by Robert W. McGee
42 Kan. L. Rev. 411, *

Copyright (c) 1994 Kansas Law Review, Inc.
Kansas Law Review

WINTER, 1994

BIO:

* Professor, W. Paul Stillman School of Business, Seton Hall University, South Orange, New Jersey. The author would like to thank Vivian Lugo and John Tortora for their research assistance.

SUMMARY:
  ... The Roman Catholic Church recently issued a revised catechism that categorizes tax evasion as a sin. ... Tariffs, import quotas and domestic content laws benefit domestic automobile manufacturers at the expense of the millions of people who buy automobiles. ... If there is a moral duty to pay the government something in exchange for the benefits received, what amount is justifiable? If you receive a bicycle from the government, are you morally obligated to give the government whatever it demands in return, including your car? Or would you be justified in giving just a tire or two? Where the tax is extracted by force or by the threat of force, as in the case of the income tax, there seems to be no moral duty to give anything whatsoever, because the recipient is a thief. ... Those who take the position that tax evasion is unethical or a sin often do so because they view tax evasion as theft -- the taking of property that does not belong to them or the failure to give up property that belongs to someone else, namely, to some government. ... Even if consenting to be taxed is viewed as a contract between citizens and the state, the contract is null and void as to those who did not consent. ...

TEXT:
 [*411]  The Roman Catholic Church recently issued a revised catechism that categorizes tax evasion as a sin. 1 Part I of this Article explores the arguments that could be used to support the view that tax evasion is a sin, or is unethical. 2 Part II presents arguments to support the position that there is nothing sinful or ethically wrong with tax evasion. The Article concludes that the arguments offered to support the view that tax evasion is sinful or unethical do not hold up under analysis, and suggests that it is the tax collectors who might be guilty of sin, because they participate in the taking of property without the owner's consent.

I. IS TAX EVASION A SIN?

The Roman Catholic Church recently issued a revised catechism -- the first since 1566 -- that provides about 700 pages of moral guidance for Catholics. 3 It puts Catholic doctrine in layperson's language and is  [*412]  intended to act as a guide to good moral conduct. One major aspect of the new edition is the listing of some new, modern-day sins, such as paying unfairly low wages to employees, appropriating a company's assets for personal use, drunk driving, drug abuse -- and tax evasion. 4 This Article focuses on the question of whether tax evasion is a sin.

Perhaps the most comprehensive treatise on this subject, from a Catholic perspective at least, was written by Martin Crowe in 1944. 5 This 164-page work raises most of the major issues concerning the morality of tax evasion. But even here, Crowe distinguishes "just" taxes from other kinds of taxes. 6 One might conclude from the title of Crowe's work -- The Moral Obligation of Paying Just Taxes -- that one is morally obligated to pay just taxes and not morally obligated to pay taxes that are unjust. So the question then becomes: What is a just tax?

Is tax evasion ever justified on moral grounds? If taxes are used to finance Hitler's war machine, it seems clear that there is nothing immoral about tax evasion. Indeed, it might even be argued that one has a moral duty to evade such taxes where possible. But the issue becomes less clear for less extreme cases. Is it ethical to evade taxes when the proceeds are used to feed the hungry, house the homeless or clothe the poor? Or, what if the proceeds are used to provide services that one uses, such as police protection, health care, education, and so forth? What if the taxes go toward the support of activities that one does not use, such as the welfare system? What about taxes that are used to pay for "porkbarrel" legislation? In other words, does the use to which the proceeds are put have anything to do with the ethics of tax evasion, or is the end use irrelevant?

Crowe 7 and others 8 divide the taxing power into three categories: fees, such as licenses, franchises and permits; special assessments, such as an assessment to pave a road; and taxes proper, such as the income tax, for which those paying the tax have no special claim on any of the proceeds. In the case of fees and assessments, those paying are entitled to some right. 9 Those who pay for an automobile license are entitled  [*413]  to drive. 10 Those who pay for a business permit are entitled to operate a business. 11 Those who pay to have their road paved are entitled to have it paved. In the case of taxes, however, those who pay do not have an automatic right to any of the proceeds. 12 New York residents who pay a federal income tax may have their money used to construct a bridge in California even though they derive no direct benefit for their tax dollars; they have no right to demand that a bridge be built in New York. All taxes the government collects go into a common pool and are distributed as the government sees fit. 13 Taxpayers have an obligation to pay, but they have no specific right to any of the proceeds. 14

Crowe refers to these three sources of revenue -- fees, special assessments and taxes proper -- as noncontractual revenue sources. 15 There are also contractual revenue sources, such as user fees. This Article will concentrate on taxes proper, although many of the same arguments can be used against the other two forms of noncontractual revenue as well.

Crowe defines a tax as follows:

  A tax is a compulsory contribution to the government, imposed in the common interest of all, for the purpose of defraying the expenses incurred in carrying out the public functions, or imposed for the purpose of regulation, without reference to the special benefits conferred on the one making the payment. 16

This definition is fairly comprehensive. It includes not only charges that are imposed to raise revenue but also charges that are imposed to regulate, such as tariffs, liquor and tobacco taxes. In addition, the definition separates those who pay from those who benefit, because those who pay may not be the same as those who benefit.

Crowe's definition could be improved, however. He states that taxes are compulsory contributions that are imposed in the public interest.17 But what about compulsory contributions that are used to benefit special interests? Many present day government expenditures are used to  [*414]  benefit special interests, often at the expense of the general public. 18 Tariffs on foreign clothing, for example, protect domestic textile manufacturers from foreign competition at the expense of the millions of consumers who would otherwise pay less for clothes. 19 Tariffs, import quotas and domestic content laws benefit domestic automobile manufacturers at the expense of the millions of people who buy automobiles. 20 Social Security taxes benefit retired people at the expense of those who work for a living. None of these levies can be said to be in the public interest because they benefit special interests at the expense of the general public. Yet they should be considered taxes because that is what they are. But whether they are just taxes is another question.

A more comprehensive, and accurate, definition of taxes might be the compulsory taking of property by government, without regard to whether the proceeds are used to further public or private interests. 21 But even this definition does not cover all the costs imposed by government on private individuals because it excludes the cost of regulation. 22 For example, if government imposed a regulation that required a business to incur a particular cost, property is, in effect, being taken, in the sense that the individual no longer has use of the property. But it is not a tax in the strict sense because the transfer is not from the taxpayer to the government. If the local rent control board forbids a landlord from charging more than $ 400 a month for an apartment that would rent for $ 700 in a free market, is it any less of a compulsory taking than if the landlord charged $ 700 and had to pay  [*415]  $ 300 as a tax? In either case, the landlord has $ 400 instead of $ 700. 23 Taxes, in the broad sense of the term, should include this kind of compulsory behavior modification that government imposes.

