This Article offers a more comprehensive and substantial approach to constitutional review of the general power to tax and the way tax laws should comply with constitutional rights and principles. The power of Congress to levy taxes is not confined to income taxes; it is broader and much more general. Article I, Section 8 of the Constitution describes the general power of Congress in terms of tax laws as follows: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States . . . .” This provision contains more than it seems at first glance. First, it says that only the legislature has the power to lay taxes. The legislature represents the people; hence, a tax should be levied only if there is a collective consent of the people, the taxpayers. Second, any tax should be enacted only for the provision of the “common defense and general welfare.” The Author's underlying assumption here is quite clear and straightforward: tax laws are not immune from judicial review and constitutional limitations restrict the power to impose taxes. Taxes should be scrutinized, via judicial review, like any other act of Congress. Any tax may be unconstitutional if it does not provide for the common defense and general welfare, or if it does not represent the collective consent. Furthermore, a tax should not violate any other constitutional rights or interests, e.g., property or equal protection rights.

Recommended Citation

Edrey, Yoseph. "Constitutional Review and Tax Law: An Analytical Framework." American University Law Review 56, no. 5 (June 2007):1187-1228.