On July 4th of this year, I attended an academic conference in Cambridge, England. As I arrived at the venue that morning and noted the exact date (which, given my travel-weary state, had not yet occurred to me), it seemed mildly ironic that I would spend the day in one of the power centers of the former empire from which my country had violently separated itself more than two centuries ago.
Because the US and the UK have been so friendly for so long, however—with the phrase “the special relationship” having achieved semi-official status—it is generally a jovial matter when Americans and Brits happen to come together on the Fourth. That was no less true this year at my gathering, even though I did find myself in the odd situation of chairing an academic panel that included a paper co-authored by professors from England and the Netherlands, discussing the role of taxes in the American Revolution. The heirs to not one, but two former empires that had colonized North America (is it New York or New Amsterdam?) were describing my country’s origin story!
The scholarly paper that those two scholars presented has not yet been published, so I cannot provide a link here. I might write a future Verdict column discussing it after publication, but I am recalling the circumstances of that presentation here only because seeing the American story through the eyes of two European tax historians reminded me how important it is to understand that the American revolution was not a rebellion against taxation.
Indeed, even on its own terms, the Declaration of Independence was a call for more government—specifically more lawyers! And the government that the Founders envisioned—indeed, any government—requires adequate funding through taxes. As I will emphasize below, the American experiment was not born of resistance to how much people were being taxed, or even to what was being taxed, but only to how any tax laws were created. Indeed, as I will describe below, taxes were all but an afterthought to the people who wrote and signed the Declaration.
For at least the last forty years, however, the Republican Party has been spinning a fantasy about the United States and its supposed hatred—from its very birth, mind you!!—of government and taxes. We need to remind ourselves again and again that that is utter nonsense—dangerous, harmful, toxic nonsense.
Republicans’ Anti-Tax Dogma, the IRS, and Reality
To be clear, this column is not a history lesson—at least, not principally so. The Republican Party in 2022 is neck-deep in anti-tax rhetoric that continues to distort our ability to solve problems. Just this past week, after the Minority Leader in the House of Representatives, Kevin McCarthy, issued a vacuous “Commitment to America” campaign document, the wannabe Speaker of the House began a public relations event with this jawdropper:
On that very first day that we’re sworn in, you’ll see that it all changes. Because on our very first bill, we’re going to repeal 87,000 IRS agents.
Say what? The Republicans have decided to make “87,000 IRS agents” a campaign mantra. What are they talking about? As part of the Inflation Reduction Act, President Biden and congressional Democrats increased funding to the Internal Revenue Service. Why? Because for the past two generations, Republicans have decided to defund the (tax) police, deliberately making it easier for wealthy people to cheat on their taxes. Note what this means: Having failed to change the tax laws to be even more regressive than they already are, Republicans have decided to simply allow their campaign donors to break the law with impunity. So much for being the law-and-order party.
But again, what about those “87,000 IRS agents”? The Republicans continue to push a completely debunked story, falsely claiming that the tax enforcement agency is going to harass small business owners as well as people making less than $75,000 per year, even claiming that all of these new employees will be armed and sent out to shake down regular Americans.
None of that is true. One of the major reasons that the IRS is going to add employees to its roster is not to hire more armed agents (although, sadly, there are situations in which tax cheats are so unhinged that they make it necessary for the IRS to enforce the law in the way that other law enforcement agencies sometimes have to enforce the law—with guns drawn). Instead, the vast majority of those new hires are going to be sitting behind desks, trying to make the tax system easier to navigate and more user-friendly. Many of them will be answering the phone when Americans call with tax questions.
Just as anti-government ideologues suddenly remembered this week that it is good for Americans when their governments work effectively and quickly—Category 4 hurricanes have the ability to concentrate the mind in that way—Republicans frequently claim that they want the government to work better when it comes to taxes.