What makes a tax just? Crowe sets out three criteria. 24 For Crowe, a tax is just only if it is imposed by legitimate legislative authority; 25 for a just cause; 26 and where there is just distribution of the tax burden. 27 Thus, in countries where there is no legitimate legislative authority, no tax can be just. And where the cause is not just, as where a tax is imposed on Mass wine for the purpose of hindering or hampering its use, there seems to be no obligation to pay. 28 But just taxes, for Crowe, would include taxes that are imposed to fund spiritual, cultural and moral welfare, such as concerts, monuments and art museums. 29

And what about the just distribution of the tax burden? Those who have no income pay no income tax. 30 And those who have high incomes often (but not always) pay a large income tax. Those who have lower incomes may pay a higher percentage of their income for sales taxes than those who have higher incomes. But so what? Is there anything unjust about this relationship? If so, what makes it unjust? If poor people receive more government benefits than rich people, should the poor be required to pay a higher percentage of their income for taxes? If not, could it be said that the poor (which are in the majority) are exploiting the rich minority? Should taxes be based on the ability to pay, or on the amount of benefit received? 31 Are these two approaches mutually exclusive, or can they somehow be reconciled? Is one approach just and another unjust? Or could it be that both approaches are unjust? If so, what determines whether a tax is just? We shall address these questions later. Suffice it to say for now, though, that Crowe takes the position that "moralists are unanimous in  [*416]  their teaching that the ultimate basis of apportioning a tax is the ability of the citizen to pay." 32

Crowe examined the views of a number of religious and secular writers on the topic of the moral obligation to pay taxes. 33 Angelus of Clavisio, for example, when discussing the moral obligation to pay the tax that the sovereign imposed for those who passed through his territory, said:

 "[W]hen those who impose these taxes do not provide for the common good, for example, in caring for roads, bridges, the safety of people and other things, according to their ability as they are bound to do, the subjects do not sin if they evade the tax without lying and perjury, nor are they bound to restitution . . . . Nor do I believe that those sin who defraud taxes, even when the aforesaid (i.e., those who impose the taxes) do provide for the common good." 34

Based on this view, it would seem that Angelus would consider it a sin if the taxpayer had to resort to perjury or lying to evade a tax that is not morally owed. It must be assumed that in such cases it is the lie or perjury and not the tax evasion that is the sin. But how can it be a sin to lie to someone who is not entitled to the truth in the first place? It would not be a sin to tell a Gestapo agent that you are not hiding a Jew in your basement when in fact you are. And it is not a sin to tell a thief that you have given him all of your money when in fact you have not. So how can it be a sin to lie to a tax authority when you do not morally owe the tax? Lying is not a sin, per se. It depends on the circumstances.

Berardi, a later thinker on the subject, takes the position that there is probably no moral duty to pay a tax even if lying and deceit are involved:

  "What therefore about subjects who have found a way to avoid paying a tax? . . . . [P]robably there is no obligation of restitution after the tax has been evaded. For the duty of paying taxes probably does not arise from a tacit pact by which the subjects bind themselves to pay the prince whatever is necessary for the public expenses -- each one contracting to pay an allotted percentage  [*417]  of the debt; but this duty arises rather from the law of the prince who determines how that sum of money which is necessary shall be raised." 35

Basically, Berardi is saying that where there is no contract there is no obligation, and there is no contract between the prince and the taxpayers. This view becomes complicated when one tries to apply it to a modern democracy, because, in theory at least, some sort of contract does exist between the people and the sovereign. This contract theory approach raises some interesting questions, which will be examined later. 36

Genicot-Salsmans, an early twentieth century scholar, takes the position that partial evasion is justified on the grounds that the government does not have a right to the full amount, and that it would be unfair to impose heavier taxes on conscientious men while "wicked men usually pay less." 37 Crolly takes the position that there is no obligation to pay taxes, but that there is an obligation to pay when evasion would result in violence. 38 Other theologians take the position that confessors should not force penitents to make restitution for unpaid taxes if the penitents themselves do not feel bound to do so. 39

 "[T]he confessor should not oblige a penitent to make restitution if the penitent certainly or probably has persuaded himself that in the multitude of taxes which he has paid there were some unjust taxes, or that the number of taxes itself is too great and excessive, or that, having regard for his state in life and his business, the penitent judges that he has sufficiently contributed to the public necessities." 40

This is consistent with the view that something is a sin only if one thinks it is a sin.

For centuries, scholars have debated the morality of evading taxes from other perspectives as well. Some have argued that one is obligated to pay only those taxes that are not wholly penal in nature, 41  [*418]  but others have argued that all taxes should be paid, regardless of whether the purpose is wholly penal, partially penal or not penal at all. 42 Others have debated the relative merits of either paying or evading direct taxes, such as per capita, inheritance, land, building, or income taxes, as compared to indirect taxes, such as customs, duties, imposts and sales taxes. 43 Others have argued that the morality of paying a tax has nothing to do with whether the tax is direct or indirect. 44 Some scholars over the last two thousand years have taken the position that it is a sin to evade a tax only if payment is refused after the tax collector has demanded payment. 45 Others have said that payment is required even if no demand for payment has been made. 46 Some scholars have taken the position that it is a sin to break any law. 47 Some theologians take the position that the state is like a servant and just as a servant is entitled to wages, so is the state entitled to taxes. 48

 [*419]  Another question debated over the centuries has been whether tax evasion is a mortal or venial sin. 49 "'Subjects who without the consent of the prince use fraud and other means to evade just taxes due because of a pact or from ancient and legitimate custom, or even those recently imposed . . . sin mortally by committing the sin of theft and are bound to restitution.'" 50

Assessing mortal sin for tax evasion seems a bit severe, especially in cases where the amount involved is small, and it is unlikely that many theologians would classify all tax evasion as mortal sin. 51 Voit takes the position that it is probable that one commits a grave sin for tax evasion even if payment is not demanded, and those who fail to pay must make restitution. 52 There seems to be no clear cutoff point between what constitutes a mortal sin and what is merely a venial sin, at least in the case of theft. 53 Where a theft is of a penny, the sin would likely be venial, but where the theft is a million dollars, it might be mortal. Where the amount stolen is $ 100, the sin is more grave if the victim is poor than if the victim is rich. And the severity of the sin is affected by the circumstances of the person who is evading the tax.

'Those who defraud taxes imposed on the necessities of life (pro usualibus) probably can be excused from mortal sin and from the obligation of making  restitution.'" 54 Bonacina takes the position that it is not a sin to evade taxes if the burden is too large. 55

What does the bible have to say about taxes? Taxes are mentioned in several places. In the Old Testament, it says that the Pharaoh taxed  [*420]  the people according to their ability to pay. 56 But it does not say whether this practice was considered just. In the New Testament, when Jesus was asked whether it was legal to give tribute to Caesar, he said, "Render therefore to Caesar the things that are Caesar's, and to God the things that are God's." 57 But all this means is that individuals should give people what they are entitled to have. It says nothing about whether Caesar (the State) is entitled to anything. This point is reiterated by Paul in Romans: "Render therefore to all their due: taxes to whom taxes are due, customs to whom customs, fear to whom fear, honour to whom honour." 58

Not all scholars, however, have interpreted the scriptures in this way. Beia, for example, interprets the passage from Romans to mean that justly imposed taxes are due to the prince by divine law because they are "the ministers of God," 59 but does not consider whether taxes are required by divine law to be paid to evil princes. Nor does he question whether atheists should be made to pay a tax under divine law.

According to some interpreters of Jewish law, there is an obligation to pay taxes:

  Anyone who cheats on income tax transgresses the law prohibiting robbery, whether the king (government) be Jewish or non-Jewish; for the law of the country is the Law. Some scholars held that this law implied no more than the obligation to pay taxes and to help the country against its enemies, but the majority opinion holds that conformity to all laws imposed by a legally constituted government is compulsory. 60

There are several problems with this view. First, it takes the position that what is legal is moral and that what is illegal is immoral, at least where the government is legally constituted. 61 When one considers that the governments of the Third Reich and fascist Italy were legally constituted, in the sense that Hitler and Mussolini were both elected by a plurality of the votes, one must question whether there are exceptions to this rule. A second problem with this view is that it cites majority opinion as authority. 62 But majorities have nothing to do with right. Something is either right or wrong regardless of majority opinion.

 [*421]  Another argument that has been put forward in justification of taxation is that if some people do not pay their "fair share," then others must pay more than their fair share. 63 If this is true, then it would appear that tax evasion is immoral, because one person is forcing another to pay for his or her own benefits. You are acting as a parasite if you are receiving benefits for which others are being forced to pay.

