Is Elizabeth Warren’s Proposed Wealth Tax Constitutional?

When President Grover Cleveland tried to implement an income tax in 1894, the Supreme Court declared it to be unconstitutional because it violated Article 1, Section 2 of the Constitution, which says taxes must be levied in proportion to a state’s population. In response, the supporters of income taxation passed the Sixteenth Amendment, ratified in 1913, which explicitly allows Congress to levy an income tax.

Now, presidential candidate Elizabeth Warren is promoting a wealth tax, which would appear to be just as unconstitutional as an income tax prior to the Sixteenth Amendment, and for the same reasons. With this clear precedent, it would appear that it would require a constitutional amendment to actually implement Warren’s proposed wealth tax.

The legal and legislative environment is very different today than it was in 1894. Given the clear precedent, would it be possible for Warren’s wealth tax to be enacted without a constitutional amendment?

It seems improbable to me, but I’m not an expert on constitutional law—and it does appear that the federal government does lots of things these days that are unconstitutional, if one simply reads what the words in the Constitution say.

Randall G. Holcombe is a Senior Fellow at the Independent Institute, the DeVoe Moore Professor of Economics at Florida State University, and author of the Independent Institute book Liberty in Peril: Democracy and Power in American History.
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