Is a Progressive Tax Constitutional?

So much has been made of wealthier citizens paying their "fair share."  Much of the argument against this sort of rhetoric has focused on why we shouldn't raise taxes on the highest tax bracket, or why we shouldn't create another tax bracket.  But one argument that is missing is whether or not such a system of taxation is legal at all.

I don't intend to go into a history of progressive taxation (the colonial Puritans used one, too) or of the income tax and the 16th Amendment.  These are irrelevant to the question: Is it just for the government to protect a greater proportion of property of one class than that of another?

Under our current system, one man may earn $1 from manufacturing a product and be taxed 25 cents of that profit, while another man may make a similar product of better quality, earn $2 from his industry and genius, and be taxed $1 from the profit.  Does the latter person receive equal protection of the laws?

The 14th Amendment states that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law."  Fair enough so far.  Governments are instituted among men to secure these rights, and to maintain this government, the citizen-body consents to grant a portion of their property in return for their security.  This grant, by itself, may be flat or progressive.  But the clause that follows elaborates: "nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws."

Firstly, what is protection of the laws?  All legislation must be compatible with the fundamental law of the United States, the Constitution.  Therefore, all protective laws must comply with rights guaranteed in that document.  There are few, with the most important among them being life, liberty, and property.

Secondly, what is property?  The American idea of property, in the Constitution, is derived directly from John Locke.  His definition is clear:

[E]very man has a "property" in his own "person." This nobody has any right to but himself. The 'labour' of his body and the 'work' of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men.

Not only does property include an individual's labor -- that is, self-propriety -- but it includes the fruits of that labor as well.  Modernly, we associate property with real capital or estate, but this is ascertained only through a proprietary medium, called "money."  Money, then, is individual property, and it must be protected as equally as a person's exercise of liberty and life.

What shall we say, then?  Shall we continue to accept that Congress may determine that one group of individuals' property deserves less protection than another?  For if all property originally and rightly belongs to the individual, then that which is granted publicly for the preservation of existence and society is no longer under protection, but is instead used for protection.  That remaining property which the individual has not granted must still be protected.

But for the government to declare that they will protect only 50% of an individual's property within one class, but for another class declaring that 75%, 85%, 95%, or even 110% of  their property will be protected, is not only unequal protection -- it is logically equivalent to an economic bill of attainder.  (The 110% applies to those who ultimately pay no income tax, but still receive a "refund.")

The progressive taxation system necessarily places individuals into a classified society, which varies not by color, sex, or religion, but by success.  In at least one aspect, the poor receive a greater protection of their civil rights (which include property) than do the wealthy.  And since the numbers of the non-wealthy vastly exceed the numbers of the wealthy, the former have been allowed to democratically violate the latter's right to an equal protection of property.

Justice John Harlan, the lone dissenter in the infamous Plessy v. Ferguson ruling, understood that "[t]here is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful."  And by equal extension, the most powerful ought to be the peer of the humblest, and receive the same protection.  Harlan might as easily have said that our Constitution is wage-blind.

To deny one class equal protection of their property because of their success is logically no different from denying a different class an equal protection of liberty because of their color.

Andrew Schwartz is a writer at and a historian out of Old Dominion University.  He focuses on early American political and intellectual history.