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In United States constitutional law, the Direct Tax Clauses^[a] stipulate that direct taxes must be apportioned among the several States like Representatives in Congress. This constitutional rule is "enforced by two provisions, one affirmative and one negative".^[2]: 628

The "affirmative" provision^[2]: 628 appears in the Enumeration Clause or Census Clause (Article I, Section 2, Clause 3):^[3]

[D]irect Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers […] .^[4]

The "negative" provision,^[2]: 628 commonly known as the Direct Tax Clause (singular)^{[5]: 570 [5]: 669} or the Capitation Clause,^[6]: 53 appears in Article I, Section 9, Clause 4:^[7]

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before [sic] directed to be taken.^[8]

The Supreme Court of the United States has explained that a tax is apportioned among the States if "each State pays in proportion to its population".^[5]: 570 Justice Clarence Thomas explained the formula of apportionment as follows:

Suppose that Congress imposed a direct tax on houses, and apportioned the tax such that two States of equal population were both responsible for paying $100 in taxes. If the first State contained 100 houses and the second State only 10, houses in the first State would be taxed at $1 each ($100 divided by 100 houses), whereas houses in the second State would be taxed at $10 each ($100 divided by 10 houses).^[9]: 624

This is similar to Justice Samuel Chase's explanation in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), an early constitutional case and the first pertaining to the Direct Tax Clauses:

Suppose two States, equal in census, to pay 80,000 dollars each, by a tax on carriages, of 8 dollars on every carriage; and in one State there are 100 carriages, and in the other 1000. The owners of carriages in one State, would pay ten times the tax of owners in the other. A. in one State, would pay for his carriage 8 dollars, but B. in the other state, would pay for his carriage, 80 dollars.^[10]: 174

In the same case, Justice James Iredell explained it similarly:

Suppose 10 dollars contemplated as a tax on each chariot, or post chaise, in the United States, and the number of both in all the United States be computed at 105, the number of Representatives in Congress [at the time].

This would produce in the whole [$1,050.]

The share of Virginia being 19 [ of ] 105 parts, would be [$190.]

The share of Connecticut being 7 [ of ] 105 parts, would be [$70.]

Then suppose Virginia had 50 carriages, Connecticut 2. The share of Virginia being 190 dollars, this must of course be collected from the owners of carriages, and there would therefore be collected from each carriage [$3.80.]

The share of Connecticut being 70 dollars, each carriage would pay [$35.]^{[10]: 181–182}

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Justice William Paterson opined that apportionment was devised "in favor of the southern States", who "possessed a large number of slaves" and "had extensive tracts of territory, thinly settled, and not very productive", whereas "[a] majority of the states had but few slaves, and several of them a limited territory, well settled, and in a high state of cultivation":^[10]: 177

The southern states, if no provision had been introduced in the Constitution, would have been wholly at the mercy of the other states. Congress in such case, might tax slaves, at discretion or arbitrarily, and land in every part of the Union after the same rate or measure: so much a head in the first instance, and so much an acre in the second. To guard them against imposition in these particulars, was the reason of introducing [apportionment] in the Constitution, which directs that representatives and direct taxes shall be apportioned among the states, according to their respective numbers.^[10]: 177

Some scholars have agreed with Justice Paterson,^{[6]: 53 [11]: 55 [12]: 2385} although Robert G. Natelson, a scholar "known for his studies of the Constitution's original meaning",^{[13][non-primary source needed]} has argued that apportionment had "little or nothing to do with slavery" and speculates that Justice Paterson's belief "may have originated with Alexander Baldwin, a framer who served in the First Federal Congress."^[14]: 344

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• Use by Congress over the years (land taxes etc.)
• What else did they tax?

In National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), in reference to the constitutional distinction between a direct tax and an indirect tax, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito wrote in dissent that "the meaning of the Direct Tax Clause is famously unclear".^[5]: 669 Chief Justice John G. Roberts Jr. added in a plurality opinion in the same case 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".^[5]: 570 Because of this, the meaning has been "hotly debated […] throughout [the] history [of the United States]".^[15]: 524 However, Justice William Paterson wrote in Hylton that indirect "stands opposed to" direct,^[10]: 176 and Alexander Hamilton wrote in Federalist No. 36 that "[t]he taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the DIRECT and those of the INDIRECT kind".^[16] The modern Supreme Court has also used the two terms as opposites.^[9]: 582

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Several theories about this distinction have been advanced.^{[15]: 529–533 [clarification needed]}

Professor Erik M. Jensen, for example, has argued "that the line between direct and indirect taxes is whether the tax is imposed directly on an individual and is not 'shiftable'; whether the person paying the tax can, at least in theory, pass the burden of the tax on to someone else", such that "a tax that is at least theoretically shiftable is indirect, and a tax that cannot possibly be shifted is direct".^{[15]: 531–532} This contrasts with the view of Alexander Hamilton,^{[which?][citation needed]} who had argued Hylton on behalf of the United States.^[17]

In contrast, Professor Bruce Ackerman has argued in favor of artificially narrowing the Clauses "in light of the repudiation of slavery in the Reconstruction Amendments".^{[15]: 529–530} Similarly, Professors Dawn Johnsen and Walter Dellinger, echoing "the Justices' opinions in Hylton", have argued that "only capitations, slave taxes, and taxes on real property are direct taxes", with the further limitation that "only a tax that can be apportioned sensibly, with 'just and equitable' results, can be a direct tax".^[15]: 530 "Slightly more expansively, [Professor] Joseph Dodge argues that direct tax is limited to 'requisitions, capitation taxes, and taxes on tangible property'".^[15]: 531

Judge John K. Bush, however, has noted, together with A. J. Jeffries, a former law clerk of his, that "the only direct tax that could possibly be apportioned in a 'just and equitable' fashion is a capitation".^[15]: 544

• Alicea, Joel; Drakeman, Donald L. "The Limits of New Originalism". Journal of Constitutional Law. 15 (4): 1161–1219.

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Held that a tax on carriages was an excise and thus not a direct tax.^{[citation needed]}

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Declared that an income tax is not a direct tax.^{[citation needed]}

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Held that a tax on income was a tax on property and thus that it was a direct tax.^{[citation needed]}

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Upheld progressive inheritance taxes as duties.^{[citation needed]}

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Upheld the Affordable Care Act's penalty for remaining uninsured on grounds that it was conditioned on specific circumstances and thus, in the Court's view, was not a capitation.^{[citation needed]}

• Bogenschneider, Bret N. (2016). "The Taxing Power after Sebelius" (PDF). Wake Forest Law Review. 51: 941–984.
• Natelson, Robert G. "What the Constitution Means by "Duties, Imposts, and Excises"—and "Taxes" (Direct or Otherwise)". Case Western Reserve Law Review. 66 (2): 297–351.

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The Supreme Court, however, has held most recently that the distinction depends on whether or not the tax is imposed on an "activit[y] or transaction[]".^[9]: 582

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• Sixteenth Amendment to the United States Constitution

Category:Constitution of the United States Category:United States taxation and revenue case law Category:United States public law Category:Constitutional law by country