What gives a Supreme Court Justice the authority to reach across the Atlantic Ocean, resurrect an English tax on wealthy households, and use that history to defend an entirely different American system of taxation?

Justice Benjamin Cardozo did precisely that in 1937.

In Steward Machine Company v. Davis, Cardozo defended the federal unemployment tax imposed under the Social Security Act.

And among the historical examples he invoked was an English tax dating to 1777.

But what was that English tax?

It was a tax on the luxury of employing male servants.

Think about that.

Wealthy English households employed footmen, coachmen, butlers, and other male domestic servants. Parliament taxed the people who could afford these luxuries.

The servants themselves were not the taxpayers under that law.

The footman was not taxed for being a footman. The butler was not taxed for earning his livelihood. The wealthy household paid for maintaining domestic servants.

This was not a universal tax on employment. It was not a tax on every working man. It was not a tax on the ordinary business of earning a living.

It was a selective tax on a particular luxury associated with wealth.

Now consider what Cardozo did with that history.

He invoked this narrow English example while defending a federal tax measured by the wages paid by American employers.

And he reached back to Virginia, where a 1780 tax measure likewise included certain male servants among its taxable subjects.

Neither historical example established a general American constitutional power to tax every employment relationship.

But Cardozo’s judicial reach did not end there.

“On that same day, Cardozo also upheld the federal old-age benefits program in Helvering v. Davis, while the Court separately sustained the taxes imposed on employers and employees. What began as a historical comparison involving wealthy households became part of a broader judicial defense of federal taxation affecting ordinary Americans.”

Two decisions. Two different tax arrangements. One extraordinary expansion of federally approved taxation.

And that brings us to the Liberty Dialogues examination of judicial power.

BREACH. DRIFT. ENCROACHMENT. ENTRENCHMENT.

BREACH: When a historical example is treated as though it establishes constitutional authority it does not itself establish.

DRIFT: The movement from a luxury tax on wealthy households to a federal tax affecting ordinary commercial employment.

ENCROACHMENT: The expansion of federal taxation into economic relationships far beyond the particular circumstances of those historical examples.

ENTRENCHMENT: The Supreme Court’s decisions give that broader exercise of federal power the force of constitutional precedent.

And what makes this so extraordinary is the presumption beneath it.

Since when does an English Parliament define the limits of the American Constitution?

Since when does a tax on a wealthy man’s footman establish the constitutional legitimacy of a federal employment-tax system?

And since when does a Virginia tax from 1780 justify an entirely different national scheme?

Cardozo was not writing legislation. He was a Justice of the Supreme Court, entrusted with judging whether Congress had acted within its constitutional authority.

The historical examples he cited could illustrate how governments once taxed particular relationships.

They could not, by themselves, supply constitutional authority to tax entirely different relationships.

And that is the issue.

A historical analogy is not a constitutional delegation of power.

An English statute is not an American constitutional amendment.

And judicial approval is not a substitute for demonstrating the constitutional source and limits of governmental authority.

The question Cardozo should have answered is simple:

Where does the Constitution authorize the particular federal power being exercised?

Not where England taxed a wealthy man’s servant.

Not where Virginia once taxed a particular household arrangement.

But where the American people delegated the power in question to their federal government.

That is the question every exercise of federal authority must survive.

And no amount of judicial prestige can transform a weak historical analogy into a grant of constitutional power.