The Originalism Blog

The Recusal of Supreme Court JusticesMike Rappaport

The Biden proposals on Supreme Court "reform" are framed by their proponents as an attack on a corrupt Republican Supreme Court.  Thus, the "reform" is politically partisan and should be treated as such.  But some of the ideas in the proposal are interesting in their own right and would be worthy of serious discussion if they were proposed in a more politically neutral manner.  I support an 18 year term limit on the justices, although I believe a constitutional amendment is required to institute it and it should only be imposed prospectively.    

I might support a constitutional amendment overturning Trump v. United States, since it is a nonoriginalist decision.  However, I believe that it is important for there to be a recognition that it was prompted by a serious violation of norms about prosecuting one's political opponents.   

Finally, I am not uniformly hostile to a binding ethics code for the Supreme Court Justices with an enforcement mechanism.  I am not certain whether or not it would be a good idea, but it is not out of the question. 

What is out of the question is an ethics code and enforcement mechanism that is open to politicization.  If political groups can register complaints or seek recusal, then this could have very harmful effects indeed on the Court and its perceived legitimacy.  As the Wall Street Journal noted, the 11^th Circuit received “more than 1,000 complaints in a week as part of what it called an ‘orchestrated campaign’” against Judge Aileen Canon, who was sitting on the Donald Trump documents case.

But not all such reform proposals have these undesirable characteristics.  For example, imagine the following arrangement that would govern recusals.  There is a binding ethics code and enforcement mechanism.  Only the parties to the case can seek recusal.  The initial decision is reached by the Supreme Court Justice him- or herself.  If he or she decides not to recuse, the party can seek review by the entire Supreme Court.  Since there are 8 remaining Justices, it would require 5 votes to overturn the Justice’s initial decision not to recuse.

I am not sure whether or not this arrangement would be an improvement.  But it does not seem likely to have a major negative effect, so long as it was adopted during a period when it was no longer associated with a partisan critique of a Republican Court.  Still, I have not studied the matter nor do I have much expertise in this area.  If you think I am mistaken, please let me know.  

Conor Casey on Joel Alicea on Natural LawMichael Ramsey

Conor Casey (University of Surrey) has posted Reflections on The Natural Law Moment in Constitutional Theory (Harvard Journal of Law & Public Policy: Per Curiam (forthcoming 2024) (13 pages) on SSRN.  Here is the abstract:

This essay offers a reflection on Professor Joel Alicea's 2024 Harvard Law School Vaughan Lecture - "The Natural Law Moment in Constitutional Theory". My reflection builds on Professor Alicea’s insights by probing the following question: what can scholars of this current natural law moment learn from past moments? 

For: the current transatlantic revival of interest in the classical natural law tradition is merely one amongst several that have taken place within the last century. But the fact we are speaking of a current moment means that these past moments eventually faltered or fell away, leaving the classical natural law tradition’s influence on public law thinking subdued. What sparked these previous revivals? What achievements did they enjoy? Why did they fall away? What does their ultimate fate say about the prospects of the current moment? 

These are big questions, and so here I will only try to venture some very tentative thoughts by engaging with two past natural law moments from the mid-twentieth century, in the United States and Ireland respectively. 

Seth Barrett Tillman on Senator Vance and the Incompatibility ClauseMichael Ramsey

At Jurist, Seth Barrett Tillman: Senator and Vice President of the United States: Could J.D. Vance Hold Both Positions at the Same Time?  From the introduction:

If Senator Vance is inaugurated as Vice President, can he concurrently hold both positions—Senator and Vice President? Surprisingly, the answer is not so simple. Why? There is no on-point historical precedent where a member of the House or Senate sought to retain his or her legislative seat while assuming the vice presidency (or presidency), and the federal courts have had no occasion to speak to this precise question. However, a closely related question was addressed by the United States Supreme Court in Powell v. McCormack.

In 1966, Adam Clayton Powell, Jr. was elected to a twelfth consecutive term in the United States House of Representatives. Because of allegations of corruption, when the new Congress met in 1967, Powell was not sworn in with the other members-elect. Thereafter, a House committee produced a report which stated that Powell had, prior to the first meeting of the new Congress, wrongfully diverted House funds to himself and others. The House voted to exclude Powell, and it declared his seat vacant. Not surprisingly, Powell sued both to regain his seat and for lost salary. In Powell, decided in 1969, the Supreme Court held that the House’s refusal to seat Congressman Powell—his exclusion—was unconstitutional. In other words, the House can only exclude a member based on qualifications expressly stated in the United States Constitution: e.g., age, residency, and citizenship. Allegations of corruption, even if proven, are, as a matter of law, insufficient.

