I'm no American citizen, so I don't know that much about all the ins and outs of the Constitution. I've been watching a movie where one of the characters called the federal income tax "unconstitutional" due to the 5th Amendment. The 5th Amendment reads:


Surfing the web, I found a claim that federal income tax is somehow reckoned to be indirect, which was used to have the 16th Amendment come to be. Indirect taxation is indeed no subject to the highlighted part of the 5th, yet I just can't see how federal tax is not direct.

Is federal income tax really indirect? If so, how? If not, how are 5th and 16th Amendments not contradicting one another?

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    Even if they were in contradiction, the 16th Amendment was passed later so it wins. Nov 15 '20 at 15:58
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    As to "direct taxes", see law.stackexchange.com/questions/57669/… Nov 15 '20 at 17:12
  • @NateEldredge The relative passage dates of the Fifth and Sixteenth Amendments are largely irrelevant. For instance, you can't escape liability for copyright violations just because the First Amendment was ratified after Article I.
    – bdb484
    Nov 15 '20 at 18:44
  • @bdb484 but Article I and the first amendment are not in direct conflict on that question. When two provisions of the constitution (or other law) are in direct conflict, with nothing else to indicate that one should take precedence, the later takes precedence.
    – phoog
    Nov 17 '20 at 1:58
  • @phoog Exactly. Because there isn't a direct conflict -- as in the OP's question -- the passage dates are irrelevant. Instead, we go to the general-specific canon.
    – bdb484
    Nov 17 '20 at 2:09

The legal question is whether a tax (state or federal) constitutes a "taking" for purposes of the 5th Amendment eminent domain clause.

The Courts have always held that a generally applicable tax does not constitute a taking, so the income tax is not a taking. The Court came to this conclusion because the 5th Amendment takings clause was always understood to refer to government exercise of the power of eminent domain, rather than generally applicable taxes or regulations, even though they might have a negative economic effect on someone by causing their property to be taken for public use or by making their property less valuable.

The exclusion of taxes from 5th Amendment takings predates the 16th Amendment. There have always been taxes and taxes are always collected for public use.

The direct/indirect tax distinction arises not under the 5th Amendment, but under Article I, Section 2, Paragraph 3 of the United States Constitution and governs what kinds of taxes Congress is authorized to impose. This has nothing to do with the 5th Amendment.

  • Does "direct tax" in this context mean a head tax? Apr 3 at 2:40
  • @Acccumulation No. Direct tax means a tax other than a head tax imposed on something other than income that is not an excise tax or tariff or duty.
    – ohwilleke
    Apr 5 at 23:09

The direct/indirect distinction is less important than the general/specific distinction.

Common law courts like those in the United States rely on the "general–specific canon," a rule of statutory construction saying that when two laws could be read to impose conflicting rules, "the specific provision is construed as an exception to the general one." RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012).

Here, we have the Fifth Amendment's general prohibition on taking property without compensation, but we also have the Sixteenth Amendment's explicit grant of authority to impose an income tax. Because the Sixteenth Amendment is more specific, we treat it as an exception to the Fifth. Although it was not in the context of the income tax, the U.S. Supreme Court basically followed this analysis in another Fifth Amendment tax case:



The court also stated the rule a bit more broadly in another case ten years earlier:

Whilst undoubtedly both the 5th and 10th Amendments qualify ... all the provisions of the Constitution, nothing in those amendments operates to take away the grant of power to tax conferred by the Constitution upon Congress.


One could also argue that the provisions are not in conflict at all. The Fifth Amendment does not prohibit taking private property; it only prohibits taking private property "without just compensation." Income taxes are used to fund the federal programs, so there is a strong argument to be made that the existence of a functioning government, military, judiciary, etc. is just compensation for the income taxes taken. I don't know that any courts have relied on this analysis, but it would likely be a fallback if the general-specific canon did not resolve the question.

  • In addition to general specific, there is, I believe, a "layering" of amendments, to support the Constitution as a living document. More "recent" additions tend to overwrite "older" sections of the Constitution, e.g. the Thirteenth Amendment overwrites Article 1, Section 2, and the Seventeenth Amendment overwrites Article 1, Section 3, without explicitly mentioning them the way the 21st Amendment references the 18th.
    – sharur
    Nov 16 '20 at 4:29

There are people in the USA who believe or claim that for some weird reason they don't have to pay income tax. I read up on this just for fun and it seems to me that the only person who wouldn't have to pay US income tax would be the pope if he was a US citizen (some exception about leader of a religious organisation which I think only would apply to him).

Fact is that if you go to court and make this claim to avoid paying income tax, you will be convicted for making that claim on its own. That's very unusual, you can make lots of nonsense arguments about things in court, and worst case is that it gives the judge a good laugh, but this particular thing is so common and so annoying that making this argument on its own will get you into trouble.

So yes, a movie showing someone making this claim is not unrealistic. If the movie showed that person making the argument in court, they would also show him getting arrested.

  • Thank you for your answer! Unfortunately, I know nothing about law, so I do not quite see how this answers my question, as I was asking about the coexistence of the 5<sup>th</sup> and 16<sup>th</sup> Amendments, not the popular opinion on the latter. I would appreciate if you added a bit more details to your answer. Nov 15 '20 at 16:18
  • What crime is it to question this part of the constitution? It is hard to believe this is accurate. Nov 15 '20 at 19:30
  • Challenges to the constitutionality of the federal income tax have been so thoroughly refuted that such arguments are generally considered frivolous. It's not correct to say that a defendant would be "convicted" for making that claim, but it would be thrown out, and the defendant could be subject to sanctions.
    – bdb484
    Nov 15 '20 at 19:36
  • @GeorgeWhite: See for instance irs.gov/pub/irs-utl/friv_tax.pdf, pages 54 onward. Raising such an argument can in principle be the crime of evading or defeating tax. Tax penalties are more likely, though. Nov 15 '20 at 21:40
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    These crimes all involve submitting documents to the IRS. Someone who paid their taxes, submitted an accurate 1040 and then went to court to argue it should be refunded since the IRS was illegal would not be committing crime just by making the argument in court. Nov 16 '20 at 2:27

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