Death, Taxes, and Property (Rights): Nozick, Libertarianism, and the Estate Tax

Over the last twelve years the estate tax has been eviscerated. Evolving from a tax at 55% on all estates over $675,000 to a tax at only 35% on estates over $5.12 million per person ($10.24 million for a married couple); the estate tax now taxes only about 5,300 estates per year, as opposed to over 58,000 estates in 1999. In an era of language decrying class warfare, why abandon this project of the estate tax? Is it too late to save the tax? Are there reasons to save it? Why have an estate tax in the first place? Libertarian arguments have become standard fare in the United States, in particular with regard to debates around tax policy. In this Article, I will examine the estate tax through a libertarian lens, and explain why a hefty estate tax is consistent with the traditional libertarian position. I will begin by articulating Robert Nozick’s libertarian views on property rights, in particular the account he provides in his seminal work Anarchy, State, and Utopia. I will then defend two lines of argument against the notion that the libertarian view of property rights is violated by an estate tax. Finally, I will explain why a society can, unrestricted by moral constraints regarding the property rights of the deceased, set a default rule for post-death property rights that reflects that society’s values. The primary purpose of this Article is to dispute the moral claims to post-death property rights made by libertarians when they argue against the estate tax. I am merely trying to demonstrate that those who argue that the estate tax is an immoral violation of the private property rights of the deceased are mistaken. It is just to say that we need to determine as a society what rule to set, having no moral absolutes that would determine how we must set the rule.