David D. Stewart: Welcome to the podcast. I'm David Stewart, editor in chief of Tax Notes Today International. This week: learning from history.

The broader story of the origins and history of slavery in the U.S. have been widely documented and discussed. But sometimes it helps to take a hard look at the individual mechanisms that made such an abhorrent institution possible.

In his book, The Human Toll: Taxation and Slavery in Colonial America, Anthony Infanti does just that, diving into taxation's role in making the slave system in colonial America sustainable and desirable for slaveholders.

Joining me now to talk about this is Tax Notes historian Joe Thorndike. Joe, welcome back to the podcast.

Joseph J. Thorndike: Thank you very much for having me, Dave.

David D. Stewart: I understand you recently talked with Tony. Could you tell us more about him?

Joseph J. Thorndike: Yeah, so Tony's a professor at the University of Pittsburgh's Law School. At the university, he also holds an appointment in the gender, sexuality, and women's studies program. I think a lot of people will know him as a longtime leader in the field of critical tax theory, where he explores the complex relationship between tax law and society.

David D. Stewart: And what sort of issues did you get into?

Joseph J. Thorndike: Well, we talked about how taxation helped build and sustain slavery in Colonial America, and that ranges from taxes on enslaved people as a form of property to elaborate systems for compensating slaveholders when enslaved people were executed. We also discussed how tax records can recover the lives of people that are otherwise erased from historical sources and what that history tells us about the power of tax law to shape society for better or for worse.

David D. Stewart: All right, let's go to that interview.

Joseph J. Thorndike: So, Tony, it is so great to have you here on the podcast today. It's been a little while since we've had a chance to talk, and I'm really looking forward to talking about your new book.

Anthony Infanti: Oh, thanks so much for having me. I really appreciate it.

Joseph J. Thorndike: So, we're going to talk about The Human Toll: The Taxation and Slavery in Colonial America. This is a book you published last year, I think, that has really, I think, made a super important contribution and done things not many people have been able to do or tried to do, and from a perspective that I don't think anyone else has really brought to the subjects of taxation and slavery in this early period of American history. So, let me ask you, just how did you get to this in the first place? What drew you to this relationship between taxation and slavery?

Anthony Infanti: Yeah, it was a total accident, really. I always like to say it's the great thing about being a law professor is that you can just find out new things and just learn new things all the time. So, one of my colleagues here at Pitt used to be the dean, and I was his associate dean, and we're good friends and he's a 13th, 14th, 15th Amendment scholar — so, Reconstruction era. And one day in the hallway, he just grabbed me — he's like, "I keep seeing these references to how they used the tax laws during the colonial period to compensate slaveholders for executed enslaved persons. Do you know about this? Is this a thing?" I said, "I don't know about it, and I don't know if it's a thing, but sounds really interesting."

When he talked to me about it a little bit more, I was like, "It sounds like there's something there, something that's worth looking into." And I was finishing a different book then, and so I said, "I'm almost done with this book I'm working on now. Can you just send me some of the references that you've been seeing? Because I'd like to look at it some more when I finish this." And he sent them to me, and as soon as I finished the other book and turned it in to the publisher, I started digging, and it was just eye-opening. It was shocking and horrifying, but got me on a journey for several years of diving into the relationship between taxation and slavery.

Joseph J. Thorndike: Right. And these compensation schemes, immediately, you recognized them as a tax issue?

Anthony Infanti: Yeah. Well, what was fascinating was going through it, trying to go through it really systematically and seeing how did it develop over time. You get into it a little bit, and then you start seeing how it was connected to the slave codes. I should say the place where I started was South Carolina, which turned out to be the best place to start because there was so much there and just so many different ways that they used taxation to support, promote, entrench slavery that it really gave me a good, I think, opening view of what were the possibilities of what you could do.

But when I started looking at all the differences at the slaveholder compensation scheme, I saw it wasn't a scheme; it was like a series of schemes over time. And then that started telling me, OK, yes, this is about taxation. Usually when I say to people, "slaveholder compensation," they're like, "What does that have to do about taxes? That's spending money." And back then, spending and taxing weren't so rigidly separated as they tend to be now. We have spending bills and we have tax bills, but never the twain shall meet, except maybe reconciliation.

But it's like you're not really seeing it so tied together the way that it was back then, and they really blurred the lines. And it was a lot of thinking and looking at how, yes, they're compensating slaveholders, but how they compensated them, what tax mechanisms they chose, said a lot about what was going on at that time, what they're thinking about, how views of the relationship between taxation and society evolved over time.

