Beyond Death and Taxes

James A. Montanye

Libertarians blithely harken to the time long ago when the common law nominally
concretized the individual’s right to life and limb, liberty, and property. “So great moreover is the
regard of the law for private property,” reported the English jurist William Blackstone in his
Commentaries on the Laws of England, “that it will not authorize the least violation of it; no, not
even for the general good of the whole community” (1765, I:135). The law’s nominal guarantee
notwithstanding, the State, which is ever covetous of private wealth, already had discovered
subversive methods for confiscating, essentially at will, the fruits of private effort and sacrifice.
The law no longer purports seriously to protect property against taking by the state.
Incremental Supreme Court decisions in fact have gutted the Fifth and Fourteenth Amendments’
“public purpose” and “just compensation” clauses. This development not only has added greatly
to the portfolios of politicians and to the private fortunes of their patrons, but also has
transformed the State into the weapon of choice in the Hobbesian war of all against all. The once
sacrosanct constitutional contract between the State and its citizens constructively has been
replaced by a gossamer and unwritten covenant that is tantamount to the implied contract
between ranchers and their livestock. This development might have surprised Blackstone. It
would not have surprised America’s founding entrepreneurial insurgents, who fought (and
persuaded others to fight) for their freedom to amass personal wealth.
Pace libertarian claims, however, this seemingly dark development contains a mixed
blessing.
In the year 1099, Pope Innocent III decreed that the property of heretics and witches
henceforth would be seized by the Church as compensation for its ongoing efforts to purify the
mortal world. Inquisitional proceeds grew as suborned accusations and testimony were brought
to bear against individuals whose only patent offense was prosperity. The spoils grew so large
that the Church became obliged to share them with the State.
The State, always eager to adopt profitable best practices, subsequently implemented a
modified inquisition scheme of its own. Wealthy individuals whose property was protected by
the common law, but who lacked felicitous political connections, often found themselves accused
of heresies against the State. The accused were offered a familiar choice: if they did not confess to
the heresies alleged against them, then they would be subjected to the sort of truth-eliciting
torture that typically ended in death. The preferred torture method was pressing; an increasingly
heavy load of flat stones was piled upon supine victims until, after a few days, they succumbed
to asphyxiation while blood percolated from their finger tips. A surprising number of accused
individuals nevertheless chose torture over confession. They did so because their estates would
be forfeit to the State upon confession. When they died under torture, by contrast, the common
law directed that their estates would pass in full to their heirs.
Since then, the State has accreted broad power to take wealth without resort to
transparent accusatory ruses. (A variation of the classic ruse still is used to extract economic rents
from businesses, however, offering them the choice between paying the State to drop heresy
charges [often with no obligation to confess wrongdoing], and gambling instead on the outcome
of a costly and unpredictable trial conducted by an unashamedly redistributive justice system.)
The year 2010 nevertheless presents the sort of life-or-death choice that individuals haven’t faced
in centuries. Those brave enough to accept death this year, regardless of their underlying physical
and mental state, can pass 100% of their estate to their heirs. If they delay their death beyond the
year’s end, however, then their dithering will result in the State confiscating the lion’s share of
their estate. History echoes.
What to do? The next generation of actuaries surely will notice a mortality spike in 2010,
indicating that some individuals rationally managed not only their own remaining time on earth,
but also quite possibly the time of close relations as well. Tomorrow’s actuaries also may chuckle
at the irony of the reinstated death tax causing premature deaths while purportedly underwriting
the cost of ‘affordable’ health care for the weak-willed.