The Court’s holding was rooted in two deep structural concerns. First, ours is a written constitution. A commitment to written constitutionalism requires the courts, each house of Congress, and other political and legal institutions to respect textual limits imposed by the Constitution. The Constitution’s textual limits regarding office-holding are both floors and ceilings: Congress is not free to undermine the floors by subtracting from extant limitations, nor is Congress free to pierce the ceilings by fashioning new, additional limitations. Second, restrictions on office-holding impinge on the freedom of candidates and, more importantly, on the freedom of the People to choose their governors: a theme which runs not only back to 1787 and the Framers at Philadelphia, but back to 1776 itself. The People’s freedom to elect their governors should not be limited by common law decision-making or abstract policy-making concerns unanchored to the constitutional text. As Congress has no textually-granted power to exclude members-elect based on corruption, Powell’s exclusion was wrongful.

What about dual-office holding? Does the Constitution speak to that issue? The only constitutional provision which might prevent Vance from being a Senate member and Vice President at the same time is the Incompatibility Clause, which states: “[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office,” (emphasis added). It basically comes down to this: if the vice presidency is an “Office under the United States,” then Vance may not hold both positions at the same time. But if the vice presidency is not an “Office under the United States,” then neither the Senate nor the federal courts can prevent Vance from holding both positions concurrently.

Surprisingly, there are, in fact, several good grounds for believing that the vice presidency is not an “Office under the United States,” and therefore, that position is not subject to the strictures of the Incompatibility Clause. ...

Justice Amy Coney Barrett’s Concurrence in Trump v. United StatesMike Rappaport

Having criticized the majority opinion in Trump v. United States, let me move on to Justice Barrett’s concurring opinion. 

Justice Barrett is more concerned about the legitimacy of the reasoning than is the majority.  And she ends up with a much narrower rule of presidential immunity.  Since I criticized the majority opinion for its reasoning and its unjustified establishment of a presidential immunity, Barrett’s opinion is superior.  But Barrett’s opinion still has problems. 

Barrett’s opinion has four basic moves. 

1.  First, she argues that certain of the President’s powers are conclusive and preclusive. Therefore, Congress cannot regulate them and the President cannot be made criminally liable for their exercise. For other official actions of the President, the President’s criminal liability turns on a two step analysis. 

2.  Under the first step, one must ask whether the criminal statute actually is best interpreted as extending to the President. Some statutes might apply to ordinary people but not to Presidents.

3.  If the statute does apply to the President, one reaches the second step. The court then asks whether the prosecution poses no “danger of intrusion on the authority and functions of the Executive Branch” – the standard that Barrett derives from Nixon v. Fitzgerald’s treatment of immunity in civil suits. The answer will depend on the specifics of the case. 

4.  While a district court determination that the defendant can be prosecuted will normally allow the prosecution to proceed, Barrett argues that the President is entitled to an interlocutory appeal on whether the criminal statute applies to him and whether he has immunity.

On point #1, I believe that Barrett is probably mistaken.  I think it is unlikely that the President’s so called conclusive and preclusive authority actually cannot be regulated.  As I have previously mentioned, it is not clear to me that Congress could not criminally prohibit the President from taking a bribe to give a pardon.  This involves a regulation of the pardon power.  These so called conclusive and preclusive powers may severely restrict Congress’s powers but I do not believe they are entirely insulated from congressional regulation.  One probably needs to ask the question whether the criminal statute is constitutional in each case.   

Barrett is not clear on this point since she appears to argue that a President taking a bribe could be prosecuted.  Her justification is that the Constitution "does not authorize a President to seek or accept bribes."  But if the President takes a bribe to issue a pardon, the bribe-for-pardon action would appear to be the regulation of the pardon power and satisfy Barrett's support for absolute immunity for actions "within [the President's] 'conclusive and preclusive' authority and closely related acts."  At the least, Barrett owes us some explanation for her views here. 