More specifically, they say they want the IRS to be able to answer every phone call from a confused taxpayer, just as they want the Service’s website to work flawlessly, all documents to be updated instantaneously, and refund checks to be issued immediately. If McCarthy and his comrades are ever able to do what they are threatening to do to the IRS, however, they will make Americans’ lives more difficult. On purpose.
But politically, that is exactly what the Republicans want to do, because they will then tell Americans that “you can’t trust the government” and that the IRS is the enemy. It is the people who deliberately hamstring the government’s ability to serve its citizens, however, who are truly the enemy of the American people.
The Declaration of Independence Was a Public Relations Flyer Begging for More Politicians and More Lawyers
All of which brings us back to the Declaration of Independence and the anti-tax movement. During the Q&A session discussing my European colleagues’ paper, I offered what I thought were two important points: the Declaration is not a legal document, and “taxation without representation” does not mean what anti-tax extremists think it means. (To be clear, the authors themselves were aware of both points, and they agreed that they were important). And both points are key to understanding today’s confused Republican opposition to taxes in general and to the IRS in particular.
On that first point, we often forget that the Declaration of Independence is not a governing document. For perfectly understandable reasons, we tend to think of the Declaration and the Constitution interchangeably (frequently misattributing phrases like “Life, Liberty and the pursuit of Happiness” to the Constitution, for example). Even so, the Declaration was in fact neither more nor less than an act of savvy public relations.
In their announcement to other nations, the Founders were saying something like this: “Hey world, listen to this! We’re British subjects, and we’re about to break the law—big time. But we’ve decided to become criminals for a very good reason, in fact for a long list of good reasons.” The Declaration itself is essentially a laundry list of those reasons—reasons that, seen from the standpoint of King and Parliament, most likely appeared to be a bunch of gripes and petty grievances.
But the list was anything but trivial. To be sure, the document in at least one of its particulars did not age well, as the colonists wrote that King George III “has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.” Those who attempt to revise American history with claims about the moral purity of its founders must therefore carefully ignore part of the nascent country’s first major public pronouncement.
That bit of naked bigotry aside, however, the rest of the Declaration is in fact a long list of very specific grievances. Indeed, the document at that point begins to read more like a legal indictment than anything else, and for good reason: many of the most important founders—and most particularly Thomas Jefferson—were lawyers. They thought that the best way to present their “case” to the world was to characterize the British monarch as a lawless dictator.
The result of this framing, however, is jarring when viewed through the distorted lens of modern conservative anti-government dogma. Anyone who bothers to read the Declaration of Independence (as opposed to assuming that they know what it says) cannot help but observe that the Founders wanted two things: legislatures and the rule of law. Let me put that more bluntly: the Declaration of Impendence tells us that the American Revolution was fought so that we could live in a world run by Congress and lawyers!
Am I exaggerating? Not at all. The colonists wanted to be able to create a government of their own so that they would no longer live under laws passed by a non-representative Parliament. Substantively, they also complained that George “has obstructed the Administration of Justice, by refusing his assent to laws for establishing Judiciary powers” and “depriv[ed] us, in many cases, of the benefits of Trial by Jury.” They wanted to create a country that would only run well if there were a lot of lawyers.
When I pointed this out in Cambridge, a Scottish scholar commented acidly, “Well, they certainly succeeded in that, didn’t they?” thus demonstrating that even people outside our borders have started to buy into the “America is too litigious” mantra. But my answer is always, “Yes, and isn’t it great?!” The Founders knew what it meant to live in a world where lawyers had no role, and they hated it. If we do not want lawlessness and insurrections, we need to honor the law and appreciate what (honorable) lawyers do.
The Declaration of Independence Was Not an Anti-Tax Screed
What about taxes? If the Founders wanted the colonies to unite into an independent nation, with politicians and lawyers plentiful throughout the land, then by implication they also wanted (and needed) an effective system of levying and collecting taxes. More than a century later, Supreme Court Justice Oliver Wendell Holmes captured this truth with this famous comment to a colleague that taxes are “the price we pay for a civilized society.”
