Direct tax was the biggest issue of the Ratification debates, but probalby avoidable.

Bob Sheridan bobsheridan at earthlink.net
Wed Jan 11 08:26:06 PST 2006 


Calvin Johnson wrote:

"... I know the history, I just do not know which way to look at it."

***

If this isn't the best statement of the Originalist problem then I don't 
know what is.

rs
sfls

>      The Federal power to lay direct (meaning internal or dry land 
> taxes, nontariffs) was the single biggest controversy of the 
> Ratification debates.  The Antifederalists proposed amendments denying 
> Congress the power over direct taxes and won in a majority of the 
> states.  James Monroe said that we could make this Consittuion safe by 
> one amendment: taking the power over direct tax away from the Fedreal 
> Government.  George Washington wrote to Jefferson in March 1788 saying 
> that he had no objection to any of the Anti-Fedrealist amendmetns, 
> except as to the one constraining direct taxes, which he took to be 
> the most important to the oppostion.  Virginia Federalists let all the 
> AntiFederalist amendments go forward, but they challenged the 
> recommendation for restaints on direct tax, but lost on their challenge.
>     The Federalists in the debate kept minimizing the need for direct 
> tax:  only in war would it be needed probably.  But Hamilton wants 
> it:  the Federal govenrment will have 80% of the responsibilities and 
> should not be constrained to 5% of the revenue.   If Hamilton had not 
> assumed the state taxes, once he became Secretary of the Treasury, 
> then the 5% impost would have covered the desperate need that 
> motivated the Constituion: to pay off the debts of the Revolutionary 
> War.    The impetus for the Constitution was Nwe Yorks veto of the 
> 1783 proposal for a 5% tariff, so the immediate focus was definitely 
> on tarriffs alone.  Tarriffs were the only clear non direct tax in the 
> terminology of the time.  Excises are sometimes called direct taxes 
> and sometimes not. 
>          Where does that leave us?   Depends upon how you think about 
> it.  Direct taxes were either a moot issue, not really all that much 
> importance to the South even though slaves had to be included in it, 
> or the core of the Constituion, including the North-South deal.  I 
> know the history, I just do not know which way to look at it.
>
> ------------------------------------------------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
> *Sent:* Wed 1/11/2006 6:55 AM
> *To:* conlawprof at lists.ucla.edu
> *Subject:* Fwd: Re: Three-Fifths of a Question
>
>
> >Date: Wed, 11 Jan 2006 07:52:34 -0500
> >To: Paul Finkelman <paul-finkelman at utulsa.edu>
> >From: Earl Maltz <emaltz at camden.rutgers.edu>
> >Subject: Re: Three-Fifths of a Question
> >
> >My recollection is that he does not offer a detailed analysis of the
> >issue, but simply gives his impression.
> >
> >At 09:51 PM 1/10/2006 -0600, you wrote:
> >>what is the evidence McDonald offers for the idea that the framers
> >>expected direct taxes (head taxes) from the federal government?  Or that
> >>S.C. was not ready to have full taxation because SC wanted full 
> representation.
> >>
> >>Earl Maltz wrote:
> >>
> >>>I would only note that some scholars, such as Forrest McDonald, have a
> >>>different view.
> >>>
> >>>At 03:33 PM 1/10/2006 -0600, Paul Finkelman wrote:
> >>>
> >>>>No one at the convention imagined there would ever be direct taxes; as
> >>>>I point out in the first chapter of Slavery and the Founders, the
> >>>>decision counting slaves for  3/5ths for representation was made 
> by the
> >>>>convention well before the taxation issue came up; they were tied
> >>>>together later on.  South Carolina delegates argued for full
> >>>>representation for slaves and full taxation, becuase they understood
> >>>>that it was unlikely that there would be direction taxation.  As
> >>>>Gouverneur Morris noted,
> >>>>