On point #2, I agree with Barrett.  One must first conclude that the statute reaches the conduct of the President.  While I do not believe that the courts should be applying a substantive canon that avoids extending a statute to the President, Barrett also rejects that canon. 

On point #3, I disagree with Barrett as an original matter but acknowledge that there is a reasonable argument based on precedent for applying the test in Fitzgerald here.  The problem is that I generally believe courts should not be expanding nonoriginalist precedent like Fitzgerald to new situations.  But there are enough precedents in this area recognizing some kind of presidential immunity to make her position reasonable, even if not the ideal originalist position.

On point #4, I acknowledge that precedent supports Barrett, but once again one might question the correctness of that precedent.  It is true that immunity claims generally allow the defendant an interlocutory appeal.  But it is my understanding that this interlocutory appeal is based on the collateral orders doctrine, which was an atextual, made up doctrine by the Supreme Court.  So once again Barrett relies on a nonoriginalist precedent.  Still, it seems unrealistic to expect the Court to simply overrule the collateral orders doctrine now in a single case (especially where no one argued for that result). 

In sum, Barrett’s position is far superior to the majority’s, and can be defended as reasonable based on a combination of original meaning and precedent, even if the original meaning claim about conclusive and preclusive authority is not quite persuasive and the cases relied upon are nonoriginalist precedents.  

Michael Showalter: Jarkesy and Gravitational PullMichael Ramsey

Michael Showalter (independent) has posted Jarkesy and Gravitational Pull: The Supreme Court's Approach To Nonoriginalist Precedent and Its Implications (18 pages) on SSRN.  Here is the abstract:

In a June 2024 concurring opinion, U.S. Supreme Court Justice Brett Kavanaugh argued that text and history should exert a “gravitational pull” on the interpretation of precedent.  The majority opinion he joined in SEC v. Jarkesy, decided a week later, provides an illustration.

Jarkesy was a battle of text and history versus mixed precedent. The question presented was whether the SEC could assess civil money penalties against Jarkesy through administrative adjudication without judicial process.  The majority held that it could not.  A dissent emphasized that Atlas Roofing, a 1977 case, sustained OSHA civil money penalties imposed through administrative adjudication.  But the dissent made no argument from text or ratification-era history—because no plausible text-and-history defense of Atlas Roofing exists.  Scholars across the spectrum agree that as a matter of text and history, the Constitution prohibits the government from depriving Americans of vested property rights outside judicial process.  So the majority declined to give Atlas Roofing the broader reading advocated by the dissent.  Under the gravitational-pull principle, when original understanding points a certain direction, misaligned precedent should be pulled back toward it.

This essay examines the Supreme Court’s gravitational-pull approach in Jarkesy and discusses its implications for other constitutional provisions.  The Court’s doctrine in various other areas contains statements that the current Court likely considers indefensible as a matter of text and history.  The Court likely will be slow to overrule precedent in these areas—as Justice Neil Gorsuch recently observed, the current Court overrules precedent only about half as often as the Warren Court and Burger Court did.  But the Court likely will continue to pull its jurisprudence toward original understanding, particularly when it believes that a precedent’s misalignment with original understanding is obvious.

Agreed.  Except when the Justices don't want to do this, they won't.  See Trump v. United States. But doing it much of the time may be the most one can expect.

Seth Barrett Tillman & Josh Blackman on the Legality of the Special CounselMichael Ramsey

At the Harvard Journal of Law and Public Policy's online journal Per Curiam, Seth Barrett Tillman & Josh Blackman: What We Did and Did Not Argue in United States v. Trump.  From the introduction: 

On June 21, 2024, Judge Aileen Cannon of the United States District Court for the Southern District of Florida heard oral argument in United States v. Trump. This prosecution was brought by Special Counsel Jack Smith with regard to former President Trump’s possession of certain documents at Mar-A-Lago. Blackman presented oral argument that day based on an amicus brief we had filed, with the Landmark Legal Foundation, in March.

Our goal here is to explain the lines of argument we put forward in our amicus brief, our motion, and at the hearing on Friday, June 21, 2024. We will address three questions. First, does United States v. Nixon require the District Court to dismiss the former President’s motion to dismiss the indictment? Second, does the Special Counsel hold a continuous “Officer of the United States” position? And third, has Congress appropriated money to pay the Special Counsel and his staff and contractors?

