Daniel Hemel (NYU; Google Scholar) presents Formalism, Functionalism, and Nonfunctionalism in the Constitutional Law of Tax at Missouri today as part of its Tax Policy Colloquium hosted by David Gamage:

Commentary on American public law frequently focuses on the clash between “formalism” and “functionalism.” Formalists seek to apply the law without regard to the background reasons that a particular law is meant to serve, whereas functionalists explicitly construe the law to effectuate the purposes underlying the relevant legal rule. While the formalism/functionalism dichotomy dominates interpretive debates in many areas, a third alternative—“nonfunctionalism”—has emerged in cases concerning the Constitution’s fiscal provisions. Nonfunctionalism reflects the belief that certain clauses of the Constitution do not serve any ongoing purpose and should be construed so that they accomplish as little as possible, if anything at all. Nonfunctionalism characterizes the Supreme Court’s approach to the Origination Clause and the Uniformity Clause—both of which have been rendered ineffectual through judicial construction—and once defined the Court’s jurisprudence with respect to the Direct Tax Clauses, though the Court has oscillated among different interpretive approaches to the direct tax provisions since the turn of the twentieth century.

All three approaches—formalism, functionalism, and nonfunctionalism—reared their heads in the Court’s June 2024 decision in Moore v. United States. Justice Kavanaugh’s majority opinion and Justice Barrett’s concurrence both focused on formal legal materials—text and precedent—without articulating any functional theory of the Direct Tax Clauses. Justice Thomas—a jurist otherwise known for his formalism—offered the most familiarly functionalist account of the Direct Tax Clauses, arguing that the provisions should be construed to advance their underlying purpose of protecting the states’ property tax base from congressional encroachment. Justice Jackson, for her part, appeared to endorse a nonfunctionalist reading of the Direct Tax Clauses, arguing in a solo concurrence that constraints on Congress’s taxing power should come not from the Constitution but from the electoral process.

Using Moore as a launchpad, this Article evaluates the arguments for—and against—formalist, functionalist, and nonfunctionalist approaches to the constitutional law of tax. It explains why formalism yields indeterminate answers to the most important modern-day questions regarding the scope of Congress’s taxing power but also why indeterminacy may not be fatal to the formalist enterprise. It goes on to scrutinize Justice Thomas’s base protection theory of the Direct Tax Clauses—the only functionalist account offered by any of the Justices in Moore—and demonstrates that the base protection theory could yield doctrinal conclusions starkly different from those that Thomas draws. Finally, it illustrates several ways that one might motivate a nonfunctionalist approach to the Direct Tax Clauses while also spotlighting gaps in Justice Jackson’s own justification for nonfunctionalism. The upshot of the Article’s analysis is not that any one of these approaches—formalism, functionalism, or nonfunctionalism—is clearly better than the others. Rather, each approach—viewed sympathetically—reflects a different strategy for using law to manage moral, social, and economic conflict, and examining these three approaches in the specific context of tax can yield general lessons that inform constitutional interpretation in a deeply polarized society.

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