New and Old Originalisms, Taxes, and the Establishment Clause

Not the most common threesome, it’s true, but united in this interesting piece by Joel Alicea and Donald Drakeman, The Limits of New Originalism.  For those that don’t know Drakeman’s work, you should check out his terrific Church, State, and Original Intent (here are some thoughts I wrote up about the book).  

The new piece argues that the “new” originalism faces an important problem when originalist materials point toward “two or more equally persuasive original public meanings.”  The authors focus on what would ordinarily be a relatively obscure tax case from 1796 — Hylton v. United States — which involved the constitutionality of a federal tax on carriages.  The case was actually cited fairly extensively by CJ Roberts in his NFIB opinion for the discussion about the direct taxation issue (see pp. 40-41).  The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South (the strategy used to get to the Supreme Court at all is pretty neat too).  The case pitted Hamilton against Madison (who had argued against the tax’s constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and “what to do when the best evidence of contemporary usage points in two directions.”  The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources — dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the “foreign Lexicons” of “consolidated” as opposed to “confederated” governments, commentaries, poems (do see Andrew Marvell’s verse on the excise tax as a “thousand eye[d]” “monster” — eat your heart out, Argus!), ratification materials, congressional debates, and so on.

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