A Vocabulary for Describing Non-originalist Decisions by a (Semi) Originalist CourtMike Rappaport

Chris Green’s recent post discussing whether a decision that fails to follow originalism should be called an anti-originalist decision raises a more general question.  How should we describe various decisions of the Supreme Court that might depart from the originalism in different ways? 

Now that the Supreme Court is originalist enough for questions to be raised about the cases where it does not follow originalism in all respects, we need a vocabulary to describe these decisions.  

We can start by focusing on two basic features of Supreme Court decisions that implicate originalism: the methodology that the decision employs and the results that the decision reaches.  In each case, the Court might either follow or not follow originalism.  This yields four possibilities.

1. Pure Originalism: Originalist Methodology + Originalist Result

            This is the best case for originalism.  The Court employed an originalist methodology and reached an originalist result. 

2. Mistaken Originalism: Originalist Methodology + Nonoriginalist Result

            Here the Court employs an originalist methodology but gets the answer wrong.  Since mistakes of this type are inevitable, this is still very congenial to originalism.

3. Nonoriginalism Yielding an Originalist Result: Nonoriginalist Methodology + Originalist Result

            Here the Court employs a nonoriginalist methodology but produces the answer that accords with originalism.  There are different ways of interpreting this situation.  I tend to view the glass here as half empty.  Thus, I call it nonoriginalism.  But it does have something for originalists in it. 

4. Pure Nonoriginalism: Nonoriginalist Methodology + Nonoriginalist Result

            Here everything is nonoriginalist – hence the name pure nonoriginalism.    

These categories are helpful but they are only a start.  The analysis could easily be made more nuanced by introducing more categories. 

The Constitutional Rule: Instead of simply distinguishing between methodology and result, one might also talk of an intermediate category of the constitutional rule.  For example, one might use an originalist methodology to determine the test for determining whether something is a privilege or immunity of United States citizenship and then apply that test to a particular case.  In this situation, for example, one might have an originalist methodology, a nonoriginalist rule (if the Court got the rule wrong despite applying the correct methodology), and then an originalist result (if the result conformed to what a correct originalist analysis would have yielded). 

The Lawful Result: In originalist cases, sometimes the Court will follow nonoriginalist precedent based on the rules of stare decisis.  Different originalists have different views of precedent.  There might be a decision that reaches a nonoriginalist result but does so based on precedent rules.  Those precedent rules might either be correct or not.  Thus, one can analyze cases based in part on this criterion. 

Antioriginalist Methodology: One might also employ Chris Green’s antioriginalist label for cases that do not merely fail to apply originalism but reject it.  I am not sure whether there are any such cases but that is how one might describe them. 

Application to Dobbs: How might this schema work in practice?  Let’s take as an example Dobbs v. Jackson Women’s Health Organization.  For the most part, the decision did not apply an originalist methodology but instead applied precedent.  The rule for protecting rights under the 14^th Amendment was close to an originalist rule (at least under fundamental rights views of the 14^th Amendment).  The particular result in the case accorded with the original meaning (in part because the rule it applied was close to the original meaning).  Whether the application of substantive due process precedent rather than the Privileges or Immunities original meaning was the correct move depends on one’s theory of precedent. 

This schema helps to explain why people have such differing views about the originalism of different cases.  Dobbs had parts that were close to originalism and other parts that followed nonoriginalism, with some commentators viewing the precedent as binding and others not.  Whether a case is consistent with originalism is a complicated matter and often does not have a simple yes or no answer.

John McGinnis & Mike Rappaport on Emancipating the Constitution From Non-Originalist PrecedentMike Rappaport

Over at Law and Liberty, John McGinnis and I have an essay out entitled “Emancipating the Constitution From Non-Originalist Precedent.”  The essay argues that some of the recent Supreme Court cases used various devices to cut back on nonoriginalist precedent, without actually overruling that precedent.  The essay begins:

The biggest challenge to the rise of originalism is precedent. Although originalism is enjoying more support in the judiciary and in the academy than it has in a century, hundreds of non-originalist Supreme Court precedents still shape our legal world. That means originalists face a clear dilemma: If they allow these precedents to dominate, constitutional doctrine will remain non-originalist, except in areas, such as the Second Amendment, which had few, if any, controlling precedents before the originalist revival. Conversely, if originalists systematically overturn non-originalist precedent, they risk disrupting established rules and causing legal instability.