Joseph J. Thorndike: All right, so let's just back up a step here first before we get down into that, which is really the nitty-gritty here. But it seems to me that one of your book's main arguments, and one of its central contributions, really, is demonstrating that taxation didn't just reflect slavery. That's a word that we tend to use a lot when we talk about the formulation of tax policy — that it's reflecting things. It's reflecting economic realities or social realities or something like that. But you make it more active than that. It isn't just that the world is one way, so they develop some taxes around it; what you're really saying is that the taxes helped create that world, that tax systems administered and sustained and protected slavery. It was formative for slavery. It seems to me that's what your argument is. Have I got that right? And how would you phrase what I just ham-handedly put together?

Anthony Infanti: No, I think you did a good job. Most of my work comes from the place of being a law and society type person — so, looking at the relationship between tax law and society — but I don't see it as a one-directional thing, like you said, just tax law reflects society. I do think tax law reflects society, but tax law is also being used to further that view, and sometimes it's being used to push society in a different direction. Where do we want to be? How do we see ourselves in the future? And so, it's both reactive and active, I think, at the same time.

So, taxation is reflecting, at that point, the centrality of slavery in different societies. That was one thing that I thought, also being a comparative law person, was very fascinating to me to watch how in different places the choices — the ways they use taxation to support, promote slavery — reflected how entrenched slavery was in that society, as opposed to somewhere else. But yes, they were really using it actively. Probably the easiest example of actively using taxation to promote and entrench slavery and control of enslaved people was actually import taxation, because they would levy taxes on the importation of enslaved people when they arrived in the colony.

So, that had more than one purpose. One purpose is they're marking them as property. So, they're not people; they're property. They're taxed often in the same laws that tax commodities that come in — think sugar, alcohol, things like that. So, they're taxed under the same law; they're another commodity coming in. But taxation was a really important tool for them to be able to control racial makeup of the colonies. And you saw that in South Carolina and in other places — South Carolina most starkly, because it was the only Black-majority colony from 1708 till the end of the colonial period.

So, with a white minority ruling over an enslaved Black majority, they were, of course, always worried about uprisings, and at certain times more than others. So, the late 1710s, they were worried, so what do they do? They're saying that white population is not growing the way that we want it to, but the Black population keeps growing, keep bringing in more enslaved people and they're starting to reproduce. We're going to hike the taxes on the importation of enslaved people so that way we depress the inflow, the influx of enslaved people.

They do the same thing again in the 1740s and the 1760s, and you can watch the influx go down because that lets them recalibrate the population. And also, they would dedicate the money in South Carolina that they got from that to giving bounties to white settlers to come and settle in the colony. So, they're actively trying to use taxation to change the racial balance of the colony.

Joseph J. Thorndike: So, this is a great example, actually, and honestly, I hadn't seen it as such a great example at first, but the way you explained it was so useful. In this sense, enslaved people are regarded as property, so the tax system reflects that and taxes them like other forms of property. And so, that's the reflection part. But then policymakers, lawmakers are actively using that instrument to shape the society that they want to have, to protect the institution of slavery from the forces that it generates that undermine it, like the threat of violence. That's a great example of the tax, I think, both reflecting and shaping at the same time. It's a good law-and-society kind of point.

And what surprises me about that, honestly, is that although that appears in the book, it's not in some ways what the book really digs into the most. That 'taxation of enslaved people as slaves' point is distinct from this slaveholder compensation stuff that got you into this in the first place. So, let's jump a little bit to this South Carolina question. We're going to spend a lot of time in South Carolina right now, just like you did before. You must feel like you live there. And let's talk about that sort of fiscal machinery of slavery in that particular colony at the time, because it really does occupy a central place in the book.

Lay it out for us: How did it really work? What's the key set of instruments here and how they operate?

Anthony Infanti: So, early on they realized that they needed to have these slaveholder compensation schemes because, of course, a lot of the legislators were slaveholders. Don't think of a legislature the way that we have a legislature now, in the sense that the right to vote was not as widely available as it is today. And so, you're thinking about a lot of the people who are in the legislature are slaveholders, and they realize that they're adopting these slave codes that are draconian. So, in South Carolina, there's a lot of — you can get put to death for all sorts of crimes, or what are labeled crimes.

