“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.”

Thus far we have dealt only with such limitations upon the federal taxing power as are expressly imposed by the Constitution.  As has been seen, the only express limitations are that direct taxes shall be apportioned among the states, that indirect taxes shall be uniform, and that exports shall not be taxed at all.  There are, however, certain other limitations which we proceed to notice briefly.

The Constitution provides[1] that the compensation of federal judges “shall not be diminished during their continuance in office.”  There is a similar provision as to the compensation of the President.[2] No attempt seems to have been made to tax the compensation of federal judges prior to 1862.  A statute of that year subjected the salaries of all civil officers of the United States to an income tax and was construed by the revenue officers as including the compensation of the President and the judges.  Chief Justice Taney, the head of the judiciary, wrote the Secretary of the Treasury a letter[3] protesting against the tax as a virtual diminution of judicial compensation in violation of the constitutional provision.  No heed was paid to the protest at the time but some years later, upon the strength of an opinion by Attorney General Hoar, the tax on the compensation of the President and the judges was discontinued and the amounts theretofore collected were refunded.  There the matter rested until after the Income Tax Amendment, when Congress again sought to impose a tax upon the income of the President and the judges.  A federal judge of a Kentucky district contested the tax and the question came up before the Supreme Court for final decision.  On behalf of the revenue department it was urged that a general income tax, operating alike on all classes, did not involve any violation of the constitutional provision.  It was also contended that such a tax was expressly authorized by the Sixteenth Amendment giving Congress power to tax incomes “from whatever source derived.”  The Court in an exhaustive opinion[4] overruled both these contentions and held the tax to be a violation of the Constitution.

[Footnote 1:  Art. 3, Sec. 1.]

[Footnote 2:  Art. 2, Sec. 1, Clause 6.]

[Footnote 3:  See 157 U.S., 701.]

[Footnote 4:  Evans v.  Gore, 253 U.S., 245.]

It has often been asserted that a limitation of the federal taxing power is found in the “due process” clause of the Fifth Amendment of the Constitution, providing that no person shall “be deprived of life, liberty, or property without due process of law.”  This amendment relates to the powers of the General Government.  A similar limitation on the powers of the states is found in the Fourteenth Amendment.  Taxing laws have frequently been attacked