The essay then continued:

This term, the Court provided early signs of a solution [to this dilemma]. Two decisions clearly showed that it can cut back non-originalist precedents to restore more of the Constitution’s original meaning, when it can find a principled stopping point. Another decision suggests the Court may overrule some precedents prospectively. That is, it will move the law to the original meaning for future adjudications, while not overruling past decisions in which the precedent controlled. Both methods provide a via media for harmonizing precedent and originalism. Both methods would restore original meaning while protecting reliance interests and preventing undue disruption.

The essay then discusses three cases: Grants Pass v. Johnson (refusing to extend a nonoriginalist 8^th Amendment precedent), SEC v. Jarkesy (narrowly reading a nonoriginalist 7^th Amendment and Article III precedent), and Loper Bright v. Raimondo (prospectively overruling Chevron deference). 

Read the whole thing! 

Trump v. United States: Another Originalist DisasterMike Rappaport

The Supreme Court’s recent decision by Chief Justice Roberts is another originalist disaster, to be added to Chiafolo v. Washington and Trump v. Anderson.  I plan several posts on the case, but let me start here by criticizing its lack of originalism.

I did an earlier post on why there is no presidential immunity under the Constitution, and the Court’s opinion did nothing to persuade me I was mistaken. 

The Basic Points on the Original Meaning

1. The constitutional text does not provide presidential immunity but it does provide immunity for other entities, such as members of Congress. This strongly suggests that the President does not have immunity.

2. The Executive Power Vesting Clause could potentially confer immunity but upon analysis it does not do so. The constitutional enactors rejected monarchial immunities for the President. This is shown by statements at the time as well as the Impeachment Punishment Clause, which states that “Judgment in Cases of Impeachment shall not extend further than to removal from Office . . . but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

3. It is true, as Roberts states, that this Clause does not say explicitly that it applies to official actions rather than unofficial actions. But the context strongly suggests that it applies to official actions since it involves actions for which the President can be impeached.  And when combined with the lack of a textual immunity, the inference seems irresistible.

4. Even the Court’s strongest originalist argument for a presidential immunity – that he enjoys immunity in the area of exclusive powers, such as the Pardon Power or the Appointments Power – is weak. There is a plausible argument that Congress lacks authority to regulate these powers.  But that argument ultimately fails.  It seems clear that Congress could make it a crime to take a bribe in exchange for a Pardon or an Appointment.  This amounts to a regulation of the Pardon or Appointment Power.  Thus, Congress can pass regulations in this area.  Of course, Congress’s power might be significantly restricted – for example, perhaps Congress could not nullify a pardon procured through a bribe – but that just means the regulatory power is limited, not that there is an absolute immunity.    

The Steel Seizure Case Citations

There are many other problems with the Court’s opinion from an originalist perspective.  One particularly worth mentioning is that the Court repeatedly cites Justice Jackson’s concurrence in the Steel Seizure Case, even quoting the erroneous and outrageous line that there is a “poverty of really useful and unambiguous authority applicable to concrete problems of executive power.”  I am tempted to echo Lady Margaret Thacher here, and to slam down a copy of Jackson’s concurrence on the table, saying “This is not what we believe!” 

An Illegitimate Inference to the Existence of a Power or Immunity

Let me conclude with one last point that has not received much attention.  Much of Roberts’s opinion takes the following form: the President needs this immunity because he otherwise would feel constrained from fully exercising his power.  In other words, for the executive to have sufficient energy, he needs an immunity.  This inference to the energy of the executive is a bad – a really bad – originalist argument.  It is true that the constitutional enactors designed the Constitution to allow for an energetic executive.  But they also designed the Constitution to allow for an executive who followed the law.  The Constitution does not specify a tradeoff between these two values.  Instead, the correct tradeoff between energy and lawfulness is a legislative judgment, not something that the Court can impose as a matter of constitutional interpretation.  But that is what the Court did in Trump v. United States. 

Rather, the Constitution allows that judgment to be made by the Congress.  Under its Necessary and Proper authority, Congress could pass a law that would establish an immunity for the President based on its judgment as to the proper trade off between energy and lawfulness.  In Trump v. United States, the Court usurped that legislative authority under the guise of constitutional interpretation. 

Indeed, it is not even clear that the Court’s resolution of that tradeoff was even desirable.  But that is beside the point.  The decision is a legislative judgment for Congress to make, not one for the Court. 

