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21 Const. Comment. 355 (2004)
Interpreting the Sixteenth Amendment (By Way of the Direct-Tax Clauses)

handle is hein.journals/ccum21 and id is 363 raw text is: INTERPRETING THE SIXTEENTH
Erik M. Jensen*
Readers of Constitutional Commentary may have missed the
brouhahas, but Professor Calvin Johnson and I have been argu-
ing for several years about the meaning of the Direct-Tax
Clauses of the Constitution' and the Sixteenth Amendment to
that Constitution.2 I'm happy to say we disagree on almost eve-
rything, and less happy to note that neither constitutional law-
yers nor tax lawyers seem to care very much about any of these
Our disagreements aren't only about academic trivia. For
those who insist on practical consequences in legal arguments,
there really may be something at stake here. The Direct-Tax
Clauses, parts of the original Constitution, impose a cumber-
some apportionment requirement on taxes that are direct - a
rule tied to the apportionment rule for representation in the
House of Representatives. In its original form, Article I, section
2 provided that
[r]epresentatives and direct Taxes shall be apportioned
among the several States which may be included within this
Union, according to their respective Numbers, which shall be
determined by adding to the whole Number of free Persons,
David L. Brennan Professor of Law, Case Western Reserve University.
1.  U.S. CONST. art. I, § 2; U.S. CONST. art. I, § 9, cl. 4.
2. U.S. CONST. amend. XVI.
3. There are exceptions. For example, apparently worried that his wealth-tax pro-
posals would be at risk if I were taken seriously, Professor Bruce Ackerman has trashed
me at some length. See Bruce Ackerman, Taxes and the Constitution, 99 COLUM. L. REV.
1, 1-2, 30 n.112, 52-56 (1999). And the editors of the widely read journal Tax Notes have
graciously printed just about everything Professor Johnson and I have wanted to say on
the subject, most recently in Erik M. Jensen, The Constitution Matters in Tax, 100 TAx
NOTES 821 (2003). See also Lawrence Zelenak, Radical Tax Reform, the Constitution,
and the Conscientious Legislator, 99 COLUM. L. REV. 833 (1999) (another tax professor
encroaching on what would be constitutional lawyers' turf if con lawyers cared about this
sort of thing).

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