THE RIGHTFUL REMEDY TO CURB FEDERAL SPENDING: STATE ESCROW ACCOUNTS

Federal Spending - state grants

by Diane Rufino, Nov. 8, 2015

Federal spending is clearly out-of-control. Most everyone acknowledges it. But no one seems to want to focus on a real remedy. Rather, most spend their time blaming one political party or the other (while the truth is that they both are equally to blame) or sometimes calling for a balanced budget amendment. The latter is totally unnecessary if one is willing to simply acknowledge that the Constitution itself, by its very word and spirit, requires limited spending. Any amendment will merely ratify (memorialize) the People’s concession that the government has the exceedingly broad taxing and spending powers that it was able to get the Supreme Court to grant it. And once that amendment is added, our government will no longer be a limited one. The Constitution will be one that is incapable of reigning in the powers that be. And that is why those organizations supporting a Convention of States have conveniently used a “Balanced Budget Amendment” as the reason to call such a Convention.

Any real remedy to the out-of-control spending that plagues our nation and threatens to burden our children and grandchildren and weaken our national security must address the reason for that spending. The reason we have this problem is that the federal government has exceeded its authority when it comes to its taxing and spending powers and it has greatly over-exaggerated its purpose in people’s lives and its responsibility in the matters of this great land.

For example, there are the more than 1,100 “grants-in-aid” programs (“conditioned” federal grants, usually for a specific purpose) that spend one-sixth of the federal budget on matters that are the exclusive business of state and local governments.

According to an article by James L. Buckley in the Wall Street Journal:

“Those programs, which provide funding for Medicaid as well as everything from road and bridge construction to rural housing, job training and fighting childhood obesity—now touch virtually every activity in which state and local governments are engaged. Their direct cost has grown, according to the federal budget, to an estimated $640.8 billion in 2015 from $24.1 billion in 1970.

Their indirect costs, however, go far beyond those numbers both in terms of dollars wasted and the profound distortions they have brought about in how we govern ourselves. Because the grants come with detailed federal directives, they deprive state and local officials of the flexibility to meet their own responsibilities in the most effective ways, and undermine their citizens’ ability to ensure that their taxes will be used to meet their priorities rather than those of distant federal regulators. The irony is that the money the states and local governments receive from Washington is derived either from federal taxes paid by residents of the states or from the sale of bonds that their children will have to redeem.

Congress finds the authority to enact those programs in the Supreme Court’s interpretation of the Constitution’s general-welfare clause in Steward Machine Co. v. Davis (1937). More recently, in the court’s 2012 NFIB v. Sebelius decision upholding the Affordable Care Act’s individual mandate, Chief Justice John Roberts wrote that Congress may use federal funds to “induce the States to adopt policies that the Federal Government itself could not impose,” so long as participation by the states is voluntary. To put it another way, Congress is licensed to dabble in areas in which it is forbidden to act, which it does by bribing the states to adopt Congress’s approaches to problems that are the states’ exclusive responsibility.

It is impossible, in this article, to detail all the costs imposed by those programs, but here are some of the most egregious ones: They add layers of federal and state administrative expenses to the cost of the subsidized projects; distort state priorities by offering lucrative grants for purposes of often trivial importance; and undermine accountability because state officials bound by federal regulations can’t be held responsible for the costs and failures of the projects they administer.

Finally, and of prime importance, those programs have subverted the Constitution’s federalism, its division of federal and state responsibilities, that was intended to prevent a concentration of power in a central government that could threaten individual liberties.

The states are free to decline to participate in the programs, but that has proved very hard to do. Money from Washington is still regarded as “free,” and state officials are delighted to accept grants, strings and all, rather than raise the extra money that would be required to pay the full cost of the projects they freely undertake with federal subsidies. What makes declining grants particularly difficult is the fact that if a state does not participate in a program, its share of the money—derived in whole or part from its own taxpayers—will go elsewhere.”

[Reference: James L. Buckley, “How Congress Bribes States to Give Up Power,” Wall Street Journal, December 25, 2014. Referenced at: http://www.wsj.com/articles/james-l-buckley-how-congress-bribes-states-to-give-up-power-1419541292. Mr. Buckley is a retired federal appellate judge and a former U.S. senator]

I have proposed a remedy. I like to call it the “Rightful Remedy” for curbing federal spending. The remedy relies on the sovereignty of the states, on the federal nature of our government system, and on the Tenth Amendment.

In short, the remedy summons the states to step up to their unique and historical responsibility to act as the last safeguard of their citizen’s individual’s liberty. The remedy would have each state, through their Treasury Department, establish an “Escrow Account” or “Escrow Fund” into which it would deposit its citizens’ federal income tax withholdings or funds. To be clear, citizens of each state will direct their federal income tax withholdings to go to the state Escrow Account rather than to the IRS. Similarly, citizens who don’t receive a salary but have other assets that the government taxes will send their federal income tax check to the same state Escrow Account instead of to the IRS. The funds will remain in the Account while the State Treasurer (either as a solo effort or in collaboration with other state treasurers) evaluates the federal budget for constitutionality. The Treasurer will review each item of spending and evaluate it according to the original meaning and intent of the Constitution (as it was debated, understood, and adopted by the People of each state, acting in convention in the years 1787-1790 to establish the Union of states) to see if it consistent or inconsistent with Article I, Section 8. After reviewing each item, the NC Department of State Treasurer will determine the percentage of the federal budget that is constitutional (as opposed to that portion that is unconstitutional and should rightfully be reserved to the states). The State Treasurer will then re-calculate each individual’s federal income tax burden according to its determination of constitutionality.

The State Treasurer will then forward to the IRS that portion of each individual’s tax burden that corresponds to the constitutional purposes of the budget and the remainder will remain in the State Escrow Account. The state can then determine what it should do with the amount remaining in the Account. It may choose to keep it there (“just in case”). Preferably, it will return a good portion to the individual on account that he/she was overtaxed in the first place. It may also choose to keep a portion of the amount to fund state projects that normally would have required federal funding, including “conditioned” grants.

The State could also have its citizens direct their FICA withholdings to a state Escrow Account (a different one, perhaps – a state “Social Security Escrow Account”) rather than to the IRS in order to protect their interests when they enter their retirement years. The State Treasurer could research the best investment scheme to invest the funds for the citizen so that when he or she reaches the age of retirement, the retirement funds that he or she receives will be secure and plentiful.

This remedy, in general, achieves several goals:

• It reminds Congress that not all of its spending is constitutional.

• It divests Congress of the broad interpretation of its taxing (and spending) powers that the Supreme Court has generously provided over the many years.

• It puts an important check on the scope of the federal government by the sovereign that was always intended to provide that check – the states (under the Tenth Amendment and under Compact and Agency theories).

• It helps States break free of their dependency on the federal government and hence resume their sovereign responsibilities and sovereign status.

• It forces government to divest itself of the functions and agencies that it can no longer ‘pay for.’

• It forces government to “exist within its means” (just as ordinary people are required to do).

• It provides an element of transparency and accountability in government.

• It reduces the individual federal income tax burden and allows citizens to keep more of their own money, or at least to have it spent in their “own back yard” (in their own state, to accomplish goals that benefit them more directly).

• The reduced federal income tax burden allows the states to tax according to their own schemes in order to fund directly their own projects, as they themselves see fit for their people.

• The scheme introduces a degree of innovation and creativity on the part of the state (“50 independent laboratories of innovation”) which will serve to make our government system most efficient.

• If the federal government becomes too abusive and continues to usurp reserved state powers or if it threatens individual liberty, it is much easier to shut it down and effect the remedies provided to the People in the Declaration of Independence (“to alter or abolish” government) by withholding tax funds completely.

I have written my proposal in Resolution form, and in a particularly detailed form, in order to clearly state or establish the foundations for the proposal. I believe the foundations have been lost on Americans for many generations now and it is probably for that reason that we have are in the situation we now find ourselves.

If our country doesn’t get its finances in order, and if we, as a People, don’t get our government back to work for us instead of for itself and its longevity and get it back within reasonable boundaries in our lives, in our livelihoods, and on our property (all forms), then we will lose everything good about the experiment that was started by those who reached our shores to escape various types of persecution from their own governments and who instigated for independence.

Looking at history I am reminded of countries that take different views of the role of government. There are strikingly essential differences between the governments of different countries. Most striking are those between the western nations and communism. Communism exalts the state over the individual and the family while western societies value the rights of the individual. With our federal government attempting to take care (“control”) of the individual from cradle to grave, with its massive schemes to redistribute wealth and property, with its funding of Planned Parenthood (the unborn can be sacrificed for higher goals), and its latest schemes, Obamacare (forcing the young and healthy into the health insurance market to help pay the healthcare fees for those who can’t afford it) and Common Core (uniform “programmed” education), one has to wonder what our government exalts, or promotes – the state, and what is best “for the state,” or the individual.

RESOLUTION – THE USE OF STATE ESCROW ACCOUNTS to CURB FEDERAL SPENDING

Whereas, “The Creator has made the earth for the living, not for the dead. Rights and powers can only belong to persons, not to things.” (Thomas Jefferson). Rights and powers do not originate or belong to a government, unless that power is exercised for the People – on behalf of them – and NOT against them;

Whereas, the several States, by a compact under the style and title “Constitution for the United States,” and of amendments thereto, voluntarily constituted a general government for special common purposes;

Whereas, the several States are parties to the compact (Constitution), with the people of said States acting in their own conventions to consider, debate, deliberate, and ratify it;

Whereas, our government structure is predicated on separation of powers between the States, as sovereigns, and the federal government, which is sovereign with respect to only certain responsibilities (Article I, Section 8; express language, as re-affirmed in the state ratifying conventions and the Federalist Papers, the leading authority on the meaning and intent of the Constitution);

Whereas, this separation of powers, known as federalism, is a critical feature of our government system, intended to safeguard the “precious gem” of individual liberty by limiting government overreach;

Whereas, there is no provision in the Constitution nor any grant of delegated power by which the States can be said to have (willingly or intentionally) surrendered their sovereignty, for it is clear that no State would have ratified the document and the Union would not have been established;

Whereas, the States were too watchful to leave the opportunity open to chance and using an abundance of caution, insisted that a series of amendments be added, including the Tenth Amendment, as a condition of ratification and formation of the Union;

Whereas, the Preamble to the Bill of Rights expressed the unambiguous intention of those amendments, and reads: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution”;

Whereas, that relationship between the states and the federal government is defined by the Tenth Amendment, which reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”;

Whereas, the critical relationship has been eroded through the many Supreme Court decisions which have transferred power from the States to the federal government in order to enlarge its sphere of influence;

Whereas, the relationship has been further eroded by the dependence that States have on the federal government for funding;

Whereas, the Supreme Court has upheld the notion that the government “has the power to fix the terms upon which its money allotments to states shall be disbursed” (South Dakota v. Dole, 1987) and therefore has upheld its conditioned funds to the states as permissible (as a matter of contract law);

Whereas, with the blessing of the Supreme Court, the government can achieve through conditioned spending that which it cannot achieve constitutionally, thereby allowing it to do an end-run on the Constitution and to avoid its limitations under the Tenth Amendment;

Whereas, while the decision in Dole has noted that the conditioned spending must be for the General Welfare, it incorrectly interpreted the Constitution’s “General Welfare” Clause (“to provide for the General Welfare”) as vesting the federal government with an independent grant of power rather than recognizing that the clause merely serves as a qualifier for the 17 enumerated objects of legislation that follow;

Whereas, the federal government is not the sovereign body vested with the responsibility to address all the nation’s concerns, including local issues, which is what the “General Welfare” clause could easy be used to do;

Whereas, the federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself, and as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions.

Whereas, the federal government has created for itself an absolute monopoly over the nature and scope of its powers and has consistently assumed powers it wasn’t meant to have – misappropriating them from the States and from the People;

Whereas, the federal government has used said monopoly to change the nature of the Constitution, to redefine its terms, and to re-establish boundaries of government on the individual without using the lawful route, Article V;

Whereas, the particular security of the people is in the possession of a written and stable Constitution. The branches of the federal government, acting in unison rather than apprehension, have made it a blank piece of paper by construction;

Whereas, the government, once populated by representatives who were primarily beholden to the interests of the people and the States, is now populated by representatives who are primarily beholden to the interests of the government;

Whereas, through the consolidation and concerted action of its branches and said monopoly, the federal government has transformed itself into a strongly centralized, bloated national government, vested with illegitimate powers and barely recognizable as the government intended by our creators and adopted by the States in the years of our founding. This bloated central government is coercive, wasteful, corrupt, and out of touch with the People. Less than one quarter of the people trust it, most are afraid of it, and those who are required to support it by paying federal income taxes believe they are paying too much and question the legitimacy of the purposes for which it taxes and spends. Most importantly, the government is one that poses serious threats to the exercise of the freedoms that Americans are deemed to be endowed with;

Whereas, the direct consequence of a government that has enlarged its powers and functions is that it requires a larger budget and therefore has to tax its citizens more;

Whereas, with respect to federal grants and other forms of funding, if the government’s budget includes funds to “bribe” the states and otherwise attempt to influence state policy or planning, then it clearly overtaxes its citizens. Bribing the states or otherwise paying for any of its internal functions or projects is not one of the objects for which Congress can tax and spend under the Constitution, even if said bribe is cloaked in contract terms. The states are so financially strapped that there is effectively no “choice” involved in accepting grants of funding from the federal government and essentially, the offer amounts to an act of coercion. The government is absolutely forbidden to coerce a state government or its agents;

Whereas, the power to prevent the further consolidation of powers in the central government and the right of judging on infractions of inherent powers is a fundamental attribute of sovereignty which cannot be denied to the States, and therefore they must be allowed to do so;

Therefore, in order to reverse the unintended concentration of power in the federal government and in order to divest it of powers it has misappropriated and assumed for the past 200 years, and perhaps even to provide an additional check on the federal government by the People themselves (for whom the government is to serve and be accountable, according to the Declaration of Independence, lest they find the need to “alter or abolish”), the State of North Carolina will adopt the following scheme:

• The citizens of the state of North Carolina will have federal income taxes withheld from their paychecks but instead of those withholdings going to the federal government, they will be ear-marked to a state “Escrow Account” or “Escrow Fund” established by the NC Department of the State Treasurer.

• Likewise, citizens of the state of North Carolina will have FICA taxes withheld from their paychecks and also ear-marked to the state “Escrow Account/ Fund.”

• Citizens of North Carolina who receive no salary (that is taxable) but who have other assets that the federal government is able to tax under the federal Income Tax laws will send their federal income tax burden to the State (NC Department of the State Treasurer) to be deposited in the “Escrow Account/ Fund” rather than send the check to the IRS.

• The NC Department of the State Treasurer will evaluate the federal budget for constitutionality. It will review each item of spending and evaluate it according to the original meaning and intent of the Constitution (as it was debated, understood, and adopted by the People of each state, acting in convention in the years 1787-1790 to establish the Union of states) to see if it consistent or inconsistent with Article I, Section 8.

• After reviewing each item, the NC Department of State Treasurer will determine the percentage of the federal budget that is constitutional (as opposed to that portion that is unconstitutional and should rightfully be reserved to the states).

• The State Treasurer will then re-calculate each individual’s federal income tax burden according to its determination of constitutionality.

• The State Treasurer will then forward to the IRS that portion of each individual’s tax burden that will fund constitutional (legitimate) objects of the government’s authority. The remainder will remain in the State Escrow Account/ Fund.

• Of the remaining funds, the State Treasurer will return a major portion of the individual’s federal income tax withholdings to him or her. It will have the option of keeping a portion of those withholdings to fund state projects that normally would have required federal funding, including “conditioned” grants.

• With respect to the FICA funds, the NC Department of State Treasurer will establish a separate state Escrow Account/ Fund (a state Social Security Escrow Account/ Fund) for which to deposit them. The NC State Treasurer will research the best investment scheme to invest the funds for the citizen so that when he or she reaches the age of retirement, the funds that he or she will receive to make up for the loss of wages will be secure and plentiful.

The state Escrow Account/ Fund scheme, in general, achieves several goals:

• It reminds Congress that not all of its spending is constitutional.

• It divests Congress of the broad interpretation of its taxing (and spending) powers that the Supreme Court has generously provided over the many years.

• It puts an important check on the scope of the federal government by the sovereign that was always intended to provide that check – the states (under the Tenth Amendment and under Compact and Agency theories).

