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.

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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5 Responses

  1. Gradivus Graham says:

    There’s one important difference. The tax for not enlisting was a tax for not doing something that it was Constitutional for the federal government to compel in the first place.

  2. Gerard Magliocca says:

    Some of the Founding Fathers thought that a draft was unconstitutional.

  3. Joe says:

    Akhil Amar has written about the draft in the past too, including in his book on the Bill of Rights. I was reading a bit of Daniel Webster’s speech against the proposal of a draft during the War of 1812 (it was some book collecting anti-war speeches) and he in fact raised the argument that having power to do “x” does not necessarily mean the power to compel, putting the draft as but an example of a broader principle. But, since by now it seems par for the course, we have comments like the first that seem to assume there is no controversy. In time, the PPACA might seem as obvious.

  4. Johnny Boothe says:

    So you root around in the grubbiest of places — powers claimed by a authoritarian government during the desperate days of a civil war — to find justifications for a new infringement on people’s freedoms.

    And I bet you’re still confused by the loathing for lawyers held by the vast majority of Americans?

  5. Joe says:

    I don’t quite understand Mr. Boothe’s comment.

    Is he saying the draft itself — which was in place in peacetime during the 20th Century w/o an option to pay instead — is unconstitutional? The desperate days of the Civil War in fact provided a more minor version of requiring something to advance an enumerated power than later on.

    What “new” infringement is at issue here? It applies an old rule, the need to protect health care in this country as basic in its own field as the peacetime draft was, to advance enumerated powers. If the draft itself, which would naturally be used in times of need, is the problem, well, okay.

    Still, not sure where this “loathing” is supposed to come in. The government requiring people to have insurance is not something the average person finds offensive actually. Even regarding the federal government, opponents have to do somersaults to find exceptions to various cases, like various Republican proposals for Medicare, often basically saying the real problem was the law didn’t say the magic word clearly enough.