Murphy and Emotional Distress Damages: Professor Dodge's Comments

As noted in a prior posting, some tax experts are concerned that the government conceded too much in its brief for the rehearing of Murphy when it said that the intent was to reach income within the 16th amendment.  Here's what Joseph Dodge, Stearns Weaver Miller Weissler Alhadeff & Sitterson Professor of Law at FSU College of Law had to say about that issue (shared with his permission).

I don’t think the government conceded anything by saying the catch-all clause and the 16^th Amendment are the same.  The government did not concede that the 16^th Amendment is frozen at some 1909-1913 restricted meaning.  Glenshaw Glass, construing the catch-all clause, held that the 16^th Amendment was not frozen in time.  Merchant’s Loan & Trust v. Smietanka also rejected a 1909 meaning.  Even Macomber didn’t adopt an originalist tack.  The entire jurisprudence is non-originalist and textualist.  Whatever trend there has been is to free income for tax purposes from the concept of income used in other disciplines.

Originalism doesn’t get you anywhere.  There was no original meaning.  It was a Tower of Babel.  The 1909-1913 program was to get rid of the apportionment requirement for income tax, not to add any new limitation on the taxing power.