But if you think about it from a slaveholder's perspective, OK, you're going to execute my enslaved person for doing X or doing Y or having done Y for the third time, whatever it happens to be. From a slaveholder's perspective, that's their investment, and you're taking their investment and you're destroying their investment. As an economic matter, that's not creating an incentive for them to cooperate. They knew what would happen, and they knew what did happen, which was that they would either work to their advantage — just hide the crime; they would cover it up, so that way the person would not get executed — or, if they couldn't cover it up or didn't want to cover it up, oftentimes what they would do is try to sell the enslaved person off the colony. So, they'd ship them off, sell them somewhere else, make them somebody else's problem, but at least recover all or part of their investment, and so that way they could purchase new enslaved people. And so they knew they were going to need to do this.

Joseph J. Thorndike: Let me interrupt just for a second. So, what's interesting here is slaveholders obviously have an incentive to want the system to be stable and to work and to last for a long time, and yet that's not enough to get them to buy into slave codes necessarily if those slave codes threaten their property. So, they have divided loyalties here: Their short-term financial interests may run counter to their long-term financial interests. They don't want to lose an asset through the execution of an enslaved person, but by the same token, they do have a vested interest in keeping that system working.

Anthony Infanti: Right, exactly. And so, they early on decide they need to have these slaveholder compensation schemes, and so then they have to start thinking about, "Well, how are we going to pay for it?" And so, in South Carolina, early on, they just used general revenues — so, whatever was in the treasury from whatever taxes they had, that's what was used to pay. But then already by the 1710s — so, you're thinking shortly after it becomes majority-Black colony — they start saying, "Oh, all these slaveholder compensation payments, they're just weighing us down, it's too much money," which should be frightening at a certain level.

But so, then they start experimenting with different things to do. So, first they decide, "OK, well, we're going to have a slaveholder compensation scheme where just the local slaveholders are going to pay." So, it's a tax just on the local slaveholders. So, they are going to have to bear the cost. In essence, the message that that sends with that tax choice is this is a cost of doing business with enslaved labor. Nowadays, we think of it as negative externalities. You have this negative externality, you're imposing this burden on the rest of society here because you're enslaving people, and that's generating resistance and generating crimes and other people are suffering because of it, so you need to bear that cost.

And at the same time, it's doing something that we're all familiar with tax doing, which is, in essence, creating an incentive. It's saying, "OK, all you local slaveholders that all know each other because you live in the same parish, you all have an incentive to make sure that everyone around you is changing their behavior in such a way as to reduce the level of crime, because the more you can reduce the level of crime, the less of this compensation that you're going to be asked to pay." So, there's this definite incentive effect here.

Then, after a while, they move away from that a little bit and they make it more regional and expand it from just slaveholders to property holders. That also covers people who own land but don't hold enslaved people. And so, some of that incentive effect is going away. It's also starting to send the message of, well, there's some broader benefit to this; it's not just a benefit to the slaveholders. And then eventually they move to, "We're going to pay for it with colonial revenues," which is giving the message that this is a broad public benefit to everybody in the colony, everybody in the colony, everybody who pays taxes.

And that's when you start seeing things really change in an interesting way, because it's not the same tax system that they had early on, when they were paying out of general revenues. Now, it's not coming out of general revenues, it's coming out of the property tax because they moved to a centralized property tax system and they started moving to — they had property taxes from, what, the 1710s, 1720s, but it really became centralized in the 1730s. There was also a lot going on between the Commons House of Assembly and the upper chamber, which was not elected, it was appointed.

There was a lot of battles between who should have control of the purse. Commons House of Assembly won the battles, they were in charge of the purse, and so they took very tight control of it. And so, they said, "Look, we're going to put out a call every year for all the claims against the colony, everyone who's a public creditor." So, that would include the person who rented the space where they had court, or the people who served in the government, people who were in the military that they owed salaries to, would cover also these slaveholder compensation claims that they had under law against the state or against the colony.

And so, they would call for these claims — everyone submit your claims, it's going to go to the Commons House of Assembly. Then the Commons House of Assembly would go through and vet all of the claims and decide which ones were valid and which ones were not. The valid ones, they would total up, and they actually had a list. They'd total up on a list down to the penny, and then say, "OK, that's how much we need to raise out of the property tax this year." They take into account whatever they had, if they had extra revenue laying around where they could reduce the property tax a little bit, that's the property tax for the year, and they would raise it that way.

