Three-fifths Clause

Noting that although the Constitution does not explicitly reference slavery, the public understood through context that the Three-Fifths Clause pertained to that institution. Although scholars like Lysander Spooner rejected that understanding, others (like Salmon P. Chase) accepted this contextual public meaning.

Exploring the representation and taxation apportionment rationales of the principles behind the Three Fifths Compromise, and arguing that “under any one of several plausible tests, a tax on income was an indirect, transactional tax.”

Arguing that the “exit tax” on “deemed asset sales by expatriates and certain long-term green card holders” is a direct tax that is unconstitutional because it is neither a tax on income nor apportioned among the States.

Arguing that the original meaning of “direct tax” is not as mysterious as widely supposed and critiquing constructions by the Hylton v. United States Court and by contemporary scholars.

Arguing that Southern slaveholders preferred structural protections to rights guarantees in seeking to preserve the institution of slavery.

Reviewing the influence of antislavery constitutionalism on the Reconstruction Era Congress to argue that the Thirteenth Amendment “not only ended slavery” but “was also a transformative amendment that established freedom” and “bestowed broad power on Congress to define that freedom, incorporating into the Constitution an institutional role for the popular constitutionalism that contributed to its formation.”

Arguing for a meaningful limitation in the clause and noting that, although the Hylton Court was composed of Founders, its dicta may not faithfully reflect the original meaning of the clause because “although the Hylton Justices were Founders, they were also Federalists, with every incentive to support the Federalist government.”

Collecting originalist interpretations of “direct tax” and criticizing the D.C. Circuit’s decision in Murphy v. I.R.S.

Arguing that, because direct taxes could not be avoided (as could indirect taxes) and would entail intrusions on privacy, the delegates to the Constitutional Convention believed that lawmakers would reserve them for emergencies to escape political fallout.

Arguing, based on interpretive methodologies including original public meaning and original intent, that “direct tax” should be construed narrowly to encompass only property taxes.

Arguing that Hylton, though not a “high point” for originalism or textualism, reflects those interpretive methodologies rather than a living constitutionalist approach.

Arguing that two of the three Hylton opinions were “strongly nontextual,” and that the opinions could be seen as “grappling with constitutional provisions that were poorly drafted and had no coherent underlying theory.”

Noting that “[t]he nationalism of the Federalists who served on the Supreme Court underlies their analysis [in Hylton].”

Noting Lysander Spooner’s argument that euphemistic references to slavery did not obligate citizens to adopt a “manifestly unjust” construction sanctioning the institution.

Arguing that the original meaning of the Clause does not impose any substantive limitations on Congress’ ability to tax, and instead only reflects the compromise that, should Congress elect to apportion a tax, it must count three-fifths of slaves.

Arguing that the Direct Tax Clauses were “intended to be serious limitations on the national taxing power” and that although the 16th Amendment “cut back on their scope,” it should not be read to vitiate those Clauses.

Arguing that the direct/indirect tax regime established by the Constitution did not implicitly make unavailable the federal requisition that characterized Articles of Confederation revenue-raising.

Arguing that apportionment leads to absurd and inequitable results, and so Founders sitting on the Hylton Court “strategically” interpreted the Clause to limit the apportionment requirement.

Arguing that the Constitution structurally protected slavery through the Three Fifths Clause and the Slave Trade Clause, and presenting challenges to constitutional fidelity based on that protection.

Reviewing Spooner’s The Unconstitutionality of Slavery and concluding that Spooner offers a view of the original meaning of the euphemistic slavery clauses that is “superior to the rival one presented, for example, by Justice Taney in Dred Scott.”

Arguing that the “heart of the original understanding” of the direct/indirect tax distinction was avoidability—indirect taxes are those “levied on commodities before they reach the consumer” and which can therefore be avoided through a consumer’s choice to forego the good.

Arguing that “[t]he Framers of the Constitution intended for the size of the House of Representatives to increase as the population increased.”