• It forces government to divest itself of the functions and agencies that it can no longer ‘pay for.’

• It forces government to “exist within its means” (just as ordinary people are required to do).

• It provides an element of transparency and accountability in government.

• It reduces the individual federal income tax burden and allows citizens to keep more of their own money, or at least to have it spent in their “own back yard” (in their own state, to accomplish goals that benefit them more directly).

• The reduced federal income tax burden allows the states to tax according to their own schemes in order to fund directly their own projects, as they themselves see fit for their people.

• The scheme introduces a degree of innovation and creativity on the part of the state (“50 independent laboratories of innovation”) which will serve to make our government system most efficient.

• If the federal government becomes too abusive and continues to usurp reserved state powers or if it threatens individual liberty, it is much easier to shut it down and effect the remedies provided to the People in the Declaration of Independence (“to alter or abolish” government) by withholding tax funds completely.

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Embracing Founding Principles to Solve the Social Security Problem

Social Security - BROKE    by Diane Rufino, August 20, 2015

Four years ago, in 2011, Social Security reached a critical tipping point. It paid out more in benefits than it took in through payroll (FICA) taxes. So, for four years, Social Security has been running a deficit.

In 1970, Social Security and Medicare made up 18.7% of the federal budget. In 2006, these two programs made up 33.3% of the federal budget. In 2010, the two programs made up 42.7% of federal budget spending. In that same year, defense spending comprised 19.7 % of the budget and welfare programs comprised 18%. Adding it all up, a full 60.7 % of the 2010 federal budget was designated to entitlement programs.

The recent economic downturn has led to a major decrease in payroll taxes and many people have opted to collect their benefits earlier. (People can retire at age 62, but payments are reduced until age 67). This has led to the Social Security system going into the red. At this point, Social Security is nothing more than a Ponzi scheme, robbing payrolls and future retirees to pay the benefits of current retirees. The enormity of the economic downturn has led to a giant decrease in revenues, and unless an immediate rebound occurs in the economy and revenues increase, benefits will have to be cut and the retirement age will be raised….. OR, Social Security will certainly go broke. Our very own president has even told us that economic recovery will take years. So, you do the math.

 

The point I’m try to make is that the federal government continues to force a failing system on citizens.  It continues to take payroll taxes out of everyone’s paycheck, including mine, every single pay period in order to cover Social Security benefits and Medicare. It also requires the employer to match those contributions at 6.8% (so if you are self-employed or are a small business owner, then the screwing is more intense). All the while, Social Security continues to run a deficit, continues to be in debt, and continues on the fast track to insolvency.

Social Security was signed into law by President Roosevelt in 1935, as the country was beginning to recover from the Great Depression and coming to the realization that there should be programs to provide for citizens when they can’t provide for themselves, such as the elderly, the disabled, those injured on the job, dependent mothers, etc.

Before the 1930s, support for the elderly was a matter of local, state and family rather than a Federal concern (except for veterans’ pensions). However, the widespread suffering caused by the Great Depression brought support for numerous proposals for a national old-age insurance system. On January 17, 1935, President Franklin D. Roosevelt sent a message to Congress asking for “social security” legislation. The same day, Senator Robert Wagner of New York and Representative David Lewis of Maryland introduced bills reflecting the administration’s views. The bills were met with strong opposition from those who considered the program a governmental invasion of the private sphere.  Eventually the bill passed both houses, and on August 15, 1935, President Roosevelt signed the Social Security Act into law.

The act created a uniquely American solution to the problem of old-age pensions. Unlike many European nations, U.S. social security “insurance” was supported from “contributions” in the form of taxes (payroll taxes; FICA) on individuals’ wages and employers’ payrolls rather than from government funds. The act also provided funds to assist children, the blind, and the unemployed; to institute vocational training programs; and provide family health programs. As a result, enactment of Social Security brought into existence complex administrative challenges. The Social Security Act authorized the Social Security Board to register citizens for benefits, to administer the contributions received by the Federal Government, and to send payments to recipients. Prior to Social Security, the elderly routinely faced the prospect of poverty upon retirement.

Since its inception, workers have come to view their “targeted” payroll deductions (their “contributions”) to the Social Security program’s trust fund [the OASDI fund – “Old-Age, Survivors, and Disability Insurance”] as establishing a unique connection between those tax payments and future benefits, and thereby a true entitlement. They believe that because they have paid (been forced to pay) into the system, Social Security is an “earned right” and therefore they are entitled to retirement benefits, even if the government has a more pressing need for the funds and even if it claims financial insolvency. They believe the government has certainly encouraged that belief by referring to Social Security taxes as “contributions.”  They have come to view the entitlement in terms of morality, ethics, and a contracts.  The government, on the other hand, has come to view the “contributions” as anything other than that.  Social Security is simply another form of taxation and revenue – plundering – for the government.

In the case Flemming v. Nestor (1960), the Supreme Court declined to honor Americans rightful expectations in the program, holding that there is no property or contractual right in the contributions taken from their paychecks specifically for their retirement.  Justice Harlan wrote: “To engraft upon the Social Security system a concept of ‘accrued property rights’ would deprive it [the government; Congress] of the flexibility and boldness in adjustment to ever changing conditions which it demands.” The Court went on to say, “It is apparent that the non-contractual interest of an employee covered by the [Social Security] Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.”

Perhaps the Court’s decision should not have been surprising. In an earlier case, Helvering v. Davis (1937), the Court had ruled that Social Security was not a contributory insurance program, saying, “The proceeds of both the employee and employer taxes are to be paid into the Treasury like any other internal revenue generally, and are not earmarked in any way.”

As Michael Tanner put it: “Social Security is not an insurance program at all. It is simply a payroll tax on one side and a welfare program on the other. Your Social Security benefits are always subject to the whim of 535 politicians in Washington.”  Just as Congress has cut Social Security benefits in the past, it is more than likely to do so in the future. In fact, given Social Security’s financial crisis, the high unemployment rate, and the historic numbers of Americans claiming disability, benefit cuts are almost inevitable. As we all know, there are various proposals to cut benefits, from increasing the retirement age to means testing.  NJ Governor Chris Christie, realizing that workers have no right to the money religiously taken from their paychecks, has suggested that those who are well enough off in their elderly years should simply forfeit their benefits to others.

So, as a result of the Flemming case, workers have no legally binding contractual rights to their Social Security benefits.  Those benefits can be cut or even eliminated at any time.  You have worked hard all your life and have paid thousands of dollars in Social Security taxes.  Now it’s finally time to retire.  Your rightful expectation is that the government delivers on its promise.  But what can you honestly expect? The Supreme Court, as it has always – ALWAYS – does, has given the government (Congress, in this case) the flexibility it needs to use use and direct the funds as it sees fit.  Again, the individual is a mere pawn.  He is, above all else, a mere source of tax revenue.

One of the myths of our political system is that the Supreme Court has the last word on the scope and meaning of federal law.  Chief Justice John Marshall proclaimed that view in Marbury v. Madison (1803), despite commentary by our Founders to the contrary.  But there is one remedy that can correct “mistakes” by the Supreme Court and it lies with the Peoples’ House – the US Congress.  Under the original intent of our government, the branches were to be separate and were supposed to actively check each other in order that none of them should transgress the bounds of their authority.  The federal judiciary, as assured to the state ratifying conventions in the Federalist Papers, would be the weakest branch, only being able to offer an opinion to the other branches. “The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”  (Federalist No. 78, written by Alexander Hamilton).  The Supreme Court could offer its opinion as to the constitutionality of a law passed by Congress, but Congress (having the same capacity to read the words of the Constitution and its history), could act in accordance with that opinion or disregard it.  Since Marbury, whenever the Supreme Court reaches an opinion, any legislation that is “repugnant” to the Constitution MUST fall.  It’s their way or the highway.  And so, time and time again, Congress has dealt with the dissatisfaction of having the Supreme Court frustrate its legislative schemes. Sometimes it is for the better but sometimes not.  One way Congress has dealt with that dissatisfaction  is by amending or re-enacting the legislation to clarify its original intent and overrule a contrary Court construction.

While it’s true that Congress cannot really “overrule” its decisions on what a law means, Congress certainly has the power to pass a new or revised law that “changes” or “reverses” the meaning or scope of the law as interpreted by the Court, and the legislative history of the new law usually states that it was intended to “overrule” a specific Court decision.  The People, through their elected officials, and not at the mercy of unelected men and women in black robes, have the power to make the laws and set policy that they want to govern their country and their society.

With that in mind, I have come up with a proposal which, while not solving the debt crises that Social Security is in, will honor the reasonable and legitimate expectations of hard-working individuals who pay into the system, have paid into the system, and may not be able to enjoy its benefits when they retire. My solution addresses the frustration of individuals who know that the government has essentially stripped them of any legal right to their “contributions,” despite what the statute suggests, in order to use the funding scheme as an additional means of taxation to fund welfare and other unconstitutional programs.

Here is a Resolution proposing my solution:

RESOLUTION TO ENACT LEGISLATION TO DEFINE SOCIAL SECURITY FUNDS AS AN INDIVIDUAL’s PROPERTY/CONTRACTUAL RIGHT

    Whereas, the actions of our Founding generation proved their greater desire for freedom than for the security provided by its political association with England;

And Whereas, for that reason, the original thirteen states, acting together, adopted the Lee Resolution (or Resolution for Independence) on July 2, 1776, formally dissolving the bonds of allegiance with said country;

And Whereas, two days later, on July 4, the Second Continental Congress adopted the Declaration of Independence, which was intended to proclaim “to a candid world” the reasons the American states sought to dissolve its political association with England

Whereas, the reason the American states felt compelled to seek their independence from the most powerful nation on earth at the time was because of the collective treatment – the “history of repeated injuries and usurpations” – they received at the hands of King George III and the English Parliament, “all having in direct object the establishment of an absolute Tyranny” over them;

Whereas, leaders from our founding generation petitioned and pleaded with the King and Parliament to respect the inherent rights of its “subjects” in America, as addressed and protected by the various English charters of liberty, including the Magna Carta, the Petition of Right of 1628, and the English Bill of Rights of 1689, only to be ridiculed, punished, and oppressed further;

Whereas, the Declaration of Independence proclaims the principles of liberty that the “united” States of America collectively stand for, including the following:

• Individuals are the inherent depositories of government power. Individuals “assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” When government oversteps its delegated powers and becomes destructive of liberty (denies them their freedom), power returns to the People. [First paragraph]

• People have the inherent right to dissolve their government and to assume their full rights to govern themselves (or to compact and establish another government). [First paragraph]

• All men are created equal (stemming from their equality in a state of nature) and are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness… [Second paragraph]

• In order to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed… [Second paragraph]

• That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness….. [Second paragraph]

• Governments are the product of social compact – among those agreeing to be governed (“deriving their just powers from the consent of the governed”) [Second paragraph]

Whereas, the author of the Declaration of Independence, Thomas Jefferson, as well as the other members of the committee selected to draft the document (John Adams of MA, Benjamin Franklin of PA, Roger Sherman of CT, and Robert Livingston of NY) made the conscious decision to ground American government theory on the philosophy and teachings of John Locke. To be sure, each statement written in the first and second paragraphs are taken from the writings of John Locke (see the Two Treatises of Government);

Whereas, by their votes, each of the individual states adopted the position espoused in the Declaration on the origins, purpose, and limitations of government, thereby grounding individual liberty on the natural law doctrine of Individual Sovereignty;

Whereas, John Locke wrote about the “inalienable rights” of “Life, Liberty, and Property and emphasized that the primary role of government is to secure the individual’s right of Property;

Whereas, Thomas Jefferson was not only as strong a proponent of the natural origin, and thus the inalienable character, of a personal right to property as John Locke, but believed the right to property should be enlarged to include the right to accumulate wealth (and hence changed the word “property” to “pursuit of happiness”). “I believe that a right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings.” http://www.indytruth.org/library/journals/libertarianstudies/18/18_1_2.pdf

Whereas, Thomas Jefferson understood “property” to include not only real property, but also intellectual property (the product of one’s mind), and the property that results from an individual’s use of his or her talents, energy, personality, etc etc. He believed a person has the right to the benefits (wealth, security, happiness) that result (“the Pursuit of Happiness”);

Whereas, the 16th Amendment established the federal income tax by which the government, according to a progressive system, can plunder the property of Americans for the purpose of funding the its programs and obligations;

Whereas, in 1935, President Franklin Delano Roosevelt signed the Social Security Act, as the country was finally beginning to recover from the Great Depression. Millions of people were still out of work, and there was alarming concern for the elderly and retired Americans who had lost everything. The Social Security program was intended to be – and is essentially still today – a social insurance program. It is a government-run program providing economic security to our elderly citizens. The 1935 Act, in great part, provided for “old age” or retirement benefits by having workers make contributions from their paychecks to a government-managed trust fund for the purpose of replacing lost earnings at retirement (in other words, to pay for their retirement and other benefits they might need in the further);

Whereas, the contribution by an American worker into the Social Security program’s trust fund through a dedicated payroll tax establishes a unique connection between those tax payments and future benefits;

Whereas, the design and intent of the Social Security program infers a reasonable and rightful expectation by that American worker to a “right” (an “earned right”) to the benefit at the age of retirement;

Whereas, the “earned right” to social security retirement benefits is a true entitlement in the moral and legal (contractual) sense;

Whereas, the government has encouraged that belief and expectation by referring to Social Security as a “contribution”;

Whereas, the forced contribution into the Social Security program denies individuals of using those funds – the funds they worked for and earned – to invest and save themselves, on their own terms, for their retirement;

Whereas, salary is a property right, derived from one’s employment contract which converts physical and mental skills that serve the employer into a monetary equivalent;

Whereas, salary can later be transformed into other types of property, including real and personal property, can be transformed into other types of investment, such as a college education, a business venture, or a retirement plan, and can be transformed or used for other objects all designed to enrich one’s life (“Pursuit of Happiness”);

Whereas, the social policy underlying employment is that every individual should be responsible for his or her life and his or her choices, particularly the costs involved. Everyone should be personally responsible to become educated or learn some sort of trade or skill. Everything costs money and if a person can’t pay for what he or she needs and the government is intent on providing services, that money necessarily come from the property rights of another;

Whereas, the Supreme Court, in the case Flemming v. Nestor [363 U.S. 603 (1960)], provided the federal government an additional avenue to plunder the finances of American citizens by denying them a rightful property interest in the amount deducted by the government for their retirement;

Whereas, in Flemming, the Court held that entitlement to Social Security benefits is not contractual right nor a property right. As Justice Harlan, who delivered the decision, wrote: “It is apparent that the non-contractual interest of an employee covered by the [Social Security] Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.”

Whereas, indeed the Court in Flemming acknowledged the legislative intent when the law was passed. “The right to Social Security benefits is in one sense ‘earned,’ for the entire scheme rests on the legislative judgment that those who, in their productive years, were functioning members of the economy may justly call upon that economy, in their later years, for protection from ‘the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey’s end is near.” The decision then went on to state that “to engraft upon the Social Security system a concept of ‘accrued property rights’ would deprive it of the flexibility and boldness in adjustment to ever changing conditions which it demands.” The Court noted that as time has gone on and as the dynamics of the country has changed, the practicality of that “judgment” (the legislative judgment) has been questioned. As such the Court concluded that an individual who contributes to Social Security has no right (property or contractual) to his or her money or to benefit payments (as would be protected by the Due Process Clause of the 5th Amendment);

Whereas, despite the language used to sell the program to the American people, just like what happened with the Patient Protection and Affordable Care Act (PPACA, or “Obamacare”), the Supreme Court went on to characterize it in complete opposite terms;

Whereas, as a result of Flemming, Social Security is not an insurance program at all. It is simply a payroll tax on one side and a welfare program on the other. An individual’s Social Security benefits are always subject to the whim of 535 politicians in Washington;

Whereas, the American people believe that they have a rightful claim to the contributions they have made over the years into the Social Security trust fund, despite what the Supreme Court might say, and demand assurances that their money will be available to them when they retire;

Whereas, under the Separation of Powers doctrine, the wisdom of the scheme of retirement benefits set forth in the Social Security Act, as interpreted (ie, re-defined) by the Supreme Court in Fleming, must be addressed by Congress – the People’s House.

