Friday, October 20, 2017

The Double-Taxation Bogeyman Rides Again

by Neil H. Buchanan

The sales job for the White House's non-plan to change the tax system is not going well, by all accounts.  As usual, Donald Trump's lack of focus has distracted everyone, as he flits from one personal feud to another and circles back around to his obsessions with destroying the health care system and building his expensive and pointless wall.

Even so, I stand by my prediction that at some point Trump and the Republicans will pass something that -- no matter how limited or small it is -- they will call "sweeping tax reform," and the supposedly hostile press will play along.

After all, this is a group of people who held a Rose Garden celebration merely because they managed to pass a (terrible) health care bill through one house of Congress.  Imagine their victory lap even if they have done nothing more than, say, change the exclusions for the Alternative Minimum Tax or the depreciation rules for capital investment?  Imagine the lies that their in-house economists will tell of how this new bill will trickle down to the paychecks of "the forgotten people."

Although I am predicting that the talk of a big rewrite of the tax code will end in failure, it is nonetheless interesting and important to keep track of what is happening while the farce plays out.

There is one misdirection play in particular that might actually be used by both Republicans and Democrats for different purposes.  In separate areas of the tax debate, both sides might claim that they are right because it is ever so important to avoid "double taxation."  They will both be wrong.

I hasten to add that this is not one of those columns where the writer piously claims that "both sides do it" and pretends to be above it all by blaming Republicans and Democrats alike for our political dysfunction.  Anyone who has not noticed that it is the Republicans who have gone off the deep end is either naive, stupid, or evil.

Instead, I am talking about double taxation here because it can be wrongly invoked when discussing at least two issues that are currently up for debate.  That those two opportunities for sophistry happen to be split between the two parties, rather than the usual case where Republicans lie and Democrats ask them to be reasonable, is pure happenstance.

The two policy proposals that will provide the best opportunities to scream about double-taxation are the Republicans' desires to eliminate the state-and-local tax deduction and to repeal the estate tax.

Before getting to those proposals, however, we have to ask what double taxation is (or what people think it is).  A tax "base" is, to put it in nontechnical terms, the thing that is taxed.  Sales taxes are taxes on retail sales.  Property taxes are taxes on real property.  Income taxes are taxes on income.  Estate taxes are one type of tax on wealth.  And so on.

Double taxation occurs when the same base is taxed twice (or more).  That could happen if, for example, a person buys an item from a store and pays the sales tax and later receives a tax bill for an amount that was determined based on the price of the item that they bought in the store.  Same base -- sales -- two tax bills.  Double.

That sounds bad, but is it?  If you had a choice of living in two states, one of which taxed sales twice at 2 percent each time while the other taxed sales once at 10 percent, you might well choose to live under a double-taxation regime.  What matters to you is how much total tax you pay -- and, I should emphasize, what you get for the taxes you pay, in the form of roads, schools, fire protection, and so on -- not the form in which you have to pay them (the annoyance of writing a second check aside).

Is this a real-world story, or merely an academic concern?  In fact, international tax treaties are to a large extent designed to prevent two countries from taxing the same base twice.  If I earn money in Austria by working as a guest professor, I pay the higher of the tax rates in the U.S. and Austria, but I do not pay the sum of those taxes.

So far, so good -- except that even that example is not really about double-taxation.  If, for some reason, the U.S. and Austria both had a 25 percent tax rate on lecturer's salaries when the money is earned by their citizens at home but a 10 percent rate when their nationals earn the money abroad, even a double-tax system would still only add up to 20 percent.

In short, the real issue is not double-taxation at all.  Coming at it from another angle, consider the state of Maryland, which has designed its state income tax as a two-part system.  (I will use rounded numbers here for simplicity.)  The state levies a tax of 5 percent on residents' incomes, and then each resident's county levies another income tax, usually 3 percent.

Double taxation?  Sure, but so what?  The state could just as easily impose an 8 percent state income tax (in reality, the state collects both taxes anyway) and then "share" three-eighths of that revenue with the counties, distributed on the basis of total county incomes.  That would be single taxation.  Do you feel better now?

And here is where the Democrats come in.  One of the Trump proto-proposals is to eliminate the federal deduction for state and local taxes.  As has now been widely discussed, that proposal would harm high-tax states, most of which (like Maryland) are "blue."  Indeed, this is most likely the reason that Trump and the Republicans like the idea.