And it was primarily on land and enslaved people and some other stuff, as well. But then what was interesting — and this is going back to the point of blurring the lines between taxing and spending — so, this taxing legislation, property tax, it's the Annual Tax Act, but attached to the Annual Tax Act was that list of claims that were approved. And there was a statement at the last paragraph: The legislation was always, "And Colonial Treasurer, the taxes that are raised under this Tax Act can be spent on all the stuff on the attached list and nothing else, nothing else."

So, this is tight connection between taxation and spending, but also between taxation and slavery because you see that compensation claims are on the list, and they're directly determining the level of the property tax for the year. And then, when they raise the property tax, they can be used to pay for that, but not for anything else other than that and whatever was on the list.

Joseph J. Thorndike: Let's talk a little bit about these archives where you uncovered all this. What's it like reading these records, and how do people emerge from this? Because it's pretty clear that a lot of this is sort of technical tax stuff, and it's about value and property and more broadly about the regulation of enslaved people. But how do you get people out of that record? What's that like, and how does it feel like? Tell me about it.

Anthony Infanti: Yeah, so that was the really eye-opening part and the part where I thought I could add, hopefully, some value, because you'd see in the historical literature some references here and there that they had these slaveholder compensation schemes. Maybe you see an occasional reference to an enslaved person, but nobody that really tried to go through all of this stuff and try to reconstruct it because the enslaved people who were executed, they would go through these ad hoc slave courts, and there's no records from them.

So, it's not like you can go to court records and reconstruct what happened to these enslaved people. South Carolina — not through the entire period, but through a lot of the period — also gave compensation for enslaved people who were killed under color of law. So, there were situations where white people could just kill enslaved people and it was totally legal and there was no court process, nothing. You could just summarily kill somebody, and then the slaveholder could get compensation.

And so, there's no records, really, direct records that you can go to for this, but the tax angle, because of the compensation scheme, was really a window into it. So, when I started looking through and seeing these slaveholder compensation schemes and then getting into especially the property tax stuff and seeing these lists on the back — and in the beginning the lists were, it was interesting because the lists were just like lists: This person gets this much money; that person gets that much money. It was rare to see them say why. They were really summary lists often, and so I would have to go through and try to reconstruct, OK, which ones are payments to slaveholders?

There was a couple where I thought they were, but I wasn't able to prove it. So, I have a footnote about those like, "OK, I think these are, but I can't prove that they are." But other ones I was able to go through, because you have this vetting by the Commons House of Assembly, you can go into the legislative history because there's records and see where they're going through and vetting the claims, talking about what happens, oftentimes. And so, you can tag the claim to it being slaveholder compensation, which was really interesting.

Sometimes I was also able to use newspapers to help, because the first newspaper in South Carolina was early 1730s, like 1732, 1733. And so, start using those, although there was not as much as you would expect for as many enslaved people as were executed. It didn't always make the papers; the papers looked much different then than they do now. The local section was very small and very summary and didn't always have a lot of stuff in it because they were more interested, I think, in news from elsewhere than they were from what was going on in the colony.

So, I was able to go through and reconstruct often, OK, what happened? Because when you look in the Tax Act, even later on, they were usually just naming the slaveholder, the person who was receiving the payment. And so, you're not seeing anything about, OK, who's the enslaved person that was executed? Why were they executed? What was going on? Let's try to surface some of that. But it was the legislative history, pardon records, also the newspapers were what allowed me to add to the story and reconstruct as much as I possibly could to bring the story to the surface that you don't usually get to see.

Joseph J. Thorndike: Reading the book can be pretty heavy. It can feel heavy because it's really describing horrors a lot of the time. It must have been horrible to research this too, right?

Anthony Infanti: Oh, yeah. Yes, it's not a fun experience in the sense that you're reading about really horrible things all the time, all day. To finish the book, I took a year-long sabbatical, which meant that all day, every day, all I did was read about all of this stuff. And so, it was difficult, but then at a certain point you're reading so much of it, you start thinking — I started thinking like, "OK, I need to make sure I'm not getting desensitized to how horrible all of this stuff is," because I'm bombarded with it all day, every day. Because you really do have to dive in and get into the nitty-gritty and the details of what was going on.

But at the end of the day, for me, part of it was with all the connections between taxation and slavery, but also trying to be able to surface those stories about what was going on, what was life like. I think about some of the stories that I got to read about as I'm surfacing all of this stuff. And there was one where there was one enslaved person who killed another enslaved person, and so a compensation claim for that. And you start delving in and you find out, well, the person who did the killing was arguing with the other one. They were plotting to escape, it turned out, which by itself was a crime.

