Hylton, the Excise Tax, and NFIB v. Sebelius

One aspect of the Court’s decision that hasn’t gotten as much play is its holding that the mandate-turned-tax is not a direct tax for purposes of Article I, section 9, clause 4. The Court relied on its holding in Hylton v. United States (1796), which upheld the constitutionality of a federal tax on carriages. Central to that decision was whether the carriage tax was a direct tax or an indirect tax, but included in that question was whether the tax was an excise tax.

Since the Court has shown renewed interest in Hylton and the original meaning of the taxation power, readers might find useful a forthcoming article I am publishing with my co-author and noted originalist scholar, Dr. Donald Drakeman, in the Pennsylvania Journal of Constitutional Law. The article is called “The Limits of New Originalism.” It looks at the Hylton case in detail and examines the original meaning of the excise tax, all as a way of making a broader point about originalist constitutional theory. The abstract is below, and you can find the article here.

We argue that New Originalism, which has emerged as the dominant theory of originalism, has a significant methodological limitation for anyone who takes historical research seriously. That limitation arises where historical sources indicate different possible original meanings, which can occur because of New Originalism’s focus on the meaning of the text for a hypothetical, reasonable person at the time of ratification. We describe the first instance of this problem, which occurred in Hylton v. United States (1796). Hylton involved the constitutionality of an excise tax, and we use that case to provide a real example of the impossibility of a New Originalist interpretation when the historical materials provide clear evidence of equally plausible but conflicting meanings. We suggest that Justice Paterson’s opinion in Hylton offers a solution to this problem: where New Originalism cannot settle the question of original meaning, judges might turn to Old Originalism’s focus on the intentions of the Founders. Our article thus makes three significant contributions to constitutional scholarship: (1) it identifies a critical weakness of New Originalism; (2) it demonstrates how the Supreme Court in the founding era used Old Originalism to resolve this problem; and (3) it represents the most complete analysis of the historical meaning of the taxation provisions in Hylton, which may prove to be useful for present or future litigation over the taxing power.

Larry Solum had some generous words about the article here, and the Originalism Blog was kind enough to link to the article as well.