THEREFORE, the US Congress must – and should feel duty-bound – to supersede the Supreme Court’s characterization of Social Security (retirement) “contributions” and benefits in Flemming by defining said contributions legislatively as a “property” and a “contractual” right belonging to each American worker (that is, each employee who has a FICA payroll tax deducted from his or her paycheck). As such, each American worker cannot be deprived of his or her promised future benefit.

FURTHERMORE, characterization of Social Security retirement contributions and benefits in terms of a tangible property/contract right to the individual will force the federal government to control its spending. Of course, another option is to privatize Social Security. Under a privatized Social Security system, workers would have full property rights in their retirement accounts. They would own the money in them, the same way people own their IRAs or 401(k) plans. Congress would have no right to touch that money.

Diane - BLOG PIC (fall 2015) #2

References:

Michael D. Tanner, “Is There a Right to Social Security,” CATO Institute, November 25, 1998.  Referenced at:  http://www.cato.org/publications/commentary/is-there-right-social-security

Social Security Act (1935) –  http://www.ourdocuments.gov/doc.php?flash=true&doc=68

By Diane Rufino: A Sensible Solution to the Social Security Problem

Social Security - BROKE     by Diane Rufino, August 20, 2015

Four years ago, in 2011, Social Security reached a critical tipping point. It paid out more in benefits than it took in through payroll (FICA) taxes. So, for four years not, Social Security has been running a deficit.

In 1970, Social Security and Medicare made up 18.7% of the federal budget. In 2006, these two programs made up 33.3% of the federal budget. In 2010, the two programs made up 42.7% of federal budget spending. In that same year, defense spending comprised 19.7 % of the budget and welfare programs comprised 18%. Adding it all up, a full 60.7 % of the 2010 federal budget was designated to entitlement programs.

The recent economic downturn has led to a major decrease in payroll taxes and many people have opted to collect their benefits earlier. (People can retire at age 62, but payments are reduced until age 67). This has led to the Social Security system going into the red. At this point, Social Security is nothing more than a Ponzi scheme, robbing payrolls and future retirees to pay the benefits of current retirees. The enormity of the economic downturn has led to a giant decrease in revenues, and unless an immediate rebound occurs in the economy and revenues increase, benefits will have to be cut and the retirement age will be raised. Or Social Security will certainly go broke. Our very own president has even told us that economic recovery will take years. So you do the math.

The point I’m try to make is that the federal government continues to take payroll taxes out of everyone’s paycheck, including mine, every single pay period in order to cover Social Security benefits and Medicare. It also requires the employer to match those contributions at 6.8% (so if you are self-employed or are a small business owner, then the screwing is more intense). All the while, Social Security continues to run a deficit, continues to be in debt, and continues on the fast track to insolvency.

With that in mind, I have come up with a proposal which, while not solving the debt crises that Social Security is in, will honor the reasonable and legitimate expectations of hard-working individuals who pay into the system, have paid into the system, and may not be able to enjoy its benefits when they retire. My solution addresses the frustration of individuals who know that the government has essentially stripped them of any legal right to their “contributions,” despite what the statute suggests, in order to use the funding scheme as an additional means of taxation to fund welfare programs.

Here is a Resolution proposing my solution:

RESOLUTION TO ENACT LEGISLATION TO DEFINE SOCIAL SECURITY FUNDS AS AN INDIVIDUAL’s PROPERTY/CONTRACTUAL RIGHT

    Whereas, the actions of our Founding generation proved their greater desire for freedom than for the security provided by its political association with England;

And Whereas, for that reason, the original thirteen states, acting together, adopted the Lee Resolution (or Resolution for Independence) on July 2, 1776, formally dissolving the bonds of allegiance with said country;

And Whereas, two days later, on July 4, the Second Continental Congress adopted the Declaration of Independence, which was intended to proclaim “to a candid world” the reasons the American states sought to dissolve its political association with England

Whereas, the reason the American states felt compelled to seek their independence from the most powerful nation on earth at the time was because of the collective treatment – the “history of repeated injuries and usurpations” – they received at the hands of King George III and the English Parliament, “all having in direct object the establishment of an absolute Tyranny” over them;

Whereas, leaders from our founding generation petitioned and pleaded with the King and Parliament to respect the inherent rights of its “subjects” in America, as addressed and protected by the various English charters of liberty, including the Magna Carta, the Petition of Right of 1628, and the English Bill of Rights of 1689, only to be ridiculed, punished, and oppressed further;

Whereas, the Declaration of Independence proclaims the principles of liberty that the “united” States of America collectively stand for, including the following:

• Individuals are the inherent depositories of government power. Individuals “assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” When government oversteps its delegated powers and becomes destructive of liberty (denies them their freedom), power returns to the People. [First paragraph]

• People have the inherent right to dissolve their government and to assume their full rights to govern themselves (or to compact and establish another government). [First paragraph]

• All men are created equal (stemming from their equality in a state of nature) and are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness… [Second paragraph]

• In order to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed… [Second paragraph]

• That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness….. [Second paragraph]

• Governments are the product of social compact – among those agreeing to be governed (“deriving their just powers from the consent of the governed”) [Second paragraph]

Whereas, the author of the Declaration of Independence, Thomas Jefferson, as well as the other members of the committee selected to draft the document (John Adams of MA, Benjamin Franklin of PA, Roger Sherman of CT, and Robert Livingston of NY) made the conscious decision to ground American government theory on the philosophy and teachings of John Locke. To be sure, each statement written in the first and second paragraphs are taken from the writings of John Locke (see the Two Treatises of Government);

Whereas, by their votes, each of the individual states adopted the position espoused in the Declaration on the origins, purpose, and limitations of government, thereby grounding individual liberty on the natural law doctrine of Individual Sovereignty;

Whereas, John Locke wrote about the “inalienable rights” of “Life, Liberty, and Property and emphasized that the primary role of government is to secure the individual’s right of Property;

Whereas, Thomas Jefferson was not only as strong a proponent of the natural origin, and thus the inalienable character, of a personal right to property as John Locke, but believed the right to property should be enlarged to include the right to accumulate wealth (and hence changed the word “property” to “pursuit of happiness”). “I believe that a right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings.” http://www.indytruth.org/library/journals/libertarianstudies/18/18_1_2.pdf

Whereas, Thomas Jefferson understood “property” to include not only real property, but also intellectual property (the product of one’s mind), and the property that results from an individual’s use of his or her talents, energy, personality, etc etc. He believed a person has the right to the benefits (wealth, security, happiness) that result (“the Pursuit of Happiness”);

Whereas, the 16th Amendment established the federal income tax by which the government, according to a progressive system, can plunder the property of Americans for the purpose of funding the its programs and obligations;

Whereas, in 1935, President Franklin Delano Roosevelt signed the Social Security Act, as the country was finally beginning to recover from the Great Depression. Millions of people were still out of work, and there was alarming concern for the elderly and retired Americans who had lost everything. The Social Security program was intended to be – and is essentially still today – a social insurance program. It is a government-run program providing economic security to our elderly citizens. The 1935 Act, in great part, provided for “old age” or retirement benefits by having workers make contributions from their paychecks to a government-managed trust fund for the purpose of replacing lost earnings at retirement (in other words, to pay for their retirement and other benefits they might need in the further);

Whereas, the contribution by an American worker into the Social Security program’s trust fund through a dedicated payroll tax establishes a unique connection between those tax payments and future benefits;

Whereas, the design and intent of the Social Security program infers a reasonable and rightful expectation by that American worker to a “right” (an “earned right”) to the benefit at the age of retirement;

Whereas, the “earned right” to social security retirement benefits is a true entitlement in the moral and legal (contractual) sense;

Whereas, the government has encouraged that belief and expectation by referring to Social Security as a “contribution”;

Whereas, the forced contribution into the Social Security program denies individuals of using those funds – the funds they worked for and earned – to invest and save themselves, on their own terms, for their retirement;

Whereas, salary is a property right, derived from one’s employment contract which converts physical and mental skills that serve the employer into a monetary equivalent;

Whereas, salary can later be transformed into other types of property, including real and personal property, can be transformed into other types of investment, such as a college education, a business venture, or a retirement plan, and can be transformed or used for other objects all designed to enrich one’s life (“Pursuit of Happiness”);

Whereas, the social policy underlying employment is that every individual should be responsible for his or her life and his or her choices, particularly the costs involved. Everyone should be personally responsible to become educated or learn some sort of trade or skill. Everything costs money and if a person can’t pay for what he or she needs and the government is intent on providing services, that money necessarily come from the property rights of another;

Whereas, the Supreme Court, in the case Flemming v. Nestor [363 U.S. 603 (1960)], provided the federal government an additional avenue to plunder the finances of American citizens by denying them a rightful property interest in the amount deducted by the government for their retirement;

Whereas, in Flemming, the Court held that entitlement to Social Security benefits is not contractual right nor a property right. As Justice Harlan, who delivered the decision, wrote: “It is apparent that the non-contractual interest of an employee covered by the [Social Security] Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.”

Whereas, indeed the Court in Flemming acknowledged the legislative intent when the law was passed. “The right to Social Security benefits is in one sense ‘earned,’ for the entire scheme rests on the legislative judgment that those who, in their productive years, were functioning members of the economy may justly call upon that economy, in their later years, for protection from ‘the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey’s end is near.” The decision then went on to state that “to engraft upon the Social Security system a concept of ‘accrued property rights’ would deprive it of the flexibility and boldness in adjustment to ever changing conditions which it demands.” The Court noted that as time has gone on and as the dynamics of the country has changed, the practicality of that “judgment” (the legislative judgment) has been questioned. As such the Court concluded that an individual who contributes to Social Security has no right (property or contractual) to his or her money or to benefit payments (as would be protected by the Due Process Clause of the 5th Amendment);

Whereas, despite the language used to sell the program to the American people, just like what happened with the Patient Protection and Affordable Care Act (PPACA, or “Obamacare”), the Supreme Court went on to characterize it in complete opposite terms;

Whereas, as a result of Flemming, Social Security is not an insurance program at all. It is simply a payroll tax on one side and a welfare program on the other. An individual’s Social Security benefits are always subject to the whim of 535 politicians in Washington;

Whereas, the American people believe that they have a rightful claim to the contributions they have made over the years into the Social Security trust fund, despite what the Supreme Court might say, and demand assurances that their money will be available to them when they retire;

Whereas, under the Separation of Powers doctrine, the wisdom of the scheme of retirement benefits set forth in the Social Security Act, as interpreted (ie, re-defined) by the Supreme Court in Fleming, must be addressed by Congress – the People’s House.

THEREFORE, the US Congress must – and should feel duty-bound – to supersede the Supreme Court’s characterization of Social Security (retirement) “contributions” and benefits in Flemming by defining said contributions legislatively as a “property” and a “contractual” right belonging to each American worker (that is, each employee who has a FICA payroll tax deducted from his or her paycheck). As such, each American worker cannot be deprived of his or her promised future benefit.

FURTHERMORE, characterization of Social Security retirement contributions and benefits in terms of a tangible property/contract right to the individual will force the federal government to control its spending. Of course, another option is to privatize Social Security. Under a privatized Social Security system, workers would have full property rights in their retirement accounts. They would own the money in them, the same way people own their IRAs or 401(k) plans. Congress would have no right to touch that money.

Diane - BLOG PIC (fall 2015) #2

THE FEDERAL JUDICIARY HAS BECOME DANGEROUS & DESPOTIC: A CONSTITUTIONAL AMENDMENT

SUPREME COURT - Judicial Supremacy

by Diane Rufino, July 11, 2015

US CONSTITUTION:  AMENDMENT PROPOSAL

An amendment to replace the States’ influence in the federal government since the 17th Amendment was adopted.

“…If no remedy of the abuse be practicable under the forms of the Constitution, I should prefer a resort to the Nation for an amendment of the Tribunal itself.”  — James Madison, in a letter to Thomas Jefferson, 1832

AMENDMENT PROPOSAL:

Whereas, “The Creator has made the earth for the living, not for the dead.  Rights and powers can only belong to persons, not to things.”  (Thomas Jefferson).  Rights and powers do not originate or belong to a government, unless that power is exercised for the People – on behalf of them – and NOT against them;

Whereas, the several States, by a compact under the style and title “Constitution for the United States,” and of amendments thereto, voluntarily constituted a general government for special common purposes;

Whereas, the several States are parties to the compact (Constitution), with the people of said States acting in their own conventions to consider, debate, deliberate, and ratify it;

Whereas, our government structure is predicated on separation of powers between the States, as sovereigns, and the federal government, which is sovereign with respect to certain responsibilities;

Whereas, this separation of powers, known as federalism, is a critical feature of our government system, intended to safeguard the “precious gem” of individual liberty by limiting government overreach;

Whereas, there is no provision in the Constitution nor any grant of delegated power by which the States can be said to have (willingly or intentionally) surrendered their sovereignty, for it is clear that no State would have ratified the document and the Union would not have been established;

Whereas, the States were too watchful to leave the opportunity open to chance and using an abundance of caution, insisted that a series of amendments be added, including the Tenth Amendment, as a condition of ratification and formation of the Union;

Whereas, the Preamble to the Bill of Rights expressed the unambiguous intention of those amendments, and reads: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution”;

Whereas, that relationship between the states and the federal government is defined by the Tenth Amendment, which reads:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”;

Whereas, the critical relationship has been eroded through the many Supreme Court decisions which have transferred power from the States to the federal government in order to enlarge its sphere of influence;

Whereas, the federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself, and as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions.

Whereas, the federal government has created for itself an absolute monopoly over the possession and scope of its powers and has consistently assumed powers it wasn’t meant to have – misappropriating them from the States and from the People;

Whereas, the federal government has used said monopoly to change the nature of the Constitution and redefine its terms without using the lawful route, Article V;

Whereas, the particular security of the people is in the possession of a written and stable Constitution. The branches of the federal government have made it a blank piece of paper by construction;

Whereas, the federal government, through the consolidation and concerted action of its branches and said monopoly, the government has created a government that is bloated, vested with illegitimate powers, coercive, wasteful, corrupt, and out of touch with the People, is one in which less than a quarter of the people have trust in, and most importantly, is one that poses serious threats to the exercise of the freedoms that Americans are promised;

Whereas, the right of judging on infractions of inherent powers is a fundamental attribute of sovereignty which cannot be denied to the States, and therefore they must be allowed to do so;

Whereas, the States need a voice directly in the federal government in order to break up its monopoly and to serve as the only effective check to prevent unconstitutional laws from being enforced;

Therefore, in order to reverse the unintended concentration of power in the federal government and in order to divest it of powers it has misappropriated and assumed for the past 200 years

And Therefore, in order to replace the States’ influence in the federal government since the 17th Amendment was adopted, to recognize their sovereign right to meaningfully defend their sphere of power embodied in the Tenth Amendment, and to have them, as the parties who created and adopted the Constitution and from which the government’s powers derived, be the tribunal which offers the opinions of constitutionality, the following amendment is proposed to alter the make-up of the Supreme Court:

  • The Supreme Court’s membership will increase from 9 to 50. This way, citizens don’t incur the outrage that comes from a decision handed down by a mere 9 mortals, each motivated like other politicians with politics, legacy, passions, opinions, prejudices, personal preferences, ideology, etc., or the more outrageous situation of a 5-4 decision.]
  • Justices to the Supreme Court will be assigned by the States. Each state will select one justice to the Court. That justice will be selected by the particular state legislature (or popular referendum).
  • Justices selected by each state MUST have a documented history of adherence to the original meaning and intent of the Constitution and MUST have cited supporting documentation for its meaning and intent, including the Federalist Papers and the debates in the various state ratifying conventions. [Any change to the Constitution, including to reflect “modern times,” must be in the form of an amendment].
  • Justices can serve an unlimited term, but that term can be shortened upon a showing of incompetence, disloyalty to the state, or by violating the previous provision.
  • Justices will require each law passed by Congress to be prefaced with the particular grant of delegated Constitutional power which grants legal authority for that law. [Having 50 justices will allow the Court to render an initial opinion on the constitutionality of each piece of legislation, thus giving Congress the opportunity to be more cautious and responsible with its office.]
  • The first task of the newly-seated Supreme Court will be to review the federal budget for spending that is not constitutional. The analysis will be used to remind Congress what are the constitutional objects of spending, to adjust federal taxation, and to help return policy-making and legislative power to the states.
  • The next task of the newly-seated Supreme Court will be to invalidate all federal mandates (*) and eliminate all funding the government uses or plans to give/offer the states through “conditioned” grants or other forms of funding, contractual or otherwise. [Mandates are directly in violation of the 10th Amendment to the Constitution of the United States; Congress may not commandeer the legislative and regulatory processes of the states. With respect to federal grants and other forms of funding, if the government’s budget includes funds to “bribe” the states and otherwise attempt to influence state policy or planning, then it clearly overtaxes. Bribing the states or otherwise paying for any of its internal functions or projects is not one of the objects for which Congress can tax and spend under the Constitution. Such funding will end and the reduced federal tax rate will allow the states themselves to tax according to their own schemes to fund their own projects.]
  • The Supreme Court’s new membership will establish new constitutional law jurisprudence. They not be bound by any previous court decision and will agree to establish continuity in jurisprudence only among their own decisions.
  • Congress will not attempt to limit jurisdiction on this newly-organized Supreme Court in an attempt to frustrate the intent of this amendment.
  • Because the Constitution is the peoples’ document – their shield against excessive government in their lives and affairs – the justices will honor the rightful expectation that it is firm and unambiguous in its meaning. “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”  [Justice William Patterson, in Vanhorne’s Lessee v. Dorance(1795)]. A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed.  The purpose of having a stable and firm constitution is so that when government transgresses its limits, the people can immediately recognize such action. [Thomas Paine].  Any change in the meaning of the US Constitution will be sought through the amendment process provided in Article V.