Another enslaved person on the plantation heard the scuffle but couldn't go out, because he was disabled, to try to investigate what was going on; they don't say why or how. So, he woke up his sister and asked her to go out because she had fallen asleep in her clothes because she'd been working so long that day. So, it's like it was this window into how horrible life must be. Aside from people getting killed and executed, you're talking about just day-to-day life and how unpleasant it was, and the lengths to which people would go.

It was very dangerous to try to escape, but there were a lot of people who tried to escape and who got punished and sometimes executed for this, or other horrific punishments for people who tried to escape. You would see that — just the lengths that people would go to try to get their freedom.

Joseph J. Thorndike: Yeah. This really feels to me like one of the great achievements of the book is the way that you're able to restore humanity to people whose humanity was being actively disguised and hidden at the time. And you're doing it using records produced by the oppressors that were certainly not intentioned to provide that kind of a window, and yet you're able to do it. So as a historian, someone who works with sources, this strikes me as a real achievement, to be able to subversively use records of the slaveholders to uncover the life of enslaved people, which seems so valuable and not necessarily what you would expect.

Anthony Infanti: No, it wasn't what I expected when I started out doing all of this, but it was crazy just how callous people could be in terms of how they would talk about things and just how transparent — especially South Carolina, of all the places and all the legislation. When I talk to people — it's not like most of the time I have to be teasing out or trying to figure out what people were thinking about, what was going through their minds; they were real transparent about it. When you talk about legislation in South Carolina, they usually had a long preamble explaining exactly what they were doing and why they were doing it, and it was in very stark and oftentimes very racist terms. It was not hidden at all. And so, they're creating these records and they're thinking this is just totally normal, totally natural thing to do.

Joseph J. Thorndike: Right. Which is, I think, an accurate window into the worldview of most white South Carolinians at the time — that a lot of the things that we see as so horrible now, so deeply problematic, were not problematic, were not problematized at all. And we shouldn't overdraw these things — there were people who objected to slavery in every era, including then — but just the white culture of the time just didn't. Of course it was unflinching, because they couldn't imagine a reason to flinch. A lot of them — not everybody, but a lot of them.

Anthony Infanti: Yes.

Joseph J. Thorndike: All right, let's leave South Carolina for a minute. You do spend a big chunk of the book on South Carolina, and you can tell us why that was, but also take us into the other parts of the colonial world.

Anthony Infanti: Yeah. So, just to address that last part about why South Carolina was such a part of the book — because for me, it was like the apotheosis of what you could do with taxation to support, promote, and entrench slavery. It really served as a good, I think, jumping-off point and touchstone that you could go back to throughout the rest of the book. Because not every other colony did the same things as South Carolina, but you would often see echoes of what was going on there. And so, all the other colonies — every colony had enslaved people, every single one of them, and they all had slave codes of some sort or another.

In the northern colonies, the New England colonies, less rigid than the ones down south. And you saw that getting reflected in the fact that they didn't have slaveholder compensation schemes. They didn't need them because they had slave codes, but the slave codes didn't single out enslaved people for death in certain cases. That's not to say that they did not execute people back then; they certainly did. But in the New England colonies, if you're going to be executed, you'd be executed under the same law whether you were an enslaved person or you were white. It's not to say that the laws were not also differentially administered, but there wasn't that need to create a compensation scheme to get buy-in for these extra punishments, because the punishments were just widely available.

Joseph J. Thorndike: So, is there a danger here in seeing South Carolina as a standard and measuring other states in relation to that standard? Is that distorting our view of these other states? Are we depriving them of their own history and just making them as weak versions of South Carolina?

Anthony Infanti: No, I don't think so. I think it's more coming at it from the comparative law perspective: If I have one place that I can use and compare the others against it, because it helps to highlight what's different or unique about them, as opposed to the other places. Something that was totally different in the New England colonies from, say, South Carolina was that South Carolina, as I mentioned, they had these property taxes that were imposed on enslaved people. They treated enslaved people as a form of property early on.

In the New England colonies, you didn't see that. They had a system where they had a combination of what they called taxes on polls and taxes on estates. So, poll taxes had taxes, taxes on people, taxes on estates, taxes on property. And so, throughout the 17th century, you see more and more enslaved people in the New England colonies — first, oftentimes, enslaved Native Americans, but then more and more enslaved Blacks in the New England colonies. But what was fascinating is you can see how, as you get more and more enslaved people, you're getting that question of, like, "OK, how are we going to treat them for tax purposes?"