I have heard some opponents of this proposal say that the state-and-local deduction prevents double taxation.  A person never really has the income that the state collects in taxes, these people say, so it should not be part of the federal tax base, because we want to avoid double taxation.

Again, no one who understands taxes could honestly care about double taxation.  The base for both the Social Security and Medicare taxes is pretty much the same (earned income), which is a subset of all income, so the Social Security, Medicare, and federal income taxes amount to triple taxation, and if you include state income taxes, you have at least quadruple taxation.

Yet none of that means anything, because (like Maryland does with its state and county taxes), the U.S. tax system could be set up as a single tax -- collected by the feds or the states -- combining all of those taxes, and (with appropriate adjustments, credits, and so on) substantively it would be the same as our current system.

To be clear, I oppose repealing the state-and-local tax deduction, but not because doing so would amount to double taxation.  My objection is that the people who would be hit with that tax increase are not the people who should be paying more in taxes right now.

Upper middle-class professionals in, say, Winnetka (Illinois) are doing much better than middle-class people, but the vast majority of the income gains since the end of the Great Recession have gone to the infamous "1 percent" -- indeed, mostly to one percent of the 1 percent -- not to the better-than-average earners in blue states.

Moreover, taxes are only one side of the story.  The states that currently gain from the existence of the state-and-local tax deduction are, almost without exception, also the states that on net pay more to the federal government than they receive in federal benefits.  Mississippi is a net recipient of federal money.  California is a net payer.

So the reasons to oppose the Republicans on this issue have nothing to do with double taxation.  The simple fact is that Republicans are trying to use the tax system to punish the people who vote against them -- and to ramp up the irony that already exists by making their "get the government off my back" voters even bigger beneficiaries of federal largess.

The other area where cries of double-taxation always ring out is the estate tax.  There, however, we do not even see double taxation in a technical sense.  The current system does not tax the same base twice.  It taxes two different bases: income and estates.

Opponents of the estate tax claim that "the money in my estate has already been taxed," because they want to paint a picture of large estate holders having paid all of their taxes year after year and then prudently putting the money into their estates.  The reality is that, even for people who do not inherit the original estates that they later turn over to yet another generation of people who chose their parents wisely, almost all of the money in the estates that are big enough to tax (which currently means a minimum estate of $10.98 million) is in the form of investments that have never been taxed.

But again, no one should care about whether "this money has already been taxed."  We choose to tax different bases for different reasons, and the best reason to tax large estates is to put a (very small) speed bump in the path of the increasing concentration of wealth in the country.

It is also useful to remember that every dollar we collect from one tax is a dollar that we do not collect from a different tax, so the existence of an estate tax makes it unnecessary to increase income taxes or to eliminate spending that voters care about, such as disaster relief or health care subsidies.  (Again, we can see the Republicans' true agenda here.)

We could, if we wanted to do so, eliminate the estate tax and change the income tax so that it collects revenues on all untaxed gains upon a person's death.  That would, according to Treasury estimates a few years ago, actually collect more money from wealthy decedents than the estate tax does.  Somehow, I doubt that this is what Trump and the Republicans have in mind when they complain about double taxation and the estate tax.

The point is that double-taxation is a meaningless distraction.  We choose different tax bases for different reasons, and then we set rates against those bases in order to collect revenue (cognizant of behavioral incentives created by taxes).  Limiting ourselves to a system with no double-taxation (including the bogus version that Republicans say the estate tax represents) would be an elevation of form over substance.

The U.S. is, contrary to Trump and the Republicans' repeated claims, not "the highest taxed country on earth."  Far from it.  Combining all of the various taxes that are collected at all levels of government, the Tax Policy Center found: "In 2015, US taxes at all levels of government represented 26 percent of GDP," whereas the average for the richest countries in the world (OECD members) is 34 percent.

What ultimately matters to people is their standard of living, which is determined not just by their after-tax incomes (which, in turn, is only partly determined by their aggregated tax rates) but also by the benefits that they receive from living where they live.  And the countries that have the highest net tax rates also happen to have the highest standards of living (and the least inequality).  My gosh, it's almost as if we get what we pay for.


Shag from Brookline said...

Regarding the Trump tax "plan" proposal to eliminate the Estate Tax, I am not aware of mention of tax basis of recipients for assets received from an estate. Would the decedent's tax basis pass to the recipient or would there be a date of death FMV [step up/step down] basis to the recipient?

