It’s Time to Debate a Constitutional Landmine

The American Founders were deeply suspicious of Democracy, and structured a Constitution designed to protect both personal liberties and property from the tyranny of the majority.  But the critical problem confronting America today is not the majority using its popular vote to seize property from the rich; it is structural tax preferences sheltering wealth that are obstructing the efficient workings of capitalism and thereby the American Dream and its Promise of Equal Opportunity.   


The problem is traceable to those same Founders and a land-mine they planted in the Constitution: a prohibition against federal taxes assessed upon property.  Since the Founders were all wealthy landowners – along with being white men – it’s not hard to see why they would have favored such a prohibition, even though throughout most of recorded history property has always been the obvious and primary basis for taxation.  But, in the same way that the Founders’ biases against Women and Blacks eventually needed to be amended, I propose it’s time to reexamine the Constitutional bias in our tax system. 

Some Historical Perspective:  For much of its first 100 years America thrived without looking to property as a tax base; primarily by funding the operations of government with the sale of land. But as time passed, less undeveloped land was available for divestment, the scope and cost of government was rising, and excise, import and other consumption taxes came into favor.  It didn’t take long to realize that consumption taxes were impeding trade and economic growth. The country moved on to incorporate income into our tax base.  Doing so required a Constitutional Amendment in 1917.  Some people today believe the shift to income taxes was the downfall of society and urge we abandon income taxes and return to consumption taxes. Since 1917 the tug of war between consumption taxes and income taxes has dominated our debate and obscured more efficient and equitable ways to distribute our tax burden. 

As the country has matured, the population has aged, and the demands and commitments for government services have increased.  Because we have failed to establish an adequate and equitable tax base to fund the services we demand, we are on an “unsustainable” path.

Critically, restricting our tax debate to Income vs. Consumption leaves us at an impasse on tax revenue policy.  Liberals decry the regressive nature of consumption taxes.  Conservatives hate income taxes and decry the perverse incentives embedded in our current tax code.  If these are our only options, there is little hope for progress because they are irreconcilable; the flaws each side sees in the other are real.    But they aren’t the only options.  If we replaced investment income taxes with a nominal tax on net wealth, we could eliminate the perverse investment incentives conservatives rail about while more equitably distributing the burden of government at the same time. 

Unfortunately, however, our leadership on both the Right and Left apparently share the Founders’ bias against property taxes and ignore the increasing concentration of wealth and income created by sheltering property from taxation.  Might that be because our government is still controlled by the wealthy?  Or is it simply group blindness and short memories?  Has the constitutional prohibition against property taxes been in place so long we’ve stopped considering the alternative?  I prefer to believe the latter… because it is just too depressing to believe that the destructive cronyism which has destabilized our economy is a willful conspiracy against the middle class. 

It is time to stop ignoring wealth as a logical component of our tax base and carefully examine the merits of structural reform.  The central premise of capitalism states that the productive deployment of capital is the driver of economic growth and prosperity.  But the prohibition against taxing wealth directly has the unintended consequence of subsidizing returns on low profit, and unproductive capital, and is obstructing the free and fluid flow of capital to more productive uses.  Our tax and monetary policies have made valuation manipulation and tax avoidance far more profitable than productive enterprise.  So why is anyone surprised that we create asset bubbles instead of jobs? 

Over the past two years I have attempted to engage our leadership in evaluation of structural tax reforms that would reinstate property as a component of our tax base and simultaneously stimulate more productive investment of private capital; those conversations have included three members of the President’s Commission on Fiscal Responsibility, multiple members of Congress, and more than a dozen economists at respected universities and think tanks.  I have received no substantive rebuttals to the facts or logic of what I propose.  I’ve been told that what I propose has many apparent merits, but it is politically impossible and therefore a waste of time.  The basis of that assessment is the Constitutional Landmine sheltering property from federal taxation.  Conservatives dismiss the idea without examination because it departs from the Founders’ principles.  Liberals often praise the concept, but still dismiss it because it’s “not worth the brain damage of a constitutional challenge.” 

So our leadership in Washington remains deadlocked in battle over competing flawed ideas while they ignore an alternative that could broaden the tax base, allow us to lower tax rates, equalize the tax burden, and stimulate more productive investment, economic growth and job creation. 

If the Wealthy White Male Landowners who drafted our Constitution really were infallible, then perhaps we don’t need to look outside the framework they constructed.  But I’m not convinced they were.  Are you? 

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Researchers hope the technology will further our understanding of the brain, but lawmakers may not be ready for the ethical challenges.

