Amendment.  I continue to think the case turns on the original meaning of "incomes" in the Sixteenth Amendment and not more (or less) than that.

Finally on Moore (for now), and in keeping with this post on burdens of proof, I would say that the taxpayers in Moore have the burden (of uncertain weight) of showing that "incomes" in the Sixteenth Amendment did not include undistributed earnings of corporations in which a taxpayer held shares.  So it's not actually necessary for the government to show that original meaning unequivocally supports the tax (even though Professor Ackerman thinks it does).


Judge Thomas Hardiman on "Cruel and Unusual"
Michael Ramsey

From a Reuters report:

A federal appeals court judge on Wednesday argued that the conservative-majority U.S. Supreme Court would have grounds to revisit its interpretation of the U.S. Constitution's prohibition on cruel and unusual punishment and "return to the text and original meaning of the 8th Amendment."

In a speech delivered at Harvard Law School, U.S. Circuit Judge Thomas Hardiman, an appointee of Republican former President George W. Bush on the 3rd U.S. Circuit Court of Appeals, argued that the high court should abandon a decades-old legal test for deciding if a punishment was unconstitutional.

The Supreme Court in a series of cases starting in 1952 interpreted the 8th Amendment's prohibition on cruel and unusual punishment based on what opinions described as the "evolving standards of decency that mark the progress of a maturing society."

But Hardiman told the Harvard chapter of the conservative Federalist Society that the standard is a "contrived ratchet" that has fueled a "runaway train of elastic constitutionalism" giving judges too much power to invalidate laws in favor of defendants.

"Its inscrutable standards require judges to ignore the law as written in favor of their own moral sentiments," he said. "The only constant is that more and more laws adopted by the people's representatives have been nullified." ...

Agreed.  Or at least, those precedents should not be extended.  I'm not entirely sure what cruel and unusual originally meant (originalist scholars in the field have some varying views) but I'm confident it wasn't what the Supreme Court has said it means.

(Via How Appealing.)