What the Constitution Means by 'Duties, Imposts, and Excises' — And 'Taxes' (Direct or Otherwise)

Abstract

This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary source, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era, and that the term “direct tax” was more expansive than commonly realized.

The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It concludes that the Constitution’s “three-fifths” formula was a response to certain economic facts about slavery, but that the underlying decision to apportion had little or nothing to do with slavery.

Finally, the Article reviews the Supreme Court’s holding that the Affordable Care Act’s penalty for not acquiring insurance is a tax but not a direct tax, and concludes that if the penalty was a tax, it was direct.

Keywords: constitutional law, Taxation Clause, original intent, original understanding, original meaning, excise, tonnage, duty, tax, Obamacare, ACA, PPACA, NFIB v. Sebelius, direct tax, indirect tax

JEL Classification: K10, K19, K34