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  • Researchers at the Yale School of Medicine successfully restored some functions to pig brains that had been dead for hours.
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The image of an undead brain coming back to live again is the stuff of science fiction. Not just any science fiction, specifically B-grade sci fi. What instantly springs to mind is the black-and-white horrors of films like Fiend Without a Face. Bad acting. Plastic monstrosities. Visible strings. And a spinal cord that, for some reason, is also a tentacle?

But like any good science fiction, it's only a matter of time before some manner of it seeps into our reality. This week's Nature published the findings of researchers who managed to restore function to pigs' brains that were clinically dead. At least, what we once thought of as dead.

What's dead may never die, it seems

The researchers did not hail from House Greyjoy — "What is dead may never die" — but came largely from the Yale School of Medicine. They connected 32 pig brains to a system called BrainEx. BrainEx is an artificial perfusion system — that is, a system that takes over the functions normally regulated by the organ. The pigs had been killed four hours earlier at a U.S. Department of Agriculture slaughterhouse; their brains completely removed from the skulls.

BrainEx pumped an experiment solution into the brain that essentially mimic blood flow. It brought oxygen and nutrients to the tissues, giving brain cells the resources to begin many normal functions. The cells began consuming and metabolizing sugars. The brains' immune systems kicked in. Neuron samples could carry an electrical signal. Some brain cells even responded to drugs.

The researchers have managed to keep some brains alive for up to 36 hours, and currently do not know if BrainEx can have sustained the brains longer. "It is conceivable we are just preventing the inevitable, and the brain won't be able to recover," said Nenad Sestan, Yale neuroscientist and the lead researcher.

As a control, other brains received either a fake solution or no solution at all. None revived brain activity and deteriorated as normal.

The researchers hope the technology can enhance our ability to study the brain and its cellular functions. One of the main avenues of such studies would be brain disorders and diseases. This could point the way to developing new of treatments for the likes of brain injuries, Alzheimer's, Huntington's, and neurodegenerative conditions.

"This is an extraordinary and very promising breakthrough for neuroscience. It immediately offers a much better model for studying the human brain, which is extraordinarily important, given the vast amount of human suffering from diseases of the mind [and] brain," Nita Farahany, the bioethicists at the Duke University School of Law who wrote the study's commentary, told National Geographic.

An ethical gray matter

Before anyone gets an Island of Dr. Moreau vibe, it's worth noting that the brains did not approach neural activity anywhere near consciousness.

The BrainEx solution contained chemicals that prevented neurons from firing. To be extra cautious, the researchers also monitored the brains for any such activity and were prepared to administer an anesthetic should they have seen signs of consciousness.

Even so, the research signals a massive debate to come regarding medical ethics and our definition of death.

Most countries define death, clinically speaking, as the irreversible loss of brain or circulatory function. This definition was already at odds with some folk- and value-centric understandings, but where do we go if it becomes possible to reverse clinical death with artificial perfusion?

"This is wild," Jonathan Moreno, a bioethicist at the University of Pennsylvania, told the New York Times. "If ever there was an issue that merited big public deliberation on the ethics of science and medicine, this is one."

One possible consequence involves organ donations. Some European countries require emergency responders to use a process that preserves organs when they cannot resuscitate a person. They continue to pump blood throughout the body, but use a "thoracic aortic occlusion balloon" to prevent that blood from reaching the brain.

The system is already controversial because it raises concerns about what caused the patient's death. But what happens when brain death becomes readily reversible? Stuart Younger, a bioethicist at Case Western Reserve University, told Nature that if BrainEx were to become widely available, it could shrink the pool of eligible donors.

"There's a potential conflict here between the interests of potential donors — who might not even be donors — and people who are waiting for organs," he said.

It will be a while before such experiments go anywhere near human subjects. A more immediate ethical question relates to how such experiments harm animal subjects.

Ethical review boards evaluate research protocols and can reject any that causes undue pain, suffering, or distress. Since dead animals feel no pain, suffer no trauma, they are typically approved as subjects. But how do such boards make a judgement regarding the suffering of a "cellularly active" brain? The distress of a partially alive brain?

The dilemma is unprecedented.

Setting new boundaries

Another science fiction story that comes to mind when discussing this story is, of course, Frankenstein. As Farahany told National Geographic: "It is definitely has [sic] a good science-fiction element to it, and it is restoring cellular function where we previously thought impossible. But to have Frankenstein, you need some degree of consciousness, some 'there' there. [The researchers] did not recover any form of consciousness in this study, and it is still unclear if we ever could. But we are one step closer to that possibility."

She's right. The researchers undertook their research for the betterment of humanity, and we may one day reap some unimaginable medical benefits from it. The ethical questions, however, remain as unsettling as the stories they remind us of.

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