This line of reasoning suffers from several weaknesses. For one thing, it is not easy to determine what is one's "fair share." The problem is complicated by the fact that governments often squander large sums of money. Should one pay only the fair share of the money that is not squandered, or should one pay a portion of the funds that are squandered as well? A corollary to the fair share argument that theologians over the centuries have made which supports the practice of partial evasion, is that "the state does not seem to have a right to the whole tax, and that it would be unjust to burden conscientious men with heavier taxes while wicked men usually pay less." 64 Davis expresses a similar view:

  "It appears unreasonable to expect good citizens, who certainly are in the minority, to be obliged in conscience to pay taxes, whereas so many others openly repudiate the moral obligation, if there is one. It seems unjust that good people should feel an obligation to be mulcted and to pay readily, in order to balance the evasions of so many." 65

Another variation of the fair share argument is that one has a moral duty to pay if benefits are received. 66 But this line of reasoning also suffers from many defects. What if the government provides benefits but you did not ask for them? For example, what if the government provides free abortions but you do not believe that abortion is morally permissible? Or what if the government requires that you contribute to a Social Security system, but a private pension system -- in which you cannot invest because Social Security taxes have taken all of the income that would have been available for this purpose -- would have been a  [*422]  much better investment? 67 Is there any moral duty to pay a Social Security tax if you are being forced to pay for what amounts to a bad investment? 68

In a broader sense, is there any relationship between what you are asked (forced) to pay and what you receive in return? As a general rule, taxpayers receive less than what they pay for because of the administrative costs of government. 69 Economists call this phenomenon a deadweight loss. 70 And, by definition, the deadweight loss increases as the distance between the tax collection entity and the taxpayer increases. For example, taxpayers who pay a local tax might, on average, only get back 80% or 90% of what they have paid in the form of services. 71 Only perhaps 70% of state government taxes are returned in the form of services. Only perhaps 30% or 40% of the taxes paid to the federal government are returned in services, depending on the service. The farther away the collecting agency is from the source, the lower the return. In the case of some federal welfare programs, the cost of administering the program far exceeds the amount that is actually spent on the target recipients. 72 And residents of some  [*423]  states get less back from the federal government than others. 73 It is as though the federal government took your automobile to satisfy your tax liability and gave you a bicycle in return. 74 True, you are receiving some benefits from the government. But does that mean that you have a moral duty to give them your car? Does the fact that you may have another car in your garage change the answer? Or the fact that the car the government took from you was given to someone who had no car? Or two cars? 75 Or does the disposition of the property have nothing to do with the moral duty to pay a tax to a government that has been elected, in theory at least, by a majority or plurality of the eligible voters who voted in the last election?

If there is a moral duty to pay the government something in exchange for the benefits received, what amount is justifiable? If you receive a bicycle from the government, are you morally obligated to give the government whatever it demands in return, including your car? Or would you be justified in giving just a tire or two? Where the tax is extracted by force or by the threat of force, as in the case of the income tax, there seems to be no moral duty to give anything whatsoever, because the recipient is a thief. But there may be some cases where there is a moral duty to pay something to government for benefits received.

For example, nonprofit organizations receive exemptions from the payment of property taxes. 76 Yet they still receive local police and fire protection, city water and sewage treatment, and so forth. A strong case can be made that there is some duty to pay for the value of the services received (not what the government would charge to a taxpayer) which may be different from the value of the services provided. 77  [*424]  This situation is different from that in which the government forcibly takes the tax. In this example, the government must provide certain services even though it legally is not entitled to assess any tax. So in cases where there is no force involved and where services are provided, there may be a moral duty to pay something for the services if the services have some value to the recipient. But if the services provided by government have no value, or if the person does not use the service -- as in the case of an exempt organization that has the option of contributing for the support of the local school system that it does not use -- there is no moral duty to pay for the support of such services. In fact, there may be an ethical duty not to contribute to the support of such services, because the people who contributed to the support of the exempt organization want their money to be used for other purposes. Otherwise, they would have contributed to the local school system themselves.

The question of legitimacy should also be raised here. How legitimate is the average government? In the United States, for example, perhaps half of the eligible voters actually vote in national elections. 78 Even fewer vote in purely local elections, and in primaries. 79 And not all individuals over the age of 18 (the legal voting age) register to vote. 80 Furthermore, many of those who do vote, do not really vote for the candidate of their choice. They vote for the least bad candidate on the ballot. 81 And it is a commonly recognized fact in political science texts that all countries, whether democratic or otherwise, are actually run by political elites, not "the people." 82 So how legitimate are governments? It could be argued that if a government falls below some degree of legitimacy there is no longer a duty to pay taxes. Indeed, this position is taken in the United States Declaration of Independence, which supports the view that, at some point, the  [*425]  people have the right to withdraw their support from the government. 83 The exact cutoff point, however, is difficult to define, because all governments are illegitimate to the extent that they do not do just what every citizen wants and nothing else.

Another argument that has been used to support the position that tax evasion is unethical is based on Kant's categorical imperative. 84 Kant's categorical imperative asks the question, "What would happen if everyone did it?" 85 Kant would conclude that if the universal practice of some act results in something bad, then the act is unethical. 86 If nothing bad results from the universal practice of the act, then it is not unethical. 87 The weakness of this line of reasoning is highlighted when it is applied to the question of tax evasion. If taxation is theft -- the taking of property without the owner's consent -- one might ask, "What would happen if everyone refused to allow their property to be taken without their consent?" One result would be a marked decline in the amount of theft (taxation) and an increase in the amount of justice. Another result would be a vast shrinking in the scope of government, because it would no longer be able to maintain the level of spending it now enjoys. 88 It would no longer be able to force fundamentalist Christians, Moslems and Jews to  support abortion clinics with their tax dollars. It would no longer be able to force pacifists to pay for the national defense. It would no longer be able to subsidize farmers or enforce protectionist legislation, which means that consumers would be able to purchase products at lower prices.

But each of these arguments is, at its base, merely utilitarian: the greatest good for the greatest number. Even if it would benefit the general population if government were to get out of the wealth transfer business, the real question is whether someone's rights are being violated by the government's tax policy. It is not a question of whether  [*426]  the good outweighs the bad, but rather a question of whether rights are being violated.

A more difficult question arises in the case of user fees, the charge that the government places only on those who voluntarily use a particular government service. 89 Examples include entrance fees to government parks and fees for using toll roads. 90 Is it ethical to sneak into a government park without paying or to go through a toll booth without paying? 91

Morality involves choice. Where there is no choice, there is no morality. If one must either use the government's roads or stay at home, there is not much of a choice. One must go to the grocery store, to work, and so forth, and the government has a monopoly on roads, so individuals do not have a choice of whether to use the government's roads or a road that is privately owned. 92 That being the case, there appears to be no moral duty to pay the toll, although there is a legal obligation. But if the road is privately owned this may be a different matter, because in the case of a privately-owned road, failure to pay the fee for the use of the road violates the owner's right to property. In the case of using a privately-owned road, there is an implied contract that if you use the road, you agree to pay the price for using the road. But where the road is owned by some government, no such implied contract exists. For one thing, the government holds a monopoly position. For another, the government obtained the road by confiscating someone's property, either by the process of eminent domain or by taxes, the proceeds of which were then used to purchase the land, hire the construction workers, purchase the material and so forth needed to build it.

The argument for sneaking into a government-owned park without paying is not quite as strong, especially in cases where the park is  [*427]  supported entirely by user fees, because the necessity argument does not apply. Whereas individuals must use roads in order to have a normal life, such is not the case with government parks. Although privately-owned parks are generally in better shape than government parks and cost less to maintain, 93 individuals still have a choice of whether to use the facility or not, so there is a moral dimension. And there is a strong argument that all parks should be privately-owned rather than governmentally-owned. But exploring this question goes rather far afield from the subject of this Article, which is tax evasion.

II. IS TAXATION THEFT?

A. The Question of Consent

Those who take the position that tax evasion is unethical or a sin often do so because they view tax evasion as theft -- the taking of property that does not belong to them or the failure to give up property that belongs to someone else, namely, to some government. 94 If you are supposed to render unto Caesar what is Caesar's and you do not, then you are depriving Caesar of his property. But can that argument be turned around? Could it be argued that taxation is theft, and that tax evasion is merely an attempt to prevent a theft from taking place?

