Taxation Without Representation

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TAXATION WITHOUT REPRESENTATION

Taxation without representation was the primary underlying cause of the american revolution. Taxation by consent, through representatives chosen by local electors, is a fundamental principle of American constitutionalism. From the colonial period, representation had been actual: a legislator was the deputy of his local electors. He represented a particular geographic constituency, and like his electors he had to meet local residence requirements. Thus, representation of the body politic and government by consent of the governed were structurally connected in American thought.

Taxation without representation deprived one of his property contrary to the first principles of the social compact and of the British constitution. No Englishmen endorsed the constitutionality of taxation without representation; that it violated fundamental law was the teaching of the confirmatio cartarum, the petition of right, and the bill of rights. Englishmen claimed, however, that Parliament "virtually" represented the colonies—every member of Parliament represented the English nation, not a locality—and therefore could raise a revenue in America. Rejecting the concept of virtual representation, Americans insisted that they were not and could not be represented in Parliament. The argument of virtual representation implicitly conceded the American contention that taxation was the function of a representative body, not merely a legislative or sovereign body. American legislatures, facing parliamentary taxation for the first times in 1764 and 1765, resolved that Parliament had no constitutional authority to raise a revenue in America. Pennsylvania's assembly, for example, resolved "that the taxation of the people of this province, by any other … than … their representatives in assembly is unconstitutional." Similarly, the stamp act congress resolved that the colonies could not be constitutionally taxed except by their own assemblies. The resolutions of the colonies, individually and collectively, claimed an exemption from all parliamentary taxation including customs duties and trade regulations whose purpose was to raise revenue.

The American claims were not simply concocted to meet the unprecedented taxation levied by Parliament in 1764 and after. The experience of Virginia, the first colony, was typical. Its charter guaranteed the rights of Englishmen, which Virginia assumed included the exclusive right of its own representative assembly to tax its inhabitants; the assembly so declared in a statute of 1624. In 1652 planters in a county not represented in the assembly protested the imposition of a tax. In 1674, when Virginia sought confirmation from the crown of its exclusive right to tax its inhabitants, the crown's attorney in England endorsed "the right of Virginians, as well as other Englishmen, not to be taxed but by their consent, expressed by their representatives." The Committee for Foreign Plantations and the Privy Council approved, too, but the king withheld approval because of Bacon's Rebellion. Virginia nevertheless persisted in its position. In 1717 the imposition of a royal postal fee produced, in the words of the colony's royal governor, "a great clamor.… The people were made to believe that Parliament could not levy any tax (for so they called the rates of postage) here without consent of the General Assembly." In 1753, when Virginia's governor imposed a trivial fee for the use of his seal on each land patent, the assembly lectured him on the theme that subjects cannot be "deprived of the least part of their property but by their own consent: Upon this excellent principle is our constitution funded." The history of any colony would yield similar incidents, showing how entrenched were the claims that Americans advanced when Parliament first sought to tax the colonies.

When the Declaratory Act of 1766 claimed for Parliament a power to "legislate" for America "in all cases whatsoever," some members of Parliament argued the American position that Parliament could tax only in its representative capacity and therefore could not tax America. william pitt and Lord Camden (charles pratt) endorsed that position. Pitt denounced virtual representation as a contemptible idea and declared that taxation "is no part of the governing or legislative power"; he also distinguished taxes levied for revenue from trade regulations that incidentally but not deliberately produced some revenue. The dominant British position, however, assumed that because taxation was inseparable from sovereignty, Parliament as the sovereign legislature in the empire had the power to tax in matters of imperial concern, even though the tax fell on unrepresented members of the empire. That position provoked Americans to distinguish the powers belonging to local governments (the idea of federalism) ; to develop the concepts of limited government, fundamental law, and a constitution as supreme law over all government; and to frame written constitutions that enumerated the powers of government.

Leonard W. Levy
(1986)