Here's a bumper sticker suggestion: "NO DOUBLE TAXATION BY MISREPRESENTATION!"

Joe said...

Now in time for Halloween.

John Barron said...

At essence, tax planning is all about deferring income recognition and/or changing its character.

As currently configured, the estate tax benefits the comfortably wealthy. To keep the math simple, say that you own rental real estate worth $5M which has been depreciated to zero (original cost of the land is de minimis). When you die, you give it to your son; your estate pays zero tax. But your son gets a step-up in basis, and can re-depreciate it all over again.

And here is the beauty of the deal. Not only does he get the undeserved tax break, but he can take the cash by walking down to his friendly banker and borrowing it. The rents pay the interest on the note, and he never has to sell the property. He can hold it for another thirty years, and pass it on to his own kids. Lather. Rinse. Repeat.

Lowering the corporate tax and abolishing the estate tax only exascerbates this problem. Let's say that the Kochs are successful in pushing their scheme through. While the rest of us working stiffs have to pay 35%, those who can keep their earnings in corporate solution will happily pay 20%. And if they need money to live on, all they have to do is borrow it, using their stock as collateral. And when the estate tax goes away, that deferral will become permanent!

Depending on how they treat the carryover basis problem, this might actually hurt the merely wealthy on its way to benefiting the obscenely wealthy. Hard to justify the step-up where there is no income recognition event.

Cheaper to buy politicians than work for a living.

Shag from Brookline said...


"Cheaper to buy politicians than work for a living."

may oblige the faithful obscenely wealthy to follow through with annual political tithing to the political accommodators to preserve the benefits.

While there are questions of "undeserved tax break[s]," there may be no simple solution to the point John raises with the current estate tax benefits of "step up" basis for the comfortably wealthy and as well for the obscenely wealthy. I recall the subject of recognition of gain upon death regarding appreciated estate assets being seriously discussed in the 1980s or 1990s, with my Senator Ted Kennedy behind the drive. There were so many complications that were raised that it was finally dropped. I don't think that avenue is open with the Trump tax "plan."

The problem with the current political dysfunction is that there will be no honest debate on tax reform with the Trump tax "plan" that I think is being pushed to accomplish political tithing that together with Citizens United would demonstrate that money talks uber allies.

John, are we on common ground on this?

Shag from Brookline said...

Since there are no significant details to the Trump tax "plan," does its framework address the Gift Tax provisions? I was reminded by a report today that Trump finally sent out a $25,000 check as a gift to the father of a deceased military member. That should call for the filing of a gift tax return, unless a clever C.P.A. might structure it as some form of income tax deduction. (I'm not suggesting that this would trigger a gift tax, especially keeping in mind reports on Trump's not following through on gifts promised.)

CJColucci said...

What would happen if we eliminated the estate tax and simply taxed those who inherited wealth, at ordinary income rates, using as a basis the amount they paid for the inheritance, i.e., zero?

Shag from Brookline said...

CJ's suggestion might lead to significantly decreasing the national debt, at least over the next generation. Perhaps there might be progressive rates for inherited wealth, with a base exempted amount. It might lead to more lifetime giving, charitable and otherwise. But this would impact the obscenely wealthy's anticipated political tithing from their anticipated tax benefits from the Trump tax "plan."

John Barron said...

Shag: "John, are we on common ground on this?"

You'd be surprised how much there is. My originalism allows for SSM, abortion, universal HC (we signed a treaty!), and progressive taxation (go all the way back to Plutarch for this one!). I amassed all the ammo you deride to debate the FedSoc types, and have been known to give Randy Barnett hemorrhoids. :)

I'm not a big NRA type; having evaded the draft, I've never discharged a firearm in my life. But COTUS locuta est, causa finita est. While I worry about those who have more ordnance in their houses than books, I am forced to concede that having a right means being able to do what I might regard as imprudent.

FWIW, I spent half an hour on the horn haranguing my Senator (via his flacks) regarding the budget he voted for. As I asked Ben Sasse, "when a Koch brother ejaculates into your mouth, do you spit or swallow?"

John Barron said...

Shag: "That should call for the filing of a gift tax return"

No tax due, provided that it was a joint gift from him and Melania. $14K/person.

Shag from Brookline said...