Theft is generally defined as the taking of property without the owner's consent. 95 But when it is some government that does the taking, it is called taxation. But there is a difference between theft and taxation because theft is a one-time thing, whereas taxation is something that occurs at regular intervals, which makes it more akin to exploitation or slavery. 96 Does it make any substantive difference whether some government takes one-third of your income, or merely forces you to work without pay for four months out of the year? Could it be argued that the tax collectors rather than the tax evaders are the sinners, because they are taking property that does not belong to them?

Suppose a thief wants to raise $ 1000, and forces you and your friends to empty your pockets. Is it unethical not to tell the thief that you have $ 20 in your shoe, even if the failure to declare the $ 20 results in your friends paying a larger percentage share, because you are paying less?  [*428]  Is the argument any different when the thief is the government? The morality of the failure to pay does not revolve around whether the effect of nonpayment might result in a more severe burden on others, but whether you have a moral duty to pay in the first place. 97 If taxation is theft, then the fact that others might be forced to pay what you do not is of no consequence. Theft is in no way more justified if the thief takes equal portions from all of the victims. But is taxation really theft, or do taxpayers consent to be taxed?

One could argue that taxation is not really coercive, because voters have  consented to be taxed. This line of reasoning has a number of flaws. First, the voters who consented to be taxed did so sometime in the past. 98 In the case of the individual federal income tax in the United States, for example, voters gave their consent in 1913. 99 Most of the people who gave their consent then are no longer living. Furthermore, many of those who were of voting age in 1913 did not give their consent even then.

Both common law and basic justice share the fundamental principle that one person cannot be held liable for the contract of another. 100 Even if consenting to be taxed is viewed as a contract between citizens and the state, the contract is null and void as to those who did not consent. 101 So taxation cannot be noncoercive just because some group of voters agreed to be taxed  sometime in the past.

Thomas Jefferson made the following point: "We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country." 102 Jefferson elaborated on this point as follows:  

"The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government . . . . that no  [*429]  such obligation can be transmitted . . . . "[T]he earth belongs . . . to the living . . . ." 103

By reviewing statistics of his time, Jefferson determined that those living at age twenty-one had an average life expectancy of fifty-five. 104 He reasoned that, because one-half of those twenty-one-year-olds who belonged to a particular generation would be dead nineteen years after entering into a social contract with the state, the contract would become null and void after those nineteen years had passed. 105 This rule would apply to constitutions, public debt and all laws. 106 Every law and constitution would expire naturally at the end of that time, and any law or constitution enforced beyond that time would be done by force and not by right. 107 Thus, there is a strong philosophical argument that all laws expire after some period of time, because one generation cannot bind another. Even under social contract theory, 108 by which some majority can bind everyone, the contract has a limited life. One generation cannot bind another.

Another problem regarding the obligation of citizens to the state involves the concept of majoritarianism. Under majoritarianism, if 51% vote some item into law, the other 49% must go along with it whether they want to or not. 109 Majoritarianism is a basic weakness of democracy, but it is endured so that democracy can function. It is a pragmatic compromise. If unanimous consent were required, governments would not be able to pass many laws (which some say is not such a bad idea). 110 Just because a law is passed by a majority does not mean that it is not coercive, because a large minority might disapprove of the law. Government is force, regardless of how many individuals might have been in favor of passing a particular law. 111 In cases where  [*430]  democracy is representational rather than direct, it sometimes happens that the people's representatives pass a law of which the majority of citizens does not approve.

The concept of majoritarianism is tied to the concept of a social contract, the view that some group of people has somehow entered into a contract with the state and that this group can then bind the entire population. The individual group members give up a part of their freedom in exchange for certain benefits which the state can provide. Some social contract theorists -- such as Thomas Hobbes -- would argue that individuals give up all of their rights in exchange for protection by the state. 112 Others -- such as John Locke -- would argue that individuals give up some of their rights, and that they can reclaim these rights if the state fails to do its job. 113

Some commentators would go farther than Jefferson and Locke and assert that there is no such thing as a social contract and that such agreements, even if they did exist, would not bind anyone who did not agree to their terms. For example, Spooner states that:

 "The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the Constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but "the people" then existing; nor does it, either  [*431]  expressly or impliedly, assert any right, power, or disposition, on their part, to bind any body but themselves. 114

Philosophically, those who say that taxation is not coercive because "the people" consented to it appear to be standing on shaky ground. Taxation is coercive whenever it forces people to part with their property without their explicit consent.
 
In a society where freedom and private property are valued, voluntary forms of raising revenue are superior to coercive forms. If government is viewed as the servant rather than the master of the people, then coercion should be minimized and the possibility for voluntary exchange maximized. Methods of raising revenue -- like lotteries and user fees -- that do not depend on coercion should be
preferred to those that rely on coercion.

One argument made against voluntarism in the area of government finance is that the government cannot raise all the funds it needs through voluntarism. 115 Coercion is necessary for the state to function. 116 Although it would take a book to explore this issue, a few points can be made here. For one thing, this reasoning is pragmatic rather than philosophical or ethical. This pragmatic view basically holds that if coercion is necessary to raise the necessary funds, then coercion must be used. Fairness, equity and property rights are
totally absent from this line of reasoning.

Even if one concedes the point that coercion is needed to raise the "necessary" funds, one must still ask "how much is necessary?" If the goal of a free society is to minimize coercion and allow maximum room for individual choice, then government expenditures must be kept at a minimum to minimize the amount of coercion needed to raise funds. Thus, the role of government must be minimized. 117

B. Ability To Pay or Cost-Benefit?

  "There is an obligation in justice for all the subjects to contribute to the expenses of the state according to the ability and means of each." 118

 [*432]  There are two basic and diametrically opposed views of taxation. The ability to pay approach regards the state as a master who extracts tribute from subjects on the basis of how much the subjects are able to pay. 119 This approach often also regards the state as a benevolent father figure who distributes tax benefits on the basis of need. In Karl Marx's words: "From each according to his ability, to each according to his needs!" 120

The cost-benefit approach regards the state as the servant of the people. 121 Government provides services, and taxpayers pay for the services. 122 Those who benefit the most from the services should pay the most. 123 Those who do not use a particular government service should not be forced to pay for it. 124

A corollary to the cost-benefit principle would be that there should be some maximum tax, an amount above which no one should have to pay. Leona Helmsley, for example, who went to prison for tax evasion, 125 would not have been punished if the United States tax system were set up under a cost-benefit principle because the amount of taxes she paid -- more than $ 100 million 126 -- exceeded the benefit she received. Under the cost-benefit principle, she would have been entitled to a refund. But because she paid a few million dollars less than she "owed" under the graduated, ability to pay system, and because she resorted to illegal means to prevent the government from assessing the "proper" amount, she was sentenced to prison. 127 It is difficult to believe that she received more than $ 100 million in services from the  [*433]  federal government over the years. It seems like a clear case of the government exploiting one of its more productive citizens. 128

The ability to pay principle involves exploitation. The government exploits the producers -- the wealth creators -- and redistributes a portion of their income to wealth consumers -- those who use the various government programs. 129 In that sense, it is a parasitic system. The cost-benefit principle, on the other hand, attempts to match costs with benefits. Those who use government services pay for them, and those who do not use the services are not forced to pay. 130 Thus, the costbenefit principle appears to be more fair than the ability to pay principle because it is based on principles of equity rather than exploitation. So a tax that is based on the cost-benefit principle is preferable to a tax that relies on the ability to pay principle, all other things being equal. But even a system based on cost-benefit does not eliminate the deadweight loss question 131 or the fact that some of the services provided are services that some taxpayers do not want -- or the fact that the money is being taken without the owner's consent. 132 If there are degrees of badness, one might say that a tax system based on the cost-benefit principle is less bad than one based on one's ability to pay because one is based on exploitation and the other is based on recouping money for services rendered. But both systems are bad, in the sense that they rely on coercion and the taking of property without the owners' consent.

