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The Uneasy Case for Progressive Taxation

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The Uneasy Case for Progressive Taxation University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1952 The neU asy Case for Progressive Taxation Walter J. Blum Harry Kalven Jr. Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Walter J. Blum, Harry Kalven & Jr., "The neU asy Case for Progressive Taxation," 19 University of Chicago Law Review 417 (1952). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. THE UNIVERSITY OF CHICAGO LAW REVIEW VOLUME 19 SPRING 1952 NUMBER 3 THE UNEASY CASE FOR PROGRESSIVE TAXATION WALTER J. BLUM AND HARRY KALVEN, JR.* I. ROGRESSIVE TAXATION IS NOW REGARDED as one of the central ideas of modern democratic capitalism and is widely accepted as a secure policy commitment which does not require serious examination. The single topic of this essay is the extent to which progressive taxation can be justified. It may seem something of a luxury to indulge in an extensive investiga- tion of this question at the present time. There are, to be sure, some indica- tions that the subject is newsworthy. The State of Illinois is currently con- sidering an amendment to its constitution to permit the enactment of a state income tax. While there is considerable support for the adoption of an income tax, there is widespread insistence that the amendment contain an explicit prohibition against a progressive income tax.' On the national scene attention is finally being paid to the proposal to amend the Constitu- tion to limit the rates of federal income taxes by imposing a ceiling of twenty-five per cent.2 It is clear that the amendment has as one of its prin- * Associate Professors of Law, University of Chicago Law School. Both Houses of the Illinois legislature have approved a resolution calling for submitting to the electorate in November .952 a proposal to amend various sections of the revenue article of the Illinois Constitution. Proposed new Section 2 provides: "The General Assembly may levy or authorize the levy of such other kinds of taxes as it may deem necessary, which shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, but shall not levy or authorize the levy of a graduated income tax." 7th General Assembly, Illinois, House Joint Resolution 40 (i95.). The wording of the amendment may conceal a serious ambiguity as to whether the prohibition extends to the kind of pro- gression that results from granting an exemption. See text, section 2o infra. The proposed amendment was discussed at the University of Chicago Law School Conference on Illinois Constitutional Amendments, Evening Session, May 15, i95i. zSee H.J. Res. 323, 82d Cong. ist Sess. (i9Mi); H.J. Res. 268, 82d Cong. ist Sess. (195'); S.J. Res. 108, 82d Cong. 1st Sess. (i95i). The proposed amendment is subjected to appropriate 417 THE UNIVERSITY OF CHICAGO LAW REVIEW [Vol. x9 cipal purposes the curtailing of progression, at least during periods of peace. On the international level the progression issue has put in an ap- pearance in the discussions of how the costs of maintaining a common military organization are to be apportioned among the member nations of the North Atlantic Treaty Organization. The argument is repeatedly being advanced that the progressive principle in the tax systems of the individual countries offers strong precedent for adapting the principle to this new situation.3 Apart from these current developments, it is always true that every adjustment of federal tax rates necessarily calls into active question the principle of progression. Any change in the rates either re- affirms the existing degree of progression or alters it. The basic considera- tions advanced in every controversy about rate changes echo the argu- ments for and against the principle of progression itself.4 These current matters, however, are not the motivating force for this essay. It arises out of an attempt to satisfy our curiosity. Like most people today we found the notion of progression immediately congenial. Upon early analysis the notion retained its attractiveness, but our curiosity as to the source of its appeal increased. The somewhat paradoxical character we detected in the topic is suggested by certain aspects of its literature. A surprising number of serious writers note that progression seems to be in- stinctively correct, although they then go on to explore it on rational grounds. More striking is the fact that the most devastating critics of the defenses for progression are almost invariably its friends. It is close to the truth to say that only those who ultimately favor progression on some ground have been its effective critics on other grounds.5 It is as though scrutiny in 29 Taxes (July i95i). If additional literature on the subject is desired, it can be obtained all too easily from the Committee for Constitutional Government, 2o5 East 42d St., New York 17, N.Y. 3 "Now this principle [of proportion] may be fair. If so, we must not shirk the obvious implications; and it is certain that some countries of continental Europe are not pulling their weight. But in fact the full proportional principle is not in line with modem ideas about the equity of tax burdens. All civilized countries now operate on the progressive and not on the proportionate principle, namely, the principle that persons with a higher real income should contribute a larger proportion of their income in taxation. It would, on this principle, be fair that the United States, with its higher real income per head, should contribute a higher pro- portion of its national income to the common defence. Indeed, it is inevitable that the pro- gressive principle should be adopted. But if it is adopted, it does, of course, greatly complicate the problem of equitable burden-sharing." Mead, Some Economic Problems of Atlantic Union Rearmament, Lloyds Bank Rev. 35, 40 (Oct. 195'). 4 See Blough, The Argument Phase of Taxpayer Politics, 17 Univ. Chi. L. Rev. 604 (1950). s Sufficient evidence for this point may be found in the writings of Seligman, Edgeworth, Chapman, Fagan and Simons which are discussed in some detail in the course of the essay. This is not to deny that there are some competent critics who in the end rejected progression, such as Adams and Bastable. 1952] THE UNEASY CASE FOR PROGRESSIVE TAXATION 419 those who have most clearly detected the weaknesses of various lines of analysis previously offered to support progression were under a compul- sion to find some new way to justify it rather than give it up. The hunch that there must be some basis on which an idea as initially attrac- tive as progression can be justified is stubborn indeed. 2. It is probable that many do not reach the issues of progression because they tend to regard as decisive the fact that the rich pay more in taxes than the poor. But this is an attribute of both proportionate and progres- sive taxes and overlooks the real difference between the two. A proportion- ate tax, for example on income, is one which taxes each dollar of income at the same rate regardless of the total income of the taxpayer; under it a taxpayer with ten times the total income of another would pay ten times as much tax. A progressive tax on income is one whose rate increases as the income of the taxpayer increases; under it a taxpayer with ten times the total income of another would pay something more than ten times-as much tax. There is another basic rate pattern for a tax. The rate of tax, again using a tax on income as an illustration, may be graduated downward with income and thus be regressive; under this pattern a man with ten times the income of another would pay something less than ten times as much tax. It is so clear no one today favors any tax because it is regressive that the term itself has become colored. Since a regressive tax on income is not a serious alternative the question of this essay can be narrowed and restated: On what grounds is a progressive tax on income to be preferred to a proportionate tax on income? The question requires further qualification. It assumes that the rate of the tax is being measured against income. Income is not the only possible base against which to classify rate patterns; either capital or expenditures could be used.6 The income base, however, appears to offer the best frame- work for analysis of the case for progression, and therefore discussion will be focussed on it, although from time to time reference will be made to wealth as a base., 6 Not every tax base would be equally meaningful for progression; thus a "progressive" tax on the consumption of milk would almost certainly be regressive as measured by income or wealth. "Progressive taxes may be divided into two general types: one type of tax is based on a flow of money or goods and services during a given period of time, the other on a stock of capital or goods belonging to a taxpayer at a given point in time. The principal exemplars of the 'flow' type of tax are the income tax and the spendings tax; the 'stock of goods' type of tax includes property taxes, net worth taxes, capital levies, and succession taxes." Vickrey, Agenda for Progressive Taxation 4 (1947).
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