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The Constitutionality of a Progressive Tax

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Marc K.

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I am having trouble figuring out the argument commonly

presented by conservatives that the top 1% of wage

earners pays 34% of the taxes (seems unfair).

I don't want to discuss the progressive tax as it

seems plain to me that charging someone a higher tax

because they make more money is unconstitutional (does

not apply the law equally) and immoral (punishing the

good for being good).

Rather, let us consider the actual collection of taxes

as compared to a flat tax.

I see a contradiction when saying the top 1% PAY 34%

of the taxes when considering that the top 1% EARN 45%

(I'm not sure of the actual percentage but I'm quite

sure it is higher than 34%).

IF the top 1% EARN 45% of the money, THEN, in a flat

tax situation, shouldn't they pay 45% of the

taxes?????????

I guess I'm really looking for a mathmatical answer

but would be glad to listen to a philosophical one as

well.

Thanks,

Marc K.

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A flat tax does not mean that someone pays the percentage of money he earns (such a scheme is the intention of the graduated income tax); it means everyone pays the same percentage. So the rich and poor alike, under a flat tax, would pay, say, ten percent (as opposed to the current system under which some pay no taxes and others pay about 36 percent in taxes).

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Right, Daniel, but if 5 people make 45% of all the income earned in an economy, then they will be paying 45% of all the taxes paid by people in that economy. Here's some math:

Total economy = $10 million in income

5 people, together, bring in $4.5 million. Together, under a flat tax, they will pay $450,000.

The rest of the people (let's say 495 people, so that the 5 people make up 1%) together earn $5.5 million dollars, and therefore pay $550,000 under a flat tax.

So the implicit question is, why argue for a flat tax when it seems that the tax burden on the top 1% of earners will be greater than under the current "progressive" tax?

I guess because most voters are in the middle class. :D

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Here's something that occurred to me that may help solve the "mystery."

The top 1% pay 34%, but that's after all sorts of deductions and fancy accounting work. Therefore, if we move to a flat tax, it may actually be less of a burden on those high-earning people to pay the tax because they can fire their accountants. Thus the CPA lobby will no doubt ensure that we will NEVER have a flat tax.

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I can now answer my own question with help from the IRS and Rush Limbaugh -- the stats can be found in both places.

Apparently my original premise was wrong.

The top 5% EARN 32% of the money but PAY 53% of the taxes.

The top 50% (anyone earning more than $26,000) EARN 86% of the money and PAY 96% of the taxes.

Just as I thought: the tax system is unconstitutional AND immoral.

------------------------------------------------

From Rush Limbaugh's site:

Top 5% pay 53.25% of all income taxes (Down from 2000 figure: 56.47%). The top 10% pay 64.89% (Down from 2000 figure: 67.33%). The top 25% pay 82.9% (Down from 2000 figure: 84.01%). The top 50% pay 96.03% (Down from 2000 figure: 96.09%). The bottom 50%? They pay a paltry 3.97% of all income taxes. The top 1% is paying more than ten times the federal income taxes than the bottom 50%! And who earns what? The top 1% earns 17.53 (2000: 20.81%) of all income. The top 5% earns 31.99 (2000: 35.30%). The top 10% earns 43.11% (2000: 46.01%); the top 25% earns 65.23% (2000: 67.15%), and the top 50% earns 86.19% (2000: 87.01%) of all the income.

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MinorityOfOne,

US Constitution Article 1 section 8:

"The congress shall have power to lay and collect taxes ... but all duties, imposts and excises shall be uniform throughout the US;"

Also

Amendment 14 section 1:

... "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall and state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

When taxing people coercively (our system) to tax one person more than another, percentage wise, does not seem uniform and seems to violate the principle of "equal protection of the laws".

I think a sales tax, applied without regard to income, would be much more constitutional since it would be applied uniformly AND moral since it would be voluntary (if you don't want to pay the tax don't buy the product)

Of course politicians would still attempt to tax the wealthy more by taxing expensive items more heavily but at least consumers and producers (the market) could then hold the politicians responsible when their excessive taxes dampened demand and caused a loss of jobs.