III. CONCLUSIONS AND IMPLICATIONS

Is tax evasion a sin? Is it unethical? The arguments that have been put forth over the centuries do not support the position that tax evasion is a sin. Taxation is the taking of property without the owner's consent, which makes it the equivalent of theft, with some government as the  [*434]  thief. 133 But unlike normal theft, the perpetrator is the State rather than an individual. In addition, the taking is a continuous action rather than a one-time event, which likens taxation to exploitation or slavery more than to theft. The fact  that a majority of eligible voters voted to approve a tax in some previous election 134 does not change the substance of the transaction, and the fact that taxpayers receive some benefits from government does not alter the morality of the matter. The fact that those who do not avoid the tax may pay more as a result of others' evasion does not alter the morality of the act because taxation is based on theft rather than on a moral requirement to pay. While theologians and others have often argued that there is a duty to pay a just tax, 135 the fact is, there is no such thing as a just tax. 136 If all taxes are the taking of property without the owner's consent, then there is no justice involved, even if some of the proceeds are used for good causes. Theft is wrong regardless of whether the thief uses the proceeds of the theft to distribute food to the poor or to gamble, drink or go wenching. It is the act itself that is either good or bad, not what happens afterward. Rather than regarding tax evaders as sinners, it might be more accurate to say that it is the tax collectors who sin because it is they who facilitate the taking of property without the owner's consent.

If there is nothing ethically wrong  with tax evasion, it seems to follow that attorneys, accountants and financial planners should not be penalized for advising their clients to evade taxes or even for helping them to evade taxes. The vast majority of professional codes of ethics for attorneys, accountants and financial planners -- perhaps all -- would consider any kind of activity that aids in tax evasion to be unethical and subject to sanction. 137 This prohibition has First Amendment implications because the freedom of an advisor to advise a client to evade taxes  [*435]  is being impinged. Counselors cannot tell their clients to evade taxes, or show them how to do it, or help them to do it, without exposing themselves to punishment, 138 thereby creating a chilling effect on free speech.

While suggesting that these codes of ethics remove any prohibition on the advocacy of tax evasion is extremely controversial, perhaps it is time that someone at least raised the question. If the advocacy of tax evasion is not unethical, and it appears that it is not, 139 then a code of ethics that punishes individuals for advising their clients to evade taxes may itself be perpetrating an injustice because it is punishing someone for advocating something that is not unethical.

FOOTNOTES:

n1 Kenneth L. Woodward et al., New Rules for an Old Faith, NEWSWEEK, Nov. 30, 1992, at 71. A reference that cites discussions of the concept of sin throughout the ages and from many differing perspectives is DICTIONARY OF THE HISTORY OF IDEAS, INDEX, 409-10 (Philip P. Wiener ed., 1974).

n2 A sinful act is not necessarily an unethical act. A distinction must be made between what is unethical and what is sinful. Unethical conduct is conduct that involves more than one person, whereas sinful conduct need not involve more than one person. See RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 489, 1329 (Jess Stein ed., 1973) (defining "ethic" as "the body of moral principles or values governing . . . a particular culture or group," and "sin" as a "transgression of divine law"). For example, the Catholic church regards as sinful the taking of the Lord's name in vain, having impure thoughts and masturbation. See JOHN A. HARDON, THE CATHOLIC CATECHISM 310-13, 351-56 (1981). But such conduct would not be considered unethical because it does not involve more than one person.

Another distinction that could be made is that an unethical act is something committed against another human being, whereas sin is a transgression against God. W.L. REESE, DICTIONARY OF PHILOSOPHY AND RELIGION 530 (1980). But, acts against other human beings, such as theft, murder and so forth, are also transgressions against God. For purposes of determining whether tax evasion is sinful or unethical, however, the distinction between sinful conduct and unethical conduct is a distinction without a difference. For purposes of this Article, one might easily substitute the word "unethical" for "sinful."

n3 Woodward et al., supra note 1, at 71. The revised catechism is not yet available in English. Summaries are reported in the popular press, however. For examples, see id.; Sins, Ancient and Modern, ECONOMIST, Nov. 21, 1992, at 50 [hereinafter Sins].

n4 Sins, supra note 3, at 50. Curiously, an examination of the indexes of 49 business ethics books did not uncover a single listing for tax evasion. Could it be that writers of business ethics texts do not think that tax evasion presents any ethical issues? Perhaps tax evasion is considered a matter of personal, rather than business, ethics.

n5 REV. MARTIN T. CROWE, Dissertation, THE MORAL OBLIGATION OF PAYING JUST
TAXES, THE CATHOLIC UNIVERSITY OF AMERICA STUDIES IN SACRED THEOLOGY NO. 84
(1944).

n6 See id. at 22-26.

n7 Id. at 7-12.

n8 E.g., EDWIN R.A. SELIGMAN, ESSAYS IN TAXATION 406, 432 (1921).

n9 Id. at 407, 414.

n10 One might argue that one has the right to drive -- or to walk, or to speak
-- without first obtaining a government license. But we will not go into that
here.

n11 One might argue that individuals have a right to operate a business with or
without the government's permission and that a government which interferes with
the conduct of personal affairs such as operating a business violates the
business owner's rights because regulating private conduct is not a legitimate
function of government. We will not go into that issue here, either.

n12 SELIGMAN, supra note 8, at 432.

n13 See id.

n14 CROWE, supra note 5, at 11.

n15 Id. at 6.

n16 Id. at 14-15.

n17 See id.

n18 See Robert W. McGee, Trade Policy of a Free Society, 19 CAP. U. L. REV. 301,
303 (1990).

n19 JAMES BOVARD, THE FAIR TRADE FRAUD 39 (1991). For more on this point, see
id. at 35-64; see also McGee, supra note 18, at 329, 336-37.

n20 McGee, supra note 18, at 308-09.

n21 For a comprehensive discussion of the Fifth Amendment Takings Clause and the
concept of governmental takings see RICHARD A. EPSTEIN, TAKINGS: PRIVATE
PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). See also CROWE, supra note 5,
at 133-35 (discussing eminent domain principles in the context of an obligation
to pay taxes).

n22 The cost of regulation is not insubstantial. Various estimates have placed
the annual cost of regulation in the United States at hundreds of billions of
dollars. Robert Genetski, The True Cost of Government, WALL ST. J., Feb. 19,
1992, at A14; Thomas D. Hopkins, Cost of Regulation, A Rochester Institute of
Technology Public Policy Working Paper, December, 1991; Ronald Utt, The Growing
Regulatory Burden: At What Cost To America, The Institute for Policy Innovation,
Policy Report No. 114, Nov. 1991; George F. Will, Purring Along the Potomac,
NEWSWEEK, Nov. 30, 1992, at 96; William G. Laffer, III, George Bush's Hidden
Tax: The Explosion in Regulation, Backgrounder No. 905, The Heritage
Foundation, July 10, 1992. Another good question to ask is whether it is sinful
or unethical to evade a regulation. But we will save discussion of this point
for another time.

n23 It should not be overlooked that the landlord might also have to pay a tax
on the $ 400 received, if the expenses incurred in operating the apartment are
less than the revenue received.

n24 CROWE, supra note 5, at 22-26.

n25 Id. at 22-23.

n26 Id. at 23-24.

n27 Id. at 24-26.

n28 Id. at 23.

n29 Id. One wonders whether Crowe, a Catholic, would mind being taxed to support
a Protestant spiritual or cultural event, or a showing at an art museum that
includes artworks of crucifixes or photos of Christ that are soaked in urine,
as was done at one art exhibition, with the support of government funds. George
F. Will, Government Subsidies Can Produce Strange . . . Art, DALLAS MORNING
NEWS, July 22, 1993, at 23A. And one might question whether it is just to
impose taxes on Georgia residents to help pay for a monument to General
Sherman, who helped to destroy their state during the American Civil War.

n30 See, e.g., BILL BRADLEY, THE FAIR TAX 29-35 (1984).

n31 See infra notes 67-77 and accompanying text.

