The Hidden Costs of Textualism: Does it Matter What Slaves Thought 'Direct Tax' Meant?

This article explores a peculiar question concerning Constitutional deliberation presented by Professors Calvin Johnson and Erik Jensen’s debate over the meaning of “No Direct Tax without Apportionment.” According to Professor Jensen, apportionment of direct taxes was intended to serve as a significant limitation on the Federal government’s ability to tax citizens directly. Professor Johnson, on the other hand, believes the Constitution requires apportionment only of Federal requisitions levied directly upon the States. Professor Johnson’s theory places the issue of slave counting at the core of the debate over taxation and representation. For students of legal construction, interpretation and deliberation, their debate inspires a couple peculiar questions: When interpreting or deliberating over the Constitution does it matter at all what slaves thought particular words or phrases meant? If it does matter, how important is it and how would we discover it? The answer to the question ‘does it matter at all’ is, of course, it depends. Different deliberative/interpretive techniques - textualism, intentionalism, purposivism, and dynamism - answer the question differently. And the results might a represent a political irony to some. Justice Scalia’s brand of originalist textualism accords the most respect to the views of slaves on Constitutional issues. Similarly, it accords the most respect for women’s views. His theory requires judges to consider what the text of the Constitution meant to the People of the United States. He considers the Federalist papers not as evidence of the Framers’ intent but as evidence of what the People thought specific words meant. But, even if the Federalist papers represent the best evidence of original Constitutional meaning, they are not the only evidence of what the People of the United States understood. Thus, Scalia’s originalist-textualism requires judges deciding Constitutional questions to consider to some degree and to the extent possible the meaning most likely supplied by Blacks, women, and perhaps Native Americans (especially if there is evidence that their understanding differs to some extent from the dominant public sphere of the time). The article then takes an Afrocentric turn and explores the concept of African cultural unity in terms of law and governance, with specific attention to taxation, towards possible understandings an aristocratic slave might have with respect to direct taxation. It presents historical references to pre-colonial African societies dating back thousands of years and comments on their level of legal modernity and sophistication. It provides examples of governance utilized by pre-colonial kingdoms and empires, including, but not limited to, Ancient Khem (Egypt) and Kush (Nubia), Kanem, Kilwa, Kuba, Kongo, Ghana, Mali, and Songhai. There is ample evidence that these societies relied upon and implemented external and internal requisitions, graduated poll taxes, import and export taxes, and special use taxes. Thus, it concludes that a slave captured from an aristocratic West African family who was bondaged and delivered to the United States, like Prince Abdur Rahman or Equiano the African, would indeed have an understanding of what exactly the Federal government is restricted from doing where the Constitution prohibits direct tax without apportionment.