The 16th Amendment is treated across these episodes as the constitutional provision that authorized the federal income tax. Bob Zadek dates its ratification to February 3, 1913, and describes it as proposed by William Howard Taft, then president. He calls it “the despised 16th Amendment” and says life changed after that date. [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]]
Zadek’s framing is that the income tax had been unconstitutional before the amendment and required a constitutional change to permit it. He groups the 16th with the 17th Amendment, which provided for the direct election of senators, as the two worst amendments to the Constitution, both occurring in the same year. He describes the income tax as a game-changer for the country. Sarah Stillman on Minors on the Sex-Offender List (2016)
The pre-amendment income tax
Chris Edwards complicates the picture. Before the 16th Amendment was ratified, he says, the federal government could tax income, but the burden had to be apportioned on a per capita basis between the states. The purpose of the amendment was to let the government impose an income tax in whatever way it wanted. Debt & Taxes (2021)
Edwards adds that even before the amendment, in 1909, the federal government imposed a corporate income tax and got around the prohibition on apportionment by calling it an excise tax rather than an income tax. In his view the corporate income tax is the worst type of income tax, and the government did not need the 16th Amendment to impose it. He concludes that the amendment “isn’t kind of everything,” because the government was able to get around the prohibition on that type of taxation before it. Debt & Taxes (2021)
Zadek offers a parallel account in a later episode. He says the income tax was expressly forbidden by the founders, who feared giving the federal government the excessive power it would have if it could directly tax the people. The power to tax in the Constitution, he says, was only the power to levy a tax borne equally by the states, so that each state paid under the same system of taxation. A temporary income tax existed during the Civil War, then was promptly repealed. The first permitted income tax in 1913 required the Constitution to be amended. What the IRS’s Hiring Spree Means for You (2023)
The Fair Tax alternative
Gary Johnson, then a candidate for the Libertarian presidential nomination, proposes throwing out the entire federal tax system and replacing it with the Fair Tax. He says it does away with all existing federal tax—income tax, corporate tax—and with withholdings, replacing them with a 23% consumption tax. He states that it does away with the 16th Amendment, which allows for income tax. He describes it as cost-neutral over a very short amount of time and says it makes goods and services 23% more competitive. The Triumph of Principle Over Politics (2012)
The libertarian Constitution
Timothy Sandefur, discussing a proposed libertarian Constitution, says Congress would have less need for money under his framework and there would be no need to replace the current flood of earnings the government takes. He acknowledges that a dyed-in-the-wool libertarian would object to government having any taxing power, so the proposal compromises on libertarian principles for constitutional purposes. Timothy Sandefur on The Libertarian Constitution (2021)
Under Sandefur’s proposal, Congress can lay taxes but cannot impose income taxes; there is an express prohibition. Congress may “lay and collect taxes, duties, imposts, and excises,” the language of the current Constitution, but taxes are limited to paying debts and providing for the common defense and general welfare, and general welfare shall not be construed to refer to the specific welfare of any particular group or individual. Imposts and excises must be uniform throughout the United States. Sales taxes and taxes on imports would be constitutional. Timothy Sandefur on The Libertarian Constitution (2021)
Zadek reads this as permitting something like a European value added tax, a sales tax at every level of production. He notes that many people unhappy with tax policy dislike a VAT because it is hidden—things simply cost more—allowing the legislature to raise rates painlessly. Sandefur responds that the proposal probably should also have included a constitutional prohibition on withholding, because withholding means people do not realize their tax burdens; when they get a refund they think they are getting a special gift, when all they are getting back is the change from money the government took from them to begin with. Zadek observes that withholding is a form of commandeering. Timothy Sandefur on The Libertarian Constitution (2021)
Defining income
Edwards describes a long-running struggle over the meaning of income. Ever since the federal income tax was imposed, he says, economists and members of Congress on the left have held an expansive idea of income, which economists call Haig-Simons income, essentially including the overall value of all wealth appreciation during the year. Under that view, if a house rises in value by ten or twenty thousand dollars in a year, the owner ought to be taxed on that appreciation that year and every year; if Jeff Bezos’ Amazon wealth rises by ten billion dollars in a year, he ought to be taxed on it right away. Debt & Taxes (2021)
Conservatives and libertarians, Edwards says, have long thought income should be more narrowly defined as essentially consumption—what a person takes out of the economy. If Bezos owns Amazon and lives frugally, leaving his wealth invested, that should not currently be taxed because his wealth is generating GDP for the overall economy; only when money is taken out of investment and consumed should income be taxed. The current federal income tax is a compromise: capital gains are taxed on realization, when Bezos sells shares. Democrats, Edwards says, are pushing to expand that by taxing capital gain appreciation when it happens rather than waiting for the realization event. Debt & Taxes (2021)
Across episodes
The topic recurs across five episodes spanning 2012 to 2023, and the treatment shifts with the guest. Gary Johnson in 2012 proposes replacing the income tax with the Fair Tax and doing away with the 16th Amendment. Bob Zadek in 2016 and 2017 treats the amendment as one of two structural mistakes, paired with the 17th. Chris Edwards in 2021 supplies the pre-ratification history of apportionment and the 1909 corporate excise tax, and Timothy Sandefur in the same year drafts an express constitutional prohibition on income taxes. In 2023 Zadek returns to the founders’ fear of direct taxation. The excerpts show no single argument advanced and then answered; each guest addresses the amendment from a different direction.
What the sources do not cover
The excerpts do not state the full text of the 16th Amendment, the vote counts in Congress or the states, or the case law that preceded and followed ratification. They do not name the Supreme Court decisions that turned on the amendment or on the apportionment requirement. The 2021 Debt & Taxes excerpt labeled with a timestamp of 06:31 is the only portion of that episode’s discussion of the amendment reproduced here, and the 2023 episode’s guest response is not included.