A mandatory tax is probably acceptable for defense and courts since the govt is charged to "PROVIDE for the common defense" but not for any other purpose since it is only further charged to "PROMOTE the general welfare"

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I think it's a stretch to interpret either of those clauses that way. The first was intended to prohibit punitive taxation against particular states. (Recall the "trade wars" from prior to the constitution.) It says, in effect, that if the federal government levies a particular tax on one part of the U.S., it must levy it everywhere. The second clause clearly doesn't apply to taxes, except insofar as it would prohibit the government from picking out a particular person and saying "the tax laws don't apply to you."

Also, I don't see how sales taxes are any more voluntary than any other kind of tax. That's like saying the income tax is voluntary, because you could choose not to have any income.

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The second clause clearly doesn't apply to taxes, except insofar as it would prohibit the government from picking out a particular person and saying "the tax laws don't apply to you."

It's even worse than this. The "equal protection" clause has been interpreted to mean that disparate treatment under the law is O.K. so long as it's not done on the basis of some sort of "suspect" classification -- e.g., race, sex, age. Because EVERYONE agrees that those who make more money should have to "give back" more to the "community," then I doubt that income level would be held to be a "suspect classification." Fun, huh?

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MinorityOfOne and ALP, I must say I am taken aback by your answers so let me retort.

The Constitution is written in a sufficiently general manner so that unforeseen problems may be addressed by it. Does the fact that it has been interpreted one way preclude us from interpreting it another way to solve a different problem? This is done all the time by the Supreme Court. Does the fact that the Supreme Court has found that racial discrimination is OK in certain instances mean that that interpretation is correct?

Amendment 14 section 1:

... "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall and state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

-- Can certainly be applied to taxes, the tax code is a code of laws and if they are applied unfairly or “un-equally” then they are unconstitutional. And since “un-equal” can be interpreted, in the case of taxes, to mean “un-uniform”, I’m sure Article 1 section 8 could apply also.

You say:

[[“except insofar as it would prohibit the government from picking out a particular person and saying "the tax laws don't apply to you."”]]

This is exactly what the govt has done. There are certain people who pay no taxes whatsoever and there are others who pay much more than everybody else.

It is plain to me that our current tax system is unfair and immoral and therefore unconstitutional but if you are not convinced let me propose a fictional tax system, for the sake of argument, that I’m sure you would consider unconstitutional:

What if we only taxed everyone who made over $1 million at whatever rate was necessary to run the country, nobody else pays taxes. Could this system pass constitutional muster? And if it did what kind of country would be left? Capitalism, freedom and innovation would die to be replaced by socialism, slavery and parasitism. The entire Constitution would have to be scrapped.

Isn’t this the system we have today? Maybe not quite. No thanks to FDR and most other leftist politicians. But not so long ago the tax code was extremely unfair to the rich who paid 70% of their income in taxes until Ronald Reagan fixed it and spurred economic growth. And we are in for a big surprise with social security and medicare looming large on the horizon. If we don’t make a principled stand for fair taxation now enslavement of the rich will commence in the decades ahead.

Parenthetically I don’t think the situation is as dire as my words may sound. I don’t agree with ALP that:

[[“EVERYONE agrees that those who make more money should have to "give back" more to the "community,"”]].

As one example to the contrary, note the significant public support for repeal of the estate tax. Here is a tax which will affect only the richest 2% , a tax few will ever pay, and yet a large majority of the public reject it on principle.

I think there is such a thing as an immoral tax code and since most all of the immorality was worked out of the Constitution by 1868 or so I also believe the tax code to be unconstitutional. The Constitution is an objective standard, written in the language of and with deference to natural law, it contains principles against which nearly every law may be judged as fair or unfair, moral or immoral, constitutional or unconstitutional and this is exactly what the Supreme Court is supposed to do.

