Hastings Constitutional Law Quarterly


Leo P. Martinez


Fairness stands for a complicated set of moral and practical instructions inculcated in us since childhood. Consequently, fairness presents knotty problems of application for legal and policy analysts in the formulation of tax policy. This article probes the contours of the concept of fairness in taxation. I begin and end with the observation that fairness or the perception of fairness in taxation is a deceptively unsophisticated proposition. Part I includes a brief description of the public perception of fairness in the context of taxation. Part II follows with an exploration of the concept of fairness as a fundamental tenet of tax policy with particular scrutiny of the principle that equals should be taxed equally. In Part III, I deal with fairness as a constitutional norm and I argue that, while fairness in taxation has solid policy underpinnings, fairness is not a matter of constitutional dimension. Rather, the Court uses three themes that in many ways work in conjunction: an emphasis on the basic nature of the taxing power; deference to legislators; and establishing an exceedingly high threshold to find a tax unconstitutional. I conclude in Part IV that fairness is, with some minor qualifications, not a matter of deep constitutional lore or economic arcana, but rather an instinctual matter more analogous to a child's perception of fairness than to that of a modern day economist's. In the area of taxation, then, the Supreme Court may feel more adrift; and, as in many such cases in which the law does not point in any one certain direction, the Justices may engage in the favored practice of tossing the ball back to Congress for further play.