And you can watch them shift around the same time that they're really creating their slave codes to changing enslaved people's classification from being people subject to poll tax to being property subject to the tax on estates, where they're moving them over and putting them in the list of kinds of property that are subject to the tax on estates. Connecticut never did that. I was never able to figure out exactly why; they're not as transparent. It could have been anything from just inertia, that this is the way they've always done it, so they didn't change it.

And in reality, if you think about it from a tax lawyer's perspective, substance over form, it's not making a difference, because the fact is the enslaved people were not paying the taxes on polls; it was the slaveholder that was paying them. And the law would say that, it's like the slaveholder — or, for indentured servants, the person who held the indentured servant — they would be the ones that would pay these taxes. So, in essence it was a property tax, but still you saw this different thing and just watched how it would change over time. To have their worldview come together, they needed to make this shift, and you can watch it happen in the tax world, which I found really, really interesting.

Joseph J. Thorndike: Let's talk a little bit about academic disciplines. The book really sits at an intersection of two scholarly fields, I think, that are not always, but are sometimes, but not always in close conversation. And specifically, I think most historians of slavery haven't spent a ton of time reading tax legislation. Sometimes they've read tax records to try to reconstruct populations, for instance, but they haven't spent a lot of time looking at the legislation. And most tax historians haven't worked a whole lot in the archives of slavery — and there are exceptions to that, like Robin Einhorn.

You've worked in both now, so what do you think each field missed? And is it because they're asking different questions? And also, what [does] working them together make visible that wasn't there before?

Anthony Infanti: That's really good questions. Part of the reason that I wanted to do the book was because as I'm doing this research, I'm reading a lot of historians. And like I said, once in a while I'd see them mention taxation in relation to slavery. I'd read Robin Einhorn's book a long, long time ago when it came out and loved it. But as I'm reading through, it's like not that many people other than Robin Einhorn really are talking about taxation and slavery. It's missed. I've read this whole volume that's that thick, that's all about the relationship between law and slavery, and they cover everything, and there's one footnote about taxes — 600-page book.

They're not paying attention to it probably for a lot of the same reasons that most lawyers don't want to deal with tax law: It's like they think it's complicated or arcane or has nothing to do with anything, it's just about economics. It's not about —

Joseph J. Thorndike: If you think the lawyers are like that, you should see what the historians are like. They see it and they're like, "Oh, math, right? There's math in there. I don't want to do that."

Anthony Infanti: Yeah. And so, they don't see it the way that I see it in the sense of its not being just about math, it's about who we are. It's all about who we are as a society, what kind of society we want to be in the future. And so, part of doing the book was to try to fill that gap a little bit, but at the same time try to create a resource so that way, if historians who don't have tax law expertise wanted to try to tap into some of it, they would. Because unlike all the historical stuff that I read, which is lightly footnoted in terms, they'll say, "Oh, describe things, refer to stuff, and maybe you'll get an occasional footnote. It's just more text."

I footnoted the book like you would footnote a law review article because I wanted people to be able to go back and see, OK, I'm saying this happened, where exactly did I find it? So, that way, if you wanted to go and use that in something you were doing, you'd be able to go find it, too, and maybe do some other research, take it off in a different direction, whatever. I wanted it to be somewhat of a resource, because I think historians are as afraid of tax as lawyers are afraid of tax. And I wanted to break that down a little bit, demolish that shibboleth that tax law is not important.

Because tax law, I think, can be a window into things sometimes that you can't otherwise get a window into because of the lack of record. That was an interesting part of doing the book, because I came with the book very much from the perspective of, "I'm not a historian, I'm not trying to pretend to be a historian, I'm not trained as a historian. But I am a law and society person, and I want to come at it from that tax law and society kind of perspective while hopefully adding some value for historians." But going back through all of the records and all of the archives was challenging. It's not something that I'd ever done before.

I have now appreciation for the work that historians diving through all of that stuff. And probably part of the reason that people haven't done the colonial period yet among tax historians is it's not easy. Finding all of this stuff is not — it's a little bit easier now there's archives that are digitized; that's helpful. And I got into a pattern in doing the research for the book, which was pretty much getting as much as I possibly could digitized, do as much research as I could, and as I'm going through and doing the research, creating a list of, OK, these are all the things that I'm seeing that I want that I can't get and that I need to get from an archive.

