The Unconstitutionality of Eliminating Estate and Gift Taxes

Abstract

The recent proposal to eliminate estate and gift taxes is not only immoral and a poor allocation of resources, but also is unconstitutional. Irrespective of their ideology, virtually all American lawyers will initially dismiss this accusation as frivolous because it conflicts with their tradition of equating conceptions of constitutionality with United States Supreme Court opinions. The Court has long been highly deferential to Congress in federal tax law cases. It is inconceivable that the current Court would find anything irrational in a facially neutral law eliminating all estate and gift taxes. Indeed, if I sat on that bench, I would join my far more conservative colleagues in upholding such a law against any constitutional challenges. The taxation power remains the central government\u27s primary tool for social/economic transformation and military operations. After all, money is the sinew of war. When in doubt, it is best to follow Justice Holmes\u27 admonition in his Lochner v. New York dissent to a decision invalidating a state law that limited bakers\u27 working hours: [A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation on the citizen to the State or of laissez faire