John, I did state that I didn't think a gift tax would result. Perhaps I should have been more specific and referenced the extent of lifetime gifts permitted or the annual exclusion. I was focusing on the need for filing a gift tax return. As you note, Trump's spouse could join info a second annual gift exclusion. Might we dub that a Megalomelania joint gift tax return?

Does your originalism extend to Brown v. Bd. of Educ. (1954)?

Shag from Brookline said...

John, I don't know if many originalists monitor this Blog but some originalists may look upon you as an anti-originalist regarding some of the positions you have espoused in your 6:47 PM comment. Regarding your effect on Randy Barnett, I did meet him at a major seminar on originalism around the turn of the century and I put him in the "Rhoidless" category.

John Barron said...

Shag: "some originalists may look upon you as an anti-originalist"

And I debate them often enough. This is an excerpt from an exchange with an LC prof:

Though it has pained Randy Barnett to hear it, the Framers’ Constitution is progressive-friendly. Take SSM: The right to contract is an essential corollary of the right to own property, as you must be able to acquire and dispose of it to actually own it. In a secular society, marriage is a mere contract, with default terms drafted by the State. Rights are retained by the individual unless ceded to the State; all that a State can do is abridge rights and then, only in accordance with the authority granted to it. As the right to marry is fundamental, Loving v. Virginia, 388 U.S. 1 (1967), the State has to show a compelling interest in preventing two persons from entering into that marriage contract. As the State cannot show that it is in any way harmed when Fred and Ted decide to wed, it has no colorable authority to prevent them from doing so. This must be so as long as ours is a constitutional Republic with limited government powers. Under the LC, YMMV.

Then, consider the right to an abortion. As the 5/14Am only protects the rights of “persons,” and a fetus was not a person in 1791 or 1868, the State has no colorable authority to protect the fetus’s putative right to life. lf you get your way, the RATS Wing of the Court can simply declare that a fetus is now a “person,” thereby overturning Roe. Of course, FedSoc types hate that. Law should not be “whatever a judge thinks it is on Wednesday,” and rights are too precious to be subject to a continual plebiscite. Under the LC, YMMV.

Most of my material has been recycled, and some of it has been used before originalist judges.

Of course, I'm joking about Randy. But if you apply his thesis consistently, it mucks up his vision of extreme libertarianism.

Unlike Randy, I don't have to keep patrons happy. COTUS yields what it does, and the process matters more than the outcome.

John Barron said...

Shag: "Does your originalism extend to Brown v. Bd. of Educ. (1954)?"

Plessy was an epic fail of Living Constitutionalism. The elder Harlan had the better of the argument, but the majority decided that the only rights Negroes had were the rights that wouldn't get the Justices lynched. The only material variable between Plessy and Brown was the passage of time; the notion that rights can expand or contract over time is anathema to the originalist.

Still, to be fair, I'm not entirely certain that a Court of originalist judges wouldn't have been equally timorous.

I'm sure you recall the Speluncean Explorers; while I am inclined to agree with Dworkin that there is 'One Right Answer' (if I were only clever enough to see it), originalism produces fewer "WTF moments" than the alternatives. I gave up the LC in response to the Anastasoff case; if law is "X" on Tuesday and "not X" on Thursday, it is not law.

Take Bowers v. Hardwick. The originalist position is that you have a right to do just about anything you want to do in the privacy of your bedroom, and the State has to show that it has a valid reason to infringe upon that right (Randy Barnett's "Presumption of Liberty"). Under the LC, that right can be here today, gone tomorrow.

To me, the coup de grace is that, under the LC, judges have almost unlimited authority over us, and the only remedy for the justly aggrieved is to kill the judge's family. To even state the case is to refute it, but I can quote Thomas Jefferson if you like. :)

Shag from Brookline said...

John, you seem to be able, in your own mind, to determine originalist Justices on the Court prior to the originalism movement that began in the 1970s, suggesting it is in the eye of the beholder who is beholden to some form originalism. Your answer on Brown is equivocal, perhaps because of your commitment to R. Berger disclosed in earlier comments.

I just finished reading Cass Sunstein's draft article "Originalism" that runs 29 pages. The abstract and a link is available at the Legal Theory Blog with Larry Solum's enthusiastic editorial approval, although Sunstein in not an originalist. Sun stein raises questions, doubts.

But back you, John, I'm leaning to describing you as a "7/11 Originalist."

