Okay, I’ll bite. The overuse of capital letters in Nicholas Moutinho’s Wespeak (“Obama supporters: have you read the Constitution?” Nov. 14, 2008, Volume CXLIV, Number 20) made me suspect momentarily that the author is not entirely serious. However, he seems sincere, and his arguments have been made by many and are worth rebutting. Moutinho’s overreliance on the literal language of the Constitution is historically untenable, and his bald assertion that “half (an estimate) of what the federal government does now is unconstitutional, and the means by which it gets the majority of its funding is also unconstitutional” is absurd.
Moutinho’s argument ignores the massive changes in the American political environment, from the rise of capitalism to civil rights, which have taken place since the Constitution was first enacted 219 years ago. Interpretations of the Constitution have always been dependent on the political atmosphere of the time. In Plessy v. Ferguson, for instance, the Supreme Court declared that “separate but equal” segregated facilities were constitutional; in Brown vs. Board of Education, the Court decided that they were unconstitutional. The reversal was not based on any change in the text of the relevant parts of the Constitution, but rather on the increasingly widespread perception that segregated facilities were inherently unequal. De jure segregation went from constitutional to unconstitutional because of a change in ideas, not a change in the Constitution itself.
It should not be necessary, therefore, to engage Moutinho’s argument that the income tax is unconstitutional. Whether or not it accords with the literal meaning of Article I, Section 9 of the Constitution is largely irrelevant, since the political meaning of the clause has changed since it was written, and the Supreme Court has repeatedly held that the income tax accords with today’s interpretation of constitutionality. However, I will attempt to rebut Moutinho on this point, since here too he is misinformed about the history of the Constitution.
Article I indeed stipulates that “direct taxes” (basically, taxes on property, as distinct from indirect taxes, such as an excise tax, which taxes transfers of property) must be apportioned among the states. It is in no way obvious from the Constitution itself that an income tax should be considered direct rather than indirect, but the 1895 Supreme Court decision in Pollock v. Farmer’s Loan and Trust Co. held that a federal tax on income derived from property was a direct tax and therefore had to be apportioned. This was widely regarded as making a federal income tax impossible; in response, the states ratified the Sixteenth Amendment, which directly nullifies the Pollock decision, declaring “the Congress shall have power to lay and collect taxes on incomes… without apportionment among the several States, and without regard to any census or enumeration.” The criterion of equal apportionment clearly no longer applies to the federal income tax, if it ever did.
There is no coherent way to argue that the income tax is unconstitutional because it is direct and unapportioned. Apparently Moutinho believes that Article 1, Section 9 somehow supersedes the Sixteenth Amendment, which is, of course, not how the Constitution works. At any rate, he seems to be opposed to any taxation at all, constitutional or otherwise: “What gives the government the right to take wealth from somebody and give it to somebody else?” he asks. Moutinho, avid reader of the Constitution that he is, ought to know this one: it is, of course, Article I, Section 8 of the Constitution, which gives Congress the power to tax in order to “promote the common Defense and general Welfare.”
As a living, breathing socialist, I actually have to agree with Moutinho that our government has done a terrible job of fulfilling that “general welfare” criterion. He is right to argue that the U.S.’s exorbitant military spending represents nothing more than imperialism, and that the government is perpetrating an enormous transfer of wealth from the masses to the rich. However, I don’t see how abolishing the government is the answer. “The government isn’t all-knowing, and can’t possibly account for the widely-sweeping consequences of its actions,” Moutinho insists, but this would be a better description of unregulated free markets than a government of elected representatives. How can we possibly deal with the problems our society faces, from global warming to massive economic inequality, without a state strong enough to advance public interests over private ones—or an income tax to fund it?
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