To answer MinorityOfOne:

[["Also, I don't see how sales taxes are any more voluntary than any other kind of tax. That's like saying the income tax is voluntary, because you could choose not to have any income."]]

Currently, the govt takes taxes directly from your paycheck, you have no say in the matter and if you try to “bilk” them out of what they consider your fair share they will collect their taxes at the point of a gun, literally.

The situation is not hopeless, most people don’t think the govt spends money wisely and don’t want it to get anymore than it already does, in fact, like most of us, they would like to see the govts budget shrink. They just need a principle upon which to stand, this is where objectivism comes in. This is also where a voluntary sales tax comes in.

Sales taxes are voluntary in that you are not forced to buy anything. And to the extent that certain things are necessary to life you still get to choose what those things are (also, the govt would probably tend to tax those things at a much lower rate so that poor people could afford them). A sales tax is voluntary in that, regardless of your income, you decide what to buy and therefore how much tax to pay.

Of course rich people tend to spend more money and would therefore pay more taxes but it is ultimately their choice and the principle of non-coercion is intact.

An added benefit of taxing certain products at certain rates, and further, tying taxes of certain products to certain govt expenditures, is that market forces could then influence tax structure, linking employment directly to taxes working to wrest the purse strings away from politicians. Of course politicians would resist a system which takes away their power but luckily for us we have ultimate control of politicians. Now we, as objectivists, just have to convince the rest of the public and that isn’t as impossible as it seems. Injecting competition into the school system is a good start -- I could go on and on, hopefully my point is made.

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The Constitution is written in a sufficiently general manner so that unforeseen problems may be addressed by it. Does the fact that it has been interpreted one way preclude us from interpreting it another way to solve a different problem?

Marc,

You talk about interpretation as though it's just a pragmatic issue -- that a document is to be interpreted in whatever way fits your goals. Sure, that's been done. (For instance, the bizarre interpretations of the commerce clause.) But that doesn't make it right. Whether or not people wish to recognize it, the words in the Constitution and other legal documents have a specific meaning. In cases where it's not clear, the proper approach is not to say "Well, what would I like it to mean?" Rather, you look at it in the context of the rest of the document, and sometimes with reference to other knowledge about its writers.

You also wrote:

What if we only taxed everyone who made over $1 million at whatever rate was necessary to run the country, nobody else pays taxes. Could this system pass constitutional muster? And if it did what kind of country would be left? Capitalism, freedom and innovation would die to be replaced by socialism, slavery and parasitism. The entire Constitution would have to be scrapped.

Actually, and unfortunately, I think it could pass constitutional muster. Amendments included, the constitution doesn't say much about what specific forms of taxation are permissible, except that they cannot allow for specific individual exceptions. But notice again your approach. Your argument is, in effect: this interpretation of the constitution could lead to bad results. Therefore, it is the wrong interpretation. But that argument assumes that the constitution is perfect, which it is not. It's a very impressive document, but it is flawed. That it would be better if it were perfect does not change the facts.

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Matt,

I’m glad I was able to convince you about the sales tax.

But please don’t insult me by calling me a pragmatist.

The Constitution is the law of the land and the Supreme Court INTERPRETS it every session. Every law the legislature adopts must pass Constitutional muster even though there may not be a clause that was written specifically with that law or issue in mind, the examples are abundant:

Roe vs. Wade

The draft

Laws dealing with the internet

Campaign finance

etc., etc.

Many of these issues are not addressed directly by the Constitution and yet the Supreme Court finds a way to determine if they have been dealt with in a constitutional manner. How do they do it? Simple, they base their decisions on the PRINCIPLES (read as "general manner" from my last post) engendered in the Constitution and its Amendments. Imagine how convoluted, unruly and long the Constitution would have to be if it had to answer (as you seem to indicate) every eventuality past, present and future.

