Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2026

Publication Title

Tax Law Review

Abstract

The Constitution requires that Congress apportion any “direct” tax among the states by population. This once-dormant provision is now the most important constitutional limitation on Congress’s taxing power. Last year, in Moore v. United States, the Supreme Court seriously considered, for the first time in decades, whether to invalidate an Act of Congress as an unapportioned direct tax. While the law survived, Moore has opened a new era in which scholars and policymakers must again take apportionment seriously. Yet the apportionment requirement remains poorly understood.

This Article provides a new perspective on apportionment by examining how Congress and Treasury sought to design and implement apportioned direct taxes. Today, apportionment is regarded as a complete nonstarter. But Congress enacted apportioned direct taxes at three distinct junctures: in 1798, during the War of 1812, and once more in 1861. We study the design and consequences of these taxes—and, in so doing, uncover new details. Apportioned direct taxes never raised the funds that Congress directed and were never successfully apportioned as the Constitution seemingly requires.

These findings call for reevaluating tax apportionment. Existing accounts of apportionment’s disappearance focus on the conflict between apportionment and modern tax progressivity, but we identify a deeper tension in the Constitution’s requirement: between the need to specify an “apportioned” revenue target and a “direct” tax base. Congress and Treasury were more successful in apportioning taxes only when they relaxed the definition of the direct base. Indeed, the political branches never embraced a consistent definition of the direct tax base or a rigid understanding of what apportionment required—findings with ongoing relevance for today’s new debate over the scope of the taxing power.

Keywords

Tax Law, Constitutional Law, Direct Taxes, Apportionment, Legal History

Publication Citation

Conor Clarke & Ari Glogower, Apportioned Direct Taxes, 79 Tax L. Rev. (forthcoming 2026)

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