n32 CROWE, supra note 5, at 24. It must be pointed out, however, that this
statement is not true. While it might reasonably be said that a majority of
"moralists" (whoever they are) would choose the ability to pay principle over
the benefit principle, in no way is there unanimity. Even if there were,
unanimity does not necessarily make the proposition true. The fact that a
majority approaching 100% thinks that something is just does not make it just.
The vast majority of people in the pre-Civil War southern United States thought
that slavery was just, and even in keeping with God's law. Even many slaves did
not think that slavery was unjust. What they thought, however, had nothing to
do with the justice of the matter. Justice does not depend on opinion or on a
majority vote.

n33 See generally id. at 27-82.

n34 Id. at 29 (quoting ANGELUS, Pedagium, in SUMMA ANGELICA (1494)).

n35 Id. at 35 (quoting BERARDI, PRAXIS CONFESSARIORUM II, at 176 (1898)).

n36 See infra notes 98-108 and accompanying text.

n37 CROWE, supra note 5, at 36-37 (citing GENICOT-SALSMANS, INSTITUTIONES
THEOLOGIAE MORALIS I, at 572-73 (1927)).

n38 Id. at 38 (citing CROLLY, DISPUTATIONES THEOLOGICAE DE JUSTITIA ET JURE III,
at 1001 (1877)).

n39 Id. at 39 (citing FRASSINETTI, COMPENDIO DELLA TEOLOGIA MORALE I, at 304
(1866)).

n40 Id. at 53 (quoting MOLINA, DE IUSTITIA ET IURE, tr. II. disp. 674, n.9, III,
concl. 5 (1611)).

n41 E.g., id. at 75 (citing MARC, INSTITUTIONES MORALES ALPHONSIANAE I, n.967
(1922)). Castro defined "a purely penal law as 'one that does not prescribe or
forbid the doing of anything; but merely imposes a penalty on [someone] who
does something or omits to do something.'" Id. at 88 (quoting CASTRO, DE
POTESTATE LEGIS POENALIS I, c. IX, col. 1613 (1571)). A mixed penal law, for
Castro, is one that prescribes or forbids doing something and prescribes a
penalty for violators. Id. (quoting CASTRO, DE POTESTATE LEGIS POENALIS I, c.
IX, col. 1613 (1571)). A purely moral law prescribes or forbids something but
does not provide a penalty. Id. (quoting CASTRO, DE POTESTATE LEGIS POENALIS I,
c. IX, col. 1613 (1571)).

n42 E.g., id. at 39 (citing H. DAVIS, MORAL AND PASTORAL THEOLOGY 339 (1938)).

n43 See id. at 17-18 (discussing the classification of taxes as either direct or
indirect). Those who take the position that there is a moral duty to pay only
direct taxes are in a curious position. In 1880, for example, the United States
Supreme Court held that the income tax was an indirect tax. Springer v. United
States, 102 U.S. 586, 602 (1880). In 1895, however, the Court reversed its
position by holding that the income tax is a direct tax. Pollock v. Farmers'
Loan & Trust Co., 157 U.S. 429, 582-83, reh'g granted, 158 U.S. 601 (1895),
overruled on other grounds by South Carolina v. Baker, 485 U.S. 505 (1988).
Does that mean that anyone who evaded the federal income tax before 1895 was
not committing a sin, but those who evaded it thereafter were sinners? In
France, certain income taxes are legally classified as indirect taxes, meaning
that evaders are not committing a sin. CROWE, supra note 5, at 139. This leaves
one in the curious position of being a sinner if one evades the United States
income tax, but not if one evades the French tax. See id.

n44 See CROWE, supra note 5, at 18-19.

n45 See id. at 32 (citing BEIA, RESPONSIONES CASUUM CONSCIENTIAE, cas. 13, at 53
(1591)).

n46 See id. at 44 (citing MOLINA, DE IUSTITIA ET IURE, tr. II, disp. 674, n.3,
III, col. 555 (1611)).

n47 Id. at 97 (describing the logic for this position as follows: "It is sinful
to act unreasonably. But it is unreasonable to break a law. Therefore, it is
sinful to break a law."). This line of reasoning, however, begs the question:
What if the law is unreasonable or unjust? Few, if any, modern theologians
would take this position. But this position was common when it was thought that
a king derived his authority from God. This divine right of kings is supported
by Romans 13:1-2, which says: "Let every soul be subject to the governing
authorities. For there is no authority except from God, and the powers that
exist are appointed by God. Therefore whoever resists the authority resists the
ordinance of God, and those who resist will bring judgment on themselves."

n48 CROWE, supra note 5, at 55 (citing CONCINA, THEOLOGIA CHRISTIANA
DOGMATICO-MORALIS VI, at 309 (1774)); see also id. at 57 (citing PATUZZI,
ETHICA CHRISTIANA SIVE THEOLOGIA MORALIS I, at 90 (1770)).

n49 For those unfamiliar with the distinction between mortal and venial sin,
Catholic doctrine holds that someone who commits a mortal sin must spend
eternity in hell, whereas someone who commits a venial sin must spend some time
in a place called purgatory, where punishment is imposed for some temporary
period, after which the sinner is transferred to heaven. See HARDON, supra note
2, at 273-78.

n50 CROWE, supra note 5, at 42 (quoting ST. ANTONINUS, SUMMA SACRAE THEOLOGIAE
II, at 63 (1571)).

n51 See, e.g., id. at 43 (citing MOLINA, DE IUSTITIA ET IURE, tr. II disp. 674,
n.3, III, col. 555 (1611)). Here I am falling prey to the same line of
philosophical reasoning I warned against. Whether a majority of theologians say
this or that really has nothing to do with the fact of the matter. Something is
either a mortal sin or not, regardless of what a majority of theologians say.
Molina (1536-1600) states: "'When a tax is imposed . . . those who do not pay,
sin mortally provided the amount is sufficient for a mortal sin of theft, and
they are bound in the forum of conscience to make restitution . . . . The
common opinion of the doctors affirms this.'" Id.

n52 CROWE, supra note 5, at 57 (citing E. VOIT, THEOLOGIA MORALIS I, 855, at 372
(1833)).

n53 Murder, for example, is always a mortal sin, regardless of whether the
person murdered is rich or poor, pious or sinful, young or old, Christian or
not. See HARDON, supra note 2, at 324-27. But some sins can be mortal or
venial, depending on the facts or circumstances, such as the amount of the
theft and the nature of the victim. Id. at 560-61.

n54 CROWE, supra note 5, at 48 (quoting BONACINA, Tractatus de Restitutione, in
DE MORALI THEOLOGIA II, disp. II, q. IX, n.5 at 449 (1687)).

n55 Id.

n56 2 Kings 23:35 (stating that the Pharaoh exacted silver and gold from the
people, "of every one according to his taxation").

n57 Matthew 22:21.

n58 Romans 13:7.

n59 CROWE, supra note 5, at 32 (quoting BEIA, RESPONSIONES CASUUM CONSCIENTIAE,
cas. 13, at 53 (1591)).

n60 LEO JUNG, BUSINESS ETHICS IN JEWISH LAW 112 (1987).

n61 See id.

n62 See id.

n63 CROWE, supra note 5, at 76 (citing LEHMKUHL, THEOLOGIA MORALIS I, at n.981
(1902)). Lehmkuhl (1834-1917) took the position that commutative justice is
involved whenever the failure of one person to pay "just taxes" results in
others having to pay more than their fair share. Id. Even if this were true, it
still does not answer the question of whether it is unethical for someone to
evade an unjust tax where the result would be that others must pay more.
According to Crowe, "commutative justice . . . directs the relations of one
private individual with another." CROWE, supra note 5, at 114. Further, he
states that "[c]ommutative justice directs the actions of one private
individual in relation to the strict right of another private individual." Id.
at 116.

n64 CROWE, supra note 5, at 37 (citing GENICOT-SALSMANS, INSTITUTIONES
THEOLOGIAE MORALIS I, at 573 (1927)).

