American Taxation, American Slavery by Robin Einhorn

[10 July 2006]

By Whitney Strub

The absence of a subtitle on an academic book can be a sign that the author is striving for a Big Statement, but Robin Einhorn takes it one step further in American Taxation, American Slavery. By invoking the spirit of Edmund Morgan’s 1975 classic American Slavery, American Freedom, she makes clear her intent to offer a sweeping new interpretation of American history. In the earlier book, master colonial historian Morgan argued that the entire conceptual edifice of American freedom depended on the creation of a racialized slavery system, which bestowed an imaginary unity on white Americans otherwise beset by violent class struggles. With American Taxation, Einhorn shows the impact of slavery on tax policy. If Morgan revealed the role of slavery in displacing discussion of class in America, Einhorn in turn uncovers the ways in which taxation reflected an intense desire to avoid confronting the implications of slavery from the colonial period through the early republic (though the book also traces the unintended effects of slavery on taxation through the Civil War). In the process, the Berkeley history professor successfully demands that we rethink our assumptions about the nature of taxation in US history.

Those assumptions have largely been shaped by anti-tax, anti-government conservatives, who position their libertarian rhetoric in terms of “freedom,” as opposed to governmental “control” (think Milton Friedman’s Capitalism and Freedom or Free to Choose, for a few examples of many). But as Einhorn states in her introduction, “the antigovernment rhetoric that continues to saturate our political life is rooted in slavery rather than liberty. The American mistrust of government is not part of our democratic heritage.” Instead, it was precisely those colonies in which slavery had little presence where the most democratic institutions flourished, and it was under these democratic conditions that the most sophisticated taxation methods and governmental apparatuses were developed. While not always progressive, these (mostly northern) tax systems stood in stark contrast to southern methods, often predicated more on maintaining the viability of slavery than equitability or even realistic implementation. Regrettably, southern influence at the founding of the United States resulted in these attitudes being codified into the Constitution, and later slave states led the misguided Northwest (the states now known as the Midwest—Ohio, Michigan, Wisconsin, etc.) into tax policies framed in populist terms but ultimately beneficial to corporate wealth rather than the democratic will of the people.

If this suggests the general thrust of Einhorn’s argument, it barely touches on her wealth of detail. She ably navigates the arcane nooks and crannies of tax policy formation with impressive clarity; the book may be a bit dry for casual readers at times, but Einhorn keeps its narrative arc relatively streamlined even as she takes care with finer analytical points. She even writes with wit and ferocity; the third footnote in the book cites J.R.R. Tolkien, reflecting her ability to escape the stilted Ivory Tower, and she regularly employs charged language to make a point (Indian removal is described as “ethnic cleansing” and pro-corporate judges as “activist judges,” neither with quote marks). Such tactics keep the text vibrant in the face of the less enthralling details.

The first of her three sections might initially seem digressive, as she compares and contrasts colonial Massachusetts and Virginia, but it sets the stage for the more significant material to follow. Noting that the northern state built an impressive democratic tradition while the southern slave state did not, Einhorn shows how Massachusetts was better able to handle the financial burdens of the American Revolution. Virginia, lacking not only substantive democracy in its quasi-feudal plantation economy but also democracy’s corollary bureaucratic infrastructure, found itself unable to even derive or enforce mechanisms of valuation for a property tax in the 1770s. 

Precisely this revolutionary fiscal crisis set the stage for discussion at the Continental Congress. As early as July 1776—less than a month after the Declaration of Independence had enshrined the ideals of “life, liberty, and the pursuit of happiness”—South Carolina had already begun threatening secession from the nascent union of colonies. At the heart of American Taxation, America Slavery lies Einhorn’s argument that the tax policies emerging from these early debates were structured by a desperate desire to avoid discussion of slavery, a topic which threatened to disintegrate the union before it even cemented its bonds. The evasion tactics used by the “founding fathers” to finesse over slavery are well-known, but Einhorn carefully shows how they affected taxation. Under the Articles of Confederation (ratified in 1781), federal tax burdens were apportioned to the states on the basis of real estate values rather than population. As her earlier chapter on Virginia showed, actual valuation was impossible in the South, with its lack of viable calculating techniques. This was evident even at the time, but whereas apportionment on the basis of population was more feasible, it was also politically unpalatable; it would necessitate a contentious debate over the counting of slaves, something all involved recognized as overly volatile.

The tax methods of the Articles failed, but when the Congress finally settled on a 3/5 population rule in 1783 (counting slaves as 3/5 people), it self-consciously held debate in a closed forum, from which little descriptive evidence of the arguments survived. The 3/5 clause would, of course, enter the Constitution in 1787 to establish principles of federal representation. With it came sufficient southern representation as to block any attempt at direct taxes on slavery, and from the 1790s to the Civil War of the 1860s (with a brief exception during and after the War of 1812), the tariff (an import tax) was the only federal tax.

If Einhorn makes manifest the invisible role of slavery in national tax politics, even more devastating is her third and final section, showing the almost viral effect of southern state policies. As white male suffrage extended beyond wealthy landowners in the early republic, the southern elite struck a bargain with the masses by facilitating the expansion of democracy in return for “uniformity clauses” ensuring that different forms of property would be taxed equitably. This prevented a populist tax attack on slavery (the majority of southern whites being far too poor to own slaves) and brought a measure of security to the planters in the face of new political power groups. However, as the states of the Old Northwest began ratifying constitutions in the mid-nineteenth century, Einhorn shows how their own populist leaders tragically misconstrued the uniformity clauses as emblems of equality, rather than the protection of elite wealth they actually were. While slavery was never a significant issue in these states, as corporations consolidated into financial behemoths over the course of the century they quickly claimed rights under the clauses. By the 1880s, courts even in states without the clauses were reading them into state constitutions as implied. The legacy of slavery and its attendant defenses thus lived on in the legal protection of corporate wealth from democratically-determined tax policies.

As Einhorn shows, American taxation began anew in the 20th century, especially after the 16th Amendment legalized the income tax in 1913. But the past has remained profoundly misunderstood, which is why the libertarian argument juxtaposing taxation against freedom carries so much social currency. Not only do the existing narratives of American history fail to note that the restriction of taxes in the early republic operated precisely as a bulwark to the institution of slavery rather than as a display of freedom, but the mistake of the Old Northwest—thinking that lower property (or income) taxes are somehow “fair,” when they in fact primarily benefit the wealthy—has been repeated ad nauseum across the United States for the last quarter-century. An academic text such as American Taxation, American Slavery is hardly likely to reverse the tide of the current American political disaster, but by forcefully and persuasively offering a new interpretation of American history, Robin Einhorn has provided the raw material upon which popularizers in the mass media can build. Let us hope they do.

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