Gotta have a theory

[Volokh, Eugene]

        Hmm.  Doubtless this is just a short summary of the historical
evidence, but on its surface it seems to me a bit troublesome, because it
describes the Framers' intent -- actually, what sounds more like the
Framers' general desires -- at such a high level of generality.

        "The Founders' intent was to reach wealth, not exempt it" -- but was
it really just to reach wealth, or to reach wealth (as obviously any tax
will do) through particular means, with some constraints that might
sometimes frustrate the desire to reach wealth?  Surely it would have to be
the latter, since the means they chose was a *constraint* on federal power;
after all, they could have just given the federal government the power to
tax with no restrictions at all, but they didn't do that.  So I wonder
whether the statement that "The Founders' intent was to reach wealth, not
exempt it" is that helpful.

        Likewise as to the 13th, 14th, and 15th Amendments.  Without doubt
they were intended to lift up the downtrodden -- but by a particular set of
means.  The Framers didn't just talk about "the privileges or immunities of
the downtrodden [or of freed blacks or what have you]" or "equal protection
of the downtrodden" or "life, liberty, or property of the downtrodden"; nor
did they say that "The right of black citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude" -- at least the
15th Am in its wording is quite clearly colorblind.

        So the question, even for someone who focuses on original intent and
not original meaning, is what the drafters of the relevant provisions
intended *those* provisions (often quite technical provisions) to mean, and
not just what they broadly wanted government or the legal system at large to
look like.  I'm not sure that Prof. Johnson and I disagree on this, but it
just seems that the examples below might be at a bit too high a level of
abstraction.

Calvin Johnson writes:

> -----Original Message-----
> From: calvin johnson [SMTP:chjohnson at MAIL.LAW.UTEXAS.EDU]
> Sent: Tuesday, August 15, 2000 8:08 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Gotta have a theory
>
> >Eugene writes;
> >>>>>
> >
> >        A fascinating debate, but I wonder whether it might be helpful to
> provide some concrete examples that can help frame the discussion.
> Exactly
> in what contexts would the different theories reach different results?
> >
> ><<<<
>         One of my favorite bad apple examples of "reader infusion" is
> Pollock v. Farmers Trust (1895) which held that the income tax was a
> direct
> tax, which had to be apportioned among the states by population, but could
> not possibly be.  Pollock overruled the wonderful Hylton v. United States
> 1796 in which the Founders (Wilson, Patterson, Iradell, with Ellsworth
> just
> joining)  held that no hobble was intended by the apportionment
> requirement,
> so that the only direct tax was one in which apportionment by population
> was
> reasonable.  Pollock  also over ruled three prior cases that held that the
> income tax was not subject to  apportionment.
>         Pollock has lots of language in it that the function of
> apportionment among the states by  population was to prevent accumulated
> wealth from being swamped by mere force of numbers.  That may reflect
> Fuller
> Court values, but it is not the Founder's intent.  The Founders' intent
> was
> to reach wealth, not exempt it.  The Founders' believed in wealth tax.
> Madison, responding to Hamilton's inquiry, had advised him to go for a
> federal land tax "beofre the states occupy the area."  Population was used
> in the formula solely as a proxy for wealth.  The prior formula for
> requisitions, based on real estate appraisals within the states, had
> proven
> impossible to administer without manipulation.  Pollock reading the text
> turns the purpose upside down.
>         Part of the problem is that Madison had told Virginia ratification
> that apportionment was written to prevent the North from taxing salvery to
> manumission.  That is shere nonsense.  Apporitonment of tax by population
> counting slaves at three fifths was a benefit given to the North (not to
> the
> South) to induce the North to go along with including slaves in the House
> of
> Representatives count.  The intent was to increase taxes on slaves, not
> save
> them.  Madison was a brief writer.
>
>         I suspect that the 13th, 14th and 15th Amendments shoudl be
> understood as intended to lift up the down trodden, not to put a lid on
> them
> (at least until they become undowntrodden or at become a majority).   The
> intent is getting inverted to hold down the intended  beneficiary.  This
> is
> not argument about good or bad but rather just one of inversion of the
> historical intent.
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