Your penultimate paragraph at 10:41 AM ignores the reality that originalism continues to evolve - and backtrack. And the first sentence of your paragraph that follows sounds like Trump's campaign comment on perhaps his 2nd A people addressing problems if Hillery were elected.

I'm awaiting critiques (not from you, john) on Sunstein's article, perhaps with posts by Mike and Eric at this Blog.

Joe said...

Shag continues to debate with Donald Trump, who has the best words.

Shag is into originalism much more than I (not as a believer as much as someone who reads about it a lot). The back and forth over originalism to me is akin to not that interesting intra-sectarian debates involving a faith that is misguided in the first place but even if you believed it, the debaters are applying it in a confused way.

When I look up a recent reference (thanks for citing the guy you were talking about), found something written by David Strauss, who defends common law constitutionalism and both most practical and sensible approach.

I find so too -- basically think Breyer did a good job in his books in that respect without saying I agree with him on everything. After all, I do think there is a constitutional right to keep and bear arms, though that isn't really saying much. The devil in the detail there is how far to take it. See, e.g., a 1990s article by Sandy Levinson, which was one of my first Internet downloads.

This thread is about taxation, allegedly, but then I'm not really a money guy. The original post (OP) is sound though. For me, what matters it what is took out of my pocket and why. The fact this "double taxation" stuff is in promotion of cutting spending from useful public welfare projects is a key point.

John Barron said...

Shag: "John, you seem to be able, in your own mind, to determine originalist Justices on the Court prior to the originalism movement that began in the 1970s"

A judge can be an originalist on Tuesday, a Burkean on Wednesday, and full-blown LC on Thursday. You either adhere to the process, or you do not. Originalism was ubiquitous in Colonial days, with Marbury v. Madison betraying key elements.

Shag: "Larry Solum's enthusiastic editorial approval"

He's ecstatic that Sunstein is tackling the topic. That is not to say that the work is necessarily that good.

Shag: "I'm leaning to describing you as a "7/11 Originalist."

AWWWWWWWWWW! Widdle Baby Donald just found his rattle! That sort of presidential imbecility does not contribute to serious discussion.

Shag: "originalism continues to evolve"

It is being refined; honestly don't quite get why this bothers you. LC theory distills to "Godidit!" Having a Cass Sunstein, a Bruce Ledewitz, or a Michael Dorf kibbutz can only improve the product (Eric Segall seems too self-important to engage).

Shag: "sounds like Trump's campaign comment on perhaps his 2nd A people addressing problems"

See e.g., Paul Butler, By Any Means Necessary: Using Violence and Subversion to Change Unjust Law, 50 U.C.L.A. L. Rev. 721 (2003) (invoking international law principle of "just war" to justify targeted assassinations of American public officials, including judges). I might add that Prof. Butler is a regular MSNBC contributor.

Betraying a certain element of deism, Blackstone acknowledges it as jus cogens law, which no government may lawfully abridge:

This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other—It is binding over all the globe in all countries, and at all times; no human laws are of any validity, if contrary to this: and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

1 Blackstone, Commentaries at *41 (1765); see also, e.g., John Locke, Second Treatise of Government § 207 (right to use lethal force only accrues if and when all legal remedies have been foreclosed); Preamble, Universal Declaration of Human Rights, G. A. Res. 217A (III), U. N. Doc. A/810 (1948) (lethal force always justified where the rule of law fails); Butler, Any Means, supra.

This interpretation of our law also meets with a moral blessing. Pope John Paul II, who experienced Soviet tyranny at first hand, observed that any violent result of a struggle against an oppressive government is morally "attributable to the aggressor whose action brought it about." Pope John Paul II), Evangelium Vitae, Sec. 55, Encyclical Letter on the Value and Inviolability of Human Life, Mar. 25, 1995. Even Justice Scalia could not obtain absolution. :)

John Barron said...

Joe: "involving a faith that is misguided in the first place"

In what sense? About the only article of faith I would ascribe to is that of Lord Acton: "Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men." COTUS, seen through the lens of originalism, limits our rulers' ability to abuse their power.

Where in your world do you find limits on the abuse of power by public officials? This tax bill is a florid example of oligarchs bribing kleptocrats, thereby raping the public fisc. My COTUS has an array of remedies. Yours are?

Joe: "Shag continues to debate with Donald Trump, who has the best words."

