Why does the IRS say that dead people have "rights"?
Liberalism steps on yet another rake in its waffling defenses of private property.
A gaggle of 162 Republicans led by Iowa Rep. Randy Feenstra have proposed a bill to completely abolish the estate tax. This is a pretty common publicity stunt in the GOP (Sen. John Thune alone tried it in 2017, 2019, and 2023) and it isn’t likely to go anywhere since Democrats still generally oppose it. At least for now.
As usual, Republicans have been on-message in referring to the estate tax as the “death tax”; even the bill itself is called the Death Tax Repeal Act. It’s a practice conservatives adopted in the late nineties and have maintained consistently for almost three decades. The logic behind this framing is that while not everyone has significant estates to pass on as inheritance when they die, everyone does die, and thus spinning it as a tax on a natural life event that affects everyone seems much more onerous, even tyrannical.
This is grossly misleading, of course. For one thing, the so-called death tax doesn’t actually apply to everyone who dies, or even to everyone who passes on an inheritance: the estate has to be a certain size before the government expects you to start filling out tax forms. When looking up those filing thresholds last night, however, I was surprised to find that even the IRS’s own official documentation has some comically ideological phrasing. Right at the top of its estate tax explainer:
I think this is worth unpacking a bit, because it’s a good illustration of how capitalist ideology is woven into even our most banal and supposedly neutral institutions.
Though there is some legal theology around the estate tax that mostly exists to obscure this point, it’s worth stating the obvious up front: the estate tax does not actually have anything to do with the rights or or property of the deceased. It cannot because when people die they cannot possess rights or property or anything, since they no longer exist.
To appreciate what a farce this is, consider the legal problem of intestate succession — that is, what happens if you do not actually have a will. Ordinarily, if I do not make some kind of agreement to transfer my property to someone else, it cannot somehow by default fall into someone else’s hands; it is still mine until such time as I give it away. And this isn’t just some incident of a particular legal regime; it’s a core feature of private property. Nonaggression principle (NAP) justifications for private property, for example, stipulate that taking someone’s property without their active consent is always a form of aggressive violence, and thus subject to moral prohibitions against aggression; if you start making exceptions to that, you lose the moral high ground, which is why people who endorse the NAP typically oppose all taxes.
Capitalists, as noted, have some theological strategies to get around this problem, but they always introduce more inconsistencies than they resolve. One move for example, is to try to defend intestate succession by appealing to common law rules of adverse possession, or so-called “squatter’s rights”. The idea is that if I die, we can assume that my property is just going to sit there neglected, and that other people can therefore take control of it for the same reason that a squatter can come to own a piece of property that its owner has neglected. A basic problem with this convention is that it isn’t functionally consistent with the NAP either since it gives us no way to distinguish between allegedly and actually abandoned property. If someone leaves their house, I move in, and they then say they did not abandon it, is there really any sense in which we can factually decide whether the NAP or squatter’s rights should prevail?
This may seem like a pedantic objection, but it becomes directly relevant in laws about graverobbing and human remains, for example. Gordon University’s Jonathan Brown notes that
the courts of England and Wales – and, indeed, the wider Common law world – have been forced to employ ‘creative judicial reasoning’ to escape from some of the more absurd consequences of the ‘no property in a corpse’ rule...the reason why, precisely, a cadaver ceases to exist within the ambit of property law once interred is presently under-theorised…1
He goes on to ground contemporary common law governing property at grave sites to the quirks of Roman mysticism, and points out that this “had the potential to undermine the law of private property” since religious doctrine is up to individual caprice. Even today, it is clear that much of our law and custom about graves and human remains is caught up in religious notions about their “sanctity,” the persistence of the soul, and so on.
It is also, here, embedded even in the IRS’s dry language about “your right to transfer property at your death.” The dead cannot transfer anything and they certainly do not have rights. If they can do both then it remains, as Brown generously puts it, undertheorized why the ordinary rules of private property would not continue to apply.
The second part of the “your right” phrasing is similarly baffling, though for reasons that are far more straightforward. As libertarians are fond of reminding us, taxes really aren’t compatible with private property rights; insofar as the government can take someone private actor’s property without their consent, they don’t have a “right” to it in any meaningful sense. A right is something that is perpetual and unconditional. The perpetuity and unconditionality is the point: it is those features of a “right” that distinguishes it from an occasional and conditional privilege.
I am not the first to point out this inconsistency in the way we talk about rights, but given how central they are to contemporary political rhetoric and reasoning it remains genuinely unnerving to see how casually liberals shrug off the problem. Very few people believe that there is a right to free speech in any meaningful sense; even civil libertarians ordinarily allow for fire-in-a-crowded-theater type exceptions. No one really believes in a right to bear arms and a right to private property at the same time because if I walk into a private store holding a bazooka you are obviously going to have an opinion on whether or not the owner can kick me out. The right, to its credit, takes this problem seriously when it talks about private property rights and taxes; or at least their polemic does. But most liberals and centrists do not.
Do Democrats really believe in taxes?
That, I think, explains why the IRS’s website still talks about “your right to transfer property at your death” even with Biden in the White House. In fact, this language appears to have emerged during the Obama administration, though it’s possible that it was buried elsewhere in the documentation prior to the site’s 2012 redesign. The page was in any case updated less than two months ago, so it’s not like that phrase is lurking under the radar.
Democrats are disinterested in grappling with this kind of contradiction because ultimately, liberalism can’t resolve it. On one hand, the notion that individuals have some “right” to private property is what makes liberalism liberalism rather than socialism or feudalism or something else; the whole system relies on propagating an ideology that allows individual property claims to prevail over everyone else. Even if this arrangement is completely unreasonable. On the other hand, however, the concentration of capital and immiseration of workers that emerges under capitalism is so extreme and socially destabilizing that liberals do need some way to intervene and ameliorate it if the system is going to survive. Taxes are one of the intellectual fudges that liberalism has come up with to deal with capitalism; they don’t really make sense according to capitalism’s rules, but they’re a useful workaround to problems that cannot otherwise be solved.
This kind of irrationality, however, is what ultimately makes Democrats vulnerable to arguments about “death taxes.” If you are trying to position yourself as committed to private property rights even for the dead then of course people who hate taxes are going to complain about how absurd it is to tax the dead. And they’re right! The logic of an estate tax is defensible if we abandon mystical commitments to private property and concede that society should have the final say over what happens with the commonwealth. If, say, we socialize it.
Res Religiosae and the Roman Roots of the Crime of Violation of Sepulchres, p.3
Carl Beijer is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.