Diane - BLOG pic (Independence Mall) - BEST

INTRODUCTION:

There is one principle upon which the Supreme Court should most firmly stand united. It is explained, proclaimed, assured in Federalist #78: “There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.  To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

The servant has indeed become more powerful than the master.

The reason the servant has become more powerful than its master is because the Supreme Court has expanded and re-defined the authority granted to the Congress and to the Executive in the US Constitution. And in order to do so, it first had to expand and re-define its own authority, which it did in 1803 – only 12 years after it heard its very first case (in 1791).

The first question we must ask is this:  What is a constitution?  A constitution is instrument by which authority for government is delegated from its natural depository. As the Declaration of Independence makes abundantly clear, the laws of Nature and God’s Law have established that man himself is vested with this authority. There is a natural order…  First there is man, then there are communities when men join together, and finally, there is government established by social compact whereby rules and laws are established so that men can live successfully among one another, enjoying security and without surrendering their essential rights and liberties (including property). Thomas Paine, in his publication Rights of Man (1791-92), wrote:  “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.”  In other words, government action needs legitimate authority and that authority must be spelled out so that people know at which point power is being abused.

Justice William Patterson explained in more detail the significance of a constitution in one of the Supreme Court’s earliest cases, Vanhorne’s Lessee v. Dorance (1795):  “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”   He continued:

“In England, the authority of the Parliament runs without limits, and rises above control. It is difficult to say what the constitution of England is; because, not being reduced to written certainty and precision, it lies entirely at the mercy of the Parliament: It bends to every governmental exigency; it varies and is blown about by every breeze of legislative humor or political caprice. Some of the judges in England have had the boldness to assert, that an act of Parliament, made against natural equity, is void; but this opinion contravenes the general position, that the validity of an act of Parliament cannot be drawn into question by the judicial department: It cannot be disputed, and must be obeyed. The power of Parliament is absolute and transcendent; it is omnipotent in the scale of political existence. Besides, in England there is no written constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different: Every State in the Union has its constitution reduced to written exactitude and precision. What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the Creator, and the other of the Creature. The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all Legislative, Executive and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, as absolutely void…..

      I hold it to be a position equally clear and found, that, in such case, it will be the duty of the Court to adhere to the Constitution, and to declare the act null and void. The Constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both Legislators and Judges are to proceed. It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government.”

What makes the Constitution stable and permanent is the strict and consistent understanding of its terms and its intent.   James Madison, who is considered the author of the Constitution, advised: “If we were to look for the meaning of the instrument [Constitution] beyond the face of the instrument, we must look for it, not in the general Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.”

BACKGROUND:

In 1776, the 13 original British colonies in America sent delegates to a general congress, who there, for the colonies they represented, made the declaration “that these united colonies are, and of right ought to be, free and independent states.”  The permeating principle pronounced and proclaimed in the Declaration of Independence was that every people had the right to alter or abolish their government when it ceased to serve the ends for which it was instituted. Each State decided to exercise that right, and all of the thirteen united (with their representatives pledging their lives, their fortunes, and their sacred honor) to seek independence from Great Britain. A long war ensued. After a heavy sacrifice of life and treasure, the Treaty of Paris was negotiated in 1783, by which Great Britain recognized the independence of the States separately, not as one body politic, but severally, each one being named in the act of recognition.

In 1777, the delegates from each of the thirteen States, met once again in the general congress and agreed to “certain articles of confederation and perpetual union between the States.”  They agreed that the union formed would be a confederation of states. That no purpose existed to consolidate the States into one body politic is manifest from the terms of the second article, which was: “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in congress assembled.” The meaning of this article is quite plain.  Under the Articles, representation in the Congress of the Confederation was one vote per state, irrespective of population or the number of delegates in attendance, and the powers available were only those expressly delegated, with all others being reserved to the States separately. Under the Articles of Confederation, the War for Independence (Revolutionary War) was conducted.

On October 19, 1781, British General Charles Cornwallis surrendered his troops at the battle of Yorktown, Virginia, and the colonies were finally free!  It was not until September 3, 1783, with the signing of the Treaty of Paris, that the Revolutionary War came to its final conclusion.

In the face of the Declaration of Independence, and of the Articles of Confederation, and of the Treaty of Paris, it is clear that in 1783 each State was a sovereign, free, and independent community.

After the pressure and necessity of war was removed, it became clear that the “common government” – the Congress of the Confederation – was impracticable and ineffective to administer the general affairs of the Union; it would need to possess additional powers.  In 1786, 12 delegates from 5 states (NY, NJ, PA, DE, and VA) gathered at a tavern in Annapolis MD to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected. That was the limited purpose of the convention. Other states were supposed to attend but never made it in time.  (Under the Articles of Confederation, each state was largely independent from the others and the national government had no authority to regulate trade between and among the states).  Alexander Hamilton wrote the Convention’s final report and sent it to Congress. It explained that the delegates decided not to proceed on the business of their mission on account of such a deficient representation, but believed that there was an even more compelling reason to hold another convention. The delegates noted that the Articles possessed “important defects” and lacked enough power to be effective, and if the problems were not addressed, the perceived benefits of the confederation would be unfulfilled. As conveyed in the Report, the delegates to the Annapolis Convention decided that another conference, “with more enlarged powers” should be called and should meet in Philadelphia the following summer to “take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”

And so, the following year, May 1787, delegates from 12 of the 13 states (Rhode Island refused to send delegates), met in Philadelphia for the specific purpose of amending the Articles of Confederation.  They ended up proposing a new form of government (thanks to the dubious scheming and planning by James Madison).  The newly-drafted Constitution for the United States, a voluntary compact, was to be submitted to the States, and, if ratified by 9 of them, would go into effect as between the States so ratifying it.  As it turned out, 11 states ratified and the Constitution became effective in 1788 (with Washington being chosen unanimously by the electoral college to be the first president and the first Congress meeting in March 1789).  North Carolina finally joined the Union (ratified the Constitution) in 1789 after a Bill of Rights was proposed by James Madison in Congress and Rhode Island joined in 1790.  The old union under the Articles was replaced by “a more perfect” union under the US Constitution.

The Union was made “more perfect” because the general government thus created, would be more effective to provide certain common services for all the states. Each state, in adopting the Constitution, contended, believed, and certainly articulated that the general government was one of specifically enumerated powers only and that they reserved the residuary of sovereign powers for themselves, as individual states.

So fearful and apprehensive were the states that the common government would usurp sovereign state powers and attempt to enlarge its powers that they took several steps:

1). They designed a bicameral legislative body that included a body that directly represented the States’ interests.  Before the 17th Amendment was adopted, US Senators were selected by the state legislatures, including on a rotating basis if need be, specifically to provide a check on legislation that burdened states’ sovereign interests or exceeded constitutional authority.  The intent was to include an express federal element to the government structure and to provide an additional and critical Check and Balance on government. The sovereign states would jealously guard their sphere of power directly, at the source.

2). Two of the delegates to the Constitutional Convention (James Madison and Alexander Hamilton) went on to write a series of essays to explain and clarify the language and provisions of the Constitution to assure the states assembled in their state ratifying conventions that the document is one that creates a “common” government of very specified delegated powers.  These are the Federalist Papers, which to this day is the greatest authority on the meaning and spirit of the Constitution. The essays were explanations upon which the states relied in their decision to ratify, much the same way as parties to the purchase and sale of real property rely on contract terms and covenants when they agree to sign and be bound.

3). They conditioned their adoption of the Constitution on certain definitions and assumptions.

4). They demanded a Bill of Rights

5). They included “Resumptive Clauses”

6). The repeatedly referred to the Constitution as a “compact” between the states (the parties) to create a common government

7). They asserted their right of nullification and interposition (the refusal to acknowledge the legitimacy of a federal law passed by abuse any Constitutional power or as a result of usurping power from any State or the People themselves)

Alexander Hamilton wrote in Federalist No. 32:  “An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”

And James Madison wrote in Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

      The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.

And again, Hamilton write in Federalist No. 78:  “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

Even though such assurances were given, there were many who still did not trust that the Constitution could effectively check consolidation of power by the federal (common) government.  Such voices were particularly loud in the state ratifying conventions.  That is why several states either refused outright to ratify (such as North Carolina) or ratified only when promised that a Bill of Rights would be added. To emphasize exactly WHY the Bill of Rights was demanded by the states and why it was added, a preamble was included. The Preamble to the Bill of Rights reads: “Congress of the United States, in the City of New York, on March 4, 1789:  The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added to extend public confidence in the Government to best ensure the beneficent ends of the institution.”  In other words, the first ten (10) amendments were demanded by the States as a condition to joining together in a new Union in order to FURTHER LIMIT the scope of government (should they not understand the limits in Articles I – III) and to REMIND and RESTATE for the purpose of the federal government (all 3 branches) that the government is predicated on federalism – the notion of the states being sovereign and vested with all reserved powers not expressly delegated under Article I, Section 8 (nor prohibited to them under Section 9).

Aside from the Preamble to the Bill of Rights which again was specifically written to explain the reason and intention of the first ten amendments, several states inserted RESUMPTIVE CLAUSES into the adoption texts when they   officially adopted the Constitution.

The RESUMPTIVE CLAUSES were intentionally inserted because of a distrust of the government that would be created under the Constitution. They were meant as express conditions on adoption and continued membership in a Union ruled by a common government.  These states included New York, Virginia, and Rhode Island.  (It is most likely that North Carolina would have included one as well but was given firm assurances that James Madison would draft and send a Bill of Rights to the States to include in the Constitution for their protection).

New York was the eleventh State to assent to the compact of union, and her ratification was particularly important because she was seen as a potential hold-out to the ratification of the Constitution. It was a state dominated by many influential anti-Federalists, including its governor. To make her ratification conditioned on the understanding that only specifically delegated powers were intended for the federal government and nothing more, her ratification text included a declaration of the principles on which her assent was given (ie, a “Resumptive Clause”), which the following language: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right which is not, by the said Constitution, clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same…”

Rhode Island’s clause read: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.”  And Virginia’s clause read: “Having fully and freely investigated and discussed the proceedings of the federal Convention, and being prepared to decide thereon, do in the name and in behalf of the People of Virginia, declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

Reassumption (resumption) is the correlative of delegation.

At the time the Constitution was written and then submitted to the States for ratification, most of the Founders – and most notably, most Virginians and New Yorkers – saw the Constitution as a compact.  Reference to this was made in several Federalist essays (No. 39, 43, 44, 49, for example), in many anti-Federalist essays (written to urge skepticism of the Constitution and which prompted the writing of the Federalist Papers), and in several of the state ratifying conventions.  [Dave Brenner documents the compact nature of the Constitution in detail in his book, Compact of the Republic].  In fact, the term was commonly used for at least 100 years after. [See the various articles of secession by the southern states in 1861 and commentary explaining federalism and states’ rights].

James Madison wrote: “There is one view of the subject which ought to have its influence on those who espouse doctrines which strike at the authoritative origin and efficacious operation of the Government of the United States. The Government of the U.S. like all Governments free in their principles, rests on compact; a compact, not between the Government and the parties who formed and live under it; but among the parties themselves, and the strongest of Governments are those in which the compacts were most fairly formed and most faithfully executed.”

In his Report of 1800 to the Virginia House of Delegates, expounding on the Virginia Resolutions which addressed constitutional violations with the Alien and Sedition Acts of 1798), James Madison explained: “The resolution declares, first, that ‘it views the powers of the federal government as resulting from the compact to which the states are parties;’ in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties.  Clear as the position must seem, that the federal powers are derived from the Constitution, and from that alone, the committee are not unapprised of a late doctrine which opens another source of federal powers, not less extensive and important than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The committee satisfy themselves here with briefly remarking that, in all the contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground that the powers not given to the government were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th amendment, now a part of the Constitution, which expressly declares, “that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In 1798, in Supreme Court case Calder v. Bull, Justice Samuel Chase discussed the leading doctrines of American constitutional law with respect to states’ rights prior to the Civil War – the Doctrine of Vested Rights (the 10th Amendment) and the Doctrine of Police Powers.  He wrote: “The people of the United States erected their constitutions to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect persons and property from violence. The purposes for which men enter into society will determine the nature and term of the social compact; and as they are the foundation of legislative power, they will decide the proper objects of it. The nature and ends of legislative power will limit the exercise of it….  There are acts which the federal or state legislatures cannot do without exceeding their authority. There are certain vital principles in our fee republican governments which will determine and overrule an apparent and flagrant abuse of legislative power…..  An act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority.  There are certain vital principles in our fee republican governments which will determine and overrule an apparent and flagrant abuse of legislative power…..  An act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority…”

In The Federalist Papers, James Madison addressed the question, ‘On what principle the confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?’ He answered: “By recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”

As explained, constitutions speak to the very foundation of law. They provide the authority for a governing body.  Thomas Jefferson wrote: “Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it will be null and void.”  And Chief Justice John Marshall explained: “All laws which are repugnant to the Constitution are null and void.” (Marbury v. Madison, 1803).  Authority is not without limits, otherwise a written constitution would not be necessary. And so there are boundaries. For a government to take a step beyond such boundary would result in a nullity. Nullification is a doctrine that derives not only from the “compact theory” of the Union, but derives from the very nature of constitutions in general.  Nullification essentially states that a law made without legitimate, delegated legal authority is null and void and is not enforceable (on a State or on the People). It is a remedy to prevent government overreach and abuse.  As an effective remedy, of course, the offending law must be identified and then affirmative efforts must be made to prevent its enforcement. Nullification flows from the nature of the Constitution and as such it fundamental and foundational.  It flows from the fact that the Constitution is a compact….  an agreement by parties (the States) to be bound in a union and thereby abiding by the responsibilities (burdens, including the burden of delegating some of its sovereign powers) while benefitting by its service.

As the leading authority on Nullification, Thomas Woods, explains: “The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.  The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people.  Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose.”

Thomas Jefferson and James Madison were the Founders (are most influential, to be sure) who articulated Nullification most clearly.

In the Kentucky Resolutions of 1798, Jefferson wrote:

  1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

In the Kentucky Resolutions of 1799, he wrote:

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that anullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy……

In the Virginia Resolutions of 1798, James Madison wrote:

RESOLVED……. That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

The point is that the Constitution created a common government of limited delegated powers.  The delegation of sovereign powers had to come from somewhere, and because of the declaration of liberty proclaimed in our founding document, the Declaration of Independence, we know those powers came from the States, and the People themselves. Any delegation of sovereign individual rights is always temporary in nature and any delegation of state powers is temporary as well.  Any assumption of powers not expressly delegated to government remains with the States and People, and every time any branch of government exceeds its delegated powers, it usurps them from the rightful depositories.  The States and our Founders took every possible opportunity to ensure that the government would remain limited in size and scope.  Their goal, their vision was to use the power of the states to limit the power of the federal government. It was the unique design feature that would ensure the greatest degree of freedom and bring to life the promises in the Declaration of Independence.

THESE are the principles upon which the general government was created.  This was the common understanding of the states in forming the Union.