... the "best words" being not mine, but those of luminaries like Aquinas, Blackstone, Cicero, and the Framers. Unfortunately, Shag has been channeling his "inner Donald" of late.

John Barron said...

Shag: "Sunstein raises questions, doubts."

To Sunstein, originalism is like a hooker on Dorchester Avenue:

"I am going to speaking a fair bit about impeachment, and I will be defending an originalist approach to the impeachment clause. As I understand it, and consistent with originalism as generally defended and practiced, that approach asks: What did the words “high crimes and misdemeanors” originally mean? And as I understand that question, the best answer (as a matter of history!) is relatively concrete ...

One way to put that answer is to insist that as a matter of history, the ratifiers emphatically did not understand “high crimes and misdemeanors” to be a reference to some abstract concept whose particular meaning would change over time. They understood it to include certain abuses of authority (such as abuse of the pardon power or invasions of liberty) and not to include certain bad actions (terribly mistaken judgments and poor administration). If there are gray areas, they are to be resolved with reference to a clear principle – and in terms of sheer numbers, the gray areas are dominated by those that are not gray at all.

They will pick her up on the streetcorner, have their way with her, and then, dump her off on the curb. This is what I call "Real-World Originalism," as practiced by the LC crowd. LC types are always originalists when it serves their purposes.

Seriously looking forward to the guys' takes.

Shag from Brookline said...

John attempts to frame the battle as between originalism vs. LC. But of course originalism is a big tent with many variations, including those originalists that go for the original public meaning by different means/methods. If originalism with its several varieties is on one side of the versus then the other side is non-originalism which may include LC. John from time pooh poohs certain of the New Originalism proponents; John pooh poohs the late Justice Scalia's originalism. It's no bother to me that originalism continues to evolve; it had to improve. But what's the score on SCOTUS or originalists? Is there a secret order of lower courts federal judges that identify as originalists?

John: "Originalism was ubiquitous in Colonial days, with Marbury v. Madison betraying key elements."

John, something happened after those Colonial days that brought about new rules not under the control of King George. The 1787 Constitution was in a sense unique, based upon special circumstances where the Articles of Confederacy had failed. The 1787 Constitution was not modeled after the old country's constitution. Sure, the Framers had some learning of older nations and built upon their failures. Acquittal, Blackstone, Cicero, Burke! They were not the Framers. The experience of the US was significantly different from the old country and other nations of Europe.

John can come up with the "best" quotes and still be out of context on the issues. Maybe John is the master of a particular version of originalism that he has yet to identity or maybe he's a "Jack" of all versions that conflict with each other. That's where the "7/11 originalist" came from as opposed to "cafeteria originalist." John seems active in intra-active disagreements with other originalists, even the late, sainted originalist of originalism, Justice Scalia. But like with feuding religious sects, outsiders challenging originalism's big tent will be attacked.

Where is this violence that John keeps harping on - here in America? The Framers, especially from the slave states, were concerned with violence, insurrections, from the slave population, providing Militia clauses in the Constitution, including with central government controls, to address such. Would John apply Butler's quotes and the views of Pope John Paul II in recognition of the rights of slaves as human beings back in 1787 to revolt, or would John take the originalist view that the 1787 Constitution did not authorize revolting against the central government/slave states, that it would be insurrection that the Constitution did specifically address.

John has disclosed several commonalities with Trump, including avoiding the draft, and knows nothing about guns (excuse me, arms), but talks of rights of revolution, as distractions. (While Trump had bone spurs, John had weak knees, probably from spending so much time looking under his bed for non-originalists.) One doesn't have to read between John's lines to realize he is a 2nd A absolutist that trumps the 1st A. It's all CJ Marshall's fault going back to 1803 that the Constitution surrendered originalism, taking about 200 years for originalism to resurface with a movement that now, after 40 years, has been refunded for John's principal to appoint more Grouches to the Court. That just might bring about that revolution that John seems to want.

John Barron said...

Shag: "John has disclosed several commonalities with Trump, including avoiding the draft, and knows nothing about guns (excuse me, arms), but talks of rights of revolution, as distractions. (While Trump had bone spurs, John had weak knees, probably from spending so much time looking under his bed for non-originalists.)"

