I am new when it comes to understanding the US Constitution and I am not comfortable with Section 2, Paragraph 3 of Article 1!

[Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons.]* The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner, as they shall by Law direct. The The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

What is meant by "direct taxes" in Article 1 Section 2 Paragraph 3?

Note: I have done research on Law SE but found nothing which relates to the answer I'm looking for.

Some relevant link: https://constitutioncenter.org/media/files/constitution.pdf




1 Answer 1


Direct taxes were understood at that time as taxes directly on individuals such as a flat-per-person head tax (poll tax,aka a capitation) or an ad valorem (by value) property tax. Taxes on imports and exports, and excise or "use" taxes, such as a tax on the manufacture and sale of whiskey, were not considered to be direct taxes.

In 2007 a US Court of Appeals said, in Murphy v. Internal Revenue Service and United States, (case no. 05-5139, United States Court of Appeals for the District of Columbia Circuit) that: "Only three taxes are definitely known to be direct: (1) a capitation [ . . . ], (2) a tax upon real property, and (3) a tax upon personal property."

In section 17 of Pollock v. Farmers’ Loan and Trust Company (link below) the Supreme Court wrote:

Ordinarily, all taxes paid primarily by persons who can shift the burden upon some one else, or who are under no legal compulsion to pay them, are considered indirect taxes; but a tax upon property holders in respect of their estates, whether real or personal, or of the income yielded by such estates, and the payment of which cannot be avoided, are direct taxes.

This opinion goes into great detail on the history of the apportionment clause, and of direct and indirect taxes.

See also The Wikipedia article on Direct Tax.

After a na6tional income tax was imposed in 1894, it was held (in 1895) to be unconstitutional under this provision. This was in Pollock v. Farmers’ Loan and Trust Company, 157 US 429 (1895). An earlier income tax was passed in 1861, and repealed about 10 years later without challenge. The 16th amendment was passed (ratified in 1913) to declare income taxes not to be subject to this provision. See History of the US Income Tax and the LII page on Income Tax.

To the best of my understanding, no current federal tax is considered a direct tax subject to apportionment under this provision. Indeed the apportionment requirement, which was copied from the previous articles of Confederation, was so awkward that taxes which would be subject to it were never or almost never imposed, but ways were found to make any desired taxes not "direct". This provision is, accordingly, obsolete as far as taxes go.

  • 1
    I don't believe that any direct tax has ever been imposed in the U.S. with the possible exception of a few months during the 1780s or 1790s that was later withdrawn.
    – ohwilleke
    Nov 4, 2020 at 23:03
  • @ohwilleke: Income taxes are direct taxes (although they are not bound by the above provision, due to the 16th amendment).
    – sharur
    Mar 8, 2022 at 18:54
  • @sharur Certainly. Income taxes have been expressly held to be express taxes but are excepted from that rule.
    – ohwilleke
    Mar 8, 2022 at 19:05

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