In the fifth Amendment :

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In The Taxing and Spending Clause Article I, Section 8, Clause 1, it states:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

As far as I know, money, diverse as its forms may be, is considered property in most if not all of the cultures. How do you "just"-ly compensate for the tax you have collected? A free lance programmer for example, can make as much as 5 mechanics while staying at home where as the 5 mechanics use roads, bridges and various other infrastructure on a daily basis. Even in the 18th century, it would be an extremely deviant and extraordinary claim that one will be "just"-ly compensated for his tax paid.

Did the founding fathers grow weary of their undertakings and decided to forsake due diligence and instead, wager on the possibility that no dangerous amount of people will invest their time on the fault finding in the future? If that were the case, they most certainly were right.

Is this a contradiction? If it is, what should we make of it? Repair it? Ignore it until it blows up like what we always do?

  • Perhaps the compensation for the taking of taxes is the "common Defence and general Welfare." The programmer benefits from those, including the activities of the justice department and the courts, as well as from the regulation of interstate and international commerce (for example, a programmer in Maine can work without restriction for an employer in California). The programmer also benefits from patent and copyright protection. However, I suspect that the real answer lies in the fact that "property" was generally used to refer to land. – phoog Jul 13 '17 at 14:50
  • 100% right, @phoog. Even more generally, maintaining one’s status as an American citizen is remuneration enough. – A.fm. Jul 17 '17 at 7:33
  • A free lance programer working from home generally does so by using the internet to transfer his code to his customers. While the infrastructure is largely privately owned, the technology was originally developed to ensure command and control capabilities between multiple surviving military installations in the event of nuclear war, eliminating a single point of failure and denigning an enemy a "decapitation strike." – hszmv Feb 12 at 11:43

The historical record on the question is probably too thin to yield a well-supported answer as to the due diligence and the underlying "what were they thinking" question, that is, I doubt there is any record of any original debate where one side demands resolution of the contradiction, and how that charge was answered.

The American Law of Taxation: As Determined in the Courts of Last Resort gives a summary of the ensuing case law relationship between taxation and compensation, as of 1884 (p. 31 of the book, p. 100 in the PDF):

Taxation differs from the power of eminent domain in this: that it has no thought of compensation by way of return for that which it takes and applies to the public good, further than all derive benefit from the purposes to which it is applied; in other words, that the support of government and other objects of public utility promoted by taxation are supposed to return to the individual the same which has been taken from him, as his share of the public burden


The limitation in the constitution that private property shall not be taken for public use, refers solely to the right of eminent domain, and not to taxation or special assessments for local benefits.

(both quotes with long lists of supporting state law citations). The New York case People v. Mayor of Brooklyn, 4 N.Y. 419 apparently overturned its prior ruling (I think the citation is 6 Barb. 214, which I can't track down), commenting on the earlier ruling on an assessment.

The supreme court reversed and annulled the assessment, holding...

That money is property; that it can not be taken from a citizen for public use by the right of eminent domain, without just compensation; and that the enhancement in value of the relators' lands, by the grading and paving of Flushing avenue, is not that just compensation within the meaning of the constitution.

The later court gets out of this, noting that

Taxation exacts money, or services, from individuals, as and for their respective shares of contribution to any public burden. Private property taken for public use by right of eminent domain, is taken not as the owner's share of contribution to a public burden, but as so much beyond his share. Special compensation is therefore to be made in the latter case, because the government is a debtor for the property so taken; but not in the former, because the payment of taxes is a duty and creates no obligation to repay, otherwise than in the proper application of the tax.

Taxation operates upon a community or upon a class of persons in a community and by some rule of apportionment. The exercise of the right of eminent domain operates upon an individual, and without reference to the amount, or value exacted from any other individual, or class of individuals.

In other words, the Takings and Just Compensation clauses are understood to be about the power of eminent domain, which specially burdens the individual, and that is distinct from the general burdening of society that is taxation.

There are, as far as I know, no finely-tuned SCOTUS rulings on the relation between the Just Compensation clause and the tax and spend clause. There is case law that holds that there is no contradiction between the power to tax and the Fifth Amendment. For example McCray v. US, 195 U.S. 27:

While both the Fifth and Tenth Amendments qualify, insofar as they are applicable, all the provisions of the Constitution, nothing in either of them operates to take away the grant of power to tax conferred by the Constitution upon Congress, and that power being unrestrained except as limited by the Constitution, Congress may select the objects upon which the tax shall be levied, and, in exerting the power, no want of due process of law can possibly result, and the judiciary cannot usurp the functions of the legislature in order to control that branch of the Government in exercising its lawful functions.

And Brushaber v. Union Pacific, 240 U.S. 1:

So far as the due process clause of the Fifth Amendment is relied upon, it suffices to say that there is no basis for such reliance, since it is equally well settled that such clause is not a limitation upon the taxing power conferred upon Congress by the Constitution; in other words, that the Constitution does not conflict with itself by conferring, upon the one hand, a taxing power, and taking the same power away, on the other, by the limitations of the due process clause.

This however says that taxation laws do not violate the due process requirement.


It should be pointed out that as originally drafted, Income Tax in the United States was originally very difficult to impose in the United States. The first income tax was created to support the prosecution of the Civil War in 1861 and the Tax was repealed in 1872. The next implementation of an income tax was in 1894 and imposed the first peacetime income tax in the Wilson-Gorman tariff act. In 1895 a monkey wrench was thrown into the tax law when SCOTUS ruled in Pollock v. Farmers' Loan & Trust Co. that Wilson-Gorman was unconstitutionally implemented and that congress needed to divid the tax evenly among the states based on population. Pollock didn't rule that income tax was unconstitutional out right, but did make it a logisitical nightmare for the government to actually implement.

The solution to this was the 1906 ratification of the 16th amendment which exempted income tax from Article I section 8 restrictions (Constitutional Amendments are one of the few ways to overturn a SCOTUS decision and all Amendments that change the powers of Federal Government always assume the more recent amendment on the matter to overturn previous contradicting amendments.

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