> >>>>it was "idle to suppose that the General Government can stretch its
> >>>>hand directly into the pockets of the people scattered over so vast a
> >>>>Country."  Thus the South would get extra representation in Congress
> >>>>for its slaves and have to pay nothing in return.  Because of this,
> >>>>Morris declared he "would sooner submit himself to a tax for 
> paying for
> >>>>all the Negroes in the United States than saddle posterity with such a
> >>>>Constitution."
> >>>>
> >>>>
> >>>>
> >>>>>
> >>>>>
> >>>>>-----Original Message-----
> >>>>>From:
> >>>>><mailto:conlawprof-bounces at lists.ucla.edu>conlawprof-bounces at lists.ucla
> >>>>>.ed u [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> >>>>><mailto:DavidEBernstein at aol.com>DavidEBernstein at aol.com
> >>>>>Sent: Tuesday, January 10, 2006 1:02 PM
> >>>>>To: <mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu
> >>>>>Subject: Three-Fifths of a Question
> >>>>>
> >>>>>
> >>>>>
> >>>>>Why were the southern states so eager to have slaves counted for
> >>>>>population purposes?  Obviously, they wanted more representation in
> >>>>>the House and electoral college, but the Constitution also provided
> >>>>>that "direct Taxes shall be apportioned" among the several States by
> >>>>>population.  Why weren't the southern delegates concerned that their
> >>>>>states would get socked with disproportionate taxation? Did they
> >>>>>expect limited direct taxes? Or is this a case where the interests of
> >>>>>the political class (more political power) diverged from the public's
> >>>>>interest (less taxes)?
> >>>>>
> >>>>>
> >>>>>
> >>>>>David E. Bernstein
> >>>>>Visiting Professor
> >>>>>University of Michigan School of Law
> >>>>>Professor
> >>>>>George Mason University School of Law
> >>>>><http://mason.gmu.edu/~dbernste 
> <http://mason.gmu.edu/%7Edbernste>>http://mason.gmu.edu/~dbernste 
> <http://mason.gmu.edu/%7Edbernste>
> >>>>>
> >>>>>
> >>>>>
> >>>>>
> >>>>>_______________________________________________
> >>>>>To post, send message to
> >>>>><mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu
> >>>>>To subscribe, unsubscribe, change options, or get password, see
> >>>>><http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >>>>>
> >>>>>
> >>>>>Please note that messages sent to this large list cannot be viewed as
> >>>>>private.  Anyone can subscribe to the list and read messages that are
> >>>>>posted; people can read the Web archives; and list members can
> >>>>>(rightly or wrongly) forward the messages to others.
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>--
> >>>>Paul Finkelman
> >>>>Chapman Distinguished Professor of Law
> >>>>University of Tulsa College of Law
> >>>>3120 East 4th Place
> >>>>Tulsa, OK  74105
> >>>>
> >>>>918-631-3706 (voice)
> >>>>918-631-2194 (fax)
> >>>>
> >>>><mailto:Paul-Finkelman at utulsa.edu>Paul-Finkelman at utulsa.edu
> >>>>
> >>>>_______________________________________________
> >>>>To post, send message to Conlawprof at lists.ucla.edu
> >>>>To subscribe, unsubscribe, change options, or get password, see
> >>>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >>>>
> >>>>Please note that messages sent to this large list cannot be viewed as
> >>>>private.  Anyone can subscribe to the list and read messages that are
> >>>>posted; people can read the Web archives; and list members can 
> (rightly
> >>>>or wrongly) forward the messages to others.
> >>
> >>
> >>--
> >>Paul Finkelman
> >>Chapman Distinguished Professor of Law
> >>University of Tulsa College of Law
> >>3120 East 4th Place
> >>Tulsa, OK  74105
> >>
> >>918-631-3706 (voice)
> >>918-631-2194 (fax)
> >>
> >>Paul-Finkelman at utulsa.edu
>
> _______________________________________________
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>------------------------------------------------------------------------
>
>_______________________________________________
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