To Shag, logic appears to be an undiscovered country. From our friends at the Internet Infidels:

"A second form of argumentum ad hominem is to try and persuade someone to accept a statement you make, by referring to that person's particular circumstances. For example:

"Therefore it is perfectly acceptable to kill animals for food. I hope you won't argue otherwise, given that you're quite happy to wear leather shoes."

This is known as circumstantial argumentum ad hominem. The fallacy can also be used as an excuse to reject a particular conclusion. For example:

"Of course you'd argue that positive discrimination is a bad thing. You're white."

This particular form of Argumentum ad Hominem, when you allege that someone is rationalizing a conclusion for selfish reasons, is also known as "poisoning the well."

Sad. Bigly.

Shag from Brookline said...

Oh yeah! Reducio ad absurdum, which translated from the Latin means you're "Rhoidless.

So the short history of originalism has been based on logic, not experience? Maybe because originalism lacks experience, relying on the guidance of "spirit" in the "Construction Zone."

I did note that Sunstein used the word "ecumenical" at least twice. But then, as you have previously noted, you do not have faith in anything.

Joe said...

So many words.

The dissent, though he did later become a Supreme Court justice, in Pierson v. Post might be of some interest. Pierson v. Post is apparently a favorite in law school.

"Writers on general law, who have favored us with their speculations on these points, differ on them all; but, great as is the diversity of sentiment among them, some conclusion must be adopted on the question immediately before us."

The answer? The Astros should win. Cheers.

Shag from Brookline said...


"To Sunstein, originalism is like a hooker on Dorchester Avenue:"

reminded me that I worked in a Ma & Pa grocery store on Dot Ave. a couple of blocks from St. Margaret's Parish back in 1945 when I was a sophomore at Boston English Hight School. Back then the only hookers I was aware of worked with rugs. But Dot Ave. is a long street. Maybe this comment has more to do with John's experience than his logic. (Back then St. Margaret's has the Latin Mass.)

Query: Is this the start of a dossier on me?

John Barron said...

Shag: "John can come up with the "best" quotes and still be out of context on the issues."

You made the claim; you back it up. Is it really too much to ask for me to insist that you start acting like a professional?

Shag: "Would John apply Butler's quotes and the views of Pope John Paul II in recognition of the rights of slaves as human beings back in 1787 to revolt"


The right to revolution against an oppressor is absolute; the right to use force against a tyrant has been recognized universally since the term was first applied to the thirty Spartan rulers of Athens. (Remember, Blackstone was the Corpus Juris of the common-law world.) The absolute right to assassinate a tyrant in defense of lives and liberties has been recognized by Anglo-American law since before Magna Carta, and in civilized societies for many centuries before that. Cicero asserted that it was “morally right to kill” tyrants, as they are “monsters … in human form [who] should be cut off from … the common body of humanity.” 3 Marcus Tullius Cicero, De Officiis, 299 (T. Page and W. Rouse, ed., W. Miller, trans., 1921) (44 B.C.E.). Greek states, observes Xenophon, would “bestow great honour on him who kills a tyrant.” Xenophon,Hiero, A Dialogue on Royalty, as reprinted in Xenophon’s Minor Works 55 (J.S. Watson, trans., 1898) (ca. 370 B.C.E.). Christian theologians since Augustine have consistently held that “what is done unjustly, is done unlawfully.” St. Augustine, De Civitate Dei, Book XIX, Ch. 21 (J. Healey trans. 1610) (ca. 415).

The paradigmatic definition of tyranny is given by John Locke:

AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. …

Where-ever law ends, tyranny begins, if the law be transgressed to another's harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another.
[2d Treatise, §§ 199, 202]

From there, John Adams declares: "open, avowed resistance by arms, against usurpation and lawless violence, is not rebellion by the law of God or the land." John Adams, Novanglis No. 5, as reprinted in, John Adams and Jonathan Sewall, Novanglus and Massachusettensis 45 (1819) (1774). Even if the Framers had intended to do as you suggest, the "law" would have been void ab initio.