Supremacy Clause (cartoon - States saluting Constiution)

DISCUSSION:

As predicted and despite the numerous warnings, by such esteemed intellects as Patrick Henry, Thomas Jefferson, and George Mason (to name a few), members of the federal government have attempted, and have almost always succeeded, in concentrating power in all three branches.  They have weakened the status of the states at every turn. It began, unfortunately, when the very father of our nation, George Washington, supported the very proposition rejected at the Philadelphia Convention and in the ratifying conventions — that the Constitution is not only one of expressly enumerated powers but one of “implied” powers as well (thus enlarging at the time the federal taxing power). And then came the devastating decision by the Supreme Court in 1803 in Marbury v. Madison which proclaimed, without any provision in the Constitution as support, that its decisions on constitutional matters are binding upon the other branches of government, on the States, and on the People.

The monopoly that we see today by the federal government over the meaning and intent of the Constitution, as well as the scope of its powers, was clearly beginning to take shape in 1803.

The Civil War was an unfortunate time in our history.  While the creation of the first National Bank (1791) and then the passing of the Alien and Sedition Acts (1798) posed the scenarios of what would happen if the federal government attempted to usurp or re-define its powers and what would happen if the government passed laws violative of the Constitution, the Civil War showed us what would happen if the government refused to respect its status under the Declaration of Independence and instead decided to seek its own self-preservation rather than protect the rights of the parties which created it as the agent. In other words, the Civil War presented the case of a rogue government.  Yet, at the end of the Civil War, the Constitution essentially remained unchanged except for the addition of the Reconstruction era amendments – the 13th, 14th, and 15th amendments.  The balance of power between the States and the federal government, as embodied in the Constitution, remained intact. It was only when the Supreme Court decided to re-interpret and twist and mold the 14th amendment that federalism was significantly eroded.

But then the coup de grace….  the passage of the 17th amendment.

The 17th amendment was added to the Constitution, making Senators elected and accountable only to the people. As we all know, because of the transient nature of habitation – the ability of people to move freely from state to state – as well as the overwhelming influence of immigration, the interests and concerns of the people are most often not the interests and concerns of the state as a sovereign unit. Now Senators cannot be removed for bad voting behavior for six years and have an incredible opportunity and incentive to become not only rogue representatives but to become agents of the government rather than agents of the people.

With the passage of the 17th amendment, the monopoly was firmly established.

And from that point on, the federal government has grown by leaps and bounds, mostly at the hands of a few cloaked individuals.  The turn of the century (1900) saw the rise of the omnipotent and omniscient Supreme Court.  For that, we have Chief Justice John Marshall to thank, with his decision in the landmark case of Marbury v. Madison, as mentioned above.  Thomas Jefferson was president at the time and wrote to Abagail Adams to comment: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

Dave Brenner discusses the Marbury decision excellently in his book Compact of the Republic.  Of course, the “compact” is the Constitution itself.  In the book, Brenner writes: “John Marshall’s Supreme Court became the very representation of what the anti-Federalists feared the most – a judiciary that overstepped its own authority and ruled on state law.  Through sweeping court decisions, the Marshall Court carved out the foundations for how the Supreme Court would be perceived more than 200 years later: as a powerful, decisive oligarchy that overturned state law and bound the states to its opinions.”

The book continues:

One of the last actions of the John Adams administration was to pass the Judiciary Act of 1801. This act would become known by Adams’ political opponents as the ‘midnight appointments’ because Adams literally worked feverishly to write and sign the commissions in the last days of his presidency.  Adams hoped to methodically extend the power of the Federalists by appointing relatively large groups of (Federalist) civil officers that would serve for life. One of the commissions was written for William Marbury, an avowed Federalist who Adams wished to make Justice of the Peace for the District of Columbia. 

      The Senate confirmed the appointment of Marbury and many of the other judges. It remains clear that Jefferson, as the newly-inaugurated president, instructed James Madison, the new Secretary of State, not to deliver the remaining commissions to the ‘midnight judges.’  The Constitution did not require him to grant commissions to judges he did not appoint, and it was clear that he did not wish to extend the Federalist judiciary.  After the incredibly contentious 1800 presidential election, Jefferson clearly viewed that contest as a referendum on Federalist rule….

As a result, Marbury brought suit, seeking as his relief a writ of mandamus, an order by the court requiring Jefferson to deliver his commission and thereby allowing him to take his position.

Writing the decision, Chief Justice Marshall held that part of the Judiciary Act – the part that gave rise to Marbury’s commission – was unconstitutional, and therefore he was not entitled to the relief he sought. It would be the first time the US Supreme Court declared an act of Congress to be unconstitutional. The analysis should have ended right there. But Marshall went further. He wrote: “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”  The decision concluded by saying that “a law repugnant to the Constitution is void, and courts, as well as other departments, are bound by that instrument.” It was the first time a federal court proclaimed judicial supremacy. It was the first time a federal court proclaimed that federal courts have the final say on what the Constitution means.  In other words, this decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and once it has rendered its opinion, all the other branches, the States and the people are to bound by that decision. As the Supreme Court likes to remind everyone: “This principle has ever since been respected by this Court and the County as a permanent and indispensable feature of our constitutional system.”  (Cooper v. Aaron, 1958)

Marbury’s declaration of judicial supremacy ignores the opinion in Vanhorne’s Lessee v. Dorance (1795).  [See above].

It is interesting to note that the Supreme Court would not declare another act of Congress unconstitutional until 1957, when it struck down the Missouri Compromise in Dred Scott v. Sanford].  From that point until June of this year, 2016, the high court has only declared approximately 174 acts of the US Congress (whether in whole or in part) to be unconstitutional, which would amount to about 1 statute per year].

Up until this case, most Founding Fathers and many legal scholars understood that the role of the judiciary was to “render” or “offer” an opinion, to be considered by the other branches.  Indeed, when ratifying the Constitution, the understanding was that the Supreme Court would not have a monopoly over its meaning and interpretation.  Alexander Hamilton assured the state delegations in Federalist No. 78:  “Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will be least in a capacity to annoy or injure them….    “The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

In Federalist No. 49, Hamilton wrote: “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance?”

Again, in Vanhorne’s Lessee v. Dorance, Justice Patterson emphasized: “It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government.”

Without authoritative language in Article III of the Constitution, it was believed that all three branches of the federal government would interpret the Constitution, and check usurpations of power by the other branches. Additionally, some believed that state courts would have the right to determine constitutionality as well.  Article III, Section 1 reads: “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”  Section 2 lists the types of cases that the courts can hear, including the Supreme Court, and whether those cases have original or appellate jurisdiction).

Indeed, the Constitution does not speak to judicial supremacy, and no one claimed that the federal courts would have a monopoly on determining the constitutionality of all government action.

What the Constitution DOES speak to is Separation of Powers and Checks and Balances.  The officials of two branches are elected by the People. If they are unpopular, the People can use their power at the ballot box. We can see where the Legislative and the Executive can check each other (although clearly, the Legislative branch was vested with the most power; Congress is the People’s house). But nothing makes sense about having a third branch, NOT elected by the people but appointed solely on political and social ideology for a term that doesn’t expire, that is supreme to the others.  What makes sense is that a branch that is not accountable to the people was intended to be exactly what Alexander Hamilton said it would be — the least dangerous branch.

James Madison, the author himself of the Constitution, asked: “I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments.”   Furthermore, he wrote: “Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the judicial authority.”  Thomas Jefferson was of the same opinion. He wrote: “Each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”

These great men recognized the threat to government balance should the view be otherwise.  “As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper,” wrote Madison.  Jefferson wrote: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

In 1820, after witnessing the ready willingness of men once infatuated with the simple language of Constitution and the limited nature of the government, to alter their positions once they sat in a position of power on the Supreme Court, Thomas Jefferson wrote:  “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.”

More than any other branch of government, the US Supreme Court in particular has undermined and destroyed America’s onetime democratic republic. It has chiseled away and eroded the protections promised and pledged to each American by the Declaration of Independence and the boundaries of government established by the US Constitution adopted by the states in their ratification conventions during the years 1787- 1791.  The justices to the Supreme Court are appointed by the President (approved by the Senate, and are rarely denied, except when they are “Borked”), and enjoy permanent tenure with a fixed income for life. They are selected according to ideology only, in the supreme attempt by a president to determine “policy” from the bench. That is, they want the Court to interpret the Constitution in the most liberal manner possible (according to the “Living Document” approach, which means that the Constitution means whatever they decide it means) or according to the letter and spirit under which it was adopted.  It matters not to those who wish a very liberal reading of the Constitution that there is a legitimate way to alter its meaning and interpretation – and that is according to Article V – the “amendment process.”

Speaking about the “human” nature of justices which can cloud their decisions, one often hears someone comment that President Obama “must have something very damaging on Chief Justice John Roberts” to explain why he would have written two very constitutionally tortuous decisions on the healthcare bill in order to save it for the federal government. Judge Andrew Napolitano opined publically that Roberts used tyrannical power to find ways to save Obamacare.  He said the Court “violated every grant of authority and ignored every historical and reliable treatise on the role and limitations of the Court as a branch of government, including those written by the very men who wrote and ratified the Constitution.”  The justices that look to the actual (intended) meaning and spirit of the Constitution (the “strict-constructionists) wrote dissenting opinions and essentially agree with Judge Napolitano.  Justice Scalia offered the most scathing dissent and in fact ended by simply saying “I dissent” rather than the usual “I respectfully dissent.”  Scalia accused the majority of disregarding the plain meaning of words and re-defining terms and called the decision “pure applesauce.”  He accused his colleagues of doing “somersaults of statutory interpretation” and wrote: Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”  When he wrote “We should start calling this law SCOTUScare,” he was sarcastically hinting that the statute owes its existence more to the Supreme Court than to Congress.

A few weeks ago (June 26, 2015), in Obergefell v. Hodges, the Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person, and therefore protected under the Due Process and Equal Protection Clauses of the 14thAmendment, and accordingly couples of the same-sex may not be deprived of that right and that liberty. Journalist Frank Turek explained why the decision rests on a fatal flaw. Back in March, he penned an article (in anticipation of the case) and wrote: “The Supreme Court is about to decide if the 14th amendment to the United States Constitution requires the states to redefine marriage to include same sex relationships. There are several reasons why the answer is no. The most decisive of these reasons is the fact that when the 14thamendment was passed in 1868, homosexual behavior was a felony in every state in the union … If the people of the United States have ‘evolved’ on the issue, then the Constitution provides them with a very clear and fair way for the document to intelligently ‘evolve’….  They need to convince a supermajority of federal and state legislatures to amend the Constitution. That’s the very reason our Constitution has an amendment process!  If we fail to use the amendment process and permit judges to substitute their own definitions and judgments for what the people actually meant when they passed the law in the first place, then we no longer govern ourselves. Why vote or use the political process if unelected justices strike down our laws and impose their own as they go? … It’s a pretext that allows judges to invent rights and impose any moral (or immoral) position they want against the will of the people.”  Liberty interests are those enshrined in the Bill of Rights. The Bill of Rights were included in the Constitution to make sure that the federal government (only) would never violate them. The ‘incorporation doctrine’ is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the 14th amendment’s Due Process clause. But the Supreme Court, even up until the 1960s, has held that not all the interests outlined in the Bill of Rights are to be incorporated. The only sections of the Bill of Rights that federal courts should apply against state action, according to the Court, are those that have been “historically fundamental to our nation’s scheme of ordered liberty.”  When a federal court reviews a case claiming an asserted right is one protected under “substantive due process” (due process involving “liberty interests”), the court usually looks first to see if there is a fundamental right by examining “if the right can be found deeply rooted in American history and traditions.”  Because the incorporation test includes the clarifiers “historically” or “deeply rooted in American history and traditions,” in making its determination, the Court must look back to the era in our country’s history beginning from our founding up until the adoption of the 14thamendment – or it SHOULD.  Just as not all proposed “new” constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.  Although the Supreme Court has stated in prior decisions (see Loving v. Virginia) that marriage is a fundamental right, the historical perspective is that marriage is between heterosexual couples. The idea of a “fundamental right to marry” invites controversy.  The notion of a “fundamental right” implies firm privileges which the state cannot deny, define, or disrespect unless it finds that the challenged law was passed to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest (ie, the “strict scrutiny” test).  But marriage rules (who can marry, health records required, what formalities are required for marriage, the legal ramifications of marriage, etc) in the United States have always been subject to almost complete state control (pursuant to its traditional police powers).  As the dissent points out: “Removing racial barriers to marriage (Loving v. Virginia) did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases ‘presumed a relationship  involving opposite-sex partners.’  In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage, as traditionally defined, violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. What petitioners seek is not the protection of a deeply-rooted right but the recognition of a very new right.”   Re-definition of marriage is something society decides as a whole, through the legislature.  It is not the role of a court. “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”  Another dissenting opinion states: “The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

On June 26, the day the ruling was released, Texas Governor Greg Abbott issued a scathing criticism: “The Supreme Court has abandoned its role as an impartial judicial arbiter and has become an unelected nine-member legislature. Five Justices on the Supreme Court have imposed on the entire country their personal views on an issue that the Constitution and the Court’s previous decisions reserve to the people of the States.”

Thomas Paine wrote:  “A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal.”  The Supreme Court, while improperly assuming the power to decide what powers the states have and what they don’t have and thereby shuffling power from the states to the federal government, has ushered in an era of a technically illegal government.

With respect to the federal judiciary, Thomas Jefferson wrote: “This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”

Furthermore, he wrote: “The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”  (in a letter to Spencer Roane, 1819)

Similarly, he wrote: “The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. The opinions are often delivered by a majority of one, by a crafty Chief Judge who sophisticates the law to his mind by the turn of his own reasoning.”   (in a letter to Thomas Ritchie, December 1820)

And again, he commented: “The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”    (in a letter to Charles Hammond, August 18, 1821)

Joseph Story, in his Commentaries on the Constitution (1833), wrote: “The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defense of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.” 

US Rep. Joseph Nicholson (1770-1817) warned:  “By what authority are the judges to be raised above the law and above the Constitution? Where is the charter which places the sovereignty of this country in their hands? Give them the powers and the independence now contended for and they will require nothing more, for your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation, as they are not to be affected by any laws which the people by their representatives can pass. If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is, as its enemies have called it, mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws; they may laugh the legislature to scorn and set the nation at defiance.”

If the federal government acts outside the scope of its delegated and carefully enumerated powers, and has sanction by the Supreme Court, then it’s no better than an armed mob.  While a mob has the power of organized civil unrest and perhaps violence to coerce and strip others of rights and liberty, the government assumes a power of law to coerce and deprive.

By design, the separation of functions into separate branches (Separation of powers) and the system of checks and balances that our Founding Fathers provided has always been intended to act as a safeguard against the federal government’s potential tyranny and oppression. The history of the Supreme Court shows how, almost immediately, it began to enlarge certain clauses in the Constitution – the Necessary and Proper Clause, the Commerce Clause, and the General Welfare Clause. Patrick Henry called these “sweeping clauses” because he felt they might ultimately be used by the federal government to sweep authority away from the states.  And he was right. Not only has the Court interpreted the clauses as positive grants of power to Congress but it has also interpreted them as limitations on the States to regulate internally, for their own interests and for their citizens. The Commerce Clause, for example, has been interpreted broadly to give the government extreme powers to regulate commerce, both interstate and intrastate.  It has also been interpreted to prevent states from regulating commerce within their borders and also to prevent individual farmers, for example, from growing too much wheat on his property for fear that he may consume that which he grows and thus not engage in commerce (thus affecting commerce!)  The General Welfare clause has become an independent grant of power to Congress rather than as a statement of purpose qualifying the power to tax.

