Article I, Section 8, Clause 1:

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; . . .

The Framers’ principal motivation for granting Congress the power to tax in the Constitution was to provide the National Government with a mechanism to raise a “regular and adequate supply” 1 of revenue and pay its debts.2 Under the predecessor Articles of Confederation, the National Government had no power to tax and could not compel states to raise revenue for national expenditures.3 The National Government could requisition funds from states to place in the common treasury, but, under the Articles of Confederation, state requisitions were “mandatory in theory” only.4 State governments resisted these calls for funds.5 As a result, the National Government raised “very little” revenue through state requisitions,6 inhibiting its ability to resolve immediate fiscal problems, such as repaying its Revolutionary War debts.7

In the first draft of the Constitution, the taxing clause stated, “The legislature of the United States shall have the power to lay and collect taxes, duties, imposts, and excises,” “without any qualification whatsoever.’” 8 After discussions about the first draft’s unlimited terms and several rewrites, the Framers limited the objects of the taxing power—for United States debts, defense, and the general welfare.9 The Framers also discussed whether the clause should include language to limit expressly the subjects of the taxing power.10 One of the arguments against a general taxing power was the potential danger to state governments.11 A general taxing power ultimately prevailed as the Framers believed the Constitution’s federal system would prevent the oppression of one government by the other through its taxing power, a general taxing power would circumvent the need to overtax certain subjects, and a general taxing power would allow the government to efficiently raise funds in times of war.12

Footnotes

1

The Federalist No. 30 (Alexander Hamilton).

2

Gillian E. Metzger, To Tax, To Spend, To Regulate, 126 Harv. L. Rev. 83, 89 (2012); see Veazie Bank v. Fenno, 75 U.S. 533, 540 (1869) ( “The [National Government] had been reduced to the verge of impotency by the necessity of relying for revenue upon requisitions on the States, and it was a leading object in the adoption of the Constitution to relieve the government, to be organized under it, from this necessity, and confer upon it ample power to provide revenue by the taxation of persons and property.” ); Bruce Ackerman, Taxation and the Constitution, Colum. L. Rev. 1, 6 (1999) ( “The [Federalists] would never have launched their campaign against America’s first Constitution, the Articles of Confederation, had it not been for its failure to provide adequate fiscal powers for the national government.” ); see generally The Federalist No. 30 (Alexander Hamilton) (advocating for a “General Power of Taxation” ).

3

See Articles of Confederation of 1781, arts. II, VIII; The Federalist No. 30 (Alexander Hamilton); Ackerman, supra note 2 at 6 ( “The Articles of Confederation stated that the ‘common treasury . . . shall be supplied by the several States, in proportion to the value of all land within each State,’ Articles of Confederation art. VIII (1781), but did not explicitly authorize the Continental Congress to impose any sanctions when a state failed to comply. This silence was especially eloquent in light of the second Article’s pronouncement: ‘Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by the confederation expressly delegated to the United States, in Congress assembled.’” ).

4

Calvin H. Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders’ Constitution 15 (Cambridge University Press) (2005); see Articles of Confederation of 1781, art. VIII.

5

Johnson, supra note 4, at 16 ( “Some states simply ignored the requisitions. Some sent them back to Congress for amendment, more to the states’ liking. New Jersey said it had paid enough tax by paying the tariffs or ‘imposts’ on goods imported through New York or Philadelphia and it repudiated the requisition in full.” ).

6

Robert D. Cooter & Neil S. Siegel, Not the Power to Destroy: An Effects Theory of the Tax Power, 98 Va. L. Rev. 1195, 1202 (2012); see, e.g., Johnson, supra note 4, at 15 ( “In the requisition of 1786—the last before the Constitution—Congress mandated that states pay $3,800,000, but it collected only $663.” ); see Metzger, supra note 2, at 89 ( “Under the Articles of Confederation, states had failed to meet congressional requisitions on a massive scale and Congress was bankrupt.” ).

7

Johnson, supra note 4, at 16–17 ( “Congress’s Board of Treasury had concluded in June 1786 that there was ‘no reasonable hope’ that the requisitions would yield enough to allow Congress to make payments on the foreign debts, even assuming that nothing would be paid on the domestic war debt. . . . Almost all of the money called for by the 1786 requisition would have gone to payments on the Revolutionary War debt. French and Dutch creditors were due payments of $1.7 million, including interest and some payment on the principal. Domestic creditors were due to be paid $1.6 million for interest only. Express advocacy of repudiation of the federal debt was rare, but with the failure of requisitions, payment was not possible. . . . Beyond the repayment of war debts, the federal goals were quite modest. The operating budget was only about $450,000 . . . . Without money, however, the handful of troops on the frontier would have to be disbanded and the Congress’s offices shut.” ); see Cooter & Siegel, supra note 6, at 1204.

8

3 Joseph Story, Commentaries on the Constitution of the United States § 925 (1833).

9

Id. at § 926.

10

Id. at §§ 930–931; The Federalist No. 31 (Alexander Hamilton): see The Federalist No. 41 (James Madison); The Federalist No. 34 (Alexander Hamilton).

11

3 Joseph Story, Commentaries on the Constitution of the United States § 936 (1833); see The Federalist No. 31 (Alexander Hamilton); The Federalist No. 30 (Alexander Hamilton).

12

3 Joseph Story, Commentaries on the Constitution of the United States §§ 930–945 (1833); The Federalist No. 31 (Alexander Hamilton); see The Federalist No. 34 (Alexander Hamilton); The Federalist No. 30 (Alexander Hamilton).