Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2025

Publication Title

Tax Notes Federal

Abstract

The Constitution’s requirement that direct taxes be apportioned by state population is both confounding and important. At best, tax apportionment is regarded as reflecting the unique federalism concerns of the Founding; at worst, it is viewed as a tainted product of the constitutional compromise over slavery. And, in light of the Supreme Court’s decision in Moore v. United States (2024)—which refused to rule out that apportionment might be required for taxes on unrealized gains—tax apportionment is the subject of renewed legal and scholarly interest.

We consider one historical dimension of tax apportionment that has not been developed elsewhere: its original function. Today, apportionment can feel puzzling. But it emerged and persisted across hundreds of years of English, British, and American colonial practice because it was useful. We argue that the original function of tax apportionment was to solve a set of incentive problems that emerges when a central authority (like the crown) must rely on local authorities (like town and county officials) for tax gathering. In the context of this principal-agent problem, apportionment preserves the benefits of local flexibility—the local community can raise its allotment however it sees fit—but imposes a quota that limits flexibility and protects the central fisc. But we do not offer this theory to rationalize apportionment today. Indeed, understanding the original function of tax apportionment helps us understand exactly how far the Constitution’s use of tax apportionment strayed from its original purpose.

Keywords

Tax Apportionment, Constitutional Law, Moore v. United States, Federalism

Publication Citation

Conor Clarke & Peter J. Wiedenbeck, The Original Function Of Tax Apportionment, 188 Tax Notes Fed. 1215 (2025)

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