On July 9, 1868, during the Reconstruction era – the era when the US Congress radically transformed the southern states – the 14th amendment was added to the Constitution. As the nation entered the 20th century, not only did the Supreme Court have the “sweeping” or “elastic” clauses, but all of a sudden, it had this brand new tool in its arsenal to sap power from the States.  Beginning in 1925, it began to incorporate the Bill of Rights as prohibitions against the States, through the Due Process clause of the 14th amendment. In this first case, Gitlow v. New York, the 1st amendment’s Guarantee of Free Speech was applied to the states.  Through the “Incorporation Doctrine,” the Court has held if the federal government cannot burden the rights recognized in those amendments, the states may not either. And so the trend continued, particularly in the second half of the 20thcentury and now into the 21st century. By turning again and again to the 14th amendment, the Supreme Court has overturned state laws restricting the rights of speakers (and most recently, allowed states to censor speech), has struck down state laws permitting prayer in public schools, has forced states to remove Christian symbols from public property and forced them to censor prayer before state and local meetings, has forced them dismiss gender identify in marriage laws and required them to redefine marriage, has forced them to forcibly integrate schools and now to forcibly integrate neighborhoods, and has overturned state laws restricting the rights of criminal defendants, private property owners, gun owners, members of racial and ethnic minorities, and others.  In short, the Supreme Court has used its unchecked power at the bench to use whatever authority or non-authority it wishes in order to neuter the states, recreate the United States as a boundary-less, one-size-fits-all nation, cookie-cutter type nation, and usher in sweeping social change.  Typically today, as we have seen year after year, cases that pit the rights of states against the power of the federal government are usually decided by a closely-divided Supreme Court, with Justice Anthony Kennedy acting as the swing voter. It’s hard to imagine that a mere difference in opinion, represented by a 5-4 majority, can abolish traditional norms and dismantle historic institutions, and thus change the entire social landscape of a nation.

At one point, the clear meaning of the Bill of Rights was recognized, as stated in its Preamble: “The Conventions of a number of the states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, in order to extend the ground of public confidence in the Government and will best ensure the beneficent ends of its institution.”  The Bill of Rights was clearly intended as a set of limitations on the powers of the federal government.

This point was emphasized by the Marshall Court in 1822.  In the case Barron v. Baltimore, a profitable businessman suffered losses due to the buildup of sand in the Baltimore Harbor and particularly in the area of his wharf, denying him the deep waters he needed.  He then sued the city for the losses caused by the sand-build up.  In the decision, Chief Justice Marshall found that the limitations on government articulated in the 5th amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the 5th amendment was not applicable to the states.  The decision read:

Had the framers of the Bill of Rights intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protections from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”

The Bill of Rights was NEVER intended to be applicable to the States. If that was even a consideration at the time that the States were debating whether to adopt the Constitution, they never would have done so.

Despite the efforts by the Supreme Court to twist constitutional jurisprudence, the 14thamendment was not intended to make the Bill of Rights applicable to the states.  It was an amendment passed in 1868 in somewhat conjunction with the 13th amendment in order to make sure that the civil rights of the newly-freed blacks would not be infringed.  Under the original Constitution, citizens of the United States were required to be first a citizen of some State, which is something that blacks could not claim (thanks to the Dred Scottdecision).  This is why it was imperative for the first section to begin with a definition of citizenship so that no State could refuse recognition of newly freed slaves as U.S. citizens and thereby leaving them with less protection and remedies under State laws of justice compared with a white citizen. The goal and function of the 14th amendment’s first section was to give legal validity to the Civil Rights Bill of 1866. The goal of both the Civil Rights Act and then the amendment was to put an end to criminal black codes established under former rebel States that at the time were being administered under policies of President Andrew Johnson.  The author of the language of the 14th amendment, Rep. John Bingham of Ohio admitted that he borrowed the language for both the Due Process and Equal Protection clauses from Chapters 39 and 40 of the Magna Charta.  He further explained:

(a)  That the privileges and immunities of citizens of the United States refer only to those privileges and immunities embraced in the original text of the Constitution, Article IV, Section II.  [See House Report No. 22, authored by Rep. Bingham on January 30, 1871]

(b)  That “citizens of the United States, and citizens of the States, as employed under the 14th amendment, did not change or modify the relations of citizens of the State and the Nation as they existed under the original Constitution.”

As Alan Mendenhall writes that any debate over the 14th amendment must address the validity of its enactment. “During Reconstruction, ratification of the amendment became a precondition for the re-admittance of former Confederate states into the Union.  [This has been termed] ‘ratification at the point of the bayonet’” because in order to end the military rule imposed by the victorious North during Reconstruction and in order to be allowed to have representatives in Congress, the southern states were required to ratify the 14thamendment. “The conditional nature of this reunification belies the claim that the Fourteenth Amendment was ratified by any mutual compact of the states.”  For this reason, and for many others that are legally, ideologically, and constitutionally sound, it should be emphasized that many learned constitutional scholars are convinced that the 14th amendment was never constitutionally – legitimately – adopted.

Just a few years after the (questionable) adoption of the 14th amendment, in 1873, the Supreme Court heard its first case addressing it, The Slaughterhouse Cases.  The cases were a consolidation of three suits challenging a Louisiana law that established the Crescent City Live-Stock Landing and Slaughtering Company and required that all butchering of animals in New Orleans be done in its facilities. The Louisiana law was enacted for health concerns; it wanted to control animal blood that was seeping into the water system.  The law seriously interfered with the businesses of individual butchers who were accustomed to slaughtering animals on their own property.  It not only required them to do their butchering away from the city at the facilities of the Crescent City Livestock Company, but also to pay a fee for doing so. The law essentially created a monopoly. Justice Samuel F. Miller, joined by four other justices, held that the 14thamendment protected the privileges and immunities of national and NOT of state citizenship. The case involved state regulations of slaughterhouses to address the health emergencies resulting from animal blood that was seeping into the water supply. In the opinion, Justice Miller wrote that the 14th amendment was designed to address racial discrimination against former slaves rather than the regulation of butchers:

The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship — not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution . . . . But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled.  To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed.  That its main purpose was to establish the citizenship of the negro can admit of no doubt.

       The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clear recognized and established.  We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs. . . speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.

      Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?  All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

       We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

      The war (the Civil War) being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive [the Emancipation Proclamation], both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored union as one of its fundamental articles.’

In other words, Justice Miller’s point is that the meaning and purpose of the 14thamendment is to negate the Dred Scott decision, legally establish citizenship rights to freed slaves and to ensure the privileges and immunities of national citizenship (as provided in Article IV, Section 2 of the US Constitution].  For example, as Miller explains, “the 15th amendment declares that ‘the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.’ The negro having, by the 14th amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.”  The 14th amendment does nothing to alter the relationship between the federal government and state governments, nor does it remove any sovereign state power that existed prior to the amendment.

Clearly, Justice Miller did not believe the federal government was entitled under the Constitution to interfere with authority that had always been conceded to state and local governments.

To be clear that the amendment did not include or intend the “incorporation doctrine,” another proposed amendment during the same era can confirm this.  In December 1875, Senator James Blaine of Maine (rhymes) proposed a joint resolution that would “incorporate” the 1st amendment’s guarantee of religious freedom as a limitation on the States.  It read: “

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

The amendment would become known as the Blaine Amendment. The effect was to prohibit the use of any public funds (federal or state) for any religious school. The bill passed the House but failed in the Senate. This amendment is significant (but ignored by the Supreme Court) because of this implication:  If the 14th amendment was already understood to apply the Bill of Rights against the States, then why would such an amendment even need to be proposed.  Furthermore, it was struck down by the Senate, particularly because it was seen as an improper effort to keep schools free from religion and also because it was seen as targeted religious persecution. The mid-1800s saw a great influx of Catholics into the country. They soon began establishing their own schools, where Catholic children could recite their own prayers and read from their own version of the Bible. The creation of these schools made many Protestants worry about whether the government would start funding Catholic schools and so the Blaine Amendment arose from this concern about the “Catholicization” of American education.

SUPREME COURT - government v. states

As explained above, prior to the 1890s, the Bill of Rights was held only to apply to the federal government, which was a principle solidified even further by the Supreme Court’s decision in 1922 in the case Prudential Insurance Company of America v. Cheek.  The case concerned the state of New York’s ability to restrict freedom of speech.  The decision read: “As we have stated, neither the 14th amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ or the ‘liberty of silence’; nor, we may add, does it confer any right of privacy upon either persons or corporations.”

In 1930, in the case Baldwin v. Missouri, the Supreme Court found that an inheritance tax imposed on intangible property (bonds and promissory notes) to property in Missouri held by a dying woman in Illinois violated the due process clause of the 14th amendment. Justice Oliver Wendell Holmes, a realist, was becoming worried that the Supreme Court was overstepping its boundaries with respect to the 14th amendment and scolded his fellow bench members in what would be one of his last dissents:

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the 14th amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the 14th amendment as committing to the Court, with no guide but the Court’s own discretion, the validity of whatever laws the States may pass.

Originalists (those who interpret the Constitution according to the original meaning and intent) and non-originalists alike have been skeptical over the years of the Court’s 14thAmendment substantive due process jurisprudence.  2 of the 3 current “originalist” members of the Supreme Court, Justice Antonin Scalia and Justice Clarence Thomas, reject the substantive due process doctrine, and Supreme Court Justice Antonin Scalia has called it a “judicial usurpation” and an “oxymoron.” [See Chicago v. Morales, 1999  andU.S. v. Carlton, 1994]   Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As he made obvious in his dissents in Moore v. East Cleveland and in Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick (the first Supreme Court sodomy case), he argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to “repeat the process at will.”  He further wrote that guaranteeing a right to sodomy would be the product of “judge-made constitutional law” and would send the Court down the road of illegitimacy.  While originalists generally do not support substantive due process rights, they do not necessarily oppose protection of the rights.  Rather, they believe in the paths that have been traditionally, and constitutionally, provided – through legislation and through the amendment process.

Yet despite the legislative history surrounding the amendment and established jurisprudence regarding the limited reach of the “Privileges and Immunities Clause” in theSlaughterhouse Cases, the Supreme Court would later turn to the Due Process and the Equal Protection clauses to strike down state laws.  As mentioned earlier, incorporation of the Bill of Rights into state law began with the case Gitlow v. New York (1925), in which the Supreme Court upheld that states must respect freedom of speech. By the last half of the 20th century, nearly all of the first 8 amendments were found to be incorporated into state law through the 14th amendment. (All except the 3rd amendment, and certain parts of the 5th, 7th, and 8th). The 9th and 10th amendments apply expressly to the federal government, and so have not been incorporated.  Despite its narrowly-intentioned purpose, the 14th amendment is cited in US litigation more than any other amendment.

The use of the 14th amendment as a sword against the States has blurred state boundaries and has all but reduced the state governments to looking after its day-to-day responsibilities. In most cases, the governments have become enforcement arms of the federal government.  What the government can’t do legislatively, judicially, or through executive action, it can accomplish through federal grants and funding (“money with strings”).

Again, the federal government is supposed to legislate only pursuant to the express powers delegated in the Constitution and for the express objects listed in Article I, Section 8.  The 10th amendment emphatically states that all remaining (reserved) sovereign powers remain with each State.  The definition of a “sovereign” includes the understanding that it has a fundamental, unquestioned right to make all necessary laws for those in its jurisdiction, as well as for its self-preservation and self-defense.  Our government system is based on the notion of Dual Sovereignty.  That is enshrined in the 10th amendment.  The federal government is sovereign when it comes to those objects that the States delegated to it under the Constitution and the states are sovereign when it comes to everything else.  In other words, when it comes to legislation and policy, the States have broad power within their individual spheres. Nothing written or originally intentioned in the Constitution (before the Court was given the chance to change things, through interpretation and judicial construction) has changed that balance.  And that is why the federal government has no “Police Powers.”  Only the states have police powers.  What are “police powers”?  In the United States, a state’s police power comes from the 10th Amendment, which gives states the rights and powers “not delegated to the United States.” States are thus granted the power to establish and enforce laws protecting the welfare, safety, health, and morality of its people.  The Supreme Court, at least until the turn of the 20th century (1905), has consistently held that the police power of a state embraces any law for such purposes that a state believes are necessary to protect and benefit its people, as long as such law does not infringe on any power delegated to the general government in the Constitution.  Morality is outside the jurisdiction of the Supreme Court because then the decision rests on the morality of the justices.  Welfare is a state issue, unless it is an issue that touches on “all Americans, in general.”  The Supreme Court must stick to an opinion based on the interpretation of the Constitution.

In 1932, Justice Brandeis, in the case New State Ice Co. v. Liebermann wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.” (dissenting opinion).  The term “states as laboratories of experimentation” is, of course, a not only a reference to federalism but a statement of one of its greatest benefits – innovation and solutions. The case concerned the constitutionality of an Oklahoma statute forbidding the manufacture and distribution of ice without a license. Under the challenged statute, the state was authorized to issue such a license only upon a showing “of the necessity for a supply of ice at the place where it is sought to establish the business.”  The plaintiff was denied a license because it was deemed that there was a sufficient supply.  A six-Justice majority invalidated the statute under the Due Process Clause of the 14th amendment as an unwarranted interference with the right to engage in private business in a lawful occupation.  In his dissent, Justice Brandeis laid out some of his growing frustrations with the Court’s substantive due process jurisprudence.  The full comment reads: “There must be power in the States and the Nation to re-mould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the 14thamendment, or the States which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity.  To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

In 1982, in the case Southcenter Joint Venture v. National Democratic Policy Committee, Justice Utter wrote:  “Federalism allows the states to operate as laboratories for more workable solutions to legal and constitutional problems.”  In that case, the Washington Supreme Court held that the Washington Constitution’s protection of free speech does not extend to privately owned shopping malls, thus not adopting the Supreme Court’s jurisprudence as relating the Free Speech from the federal perspective. Justice Utter criticizes the majority for borrowing heavily from federal precedents, contending that the Washington courts need not follow the Supreme Court’s lead.

In 1995, in United States v. Lopez, the Supreme Court struck down a federal law that criminalized the possession of a gun within 1000 feet of a school.  At the end of his concurrence, Justice Anthony Kennedy professed respect for areas of traditional state concern and the role of the states as “laboratories of democracy”:

While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.

        The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term. Justice Kennedy, in his concurrence, argued that the Commerce Clause should be read to allocate to the states exclusively the power to regulate gun use in school zones. This result, he wrote, is dictated by federalism, under which “the States may perform their role as laboratories for experimentation.”

In another case before the Supreme Court that same year, U.S. Term Limits, Inc. v. Thorton, Justice Kennedy described federalism as the Framers’ attempt to “split the atom of sovereignty.”  The case involved the (constitutional) qualifications for congressional office and the time, place, and manner of elections.

There are some state officials who urge their state legislatures to acknowledge their sovereign status and to look more to their own constitutions rather than to US Constitution. For example, Justice Bablitch of the Wisconsin Supreme Court wrote in 1991: “The Wisconsin Constitution is not and has never been intended to be a potted plant. It can serve, if this court chooses to give it life, as a bedrock of fundamental protections for all Wisconsin citizens…. Even the U.S. Supreme Court has recognized, if not encouraged, the use of state constitutions for just such a purpose. It is consistent with our deeply held notions of federalism, our notions that states should be encouraged to be the laboratories of the nation.. .. We may, in many if not most cases, reject an alternative interpretation [ie, construe the state constitution differently from the federal].  But we should at least look.”

To the Supreme Court justice, the historical record is of little importance or concern.  To be sure, the historical record hardly, if ever, mattered in their deliberations.  Rarely are the original debates and writings of the ratification conventions cited.  They have only been cited 122 times total in the over 30,000 cases they’ve ruled upon in the 225 years the high court has been deciding cases. They were only cited 30 times in the first 100 years of the Court’s existence – in the formative years. Sadly, they haven’t been consulted as the authority on the meaning and intent of the Constitution as they clearly are.  In fact, when the Supreme Court goes so far to side with Alexander Hamilton, an outlier at the Constitutional Convention (who wanted a monarchy), an outright enemy of the Constitution (wanted a consolidated government of unlimited powers), an ideological enemy of the very men who wrote the Constitution (went up against them during George Washington’s term with respect to the taxing power and the elastic clauses), and contradicted in words and actions the very assurances he wrote in the Federalist Papers, knowing that the Union would be predicted on those assurances, as opposed to James Madison, Thomas Jefferson, other Founders, and the leaders in the state conventions, there can be no other explanation than that the Court will do whatever it takes to seek the ends it desires.  If the original Convention (Philadelphia, 1787) and ratification debates were cited, they would have “served to refute every conflicting claim regarding the elastic clauses,” as Dave Brenner wrote, and would have served to refuse every illegitimate power grab they sanctioned.

With almost every decision, and certainly with decisions handed down during the Obama administration, the Supreme Court’s mantra has been: “WHERE THERE IS A WILL, THERE IS A WAY.”  It has shown that it will go through incredible lengths and legal acrobatics to save a federal law. It will distort the Constitution in ways the American people – including the intelligent ones – would never imagine.  Yet it will never do the same for the states.  While enlarging every possible delegation of power for the government, it has never once enlarged the states’ domain under the 10th amendment.  While reading every clause and every delegation in the broadest sense possible for the government, it has never once done so for the states.  And therefore, the delegate balance of power has shifted further and further towards Washington DC – a body of lawmakers and politicians who sit far away from, and secluded from, the communities where citizens live.