But did the Declaration itself say anything about taxes? To hear modern-day Republicans talk about it, one might imagine that Jefferson’s masterwork was filled with complaints about the terrible, terrible taxes that the colonists were being forced to pay at the end of a British musket.
In fact, however, taxes are mentioned exactly once in the Declaration of Independence. Even more notably, in what amounts to a bill of particulars that lays out everything that had motivated the colonists to commit treason, their sole complaint about taxes appears as the seventeenth out of 27 grievances, saying only that the King had erred by “imposing Taxes on us without our Consent.”
That line communicates the same basic idea as the more famous slogan “taxation without representation is tyranny”—a phrase coined by a British politician in 1637, which, as it happens, featured in the English/Dutch presentation that I described above.
It is a bit surprising that neither the Declaration itself nor the Constitution ever uses that more famous phrasing. Much more interestingly, however, the Founders’ complaint was not in fact about taxes but about the process of how a government creates laws. Their complaint about taxes was substantively no different than saying that “the King has changed the rules of Inheritance without our Consent,” or that he “built Ports without obtaining our Consent.”
The most obvious way to rephrase this—which is not to say that it is anything other than terribly important, notwithstanding how obvious it ought to be—is that the Founders were saying that taxation with representation is not tyranny. Or, as I put it in a Dorf on Law column a decade ago: “We have gone from ‘Let’s all decide how to come together to accomplish things as a group, and then pay for it,’ to ‘Taxation is theft.’”
I hasten to add that by “we,” I meant the Republican Party in the late 20th and early 21st Centuries. When current congressional Republicans act as if the employees of a government agency that was created by law, who diligently enforce duly-enacted laws, are somehow a bunch of jackbooted thugs sent to terrorize the American people, we can see how far off the rails the nation’s second-largest political party has gone.
I am not one who engages in the cult of idolatry around this country’s founding generation, to say the least. Even so, it is crucial that we understand just how deranged it is to claim that those revolutionaries were anti-government, anti-tax zealots. Harper’s magazine recently republished an article from its extensive archives, from 1851: “The Boston Tea Party,” by an author named Benson J. Lossing (behind a paywall, unfortunately).
Lossing, writing only 68 years after the end of the Revolutionary War, makes a point that I had not seen before:
The American Revolution … was an exception to a general rule. History furnishes no parallel example of a people free, prosperous, and happy, rising from the couch of ease to gird on the panoply of war, with a certainty of encountering perhaps years of privation and distress, to combat the intangible principle of despotism. (italics in original)
Even more surprisingly, Lossing’s next sentences discuss the taxes that were supposedly riling up the American colonists:
The taxes of which the English colonies in America complained, and which were the ostensible cause of dissatisfaction, were almost nominal, and only in the smallest degree affected the general prosperity of the people. But the method employed in levying those slight taxes, and the prerogatives assumed by the king and his ministers, plainly revealed the principles of tyranny, and were the causes which produced the quarrel.
It was all about process, not outcome. That is, America became a country because, at least to the small extent that they thought about taxes at all, the Founders wanted to be able to decide when and how we should tax ourselves, not because they did not like taxes.
Americans—again, especially after a natural disaster like Hurricane Ian, which devastated large swaths of my home state of Florida last week, before doing still more damage up the Atlantic coast over the weekend—count on government to do important things. They want their governments to be responsive and effective, and they expect their leaders to do what is necessary to protect us from both dramatic and banal dangers. They want their children to be healthy and well educated. They want to benefit from scientific advances and the continued blessings of being an open society.
And what Americans want costs money. Taxes are what we must collect to give Americans the best kind of future that we can possibly create. Those who disparage government at every turn, and especially politicians who vilify the federal government’s efforts to make the tax system work more smoothly and effectively, make a mockery of what truly motivated the people who resolved in 1776 to “mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”