This was part of the genius of the Constitution’s authors and it is also what makes objectivism so logical and compelling. We answer questions and come to determinations based on principle backed by logic and reason all grounded in an objective foundation of reality. And THIS is how I have presented my argument.

Now, have there been interpretations of the Constitution which defy all logic, of course (in fact I pointed one out at the beginning of my last post), but is this a problem of interpretation? No, it is the problem with BAD, non-objective, interpretation.

Back to the issue. I have proposed that the current tax system (progressive income tax) is unconstitutional, specifically that it violates Amendment 14 section 1:

"... No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall and state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

From my reading of your position, this amendment was written to address specific problems, namely that many laws weren’t being applied fairly to black people (if my reading is wrong please correct me on your position and also feel free to fill me in on the historical context).

OK, if this makes it easier for you: let us suppose that a tax system was proposed that only taxed black people. Would THIS system be constitutional? I hope you are saying NO to this query. If so, why not call the current tax system, which seems just as unfair and arbitrary, unconstitutional. If not, please explain.

To answer your last point:

"Your argument is, in effect: this interpretation of the constitution could lead to bad results. Therefore, it is the wrong interpretation. But that argument assumes that the constitution is perfect, which it is not."

While the Constitution may not be perfect (though I think you should point out an imperfection), the 14th Amendment seems to be quite clear and principled and any reading of it would seem to apply to ALL laws, including tax law, and ALL people, including rich ones.

You have interpreted my argument style correctly and it is a classic objectivist way of sorting out inconsistencies. Bad results can probably be traced back to bad premises, an initial contradiction, poor thinking. So yes, when I see a system which when taken to its logical conclusion could destroy the country, based on a principle that would be anathema to the founders I doubt that that was their intention.

The last time such an contradiction was allowed to poison the Constitution the country did dissolve, and could have been lost forever had it not been for a war which claimed more American lives than any other. I would like to prevent that.

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Employee taxes are voluntary in that you are not forced to hire anyone!

Who specifically pays taxes on a certain sum does not change the fact that both parties know what the tax is, or the amounts that the one pays pretax and the other receives posttax.

Taxes at all are involuntary - at the very least insofar as they are an involuntary barrier to one's most profitable activity and a compulsory redirection to less efficient, profitable, enjoyable etc alternatives.

Until the 16th Amendment, individual taxation by the Federal government was unconstitutional. Congress used to raise a capitation / direct tax on the states in proportion to their populations. By definition, direct taxes were supposed to be "uniform throughout the land"; the Constitution had to make that clear only regarding duties, imposts, and excises (1.8). The uniformity of the head tax was of the flat kind - not flat-rate, and certainly not progressive. That kind of tax is in fact the least immoral kind - not the sales tax.

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Also, I don't see how sales taxes are any more voluntary than any other kind of tax. That's like saying the income tax is voluntary, because you could choose not to have any income.
Sales taxes are voluntary in that you are not forced to buy anything.

Income taxes are voluntary in that you are not forced to create an income.

In fact, a "survival tax" would be voluntary in that you are not forced to survive.

This alone should demonstrate the falsity of the argument.

The situation is this. I want to make a certain trade with a certain businessman. We agree on what the trade will be exactly.

Now let me introduce a third party that prevents such trades by law (backed by force) unless ....

Clear and simple. We have a relationship of two men based on mutual voluntary consent. And then we introduce the initiation of force.

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Thank you all.

The question we (or at least I) are working on now is: Is a progressive income tax Constitutional?

I apologize for my introduction of a sales tax into the debate. I was simply trying to propose a less immoral tax system and I am glad that someone else has pointed out an even less immoral tax than that.

My premise is that the progressive income tax system is Unconstitutional and I am basing this primarily on:

Amendment 14 section 1:

... "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall and state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

the 14th Amendment seems to be quite clear and principled and any reading of it would seem to apply to ALL laws, including tax law, and ALL people, including rich ones.

Do you agree that the progressive income tax is Unconstitutional?