The right to revolution was a foundational premise of our constitution and law. The entire purpose of Britain's "constitution" (and ultimately, ours) was to ensure that there are effective remedies for all injuries accruing from unlawful invasions of rights, so the people are never required to resort to rebellion in order to secure them. Thomas Jefferson, Notes on the State of Virginia 255 (1785) (Query 13). Thus, if a particular interpretation of law leaves the citizen bereft of all remedy for wrongful invasion of a vested legal right, thereby entitling him to throw off his government, Declaration of Independence ¶ 2 (U.S. 1776), it is presumptively wrong. Marbury v. Madison, 5 U.S. at 163. Moreover, as the source of the harm is public officials, acting outside of the scope of their lawful authority, violent revolution would not be an act of rebellion per se but rather, support and defense of “the Constitution and laws of the United States of America against all enemies, foreign and domestic.” 8 C.F.R. § 337.1.; N.H. Const. art. 10 (1794).

You owned slaves at your own peril.

John Barron said...

Shag: "It's all CJ Marshall's fault going back to 1803 that the Constitution surrendered originalism, taking about 200 years for originalism to resurface with a movement that now, after 40 years, has been refunded for John's principal to appoint more Grouches to the Court. That just might bring about that revolution that John seems to want."

"It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." MvM, at 174.

When did that stop being originalist jurisprudence?

John Barron said...

Joe: "So many words."

Damned if I do, damned if I don't. As I am "behind enemy lines," or so to speak, I have to take care to establish that both the Framers and their English predecessors were de facto originalists--even before a name was given to the process. The Austinians were a century into the future.

Unknown said...

Fun read, as always. Indeed, I was hoping Prof B would address this issue. Nevertheless, for the layman, I think describing the repeal of the local and state tax exemption as a "double tax" makes a lot of sense. It's asy to digest; it's true; people understand the deeper meaning of it (e.g., blue states are paying more than reds). One of the Dems big problems is explaining policies simply. Republicans are great at that. Anywho, thought provoking post here from Prof B.

John Barron said...

Shag: "So the short history of originalism has been based on logic,"

Mostly, non-controversial Anglo-American law (esp. the law of contract and treaty) and precedent. Like "words have meaning." Like "It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." Like "every right, when withheld, must have a remedy, and every injury its proper redress."

They didn't give it a catchy name because there wasn't any other way to do it.

Joe said...

"One of the Dems big problems is explaining policies simply. Republicans are great at that."

I'm not sure this is true but maybe it is easier to mix in b.s. if you are a Republican, making it easier sometimes. That's the argument of the piece, I take it: Republicans are full of it. The cynical might not be impressed by that statement.

John Barron said...

Shag: "Query: Is this the start of a dossier on me?"

Cass teaches at Harvard. You would expect him to procure them locally. :)

Shag from Brookline said...

John at 8:44 PM:

"They didn't give it [originalism] a catchy name because there wasn't any other way to do it."

It has been said that Paul Brest provided that name, presumably tongue in cheek. But originalists swallowed it hookers [sic], line and sinkers.

John, I understand that rehabbing can be difficult, keeping you of the many links you are missing, but you are overplaying your keyboard Mulligans. Perhaps upon your recovery the Donald will invite you to one of his courses where you both can dine on Mulligan Stew.

But back to the subject of this post:

The news yesterday on Trump's tax "plan" referenced proposed significant reductions of 401(k) benefits as one means of providing benefits under the "plan" for significant tax reductions for corporations and the "obscenely wealthy" [thanks for the term, John].

But John, ease off the meds and suck it up, as that is your route to the 19th hole.

By the bye, John, are those "Austinians" (8:26 PM) in TX or some ecumenical sect that abides by some version of Genesis?

At 8:18 PM, John seems to change course on CJ Marshall as killing originalism in MvM, providing this quote:

"It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." MvM, at 174.

Did Justice Scalia miss/ignore Marshall's originalism in Heller (5-4, 2008) on the 2nd A's prefatory clause? Of course Marshall knew a lot more about the workings of the Militia in his lifetime than Scalia's knowledge only historically. John, you can take a Mulligan on Marshall.

Going off topic can be so taxing. Now for the normalcy of the Sunday political talk shows.

John Barron said...

\What are you whining about, Shag? Under your paradigm, COTUS is whatever judges say it is. When the text doesn"t matter, prefatory clauses matter even less.

You lost, O Solon of Senility! LC rules. Get over it.

A militia must be armed. Ergo, the right to bear arms must be preserved. That does not mean that a man cannot keep a firearm in his house.

I am responsible for my remarks, but not your dishonest misrepresentations of them. You seem to have cornered the local market on straw.

You gave us Bonnie Parker Clinton, which gave us Trump. And you would leave us with no means by which to revolt, as you prefer living on your knees.