This Clarence Thomas Dissent Reveals His Favorite Tactic for Constitutional Mayhem (2024)

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Justice Clarence Thomas is a master at the art of bogus history—rewriting the past to give the Constitution a new, dubious meaning that happens to align with the Republican Party platform. Even by his own lofty standards, the justice outdid himself in Moore v. U.S., last week’s major tax case. Thomas’ dissent is a masterwork of partisan historical revisionism, manipulating reality so seamlessly that an unsuspecting reader might actually think he is telling the truth. He isn’t, not even close: Thomas’ goal in Moore is to eviscerate the 16^th Amendment, which legalized the federal income tax in 1913. And, as is so often the case, the justice marshals his argument by diminishing a progressive constitutional amendment as some illegitimate affront to the Framers’ original, divinely inspired design. At this point, it is unclear whether Thomas even acknowledges the full validity of the amendments that made this nation more equal and egalitarian. He is, at a minimum, committed to reading many hard-fought post–Civil War constitutional reforms out of the law altogether.

Conservative attorneys manufactured Moore as a preemptive challenge to a potential future “wealth tax” on affluent Americans’ net assets, including personal property. They seized upon an obscure 2017 provision of the Trump-era tax cuts that taxed shareholders of U.S.–owned corporations located overseas by collecting money on undistributed income. These lawyers argued that the tax was unconstitutional under the 16^th Amendment, which allows Congress “to lay and collect taxes on incomes, from whatever source derived.” The word income, they argued, has a “realization requirement”—meaning that the money must reach a taxpayer’s pockets before the government takes a cut of it. This theory would forestall a wealth tax, since Elon Musk, for instance, hasn’t yet made money on the tens of billions of dollars in Tesla stock he owns.

The Supreme Court wound up ducking the “realization” issue altogether, holding simply that a company’s undistributed income can be attributed to its shareholders. Thomas wrote an angry dissent chastising the majority for “ignoring” the larger question. He embarked upon a journey through a version of history that had not, in fact, occurred, to shrink the 16^th Amendment down to a “narrow meaning” that only “slightly altered” the original Constitution. In the process, he elevated a muddy accommodation for slavery over a signal triumph of the Progressive Era. That’s business as usual for our amateur historian in chief.

Thomas’ sleight of hand revolves around the direct tax clause of the original Constitution. This provision was part and parcel of the three-fifths compromise, which counted enslaved people as three-fifths of a person for purposes of representation and certain taxes. There was, at the time, a common form of taxation that imposed a “head tax” on each individual taxpayer. Delegates to the Constitutional Convention called this a “direct tax.” In exchange for counting slaves as three-fifths of a person with regard to representation—boosting its share of seats in Congress—the South agreed to count slaves as three-fifths of a person with regard to any future “direct tax.” The slave states demanded and received another safeguard: Any direct tax had to be “apportioned” among the states according to their population (with each slave counting as three-fifths of a person). This system would impose wildly disparate tax burdens on Americans and has always been seen as basically impossible.

Thus, as professor Bruce Ackerman has definitively shown, the direct tax emerged as a sordid trade-off with the slave states, giving “a fig-leaf for antislavery Northerners opposed to the explicit grant of extra representation for Southern slaves.” Yes, the South got extra representation because of its slaves, but it also had to pay more taxes—except that the delegates all knew that new direct taxes were highly unlikely, in part because of how this compromise was structured. In fact, they weren’t even sure what a direct tax might look like, beyond the head tax imposed on individuals. Famously, by James Madison’s account, when one delegate asked the convention “what was the precise meaning of direct taxation,” nobody answered. In 1796 the Supreme Court clarified that a head tax was “direct,” as would be an express tax on land. But nothing else qualified.

Pause here and turn to Thomas’ account, which elides almost all the above. According to the justice, the direct tax clause was part of a “delicate” constitutional balance carefully hammered out at the Constitutional Convention to protect states from an overbearing federal government. Dismissing the clause’s roots in slavery, Thomas claimed that it embodied “federalism principles” designed to give “state governments a fiscal safe haven against expanding federal authority.” The limitation, by his telling, was meant to temper “the destructive force of the federal taxing power,” preventing “unjust taxes” that intrude on state sovereignty. He totally whitewashes the real basis of the clause—a fierce dispute between North and South over the Constitution’s accommodations for slavery.

Somehow, it gets even worse. Turning back to actual history, the Supreme Court understood the direct tax clause in its accurate historical context until 1895, when it abruptly struck down the federal income tax in a notorious case called Pollock. As professors Joseph Fishkin and William Forbath illustrate in their book The Anti-Oligarchy Constitution, the court of this period was dead set upon enshrining the legal supremacy of wealthy individuals and corporations. To that end, it redefined the phrase direct tax to encompass income for the first time. And because it was functionally impossible to apportion a tax among the states, the decision essentially outlawed any federal income tax.

There was not much law in Pollock: Rather, the five justices in the majority based their decision on overt hostility toward a fairer tax system. Justice Stephen Field wrote that the income tax constituted “class legislation” that discriminated against rich people, indistinguishable from a special tax on Protestants or Jews. Field framed the tax as a violation of the equality principles enshrined in the post–Civil War amendments. This claim was especially perverse because, as Justice John Marshall Harlan pointed out in dissent, the direct tax clause was rooted in slavery, and the postwar amendments were designed to rid the Constitution of the institution’s stain.