Wealth Taxes and the Direct-Indirect Tax ControversyRob Natelson

This post is from Rob Natelson, who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and a former constitutional law professor at the University of Montana. He is the author of “The Original Constitution: What It Actually Said and Meant” (3^rd ed., 2015) and a contributor to “The Heritage Guide to the Constitution.”

The challenge over unrealized but undistributed corporate income in the Supreme Court case of Moore v. United States is said to be an opening skirmish on the constitutionality of a potential federal wealth tax. Proponents claim a wealth levy is within the constitutional category of “indirect taxes” and therefore not subject to apportionment among the states. Opponents counter that an exaction of that sort would be a direct tax, and therefore subject to apportionment.

This particular disagreement is the latest in a centuries’-long controversy over how the Constitution distinguishes direct from indirect taxes.

Unfortunately, opinions issued in Moore on June 20 only perpetuated the confusion. Justice Brett Kavanaugh’s opinion for the court contended that a direct tax is one imposed on persons or property, while an indirect levy is imposed on activities or transactions. Justice Ketanji Brown Jackson’s concurrence, following Justice Samuel Chase’s dictum in Hylton v. United States (1796), asserted that the Founders likely considered direct taxes to include only capitations and real property levies.

Both statements conflict sharply with comments about direct and indirect taxes made by participants in the 1787-90 constitutional debates. Those comments indicate that the founding generation well understood the direct-indirect distinction and that it did not necessarily follow the lines suggested by Justices Chase, Kavanaugh, Jackson, or (in NFIB v. Sebelius) by Chief Justice John Roberts. These comments also indicate that the “direct tax” category was quite broad, and certainly not limited to capitations and property levies.

I reproduced some of these remarks in a 2015 Case Western Reserve Law Review article and again in an essay published on July 12, 2024 by the Volokh Conspiracy website.

My Volokh essay also provided links to even better evidence: actual 18^th century direct tax statutes. They included laws adopted in 1713 by the British Parliament and during the 1770s and 1780s by the states of Massachusetts, Connecticut, New Hampshire, and South Carolina. The statutes amply confirm the ratification debate comments.

The statutes show that bases for direct taxes encompassed property and wealth of all varieties, businesses and other occupations, and income of all kinds. They further show that direct taxes could be imposed on activities and transactions as well as on persons and property.

Additionally, the statutes reveal that apportionment of direct taxation among political subdivisions was a longstanding custom, not a scheme cooked up in the Constitutional Convention to protect slavery, as sometimes suggested.

Finally, the statutes confirm that the Court’s much-abused ruling in Pollock v. Farmers’ Loan & Trust Company—that the income tax was direct—was spot on.

And now—exclusively for readers of The Originalism Blog!—I offer yet another Founding-era direct tax statute. This measure was adopted by the Pennsylvania legislature in 1781 to fund the expected war effort in 1782. Like other measures of its kind, it identified the items subject to tax and provided for them to be assessed and charged.

The link to the statute is here. I have highlighted the relevant portions.

The highlighted part on the first page (page 385 in Volume 10 of Pennsylvania Statutes at Large) introduces a scheme for apportioning the tax among political subdivisions. The next highlighted passage appears on the fifth page (page 389 in the original). It lists the items subject to the direct tax law. They include real estate, but also livestock and other property of many descriptions. They also include “all offices and posts of profit, and all professions, trades and occupations.”

The formal statement issued by the Anti-Federalist dissenters after the Pennsylvania ratifying convention thus summarized their own state’s direct tax law: They described the items subject to direct taxes as “land, cattle, trades, occupations, etc.”

The third highlighted passage on the sixth page (page 390 in the original volume) commissions local authorities to assess offices, professions, trades, and occupations by “having due regard to the profits arising from them.” This portion is essentially an income tax, although not in as straightforward a form as appears in some of the other direct tax statutes.

In view of these statutes, I don’t see how one can continue to assert that the Constitution classifies taxes on income and wealth as indirect. One possible quibble is to say the founding generation thought measures like these imposed and apportioned both kinds of tax. But I have never found any evidence for such an assertion.

Other than in a few ambiguous cases—such as the question in Hylton v. U.S. of whether an annual levy on a luxury item is a property tax (and thus direct) or an excise (and thus indirect)—it seems to me the controversy is resolved.