And then, once I'd finished a section, then I'd go to the archives and start looking for it and then start looking for everything else I could possibly find, too. So, I would use it as a springboard. The archive stuff, even as horrific as the project was, was some of the most fun work that I've gotten to do. It really was fascinating just how helpful the archivists always were without exception, like every archives I went to.

Joseph J. Thorndike: There's something exciting about archival work, which, I mean, I recognize that's just the wonkiest historian thing to say, but it is because it's fine to read a book, but when you're working in an archive — sometimes actually picking up the actual documents, the very pieces of paper that were produced at the time — and that's an immediacy for history that you don't usually get, that you can really tangibly put your hands on the history. And also, it doesn't all reveal itself at once. So, there's a little bit of a hunt that's going on, and so when you do come up with something, it feels like a real triumph, like "Here it is, here's something important."

And so, I feel like it's completely understandable that the rest of the world doesn't get this, because they don't do it. But I know when I've taught students and I've brought students to archives, they can feel it pretty quickly that as you're paging through the raw material of history, sometimes we used to hand students a copy of George Washington's personal book and they could hold it and then like, "Wow, I'm holding this." I know it's almost cheesy, but it really gets exciting.

Anthony Infanti: Yeah, it's not cheesy at all. South Carolina was perhaps the coolest experience for that in the sense that I went down to the South Carolina Department of Archives and History a couple times for a while. But I would go in there and say, "OK, I want to look at the journals from the Commons House of Assembly from whatever," and they'd bring them out. It was not a little book; it was three feet by two feet in vellum or whatever, because — I knew because I've looked at all these tax laws that they would pay somebody to write all of this stuff nicely so it would be legible.

And it would be in the fancy handwriting and bring out this big book, and they're just like, "Here, OK, you can read through it." And it was amazing. I was like, "This is so cool." And you can just page through it, go through the whole thing. It was challenging, in part, doing the records because back then there was no standardized spelling. That was the one thing that I think is helpful, because I was not trained as a historian, but I was a foreign language person in college. And so — I was a double major in Russian language and French literature, then minor in Spanish — so, having to decipher language and sound because you would have to basically say, "OK, what is that kind of — oh, that's what they're saying."

Because the spelling was not always the same, you could see sometimes in the same document you see the same things spelled different ways, and the handwriting was not always as beautiful as that. But then the other one was when I was doing the newspaper research, I went to the Charleston Library Society, which has been around since the beginning of the colonial period down there. And so, I went in and said, "Oh, I'd like to —" because when I went to the South Carolina Department of Archives and History, they said, "Well, we don't have the original newspapers. We have them on microfilm, but if you go over to the Charleston Library Society, they have the originals, and so you can go through all the newspapers." I was like, "OK." So, I went down there, and so I'd say to the archivist, I said, "OK, I'd like to look at the papers from 1732." And she'd pull out this — it was a bound thing, but bound, it had a cover on the front and the back and with thread bound together the original newspapers that were circulated in the 1700s. It was just mind-blowing to see that; it's like you're just flipping through them. I was like, "This is crazy. I can't believe that they just let you touch this stuff."

Joseph J. Thorndike: You're making the argument for why more lawyers should do historical research, because it's fun like that.

Anthony Infanti: Yeah, that part was actually a lot of fun. And the discovery part, when you'd go through and you'd come across something that it was like, "Wow, OK, I did not expect to find that, but I found it. This is going to be so cool to be able to include in the book." And that's not something you always get.

Joseph J. Thorndike: Right. So, you describe yourself as a law and society person. I think you might also describe yourself as a critical tax person — not sure there's a lot of overlap there. I'm not sure if they completely overlap or if one subsumes the other. But at several points in the book you make the point quite forcefully that you want to demonstrate that tax law is not neutral or technical. It is those things sometimes, especially technical, but it's something else. And so, I want to know, how should we view taxes and tax law, and why does it matter?

So, somebody once told me that lawyers want their history to do something for them, which actually, I think, everybody does. It's the "so what?" question, which every history PhD gets asked during their oral exams: "Why do we care about all this?" For our world today, other than just knowing how the world back then worked, how does this nonneutrality argument and everything you've discovered about the relationship between slavery and taxation, how does that change the way we view taxes or our world today?