n65 Id. at 40 (quoting H. DAVIS, MORAL AND PASTORAL THEOLOGY 339 (1938)).

n66 Id. at 24-26.

n67 The Social Security system is a bad investment for the vast majority of
people. Individuals are forced to pay thousands of dollars into the system
during their working lives, yet have no right to claim any benefits before age
62 or 65. If a person dies before collecting, his or her heirs get nothing. And
even if one does collect a monthly check, the amount received is generally less
than what would be received if the person had made equal contributions to a
private pension fund. For more on this point, see PETER J. FERRARA, SOCIAL
SECURITY: THE INHERENT CONTRADICTION (1980); SOCIAL SECURITY: PROSPECTS FOR
REAL REFORM (Peter J. Ferrara ed., 1985). An entire issue of THE CATO JOURNAL
is also devoted to this topic. 3 CATO J. passim (1983).

n68 In many cases, individuals do not have a choice. They do not have the option
of either paying or evading the Social Security tax because it is taken from
their paychecks before they receive them. Self-employed individuals, however,
can evade the Social Security (self-employment) tax by not declaring all of
their income.

n69 This point is discussed in most public finance texts and in the public
finance chapters of general economics texts. In addition, an analogous
circumstance can be found in the health care industry, in which administrative
costs consume an increasing percentage of every health care dollar spent. See,
e.g., RITA RICARDO-CAMPBELL, THE ECONOMICS AND POLITICS OF HEALTH 6-9 (1982).

n70 See, e.g., HEINZ KOHLER, INTERMEDIATE MICROECONOMICS 202, 231-32 (3d ed.
1990).

n71 Of course, people who pay property taxes to educate other people's children
get no return for their payments and may even be adversely affected. These
recently educated students -- who are computer literate -- will soon compete
with them for jobs that may require computer literacy.

The percentages in this section are used only for illustrative purposes. The
actual percentages will differ depending on a number of factors. For example,
senators and representatives in some states are more skillful in obtaining
federal money for their states than are others. And some taxpayers derive very
little benefit for the taxes they pay, whereas others get a great deal back in
the form of services. And those who pay little or no taxes can receive much
more in services at all levels of government than what they pay, because they
pay so little.

n72 See, e.g., E. Douglass Williams & Richard H. Sander, The Prospects for
"Putting America to Work" in the Inner City, 81 GEO. L.J. 2003, 2050-52 (1993).

n73 See supra note 71.

n74 I would like to thank Marshall Fritz for introducing me to this example.

N75 Not all wealth transfers go from the rich to the poor. In fact, many go from
the poor to the rich, or from the middle class to the middle class. In the case
of tax-supported college education, for example, those in the middle and upper
middle classes tend to use the service, but those in the middle and lower
income classes tend to pay for it. In effect, the poor are subsidizing the
rich.

n76 M. DAVID GELFAND & PETER W. SALSICH, JR., STATE AND LOCAL TAXATION AND
FINANCE IN A NUTSHELL 36-37 (1985).

n77 The author knows of one exempt organization that takes this position. For
years, the organization did not apply for tax-exempt status because it
perceived some moral duty to pay for the government services it received. When
property taxes became outrageously high, however, it decided to apply for a tax
exemption and received it. The organization then started to make voluntary
contributions to the local government each year, based on the value of the
services the government provided. There is no requirement under the United
States Constitution "that the amount of . . . taxes collected . . . must be
reasonably related to the value of the services provided to the activity."
Commonwealth Edison Co. v. Montana, 453 U.S. 609, 622 (1981).

n78 Michael Wines, Senators Approve a Bill that Eases Voter Registration, N.Y.
TIMES, Mar. 18, 1993, at Al.

n79 Nicholas von Hoffman, The Thrill is Gone, L.A. TIMES, July 12, 1992
(Magazine), at 18.

n80 Wines, supra note 78, at Al.

n81 See Evelyn Nieves, Registration of Voters is Intensifying, N.Y. TIMES, Oct.
3, 1992, at 1. A number of commentators over the years have speculated why the
best-suited individuals do not run for political office or gravitate to
positions of authority in government. For one of the better expositions on this
point, see FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM 134-52 (1944).

n82 See, e.g., C. Wright Mills, The Higher Circles, in DEMOCRACY AND COMPLEXITY:
WHO GOVERNS THE GOVERNORS? 41, 43-47 (Fred Krinsky ed., 1968). Another point
might also be made here. The Public Choice School of Economics, founded by
James Buchanan and Gordon Tullock, has been pointing out for several decades
that government officials are motivated by the same things that motivate the
rest of us -- self-interest. They act in their own interest, not the public
interest. See generally JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF
CONSENT 17-30 (1962); Daniel A. Farber & Philip P. Frickey, The Jurisprudence
of Public Choice, 65 TEX. L. REV. 873, 878-79 (1987).

n83 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) ("[W]henever any Form of
Government becomes destructive of these ends, it is the Right of the People to
alter or to abolish it . . . .").

n84 See, e.g., IMMANUEL KANT, THE METAPHYSICS OF MORALS 129 (Mary Gregor trans.,
Cambridge University Press 1991) (1797) [hereinafter METAPHYSICS OF MORALS].
Kant's categorical imperative permeates his works. For some discussions and
examples of it, see id.; IMMANUEL KANT, ETHICAL PHILOSOPHY (1983); W.L. REESE,
DICTIONARY OF PHILOSOPHY AND RELIGION 278-79 (1980); ERNST CASSIRER, KANT'S
LIFE AND THOUGHT 245-51 (James Haden trans., 1981); W.H. Walsh, Immanuel Kant,
in 4 THE ENCYCLOPEDIA OF PHILOSOPHY 305, 317-18 (Paul Edwards ed., 1967).

n85 See CASSIRER, supra note 84, at 248-49.

n86 See id. at 254; METAPHYSICS OF MORALS, supra note 84, at 185-87.

n87 See METAPHYSICS OF MORALS, supra note 84, at 185-87.

n88 The government could still support some activities through voluntary
revenue-raising means, such as lotteries and user fees.

n89 GELFAND & SALSICH, supra note 76, at 90-92; see also supra notes 9-11 and
accompanying text.

n90 E.g., GELFAND & SALSICH, supra note 76, at 90-91.

n91 It may be difficult, as a practical matter, to avoid paying a toll if there
is someone at the booth who is prepared to take either your money or your
license plate number if you do not pay. But some toll booths allow users to pay
by depositing coins or tokens, which provides a greater opportunity for beating
the fare.

n92 There are a few exceptions. A few roads are privately owned. A number of
studies take the position that at least some roads should be privatized --
turned over to private owners -- because privately owned roads are better
maintained at a much lower cost. Thus, government ownership of roads results in
the squandering of resources, relatively speaking. For more on this point, see
Steve Steckler & Lavinia Payson, Infrastructure, in PRIVATIZATION FOR NEW YORK:
COMPETING FOR A BETTER FUTURE 186, 198-201 (Report of the New York State Senate
Advisory Commission on Privatization, E.S. Savas ed., 1992); RANDALL
FITZGERALD, WHEN GOVERNMENT GOES PRIVATE: SUCCESSFUL ALTERNATIVES TO PUBLIC
SERVICES 47-48, 163-74 (1988); ROBERT W. POOLE, JR., CUTTING BACK CITY HALL
148-49 (1980).

n93 See generally THE YELLOWSTONE PRIMER (John A. Baden & Donald Leal eds.,
1990); FITZGERALD, supra note 92, at 68-71, 193-207; POOLE, supra note 92, at
99-107.

n94 See, e.g., CROWE, supra note 5, at 42 (citing ST. ANTONINUS, SUMMA SACRAE
THEOLOGIAE II, at 66 (1571)).

n95 BLACK'S LAW DICTIONARY 1477 (6th ed. 1990).

n96 ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 169-72, 265-68 (1974). Nozick
would say that income taxation is the theft of the fruits of one's labor. Id.