If no, why?

If yes, then do you agree with my reasoning or do you have another reason?

----------------------

Those are the questions I'd like answered most, as an aside (to which I would love to hear your thoughts):

We all seem to agree that coercive taxation is immoral.?.? I think most of us would further agree that some taxation is necessary to enable defense and perhaps courts. How best to collect those taxes?

Thanks,

Marc

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The 14th amendment has absolutely nothing to do with taxes and it is impossible to construe it as having anything to do with them. The constitutionality of certain taxes or others hinges on other parts of the Constitution.

Under the Constitution and the first 15 Amendments, the only lawful federal tax was a tax levied on the various states in proportion to their populations. The 16th Amendment legalized the feds taxing incomes directly.

That income taxes with whatever progression are constitutional

a) has nothing to with Amendment 14

;) has everything to do with Amendment 16

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from y_feldblum:

"Under the Constitution and the first 15 Amendments, the only lawful federal tax was a tax levied on the various states in proportion to their populations.The 16th Amendment legalized the feds taxing incomes directly"

...sounds like 'the only lawful federal tax' was apportioned among states, according to the populations of each state --- i.e., recognizing each individual citizen of a state as a single entity for enumeration of the state's population. Each citizen, by this interpretation, is measured only by his or her existence ... not by his/her wealth. I.e., their is no weighting of the significance of an individual proportionate to the amount of money/prpoperty they justly possess --- everyone is weighted equally in this regard becuase of their individual existence, as is to be expected in a free society.

...the 16th amendment allows the federal government to collect taxes directly, instead of through the individual State governments, by essentially an unrestricted method or methods:

16th Amendment: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

This provides a loophole around every inalienable right put forth in the Constitution. The only legal challenge to it arises in the conflict it presents as to the definition of the concept "inalienable". This is a word no modern conservative will even discuss anymore, for to do so presents one with the true problem of the 16th Amendment: its conflict with inalienable rights. per Rand --- 'where you see a contradiction, check your premises'. Rights are either inalienable, or not inalienable [in which case they are not rights]!! I vote for inalienable ... and thusly for rights!!

...as per the discusiion at hand, it appears to me that, sadly, progressive taxes are constitutional as per the 16th Amendment ... though decidely in conflict with all previous text and amendments of the Constitution.

.... which leaves available what options for resolving this conflict ??

I wonder how HAL 9000 would deal with this ??

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.... the solution to our country's problems is to reaffirm the 'inalienable' nature of our rights. All laws in opposition to the inalienable nature of rights would immediately become null and void, as they are un-Constitutional. As the 16th Amendment is in contradiction, it would need to be voided and revisited. If Congress wanted to make our rights alienable in order to justify the 16th amendment, they would have first needed to pass an amendment invalidating our 'inalienable' rights.

This is an argument that can only be addressed before the Supreme Court, not Congress and the President [as they are the worst offenders]. The liberals can be given no wiggle room to find a way around it --- if they try, they must be removed for failing to follow the oath they took to protect, defend, and uphold the Constitution. We need some next-generation founding fathers well-versed in rational ethics and Constitutional law to continually pursue the reaffirmation of the inalienability of rights until we regain those rights ... then sustain their protection. Until then, none of us will sleep well at nights.

I wish I could go back and take law school now ... in my youth, I never realized the betrayals that lay ahead for me and my country. I still think our country is salvageable without revolution or civil war.

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Guest ginzershop

I hate to switch gears here.... (Actually Im gonna enjoy it quite a bit)

I wondered how posters might respond to Friedman's "Patriot Tax" Proposal;

Before anyone turns on their "taxes cant be patriotic" rhetoric, Let me summarize what it is;

1)Military Presence in Iraq will need to be paid for. (Approx 56 Bill of Bush's 87)

2. OPEC needs to have its back broken (Business + Government)

3. Saudi Arabia Needs to shape up and secularize before the shit really hits the fan. (Religion + Government)

4. A gradually instituted Gasoline Tax (Friedman Proposes $1.00 per gallon) would allow the United states to economically begin to leverage SA, Militarily begin to levarage Iran and Syria, and Provide a more Private-Market Oriented Approach towards Kyoto (satisfying Europe)

5. A tax is a tax is a tax. But a gasoline tax offer the public a little more leverage than income taxes

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Sorry ginzershop, I'm switching gears right back.