Predictably, Thomas embraces Pollock as the correct reading of the original Constitution. But Americans of the era disagreed. Progressive reformers mobilized to ratify the 16^th Amendment, one of their most enduring victories, in 1913. The amendment marked a “massive political repudiation” of the court’s oligarchical constitutionalism, overruling Pollock and handing Congress the sweeping power to tax income “from whatever source derived.” To Thomas, however, the 16^th Amendment was barely a footnote, a “narrow” change that “left everything else in place, including the federalism principles bound up” in the direct tax clause. (These are “principles” that Thomas just made up.) In Thomas’ account, this groundswell of nationwide support for the income tax—culminating in a grueling and successful crusade to amend the Constitution—was a mere technical tweak with extremely limited effect.

Which leads to the justice’s final, most antidemocratic attempted move in his Moore dissent: transforming the 16^th Amendment from a populist expansion of Congress’ taxing power into a novel restriction on that power. Recall that the amendment allows taxation of income, “from whatever source derived.” There is a wealth of evidence that lawmakers included this phrase to ensure that courts would not artificially narrow the definition of income—a word that was, at the time, widely understood in broad terms, encompassing both realized and unrealized gains. Yet Thomas spurned the historical record in favor of some characteristic sophistry: The word derived, he wrote (without any evidence or support), is a “near-synonym” for realized. It therefore “points to the concept of realization” as an extratextual limitation on Congress’ taxing power.

Responding to Thomas’ opinion, the legal historian Fishkin derided this word game as “an absolute classic of the genre” in which Thomas excels: “to read language that is quite obviously on its face intended to be as broad as possible as instead narrowing language.” The purpose of that phrase, he told me, “was not the word derived. It was the word whatever. It meant—because this was a point of contention at the time—that even income from land could be taxed.It didn’t matter what source the income was derived from. That’s the straightforward and obvious meaning.” Fishkin added, “The word derived happens to be the one he’s playing games with, but really, the text doesn’t matter here.There’s always a word somewhere you can use. The point is that he wants to put in a realization requirement.” And Thomas, ostensibly a committed textualist and originalist, brazenly manipulated both text and history to do it.

There is a profound irony here. The Supreme Court’s 1895 decision in Pollock was obviously wrong, invalidating more than three decades of the income tax. The American people ratified the 16^th Amendment to overrule Pollock. Yet the court initially refused to accept the amendment:It defied the will of the people in 1920’s Eisner v. Macomber, elevating Pollock’s repudiating interpretation of the vestigial direct tax clause over the 16^th Amendment to limit income taxes once again. Macomber was a hallmark of the court’s Lochner era, when it regularly rewrote the Constitution to favor moneyed interests. It abandoned that approach several years into the New Deal, in the face of President Franklin Delano Roosevelt’s court-packing threat. With Thomas’ Moore dissent, history is repeating itself. The justice wants to turbocharge the direct tax clause (like the Supreme Court did in 1895) and mutilate the 16^th Amendment (like the Supreme Court did in 1920) to reduce the tax burdens on the ultrawealthy. Why? Legal realists can debate the impact of his billionaire friends on Thomas’ jurisprudence.

But there’s another, more explicit bias at work: He simply does not grant constitutional amendments the same respect that he gives to the original Constitution. His jurisprudence is inspired by “natural law,” a theory that interprets the Constitution as, essentially, a divine revelation to the founders that codifies rights bestowed by a higher authority. Under this view, the product of the Constitutional Convention was nearly perfect, minus its accommodation for slavery—yet, as his Moore dissent illustrates, the justice is willing to downplay or write off this glaring defect when necessary.

Thomas will embrace the 14^th Amendment’s equal protection clause to outlaw affirmative action, but he otherwise gives remarkably short shrift to the Reconstruction amendments. These amendments fundamentally altered the balance of power between states and the federal government, giving Congress vastly more authority to enforce a panoply of civil rights. But Thomas routinely interprets them as marginalia at best—shooting down, for instance, Congress’ prerogative to stamp out race discrimination in voting. In these opinions, the justice insists on enforcing aspects of the original Constitution that, he claims, allow states to suppress civil rights and civil liberties without federal interference. The Reconstruction amendments, in his preferred narrative, fall away as an irrelevant relic rather than the radical transformation of the Constitution that they were meant to be.

In Moore, the 16^th Amendment gets the Thomas treatment. His (misleading) account of the amendment’s enactment largely erases the progressive reformers who pushed it over the finish line—as if, to his mind, they have no legitimate role to play in the story of our founding charter. They are written off as interlopers who foolishly tinkered with our God-given Constitution, inserting errors that must be corrected by black-robed rulers who just know better. It’s a frighteningly arrogant approach to judging, one that effectively closes off amendments as a way to fix the court’s mistakes. The Constitution begins with the declaration “We the People” and invites future generations to help build a “more perfect union.” But to Thomas, the wealthy white men who wrote those words got almost everything right the first time, and the people must never be trusted to build upon their flawed work.