Anthony Infanti: Yeah, I think it really goes to the critical tax look. Because for me, critical tax and law and society are very much overlapping — maybe not identical, but very much overlapping. Because the critical tax part of me is — so the law and society part in the sense that, yes, tax law does reflect society, and it's used to advance a certain view of society. Oftentimes that view of society is one that embeds a lot of discrimination, all the discrimination that you see around you in every other area of the law and society. And so, that's part of where I'm coming from.

And doing the book, I felt, was helpful because sometimes critical tax scholars get pegged as postmodern whiners and stuff like that, that we're inventing a problem. No, that problem's not invented; it's been around for a really, really long time. Tax laws have been used for hundreds and hundreds and hundreds of years to perpetuate discrimination in society, that's nothing new. And our society's not exempt from it any more than colonial society was. So, part of the message is we need to be paying attention to what we're thinking of as being normal and natural, which people who come after us might think of as profoundly prejudiced and discriminatory.

We need to be questioning ourselves, what kinds of things are we doing with our tax laws that maybe we ought not to be doing, because they're not going to reflect so well upon us in decades to come as part of it. But then part like the last chapter of the book, I talked some about the relevance of all of this for the current movement for reparations. Because for me, there was some dissonance, especially working on it in the wake of the George Floyd murder, things like that. The dissonance that I see is between all of the imaginative uses of tax law in the colonial period and just how they would experiment, just as I mentioned before with South Carolina trying all different ways of constructing the tax underpinnings of their slaveholder compensation scheme — experiment in a way, sometimes, with no legal constraints at all.

Because they did have a relationship with England at that point, of course. Sometimes England would tell the colonies, "You can't do certain things." They would do them anyhow, because that was not what was in their interest. Where nowadays you look and see, OK, if you want to do a reparation scheme, you have a lot of restrictions that bind you because of the way the Supreme Court's interpreted the 14th Amendment. Your hands are basically tied because we've now embraced this color — or we, I should say, the Supreme Court's embraced this color-blind view of the Constitution that makes it very difficult to do things to address the long history that's not just about slavery, but the Jim Crow that came after it and the discrimination that still exists today.

And this is all part of it, and recognizing that, does it really have to be this way? Why is it this way? Why is it OK for the people who are creating the system that was the problem to be able to use their imagination to the fullest extent possible, but the people who are trying to redress the problems they created are limited, bound, prevented from coming up with real solutions?

Joseph J. Thorndike: Yeah. So, this is the nonneutrality point that tax is not neutral, but is in fact used to create things, cutting both ways. So, on the one hand, where your story tells us, "Hey, be more self-aware about the way our tax system today is sustaining discrimination in various ways or advancing it, encouraging it, whatever. Be a little more aware of that, because it's not just a property tax is not neutral; it operates in different ways on different groups of people." So, that's the unhappy framing of it. And then you've got a happy framing of nonneutrality, which is, "Yeah, so lean into the fact that it's not neutral and try to do something good for once."

Anthony Infanti: Right, right. Yeah, because it is possible. Even back then in the colonial period, you see instances — especially near the end of the colonial period, when attitudes start shifting, especially in the North, against slavery — of using taxation as a tool to end the slave trade. So, hiking up those import taxes, not because they want to recalibrate the racial balance of the colony, but because they want to see the slave trade end. Not necessarily slavery end for some of them, but it's like they want to see the slave trade end. And so, they're using it to shift things in a more positive — not a positive, more positive.

Joseph J. Thorndike: And that's the hopeful note. So, it's really quite amazing that you can pull a hopeful note like that out of such a sad tale that you tell in this book.

Anthony Infanti: Tax is all about what you do with it, and that's what it comes down to. It's all about what you do with it, and what you do with it says a lot about who you are.

Joseph J. Thorndike: That is a great ending for us right now. It's a great end of the book, it's a great takeaway from the book, I think, and I think a really valuable insight for tax people, but also for historians. So, Tony, it has been great talking to you about this. Again, such an amazing book; you've done such valuable work for us, so thanks so much.

Anthony Infanti: Oh, thank you for having me. It's been great getting a chance to talk to you again.

David D. Stewart: That's it for this week. You can follow me online at @TaxStew, that's S-T-E-W, and be sure to follow @TaxNotes for all things tax. If you have any comments, questions, or suggestions for a future episode, you can email us at podcast@taxanalysts.org. And as always, if you like what we're doing here, please leave a rating or review wherever you download this podcast. We'll be back next week with another episode of Tax Notes Talk.

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