OK, I think I understand. Let me sum up what I think most of you are saying, then I’ll make a few more propositions to move this discussion along.

Article 1 section 8:

“The congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the US; but all duties, imposts and excises shall be uniform throughout the US;...”

Article I, Section 9:

“... No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”

16th Amendment:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” -- ratified February 3, 1913

These seem to be the relevant pieces of the Constitution -- please add any others you deem pertinent.

My reading of I,9: No direct tax (meaning -- taken directly from an individual) may be laid unlessit is taken equallyfrom each citizen. Equal could mean a capitation (same dollar amount taken from each citizen) or a flat tax taken proportionately from each citizen.

Yes? No?

Regardless

The 16th Amendment seems to override I,9 much as the 21st Amendment overrides the prohibition spelled out in the 18th Amendment.

Indeed, I must now concede that the current tax system is Constitutional as is every other crazy system I proposed in this thread. Potentially the Congress could tax any individual or group at 100% with Constitutional approval. Worse, this is not even reviewable by the Supreme Court as it does not have a voice in the writing of the Constitution, only the interpretation of it.

How did the Congress ever get this Amendment passed? Was every citizen asleep?

Issue settled (for me at least).

As kgvl has indicated this does seem to contradict much of the rest of the Constitution.

Returning to a debate MinorityOfOne and I started in this thread; the question of how the Constitution is used, by the Supreme Court, to interpret law.

So this is a question of the process of interpretation, not necessarily having to do with taxes, and I have raised it previously, specifically:

(Marc K. @ Jan 26 2004, 01:38 PM)

Amendment 14 section 1:

... "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall and state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

the 14th Amendment seems to be quite clear and principled and any reading of it would seem to apply to ALL laws, including tax law, and ALL people, including rich ones.

Question: am I right to say that the 14th Amendment applies to all laws and all people?

Question: We all seem to agree that coercive taxation is immoral. I think most of us would further agree that some taxation is necessary to enable defense and perhaps courts. How best to collect these taxes?

Thanks,

Marc

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Those are the relevant pieces of the Constitution.

C§1.8 Congress has the power to collect money but only in a uniform manner. This money can come from taxes on the various states or from taxes on trade.

C§1.9 Congress can only collect money from the states in proportion to the the official census.

The conclusion is, Congress taxes only the states (which themselves might tax individuals, but that is not in the domain of the Constitution). A direct tax is a direct tax on the various states. A capitation is a direct tax in proportion to population. The point above was that the federal cencus is the official arbiter of population.

A§16 Congress can now collect money not only from the states, but can tax the people themselves. Furthermore, Congress can do this without regard to the official cencus, and even without regard to any cencus whatsoever - ie, arbitrarily. This new tax can be taken from any source of gain, be it income, capital-gains, inheritance, gift, and everything else.

The sixteenth amendment is a vile thing; every citizen was asleep.

And Rand discusses your last question (though I forgot exactly where - try VoS).

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OK, it apparently is constitutional for congress to take any or all of our income as per the 16th amendment. However,

new proposition -- In article I section 8 it spells out precisely what the congress may spend that money on and social programs are not included (I don't want to type out the whole thing, but) essentially it says to:

borrow money, regulate commerce, naturalization, coin money, punish counterfeiting, establish post offices, securing copyrights, constitute courts, support defense, wage war, establish DC, make laws.

So,

Question: can all social spending be declared unconstitutional?

and still looking for an answer to

Question: am I right to say that the 14th Amendment applies to all laws and all people?

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