The shift is so striking and alarming that citizens are urging their state legislatures to assert state sovereignty and state representatives are submitting such bills and resolutions. These measures assert state sovereignty under the 10th amendment, re-assert their position that the government is one of delegated powers only, and emphasize that powers not delegated are reserved to the state.  Some of the measures go farther and announce that if the federal government continues to usurp powers, those efforts will be met with nullification and interposition.  Some states have already enacted various nullification bills. Indeed, nullification has never been such a popular topic. By mid-2009, ten states had already introduced bills and resolutions declaring and reaffirming their sovereignty, and another 14-15 states were considering it.  New Hampshire’s resolution (HCR 6) included a rather interesting and long dissertation and culminated in the statement “That any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of United States of America by the Constitution for the United States and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America. (The resolution was not passed by the state house, as it was deemed to be not judicious to do so).  Montana’s bill was very similar and it almost passed.

The shift is also so striking and so alarming that Americans are finally beginning to imagine how the colonists felt under British rule and why they would urge for separation from the mother country.  In some states, talk of secession is a regular part of talk radio (Vermont, for example), and has been for the past several years. In 2012, after a New Orleans resident petitioned the White House to allow Louisiana to secede from the United States, 69 separate petitions, spanning all 50 states, were filed with the White House (the “We the People” online petition system).  The site was launched on November 7, 2011, the day after Obama was elected for his second term.  President Obama had promised to respond to each petition that collected at least 25,000.  As of the deadline for the petitions, 47 states easily reached the threshold and some collected significantly more.  Texas, for example, collected over 100,000 signatures.  Most petitions made an excellent case for secession and separation from the federal government. States like New York explained that it would be far better off, economically especially, if it broke legal ties.

President Obama indeed responded.  Essentially the answer was NO….  A state has no right to secede. It is stuck with the federal government, whether it likes it or not.  This is the response the White House issued on January 11, 2013:

Our founding fathers established the Constitution of the United States “in order to form a more perfect union” through the hard and frustrating but necessary work of self-government. They enshrined in that document the right to change our national government through the power of the ballot — a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it. As President Abraham Lincoln explained in his first inaugural address in 1861, ‘in contemplation of universal law and of the Constitution the Union of these States is perpetual.’ In the years that followed, more than 600,000 Americans died in a long and bloody civil war that vindicated the principle that the Constitution establishes a permanent union between the States. And shortly after the Civil War ended, the Supreme Court confirmed that ‘the Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.’

        Although the founders established a perpetual union, they also provided for a government that is, as President Lincoln would later describe it, ‘of the people, by the people, and for the people’ — all of the people. Participation in, and engagement with, government is the cornerstone of our democracy. And because every American who wants to participate deserves a government that is accessible and responsive, the Obama Administration has created a host of new tools and channels to connect concerned citizens with White House. In fact, one of the most exciting aspects of the We the People platform is a chance to engage directly with our most outspoken critics.”

Essentially, the site, the initiative by the government was a ruse; a mere “feel-good” initiative.  It gave the people the illusion that they flex their muscles and their voice and have their frustrations heard and internalized.  As Commodus’ sister Lucilla told her conniving brother in the movie GLADIATOR: “Give the people their illusions.”  As we watched the freight train that is the Obama administration forge full speed ahead with his plans, we sadly note that the voices of frustration never gave our president a moment’s pause.

The people used to believe in our system of checks and balances – especially the courts – to reign in the violent swings in government from side to side (extreme left and extreme right) and restore a tolerable balance in government. The people used to believe they had a voice in their government through the ballot box. But being constrained by an aggressive two-party system where neither party offers voters any hope of reigning in the tentacles of government or divesting it of the objects of its spending. What fringe groups fail to achieve at the ballot box, they can achieve through the activism of progressive courts.  Judges no longer uphold or strike down legislation, based on their legitimacy; for quite some time now, they’ve also been in the business of legislating from the bench.  For the most part, federal courts have become the enemy of the people.  Representatives run for congressional office, and even for president, on a platform of promises, pretending that their allegiance is with their people. And then when they take their oath and assume their office, their allegiance changes. They clearly become agents for the federal government, putting its goals above those of their constituency.  Political leaders move along ideological line, even within the same party, making sure that grassroots voices and other voices of frustration can never translate into political weight. Mark Levin commented once that political leaders act like Josef Stalin, cleaning out all opposition in the Kremlin. Power corrupts.  There is a reason that Americans have never viewed the federal government with more distrust.  Since the passage of the Affordable Care Act, only about 22% of Americans feel they can trust their government.  That percentage is less for Congress alone.  Less than a quarter of Americans believe that their representatives take their concerns to heart.  Less than that believe they can change the course their government is on.  [See Pew Research].

When you have a candidate who runs not on economic promises but on a promise “to protect your phone” (that is, to protect your right not to have the government collect your messages), then you know that all is certainly not well in the United States. When people are fighting an ideological war with their government leaders over its right to censor your speech, to tell you that you can’t display a flag, to force you to violate your sacred rights of conscience, to control your healthcare decisions, to force you to purchase its insurance policies, to put you on a Homeland Security Department watch list simply because you adhere to traditional notions of government and society, to outfit the IRS with 16,000 new goons to investigate you to enforce Obamacare alone, to question your right to own and possess a gun for your safety, and to force you to live in a one-size-fits-all, borderless society that defies laws of science and human nature, then you know your government has become hostile to the reasons it was created in the first place.

Frustration with the federal monopoly is growing.  Limits need to be restored and reliable Checks and balances need to be put into place. Otherwise, our sunset years will be spent reminiscing about what it was once like to live in the greatest, freest country on Earth.

Right now, we have to ask: Who watches the watchers?  The Supreme Court is untouchable. Its decisions are final; unreviewable. They stand as precedent (stare decisis) for as long as the justices themselves, and themselves alone, decide.  The Court’s nine justices decide the fate of both federal and state law, but of course, as it is a branch of the federal government, sitting in Washington DC, immersed in its politics and in closer contact with DC officials than state players, it is impossible to see how it can be an impartial tribunal. The federal government will never divest itself of its powers, even though most of them are misappropriated, stolen from the States and the People.

As explained earlier, the three branches of government have worked to support one another rather than check one another. The US Constitution was written in plain and simple language so that every American could understand it and understand the boundaries of government on his or her life. People know when their government – this government – has transgressed limits and has overstepped its authority.  When ordinary people can figure it out and then watch as the branches do what they do to allow the conduct to go forward and affect their lives, they have no confidence in their government structure. They don’t believe there are reliable procedures in place to arrest the growing evil and tyranny that we all understand government has displayed. Liberty, which is defined as the extent to which people can exercise their freedoms, is secure when there are such procedures in place and government can be contained.  The transformation of government from that of limited powers to one of vast concentrated powers by its decisions has undermined the liberty interests of the People. The most important and powerful check on the abuse of government, as discussed above, is the separation of government powers among two sovereigns; dual sovereignty.  The 10th Amendment reminds us of the balance of power: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  By pitting the two sovereigns against one another, the balance is maintained.  Each one jealously guards and protects its sphere of power.  The only problem is that one sovereign has a monopoly over the determination of its sphere. The federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself.  And as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions. The other sovereign, the States, have no chair at the table.  And the only way our system can work — that is, work to protect the rights of the people rather than promote its own interests and longevity – is if the states get that chair at the table.

“If it be conceded that the sovereign powers delegated are divided between the General and State Governments, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself…. The existence of the right of judging of their powers, so clearly established from the sovereignty of States, as clearly implies a veto or control, within its limits, on the action of the General Government, on contested points of authority . . . . to arrest the encroachment.”   [John C. Calhoun, South Carolina Expositionand Protest, 1828]

In light of this mandate, and in light of the fact that it has been the Supreme Court, as the self-appointed final tribunal to decide on constitutional matters which has done the most harm to the precarious balance built into our government structure, the following amendment should be proposed and passed in order to effect meaningful change to the federal judiciary and to our government structure in general.  In short, the amendment proposes to alter the manner in which justices are appointed to the Supreme Court.  With the proposal, justices will no longer be appointed by the President but instead will be appointed by each state.  Rather than 9 justices, the membership of the Court will increase to 50, thereby giving the tribunal more credibility. The common – or federal – government will finally have a representation of the states in, to ensure fairness and equal representation of sovereign interests.

It is a moral imperative that we should seek to restore the proper balance.

How fitting, and ironic it should be to end this proposal for a constitutional amendment with a line from Chief Justice Roberts in his infamous healthcare decision (NFIB v. Sibelius, 2012):  “The States are separate and independent sovereigns. Sometimes they have to act like it.”

References:
James Madison, Report on the Virginia Resolutions, Jan. 1800; Elliot 4:546–50, 579.

House of Delegates, Session of 1799–1800. (aka, Madison’s Report of 1800).  Referenced at:  http://press-pubs.uchicago.edu/founders/documents/v1ch8s42.html

Allen Mendenhall, “Is the Fourteenth Amendment Good,” Mises Daily, January 2, 2015.  Referenced at:  https://mises.org/library/fourteenth-amendment-good

P.A. Madison, “Historical Analysis of the Meaning of the 14th Amendment’s First Section,”Federalist Blog, last updated August 2, 2010.  Referenced at: http://www.federalistblog.us/mt/articles/14th_dummy_guide.htm

Frank Turk, “Why the 14th Amendment Can’t Possibly Require Same-Sex Marriage,”Townhall, March 17, 2015.  Referenced at: http://townhall.com/columnists/frankturek/2015/03/17/why-the-14th-amendment-cant-possibly-require-samesex-marriage-n1971423/page/full

Prudential Ins. Co. of America v. Cheek, 259 U.S. 530 (1922)

Barron v. Baltimore, 32 U.S. 243 (1833)

Marbury v. Madison, 5 U.S. 137 (1803)

Vanhorne’s Lessee v. Dorance, 2 U.S. 304, 308 (1795).  Referenced at: https://supreme.justia.com/cases/federal/us/2/304/case.html

The Slaughter-House Cases, 83 U.S. 36 (1873)  – The first US Supreme Court interpretation of the 14th amendment

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

Baldwin v. Missouri, 281 U.S. 586, 595 (1930)

Southcenter Joint Venture v. National Democratic Policy Comm., 780 P.2d 1282 (Wash. 1989).

United States v. Lopez, 514 U.S. 549 (1995)

State v. Seibel, 471 N.W.2d 226  (Wis. 1991) (Bablitch, J., dissenting)

US Term Limits, Inc. v. Thornton, 514 US 779 (1995)

Calder v. Bull, 3 U.S. 386 (1798)

Cooper v. Aaron, 358 U.S. 1 (1958)

Chicago v. Morales, 527 U.S. 41 (1999)

U.S. v. Carlton, 512 U.S. 26 (1994)

Moore v. East Cleveland, 431 U.S. 494 (1977)

Roe v. Wade, 410 U.S. 113 (1973)   [A woman has the fundamental right to have an abortion]

Bowers v. Hardwick, 478 U.S. 186 (1986)   [A gay man has no fundamental right to engage in sodomy and states are allowed to enact laws to prohibit the conduct. The Court will protect rights not easily identifiable in the Constitution only when those rights are “implicit in the concept of ordered liberty”]   Note: This case was overturned in Lawrence v. Texas, 2003, in which the Court said it had taken too narrow a view of substantive due process and liberty interests in the earlier case and now (that the strong voice in the Bowers case, Justice White, was no longer on the Court), the Court agreed that intimate consensual sexual conduct is a liberty interest protected by the substantive due process clause of the 14th Amendment].

Obergefell v. Hodges, June 26, 2015.  (Gay Marriage decision of 2015).    Referenced at: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

Dave Brenner, Compact of the Republic, Life and Liberty Publishing, Minneapolis, MN (2014).

The Kentucky and Virginia Resolutions, Bill of Rights Institute.  Referenced at: http://billofrightsinstitute.org/founding-documents/primary-source-documents/virginia-and-kentucky-resolutions/

Edwin S. Corwin, “A Basic Doctrine of American Law,” Michigan Law Review, Feb. 1914; pp. 247-250.  Referenced at:  http://www.jstor.org/stable/1276027?seq=1#page_scan_tab_contents.  [Addresses the case Calder v. Bull].

Jefferson Davis  [The Abbebille Review, June 2014.  http://www.abbevilleinstitute.org/review/the-doctrine-of-states-rights/

“Quotes from the Founding Fathers,” RenewAmerica, March 13, 2009.  Referenced at: http://www.renewamerica.com/article/090313

James A. Gardner, “The “States-as-Laboratories” Metaphor in State Constitutional Law,”Valparaiso University Law Review, Vol. 30, No. 2.  Referenced at:http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1888&context=vulr

James G. Wilson, “The Supreme Court’s Use of the Federalist Papers,” Cleveland State University, 1985.  Referenced at: http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1265&context=fac_articles

The White House Online Petition System, “Our States Remain United.  January 11, 2013.  Referenced at:  https://petitions.whitehouse.gov/response/our-states-remain-united

New Hampshire’s State Sovereignty Resolution (HCR 6 – “A Resolution Affirming States’ Rights Based on Jeffersonian Principles”)  –  http://www.gencourt.state.nh.us/legislation/2009/HCR0006.html

John C. Calhoun, South Carolina Exposition and Protest (1828).  Referenced at: http://www2.bakersfieldcollege.edu/kfreeland/H17a/activities/Ch11docs.pdf

Texas Governor Greg Abbott, press release (June 26, 2015).  Referenced at: http://gov.texas.gov/news/press-release/21131

Thomas Paine, Rights of Man (1791-1792).  Referenced at: http://www.let.rug.nl/usa/documents/1786-1800/thomas-paine-the-rights-of-man/

The Federalist Papers.  Referenced at:  http://avalon.law.yale.edu/subject_menus/fed.asp

* Federal mandates:  Federal mandates include requirements imposed on state, local, or tribal governments or on entities in the private sector that are not conditions of aid or tied to participation in voluntary federal programs.]

TIME TO CHANGE THE SUPREME COURT: RESOLUTION PROPOSING A CONSTITUTIONAL AMENDMENT TO CHANGE THE MEMBERSHIP OF THE SUPREME COURT

Supreme Court - caricatures

Written and Proposed by Diane Rufino

RESOLUTION PROPOSING A CONSTITUTIONAL AMENDMENT TO CHANGE THE MEMBERSHIP OF THE SUPREME COURT

An amendment to replace the States’ influence in the federal government since the 17th Amendment was adopted.

“…If no remedy of the abuse be practicable under the forms of the Constitution, I should prefer a resort to the Nation for an amendment of the Tribunal itself.”  — James Madison, in a letter to Thomas Jefferson, 1832

AMENDMENT PROPOSAL:

Whereas, “The Creator has made the earth for the living, not for the dead.  Rights and powers can only belong to persons, not to things.”  (Thomas Jefferson).  Rights and powers do not originate or belong to a government, unless that power is exercised for the People – on behalf of them – and NOT against them;

Whereas, the several States, by a compact under the style and title “Constitution for the United States,” and of amendments thereto, voluntarily constituted a general government for special common purposes;

Whereas, the several States are parties to the compact (Constitution), with the people of said States acting in their own conventions to consider, debate, deliberate, and ratify it;

Whereas, our government structure is predicated on separation of powers between the States, as sovereigns, and the federal government, which is sovereign with respect to certain responsibilities;

Whereas, this separation of powers, known as federalism, is a critical feature of our government system, intended to safeguard the “precious gem” of individual liberty by limiting government overreach;

Whereas, there is no provision in the Constitution nor any grant of delegated power by which the States can be said to have (willingly or intentionally) surrendered their sovereignty, for it is clear that no State would have ratified the document and the Union would not have been established;

Whereas, the States were too watchful to leave the opportunity open to chance and using an abundance of caution, insisted that a series of amendments be added, including the Tenth Amendment, as a condition of ratification and formation of the Union;

Whereas, the Preamble to the Bill of Rights expressed the unambiguous intention of those amendments, and reads: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution”;

Whereas, that relationship between the states and the federal government is defined by the Tenth Amendment, which reads:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”;

Whereas, the critical relationship has been eroded through the many Supreme Court decisions which have transferred power from the States to the federal government in order to enlarge its sphere of influence;

Whereas, the federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself, and as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions.

