Choi Reviews The Original Meaning Of The Sixteenth Amendment By Brooks & Gamage

Jonathan H. Choi (USC; Google Scholar), An Original Take on the Original Meaning of the Sixteenth Amendment (JOTWELL) (reviewing John R. Brooks (Fordham; Google Scholar) & David Gamage (Missouri-Columbia; Google Scholar), The Original Meaning of the Sixteenth Amendment, 102 Wash. U. L. Rev. ___ (2024)):

The Sixteenth Amendment is one of the most thoroughly studied texts in U.S. federal tax law—economists, historians, and luminaries of constitutional law and taxation have all sliced and diced its meaning for more than a century. Making an original discovery about the historical meaning of the Amendment has consequently taken on the dimensions of a mythic quest, like discovering an Eleventh Commandment or the secret dryer compartment containing all those lost socks.

Remarkably, this is exactly what John R. Brooks and David Gamage accomplish in their timely forthcoming article, The Original Meaning of the Sixteenth Amendment.

Brooks and Gamage marshal a wide variety of evidence, including new historical evidence on the technical meaning of “income,” to argue that the income taxable without apportionment under the Sixteenth Amendment includes unrealized gains. This has huge implications for policy, given that many current and proposed taxes are imposed on unrealized gains, including some of the most important recommendations to tax the very rich. Brooks and Gamage’s work is especially timely given that the Supreme Court will rule on Moore v. United States in the next month or so, possibly deciding the constitutionality of taxes on unrealized capital gains—although Brooks and Gamage’s contribution goes far beyond the current case, especially if it is decided on narrow grounds. ...

Constitutional and textual interpretation are subtle, and cases sufficiently ambiguous to make their way to the Supreme Court do not admit of easy answers. Slam dunk arguments on these matters are therefore almost impossible, and there are grounds on which reasonable interpreters could disagree. But Brooks and Gamage’s article is as persuasive and original as I have seen on these issues, and makes interpretive contributions that will resonate for decades to come.