Drawing the Line between Taxes and Takings: The Continuous Burdens Principle, and its Broader Application

Posted: 5 Jun 2003


When government taxes, it takes citizens' property, usually money, to fund various projects. The Takings Clause declares that the government must pay compensation when it takes private property. Requiring compensation for taxation would immediately bankrupt the state: it would have to return immediately all tax receipts to meet this compensation duty.

Thus the Takings Clause cannot reach all taxes. This article considers what forms of taxation, if any, are takings requiring compensation. For example, surely an income tax of 100 percent imposed on one person (e.g. Bill Gates) would violate the Takings Clause. Such a tax singling out one person (or a handful of citizens) offends the Supreme Court's repeated invocation that the primary purpose of the Takings Clause is "to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States (1960). The problem, then, is to draw the line that separates these examples from legitimate taxes.

This article proposes a novel rule to draw this line: the Continuous Burden Principle (CBP). To satisfy the CBP, a tax must impose burdens such that there are no large jumps - discontinuities, in an imprecise sense - between the burden imposed on any taxpayer and the next most-burdened taxpayer. The article then generalizes the CBP, arguing that it applies not just to taxation but to regulation and other government acts that may amount to a taking.

Suggested Citation

Kades, Eric A., Drawing the Line between Taxes and Takings: The Continuous Burdens Principle, and its Broader Application. Northwestern University Law Review, Vol. 97, p. 189, 2002, Available at SSRN: https://ssrn.com/abstract=390540

Eric A. Kades (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3828 (Phone)

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