What Would James Madison Do?) Was a prima fascia case made that Kentucky’s bond taxation system is patently unconstitutional?
As is the case with all constitutional challenges, it must be determined what the original authors of the U.S. Constitution intended. Its principal drafter, James Madison, might be the inspiration for the final determination. The state made a convincing argument by referring to a similar system in Ohio. The Ohio Court of Appeals ultimately concluded, in Shaper v. Tracy (1996), that Ohio’s bond taxation system was constitutionally permissible. However, that decision failed to analyze the issue fully inasmuch as it “made no attempt to explain why . . . a tax exemption that discriminates against income earned from out-of-state bonds . . . is permissible under the Commerce Clause.” An ad ignorantium fallacy might have occurred. That is, the Ohio court concluded that because it “looked and did not find anything … therefore it must be constitutional.” Logic dictates, however, that a potentially problematic and constitutionally infirmed statute not be permissible merely due to its not previou
