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Dear Friends:
I thought you might be interested in this brief essay that I posted yesterday evening at
https://balkin.blogspot.com/
These comments remain provisional, of course, and I would very much appreciate hearing your own reactions
– since Moore may well serve only as a preliminary provocation for an on-going, and a more fundamental, confrontation between the Court and the American people on the legitimacy of wealth taxation in the years ahead.
Please send your reactions on to me at
bruce.ackerman@yale.edu.
Best
BA
Balkinization (June 20, 2024)
My Initial Reactions to Justice Thomas' Sweeping Denunciation of Wealth Taxation
By Bruce Ackerman
at
https://balkin.blogspot.com/
Justice Kavanaugh's majority opinion in Moore upholds the very special tax on wealth at issue in this particular
case. Yet Justice Thomas' responds with a lengthy and outraged dissent (joined by Justice Gorsuch). He argues that the taxation provisions of the original
constitution reflected a "delicate compromise" without which "the Constitution could easily have been rejected," and which the Sixteenth Amendment "only slightly altered" – and that, even in the special case raised by
Moore, the government’s taxation effort is unconstitutional.
In presenting his sweeping arguments, Thomas cites a key section, at the beginning of Article one, which explicitly
states that the tax provisions are only part a larger "three-fifths" compromise guaranteeing the Slave States dramatically enhanced representation in the House of Representatives. Nevertheless, he utterly fails to consider the extent to which the Reconstruction
Amendments destroyed the very foundations of his "delicate compromise." Instead, he treats the 13th, 14th, and 15th Amendments as if they were minor modifications of the Original Understanding.
This is not the first time that Thomas has engaged in the trivialization of the Reconstruction Amendments.
But the historical evidence in this case is particularly compelling – establishing that Americans of the 1860s self-consciously repudiated the "delicate compromise” of the 1780s when committing themselves to transformative principles under which We the People
reconstructed their democracy on the basis of political and social equality. In ignoring this fundamental point, Thomas and Gorsuch transform “originalism” into ancestor worship of the Founding Fathers.
At the very least, they owe it to their readers to explain why the efforts by Radical Republicans to redeem
the full promise of Lincoln’s Emancipation Proclamation did not sweep away the Founders’ “delicate compromise.” Yet they utterly fail to do so.
For more elaborate discussions of the constitutional revolutions of the 19th century, see Joseph Fishkin &
William Forbath, The Anti-Oligarchy Constitution (Harvard: 2022), as well as volume 2 of my
We the People: Transformations, especially chaps. 6-8 (1998).
All three of us also submitted an amicus brief that confronts other lawyerly efforts to evade the implications
of the original understanding of Reconstruction: https://supremecourt.gov/DocketPDF/22/22-800/285682/20231020135857418_Amicus%20Curiae%20Brief%20of%20Ackerman%20Fishkin%20Forbath.pdf
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