The Draft Tax
I am reading Akhil Amar’s new book on The Unwritten Constitution. It’s chock full of treats, and I’ll do several posts about it over the next week or two.
Here’s one small thing for starters. The first military draft in the United States was imposed during the Civil War. At the time, the constitutionality of a draft was unclear. The 1863 Draft Act therefore provided that you could avoid conscription by paying $300 (or hiring a substitute). In effect, you had a right not to enlist, but you were were taxed for exercising that right.
Sound familiar? Fast forward to 2010, and there was constitutional uncertainty about whether Congress could force people to buy private health insurance. In the end, the conclusion was that you do have a right not to buy health insurance, but you can be taxed for doing that.
I’m wondering if I should revisit my draft paper about the taxation of constitutional rights. Hopefully I still have that in a drawer somewhere.