n97 See CROWE, supra note 5, at 42 (citing ST. ANTONINUS, SUMMA SACRAE
THEOLOGIAE II, at 66 (1571)).

n98 See Letter from Thomas Jefferson to John Wayles Eppes (June 24, 1813), in
THOMAS JEFFERSON: WRITINGS 1280-82 (1984) [hereinafter Letter to Eppes].

n99 DAVID P. CURRIE, THE CONSTITUTION OF THE UNITED STATES app. at 91 (1988).
The Sixteenth Amendment to the United States Constitution, which provided for a
constitutional federal income tax, was passed in 1913. Id. Before the Amendment,
the government raised the money it needed through excise taxes and tariffs. See,
e.g., MICHAEL D. ROSE & JOHN C. CHOMMIE, FEDERAL INCOME TAXATION =A7 1.02 (3d ed.
1985).

n100 See, e.g., E. ALLAN FARNSWORTH, I FARNSWORTH ON CONTRACTS =A7=A7 1.4-1.7
(1990).

n101 See Letter to Eppes, supra note 98, at 1280-81.

n102 Id.

n103 Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in THOMAS
JEFFERSON: WRITINGS 959 (1984) [hereinafter Letter to Madison]. Jefferson wrote
this letter while he was in France. Id.

n104 Id. at 960.

n105 Letter to Eppes, supra note 98, at 1281.

n106 Id. at 1281-82.

n107 Letter to Madison, supra note 103, at 962-63.

n108 See infra notes 112-14 and accompanying text.

n109 See BLACK'S LAW DICTIONARY 955 (6th ed. 1990) (defining "majority rule" as
"[r]ule by the choice of the majority of those who actually vote").

n110 Some political commentators regard John Tyler as America's greatest
President because no laws were passed during his administration. Actually, a
tariff and a treaty were passed during his administration, so it cannot
strictly be said that "no laws" were passed during his administration. See
generally ROBERT J. MORGAN, A WHIG EMBATTLED: THE PRESIDENCY UNDER JOHN TYLER
46-53, 129 (1954).

n111 One advantage of a democracy over a dictatorship is that, under a
dictatorship, one person tyrannizes the other 99.99%, whereas under a
democracy, at worst, 51% tyrannize the other 49%. Herbert Spencer expresses a
similar view in SOCIAL STATICS 217-22 (1970) (London, Chapman (1851). Others
would say that the difference between a democracy and a dictatorship is the
number of feet on your throat.

n112 E.g., THOMAS HOBBES, LEVIATHAN, in 23 GREAT BOOKS OF THE WESTERN WORLD 39,
112-17 (Nelle Fuller ed., 1952) (1651).

n113 E.g., JOHN LOCKE, TWO TREATISES OF GOVERNMENT 231-35 (Thomas I. Cook ed.,
1947) (6th ed. 1764); JEAN JACQUES ROUSSEAU, THE SOCIAL CONTRACT, xxiii-xxv
(Charles Frankel ed., 1947) (London 1791). The United States Declaration of
Independence reflects Locke's view that a government that fails to protect
basic rights can be replaced by the people with one that will protect these
rights. Compare THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776)
("[W]henever any Form of Government becomes destructive of [the people's
desired] ends, it is the Right of the People to alter or abolish it . . . .")
with LOCKE, supra, at 233 ("[G]overnments are dissolved . . . when the
legislative or the prince . . . act[s] contrary to [the people's] trust.").

n114 LYSANDER SPOONER, NO TREASON NO. VI: THE CONSTITUTION OF NO AUTHORITY 3-4,
reprinted in 1 THE COLLECTED WORKS OF LYSANDER SPOONER (Charles Shively ed.,
1971) (1870). The constitution Spooner refers to is the United States
Constitution, which was adopted about eighty years before he wrote this essay.
See id. at 4.

n115 See, e.g., SELIGMAN, supra note 8, at 2-3.

n116 See id.

n117 One way to minimize the tax bite is to privatize services as much as
possible. Much of what now is done by government can be done more efficiently
by the private sector. E.g., POOLE, supra note 92, at 21-24; FITZGERALD, supra
note 92, at 127-33. See generally JAMES T. BENNETT & MANUEL H. JOHNSON, BETTER
GOVERNMENT AT HALF THE PRICE: PRIVATE PRODUCTION OF PUBLIC SERVICES (1981).

n118 CROWE, supra note 5, at 59 (quoting S.E. LE CARD. GOUSSET, THEOLOGIE MORALE
I, at 504 (1869)).

n119 E.g., SELIGMAN, supra note 8, at 338-42.

n120 KARL MARX, CRITIQUE OF THE GOTHA PROGRAM 27 (Moscow, Foreign Languages
Publishing House 1954) (1875). The original wording was "Jeder nach seinen
Fahigkeiten, jedem nach seinen Bedurfnissen." THE GREAT THOUGHTS 274 n.<*>
(George Seldes ed., 1985). Louis Blanc, the French socialist, had written
basically the same thing in 1848. Id.

n121 See SELIGMAN, supra note 8, at 71-74.

n122 See id. at 71-72.

n123 Id. at 73.

n124 There are problems with both of these approaches. There is no way to
objectively determine someone's ability to pay, so it must be decided
arbitrarily. There is also no way to determine the amount of benefit received
from government services that are crammed down a person's throat rather than
purchased through voluntary exchange.

n125 United States v. Helmsley, 760 F. Supp. 338, 339 (S.D.N.Y.), aff'd, 941
F.2d 71 (2d Cir. 1991), cert. denied, 112 S. Ct. 1162 (1992); see also Laurie
Goodstein, Leona Helmsley's Heartache Hotel: Judge Gives Tax Evader Four Years
in the Slammer, WASH. POST, Mar. 19, 1992, at C1.

n126 See Paul C. Roberts, Hotel Queen Deserves New Trial, Not Jail, HOUSTON
CHRON., Apr. 4, 1992, at C12.

n127 See Helmsley, 760 F. Supp. at 339.

n128 Ross Perot, during one of the televised U.S. presidential debates in
October, 1992, announced that he has paid more than $ 1 billion in taxes over
the years. Presidential Candidates Engage in Second Debate (CNN television
broadcast, Oct. 15, 1992) (Ross Perot stated in his closing statement: "I've
been paying taxes just like you, and Lord knows I've paid my share -- over a
billion dollars in taxes."). One must wonder how the federal government could
possibly provide him with $ 1 billion in services. It seems unlikely that he
could get his money's worth even if the government provided him with a large
home, free clothing and ten meals a day. He makes too much money, however, to
qualify for welfare, so he is unable to qualify for food or housing from the
government.

n129 See supra notes 118-20 and accompanying text.

n130 See supra notes 121-28 and accompanying text.

n131 See supra notes 69-74 and accompanying text.

n132 See supra notes 66-77 and accompanying text.

n133 See supra notes 94-97 and accompanying text.

n134 In the case of a representative democracy, of course, the decision would
have been made by their representatives.

n135 See supra notes 24-32 and accompanying text.

n136 See supra notes 94-117 and accompanying text: CROWE, supra note 5, at 61
(citing GURY, COMPENDIUM THEOLOGIAE MORALIS (1850)). Gury suggested that there
is a presumption that a tax is just if it has existed over a long period of
time and it has been paid without protest during that time. Id. This might also
be said of slavery, however, which existed for thousands of years without
protest, even from the slaves, for the most part. While Gury might offer that
there is a presumption that certain taxes can be just, this presumption should
always be overcome when rights are being violated, such as when property is
taken by force or the threat of force without the owner's consent.

n137 E.g., ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2(d) cmt. (1983) ("[A]
lawyer should not participate in . . . a transaction to effectuate criminal or
fraudulent escape of tax liability.").

n138 See id.; CHARLES W. WOLFRAM, MODERN LEGAL ETHICS =A7 13.3.6, at 700-01
(1986).

n139 See supra notes 137-38 and accompanying text.