The Horseless Carriage of Constitutional Interpretation: Corpus Linguistics and the Meaning of "Direct Taxes" in Hylton v. United States.

AuthorBush, John K.

The great object of the Constitution was, to give Congress a power to lay taxes, adequate to the exigencies of government; but they were to observe ... the rule of apportionment, according to the census, when they laid any direct tax.

Hylton v. United States, 3 U.S. (3 Dall.) 171, 173 (1796) (opinion of Chase, J.)


"What would the Founders do?" (1) That is a worthwhile question for corpus linguistics to ask as its methodology matures and foundational corpora like the Corpus of Founding-Era American English come into being. What sources would they consult? What did they read? Answering those questions will make corpus linguistics a more valuable tool to answer the foundational question in constitutional interpretation: what did We the People agree to in 1788? (2)

We consider those questions in the context of "direct taxes"--a hotly debated topic throughout our nation's history. (3) The Constitution gives Congress a broad power to tax, but it places important limitations on that power, including that direct taxation may occur only if the tax is apportioned among the states. (4) A direct tax is constitutionally apportioned when the amount of the tax paid from each state is equal to its share of the nation's total population. (5)

The subject of direct taxation first came up in federal court after Congress imposed a tax on carriage ownership in 1794. (6) A century later, Congress enacted an income tax. (7) And today, as the conception of the proper role of government expands yet further, prominent politicians have begun to advocate for a tax on wealth. (8) Each of those novel federal taxes has faced the same constitutional challenge: an argument that each is a "direct tax" and therefore are unconstitutional unless they are apportioned according to the so-called "Direct Tax Clause" of Article I. (9) Yet despite the apportionment requirement's importance, it has remained accepted wisdom at the Supreme Court that "[e]ven when the Direct Tax Clause was written it was unclear what else, other than a capitation (also known as a 'head tax' or a 'poll tax'), might be a direct tax." (10)

Corpus linguistics offers a way to test the Court's claim that those who wrote and ratified the Direct Tax Clause enacted constitutional text that they did not themselves understand. "[C]orpus linguistics is the study of language function and use by means of an electronic collection of naturally occurring language called a corpus." (11) By examining hundreds of uses of a phrase in its natural context, researchers can better identify the "relevant senses or meanings of the words and phrases that appear in the constitutional text." (12) This Article applies the technique to the phrase "direct tax" in the Direct Tax Clause, which reads, "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." (13) Defining that clause is vitally important because of the "practical impossibility in modern times of apportioning just about any plausible tax." (14)

Our analysis sought to answer three questions. Did "direct tax" have an established meaning at the Constitution's ratification? If so, what was that meaning? And finally, what role should corpus linguistics play in assessing questions of original public meaning like the first two? To the first question, the corpus offered a resounding yes. Our answers to the second and third questions, however, offer support for Lawrence Solum's view that, while corpus analysis can be a useful tool for constitutional interpretation, it alone is not always enough to determine a constitutional text's meaning. (15)

Part I of this Article describes the clause's origins and the modern debate among scholars over the meaning of "direct tax." Part II.A briefly explains corpus linguistics and the corpus we used. Part II.B presents our findings. Then Part II.C analyzes them. Part IV discusses our findings' implications for Hylton v. United States, (16) the Supreme Court's first foray into interpreting the Direct Tax Clause and a case that provides clues as to what the Framers would advise that we should do with respect to the use of corpus linguistics. Finally, Part IV offers our brief thoughts on avenues for future analysis of the Direct Tax Clause.

  1. The Uncertain Academic Debate

    1. The Introduction of the Phrase Direct Tax into the Constitution

      Three clauses in Article I of the Constitution shape the national government's taxing power. First, in describing the composition of the House of Representatives, Section Two says that "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers...." (17) Second, Section Eight provides: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States." (18) And third, Section Nine limits the taxing power by dictating that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." (19) So how did the national government's taxing power take shape?

      Under the Articles of Confederation, the federal government had no taxing authority. (20) Instead, it had to ask the states for funds in proportion to the value of the states' respective lands. (21) If the states chose not to comply, they faced no repercussions, so the states' compliance rate was a paltry 37%. (22) That left the federal government impotent if it had to face war, rebellion, or any other national crisis. (23) So when the delegates to the Constitutional Convention arrived in Philadelphia, taxation was near the top of the agenda. (24)

      At the convention, (25) after much debate over the proper principle by which to allocate representation in the lower house, Gouverneur Morris moved to introduce into the Constitution a requirement that "taxation shall be in proportion to Representation." (26) In response to objections, including George Mason's fear that it might "drive the Legislature to the plan of Requisitions," (27) Morris then introduced the critical distinction between direct and indirect taxes. He proposed to address the objections "by restraining the rule to direct taxation" so that "[w]ith regard to indirect taxes on exports & imports & on consumption, the rule would be inapplicable." (28) So limiting the rule would not introduce inequality between the states, he thought, because "[notwithstanding what had been said to the contrary he was persuaded that the imports & consumption were pretty nearly equal throughout the Union." (29) James Wilson, a future member of the Hylton Court, "approved the principle, but could not see how it could be carried into execution; unless restrained to direct taxation." (30)

      Later, the Convention added a specific "clause requiring capitation taxes to be apportioned according to the census." (31) Then, when the final draft of the Constitution emerged from the Committee on Style and Arrangement, the capitation and direct-tax provisions merged into the current language requiring apportionment of a "Capitation, or other direct, Tax." (32)

      Before that final version, however, one other brief mention of direct taxes was made. On August 20, late in the convention but before the draft went to the Committee on Style and Arrangement, Rufus King "asked what was the precise meaning of direct taxation? No one answd[sic]." (33)

    2. Academic Disagreement

      Over the years, many academics have drawn from that page in Madison's notes the conclusion that the term "direct tax" was simply devoid of meaning when the Framers placed it in the Constitution. (34) Others have concluded that the Framers must have had a reason for differentiating between direct and indirect taxes, and they have offered interpretations of their own. (35) Taken together, those theories offer a spectrum of possible meanings for the phrase ranging from nugatory to expansive. We briefly survey those views, starting from disregarding the clause altogether and moving to the most expansive reading. Our survey is not comprehensive, but it offers a sense of the possible meanings "direct tax" could carry.

      Professor Bruce Ackerman contends that we should simply ignore the requirement that Congress apportion all direct taxes. (36) He believes that because Gouverneur Morris introduced the requirement that Congress apportion direct taxes as part of a deal with the slave states, we should disregard it in light of the repudiation of slavery in the Reconstruction Amendments. (37) Perhaps, he says, "some future court might find itself obliged by the express language of the Constitution to strike down a classic 'Capitation Tax.'" (38) Beyond that narrow example, though, Professor Ackerman would have the courts refuse to classify any other tax as a direct tax. (39)

      Next comes what we will call the pragmatic approach. Dawn Johnsen and Walter Dellinger break with Professor Ackerman and argue instead for this approach because they "must assume that the Framers included the phrase 'or other direct' following 'capitation' for a reason," and "constitutional text may not be ignored simply because it was the product of compromise rather than thoughtful policy--even compromise inextricably infected by the evils of slavery." (40) Under their reading, only capitations, slave taxes, and taxes on real property are direct taxes. (41) They take those limits from their reading of the Justices' opinions in Hylton v. United States. (42) On top of that "categorical" meaning, they add a "functional" rule: only a tax that can be apportioned sensibly, with "just and equitable" results, can be a direct tax. (43) The functional rule admits of some circularity--a tax can only be direct if it can be apportioned, and...

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