Taxes on Constitutional Rights

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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2 Responses

  1. birtelcom says:

    Although much early commentary is pointed toward the idea that Roberts succeeded in setting a precedent for a new limit (of some sort) on the federal government’s Commerce Clause power, it’s important to note that from a stare decisis point of view, everything Roberts has to say about that issue in this case is dicta, easily ignored by any future court that lacks a majority for this particular point of view. Upholding the mandate on one of the available grounds renders the discussion of the other possible grounds academic and of no compelling precedential value.

  2. Ken Rhodes says:

    I’m continually amused by this whole “penalty/tax/whatever” terminology brouhaha.

    For 37 years I lived in Virginia. Every time I renewed my driver’s license I had to answer this question: Do you have auto liability insurance?

    I had the right not to have the insurance. If I did not have the insurance, I had to pay a fee to the state every year. The fees thus collected went into a pool to protect innocent victims of traffic accidents caused by uninsured motorists.

    The payment of the fee was not a “substitute insurance.” If an uninsured motorist inflicted harm, he was still 100% responsible for paying for restitution. But, recognizing that making him “responsible” would not guarantee that he could pay, the state created the “uninsured motorist fund” so that the victims could have a secondary source for restitution.

    If the Dems had simply framed the issue properly, neither as a “penalty” nor a “tax,” but merely as an “uninsured risk fee pool,” we’d have saved CNN and Fox a lot of embarrassment.