David Elkins (Netanaya College School of Law, Israel; Visiting Professor, SMU) has posted Redistributive Taxation and the Constitutional Protection of Property, in Bridging a Sea. Constitutional and Supranational Limitations to Taxing Powers of the States Across the Mediterranean Sea (Aracne Editrice, 2009), on SSRN.  Here is the abstract:

The Fifth Amendment to the Constitution provides that private property shall not be taken for public use without just compensation. Richard Epstein has argued that redistributive taxation violates the provisions of this Amendment, and that only a proportional income tax would pass constitutional muster.

Epstein's argument has generated a great deal of criticism. However, most critics take issue with his arguments on the merits. They claim that the Fifth Amendment was never intended to limit Congress' taxing power, that his interpretation of Locke is incorrect, that even under Epstein's assumptions a progressive income tax is more appropriate, that his arguments are populist and not academic and so forth.

The thesis of the Article is that whatever the merits of Epstein's arguments, they cannot form the basis for judicial review of redistributive taxation. The question of whether (and if so, the extent to which) the Constitution proscribes redistribution is political in nature and is not addressable in a judicial forum.

Before considering the political question doctrine, the Article considers an alternative answer to Epstein: that taxation is inherently a violation of private property and that by conferring on Congress the taxing power, the Constitution implicitly freed that power from the restrictions of the Taking clause. Part II rejects this answer by showing that only redistributive taxation can be considered a violation of the Fifth Amendment's Takings clause. This analysis serves only to strengthen Epstein's argument.

Part III then discussed the political question doctrine and focuses on those aspects of the doctrine that are relevant to the discussion. Part IV examines the positivistic approach to property and explains why such a conception cannot support an argument for constitutional review of the distributive aspects of tax legislation. The case for constitutional review must be supported by a philosophical outlook that views property rights as antecedent to the positive law.

Part V analyzes three different social philosophies – libertarianism, neo-Lockeanism and Rawlsianism – each of which considers property rights as antecedent to the positive law in the sense that the morality or justice of the positive law can be ascertained by reference to these rights. While the three perspectives are by no means exhaustive, they may be taken as representative models of those viewpoints which, to a great extent, shape the contours of contemporary political debate regarding issues of social justice. Part VI then considers which tax structures would conform to the principles of property preservation and equal protection as understood by each of these perspectives and concludes that the structures they would require differ drastically. Part VII proceeds to argue that the choice among the various tax structures is inherently political. Judicial review of the redistributive aspects of taxation requires a policy determination that the courts are incapable of making.

Part VIII summarizes the argument and offers some concluding thoughts.