Justice Scalia, Tax Protestor?

Among the many strong opinions United States Supreme Court Justice Antonin Scalia expressed, his alignment with the arguments of tax protesters may be the most surprising. Scalia, who passed away Saturday at age 79, was known for his staunch originalist views on interpreting the Constitution. Several times throughout his career, he spoke out about tax protesters and revealed an alignment between his views both that the Constitution’s meaning is the same as when it was adopted and in the unconstitutionality of tax laws. Scalia concurred with the Supreme Court’s majority in criminal tax case Cheek v. United States (1991)[1], which established that defendants facing a charge of “willfulness” in violating tax statutes may assert a “good faith” defense based on a misunderstanding arising from the complexity of tax laws.[2] However, he questioned the majority’s holding that a good faith belief that the federal income tax is unconstitutional (not based on a misunderstanding) is not a defense.[3] “It is quite impossible to say that a statute which one believes unconstitutional represents a ‘known legal duty.’”[4] Scalia said that the majority’s holdings could lead to a slippery tax liability slope for taxpayers who, for example, believe that Treasury Regulations are contrary to the Internal Revenue Code.[5]

Years later, Scalia raised eyebrows when he reportedly told a student asking about the federal income tax’s constitutionality “if it reaches a certain point, perhaps you should revolt”.[6] By adding that the government has the Constitutional right to implement taxes,[7] Scalia drew a parallel between originalism and the view that while the government may tax its people, certain taxes are unconstitutional.


 By Julia Damron, Esq., Barnes Law

Julia Damron is an associate attorney with Barnes Law, licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Cheek v. United States, 498 U.S. 192 (1991).

[2] Id. at 203.

[3] Id. at 204-205.

[4] Id. at 207-208.

[5] Id. at 208.

[6] “Scalia to students on high taxes: At a certain point, ‘perhaps you should revolt’”, Washington Times, April 19, 2014, http://www.washingtontimes.com/news/2014/apr/19/scalias-students-high-taxes-certain-point-perhaps-/.

[7] Id.