Whereas, the federal government has created for itself an absolute monopoly over the possession and scope of its powers and has consistently assumed powers it wasn’t meant to have – misappropriating them from the States and from the People;

Whereas, the federal government has used said monopoly to change the nature of the Constitution and redefine its terms without using the lawful route, Article V;

Whereas, the particular security of the people is in the possession of a written and stable Constitution. The branches of the federal government have made it a blank piece of paper by construction;

Whereas, the federal government, through the consolidation and concerted action of its branches and said monopoly, the government has created a government that is bloated, vested with illegitimate powers, coercive, wasteful, corrupt, and out of touch with the People, is one in which less than a quarter of the people have trust in, and most importantly, is one that poses serious threats to the exercise of the freedoms that Americans are promised;

Whereas, the right of judging on infractions of inherent powers is a fundamental attribute of sovereignty which cannot be denied to the States, and therefore they must be allowed to do so;

Whereas, the States need a voice directly in the federal government in order to break up its monopoly and to serve as the only effective check to prevent unconstitutional laws from being enforced;

Therefore, in order to reverse the unintended concentration of power in the federal government and in order to divest it of powers it has misappropriated and assumed for the past 200 years

And Therefore, in order to replace the States’ influence in the federal government since the 17th Amendment was adopted, to recognize their sovereign right to meaningfully defend their sphere of power embodied in the Tenth Amendment, and to have them, as the parties who created and adopted the Constitution and from which the government’s powers derived, be the tribunal which offers the opinions of constitutionality, the following amendment is proposed to alter the make-up of the Supreme Court:

  • The Supreme Court’s membership will increase from 9 to 50. This way, citizens don’t incur the outrage that comes from a decision handed down by a mere 9 mortals, each motivated like other politicians with politics, legacy, passions, opinions, prejudices, personal preferences, ideology, etc., or the more outrageous situation of a 5-4 decision.]
  • Justices to the Supreme Court will be assigned by the States. Each state will select one justice to the Court. That justice will be selected by the particular state legislature (or popular referendum).
  • Justices selected by each state MUST have a documented history of adherence to the original meaning and intent of the Constitution and MUST have cited supporting documentation for its meaning and intent, including the Federalist Papers and the debates in the various state ratifying conventions. [Any change to the Constitution, including to reflect “modern times,” must be in the form of an amendment].
  • Justices can serve an unlimited term, but that term can be shortened upon a showing of incompetence, disloyalty to the state, or by violating the previous provision.
  • Justices will require each law passed by Congress to be prefaced with the particular grant of delegated Constitutional power which grants legal authority for that law. [Having 50 justices will allow the Court to render an initial opinion on the constitutionality of each piece of legislation, thus giving Congress the opportunity to be more cautious and responsible with its office.]
  • The first task of the newly-seated Supreme Court will be to review the federal budget for spending that is not constitutional. The analysis will be used to remind Congress what are the constitutional objects of spending, to adjust federal taxation, and to help return policy-making and legislative power to the states.
  • The next task of the newly-seated Supreme Court will be to invalidate all federal mandates (*) and eliminate all funding the government uses or plans to give/offer the states through “conditioned” grants or other forms of funding, contractual or otherwise. [Mandates are directly in violation of the 10th Amendment to the Constitution of the United States; Congress may not commandeer the legislative and regulatory processes of the states. With respect to federal grants and other forms of funding, if the government’s budget includes funds to “bribe” the states and otherwise attempt to influence state policy or planning, then it clearly overtaxes. Bribing the states or otherwise paying for any of its internal functions or projects is not one of the objects for which Congress can tax and spend under the Constitution. Such funding will end and the reduced federal tax rate will allow the states themselves to tax according to their own schemes to fund their own projects.]
  • The Supreme Court’s new membership will establish new constitutional law jurisprudence. They not be bound by any previous court decision and will agree to establish continuity in jurisprudence only among their own decisions.
  • Congress will not attempt to limit jurisdiction on this newly-organized Supreme Court in an attempt to frustrate the intent of this amendment.
  • Because the Constitution is the peoples’ document – their shield against excessive government in their lives and affairs – the justices will honor the rightful expectation that it is firm and unambiguous in its meaning. “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”  [Justice William Patterson, in Vanhorne’s Lessee v. Dorance(1795)]. A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed.  The purpose of having a stable and firm constitution is so that when government transgresses its limits, the people can immediately recognize such action. [Thomas Paine].  Any change in the meaning of the US Constitution will be sought through the amendment process provided in Article V.

RESOLUTION PROPOSING TO ELIMINATE ARTICLE 1, SECTION 4 (“SECESSION PROHIBITED”) FROM THE NC STATE CONSTITUTION

Written and Proposed by Diane Rufino

RESOLUTION TO REMOVE ARTICLE I: SECTION 4 from the NORTH CAROLINA CONSTITUTION

This is a resolution to propose that Article I, Section 4 be removed from the NC state constitution, in part to acknowledge that the federal government unconstitutionally required the provision and in part to reassert state sovereignty

Whereas, Article I, Section 4 of the NC state constitution reads:  “Sec. 4.  Secession prohibited. This State shall ever remain a member of the American Union; the people thereof are part of the American nation; there is no right on the part of this State to secede; and all attempts, from whatever source or upon whatever pretext, to dissolve this Union or to sever this Nation, shall be resisted with the whole power of the State.”;

Whereas, in 1865, under orders from President Abraham Lincoln, North Carolina’s provisional governor, William W. Holden, called a convention to write a new constitution for the state and to submit it to the US Congress for approval as one of the preconditions for re-admission into the Union. Two requirements for re-admission were the ratification of the 13th amendment (to reject slavery) and a provision in the state constitution rejecting the right of secession;

Whereas, North Carolina was put in a seriously compromising position whereby she had no representation in the US Congress but would continue to be governed by its laws and policies.  Re-admission would allow representation;

Whereas, in order to be admitted back into the Union, the provision “secession prohibited” was included in the state constitution,

Whereas, the provision was added against the will of the people (the new constitution was rejected in a popular vote) and hence undemocratic;

Whereas, the US promises a republican form of government in every state (one of the very reasons Lincoln felt justified in waging the Civil War);

Whereas, the provision was added under coercion (and amounts to a “forced confession”);

Whereas, the provision is a badge of shame; it attaches a stigma to the state and the people of North Carolina as a result of being defeated and plundered by the North in the Civil War;

Whereas, the provision continues to punish North Carolina for daring to side with her neighbors in 1861 rather than invade and wage war against them.  [After seven states had already seceded, Secretary of War, Edwin Stanton, sent a telegram to NC Gov. Ellis telling him that North Carolina would be expected to furnish two regiments to make war on the seceded States. The governor closed his refusal with these words: “I can be no party to this wicked violation of the laws of the country, and to this war upon the liberties of a free people. You can get no troops from North Carolina.”];

Whereas, North Carolina had no intention of seceding UNTIL it became clear that she would be required to wage war against her sister southern states (the states she had more in common with), and hence was coerced into secession. [In 1861, after her neighbors had already taken action, NC sounded rejected a convention to vote on secession];

Whereas, while North Carolina voted against a convention and rejected secession, it never gave up its belief in two principles: first, that the Constitution is the supreme law of the land pursuant to the express delegations of power held therein, that those express delegations define the extent of its powers with each state holding reserve sovereign powers (tenth amendment), and that the Federal government could not force one State to fight another;

Whereas, after the Civil War was concluded, the US Constitution was never altered to redefine the relationship of the States to the federal government, and thus, the states continued to retain all its reserved rights of state sovereignty under the tenth amendment;

Whereas, the Preamble to the Bill of Rights continues to emphasize how important each of the rights and privileges expressed in the first ten amendments in the establishment of the Union, the design of government, and the harmony of our federation (united states).  [”The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution”];

Whereas, secession is an inherent right under a state’s sovereign powers, pursuant it its right of self-determination and self-preservation;

Whereas, secession is a fundamental right embodied in the Declaration of Independence [Under the Treaty of Paris, 1783, King George III acknowledged that the state of North Carolina, a sovereign state, had seceded from Great Britain];

Whereas, the right of secession being fundamental and inalienable, it can never limited by the federal government in any way, including by hiding behind the Constitution;

Whereas, the provision amounts to a forced denial of North Carolina’s fundamental right of sovereignty;

Whereas, the provision continues to punish the state for daring to remain loyal to founding principles of sovereignty;

Whereas, the provision acts as a badge of shame;

Whereas, the state of North Carolina, while recognizing all of the above as true, has no intention of abandoning its fellow states and leaving the Union.

Therefore, be it Resolved, that the People of the State of North Carolina demand that Article I, Section 4 be removed from the state constitution.

NC Flag

Time for Another Tax Revolution: Abolish the Federal Income Tax and the IRS With It!

IRS

by Diane Rufino, July 3, 2013

The 16th Amendment states: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

The Sixteenth Amendment, which gave the American people the affliction of confiscatory income taxes, is 100 years old this year. It was ratified on February 3, 1913.

One hundred years of affliction is a long time. The time has come for tax reform….   No, the time has come for a tax revolution.

The IRS, which is in charge of collecting the income tax revenue, is 138 years old.  It was created by President Abraham Lincoln in 1862. It has gone from being an agency that terrorizes citizens over their tax returns to an agency that terrorizes citizens based on their speech and political viewpoint. Wouldn’t it be nice if the American people, being in charge of their government, could walk into the massive IRS building in DC and deliver the line that has made Donald Trump famous: “You’re Fired!”

The Sixteenth Amendment was proposed in 1909 and adopted in 1913. The proposal of a constitutional amendment to give Congress the power to impose an income tax began as a scheme of political maneuvering that went horribly awry.  In fact, the proponents, House and Senate Republicans who were in a battle for a new tariff bill, proposed the amendment as a political trick and expected the proposal to be killed by the States during the ratification phase, thereby making a popular and political statement that the American people in general do not want an income tax. But the plan backfired.  A brief overview of the history of the income tax, including the Sixteenth Amendment in the United States is provided below.

The Founding Fathers had rejected income taxes, as well as any other direct taxes, unless they were apportioned to each state according to population. At the time of our founding, wealth was measured in terms of property rather than income. Property was the goal of freedom. One exercised his inalienable rights to “pursue” happiness and obtain property.  Our founders didn’t talk much in terms of “income.” They rejected the income tax entirely, but when they spoke of taxes they recognized the need for uniformity and equal protection to all citizens. “All duties, imposts and excises shall be uniform throughout the United States.”  “Direct Taxes shall be apportioned among the several States.”  “No direct tax shall be laid, unless in proportion to a census.”  This is what the US Constitution  reads. Then, the 14th Amendment promised “equal protection of the laws” to all citizens.  The principle behind the progressive income tax – the more you earn, the larger the percentage of tax you must pay – would have been appalling to the founders. They recognized that, in James Madison’s words, “the spirit of party and faction” would prevail if Congress could tax one group of citizens and confer the benefits on another group.

In Federalist No. 10, Madison asked, “What are the different classes of legislators but advocates and parties to the causes which they determine?” He talked about political factions, the reasons for them, the “mischiefs” presented by them, and apportionment of taxes. He wrote, most prophetically:

A faction is a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

      There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

      There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

       It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

       The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

       The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation….

       The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.

So, our founders took the view that taxation of wealth by the government should be equal and apportioned.

Before the Civil War, the government received most of it revenue through tariffs (that is, taxing goods as they came into the ports). The South, being an agricultural community, relied heavily on imports and therefore generated most of the tariff revenue for the government (at least 70%).  But then came the war, which meant ports were blockaded, ships were sunk, and in general, there was little money to spend on things that were not considered essential, and hence, there was almost no revenue from tariffs.  Besides, the southern states had seceded and formed a new county and so their tariff revenue did not go to the federal government. So during the Civil War, Congress decided to try an income tax. It devised a really clever plan to get people to pay. It made the tax returns public. Essentially what would happen was this: If your neighbor saw you driving around on a brand new plow, he’d inquire through the public record how much he reported on his income tax. In order to avoid scrutiny and accusations, the rich would pay their required taxes. And in fact, the income tax fell almost exclusively on the rich.

The financial requirements of the Civil War prompted the first American income tax in 1861. On August 5, Lincoln imposed the first federal income tax by signing the Revenue Act of 1861. Strapped for cash with which to pursue the Civil War, Lincoln and Congress came up with a tax scheme to impose a 3% tax on annual incomes exceeding $800. The Revenue Act’s language was broadly written to define income as gain “derived from any kind of property, or from any professional trade, employment, or vocation carried on in the United States or elsewhere or from any source whatever.” (Interestingly, according to the US Treasury Department, the comparable minimum taxable income in 2003, after adjustments for inflation, would have been approximately $16,000).  By 1862, however, the United States government realized that the war would not end quickly, and that revenue gained by this income tax would not be sufficient.  So the tax was repealed and replaced by another income tax, one of a progressive nature, in the Revenue Act of 1862.

Thus, it was the Revenue Act of 1862 that introduced the first progressive income tax in America.

The First Progressive Income Tax –

The Revenue Act of 1862 proved to be more effective at raising money to fund the War. It contained three main provisions: (i) it established the office of the Commissioner of Internal Revenue, a department in charge of the collection of taxes; (ii) it levied excise taxes on many (a majority of)  every day goods and services; and (iii) it introduced the first progressive tax.  Indeed, this new tax reflected the taxpayers’ “ability to pay” by separating citizens into multiple categories and taxing accordingly:

  • For individuals whose annual incomes were less than $600, no tax was collected.
  • For individuals whose annual incomes were greater than $600 and less than $10,000, a percentage of 3% of total income was demanded in tax.
  • For individuals whose annual incomes were greater than $10,000, a percentage of 5% of total income was demanded in tax.
  • The act also stated that in order to assure timely collection, income tax was “withheld at the source.”

After the war when the need for federal revenues decreased, Congress, in the Revenue Act of 1870, let the tax law expire in 1873. However, one of the challenges to the validity of this tax finally reached the Supreme Court in 1880. The challenge was brought by a taxpayer. In Springer v. United States, the taxpayer contended that the income tax on his professional earnings and personal property income violated the “direct tax” requirement of the Constitution; that is, that is needed to be apportioned among the states. The Supreme Court concluded that the income tax was not a “direct tax” but rather an “excise tax,” and hence did not need to be apportioned. The tax was upheld. [Excise taxes are taxes on the on the sale, or production for sale, of specific goods within a country. Excises are distinguished from customs duties, which are taxes on importation. Typical examples of excise duties are taxes on gasoline and other fuels, and taxes on tobacco and alcohol (sometimes referred to as sin tax].

Although the Revenue Act of 1862 was allowed to expire, government had already gotten a taste of the revenue that could be generated by taxing the income of American citizens, It wouldn’t be long before it looked once again to American purses. During the years of Reconstruction and rebuilding the nation, the growing industrial and financial markets of the eastern US generally prospered. But the farmers of the south and west suffered from low prices for their farm products, while they were forced to pay high prices for manufactured goods. Throughout the 1870′s and 1880′s, farmers formed various political organizations such as the People’s (Populist) Party and the National Farmers’ Alliance) and advocated for a graduated income tax to relieve them of their tax burden. And so, in 1894, a Democratic-led Congress passed the Wilson-Gorman tariff (a high tariff bill) which imposed the first peacetime income tax. The rate was 2% on income over $4000, which meant fewer than 10% of households would pay any income tax. The purpose of the tax was to make up for revenue that would be lost by tariff reductions. This was a controversial provision at the time and it was almost immediately struck down by the Supreme Court in 1895, in a case calledPollock v. Farmers Loan & Trust Company.  Once again, a taxpayer challenged the legality of the income tax. In Pollock, a taxpayer sued the corporation in which he owned stock, contending that they should never have paid the income tax because it was unconstitutional. In this case, the tax was paid on income from land, and Mr. Pollock argued that since a tax on real estate is a direct tax, then a tax on the income from such property must be a direct tax as well. Since the Constitution prohibited a “direct tax” unless certain conditions are met, Pollock argued that the income tax should be declared unconstitutional. (The “direct tax” argument had also been used by Mr. Springer in 1880, but because the income tax had been expired for eight years at that point, it is believed that the Court just wasn’t interested in looking closely at the wording in the Constitution and making distinctions between the different types of taxes).

The Court in Pollock held that the income tax was a direct tax and as such, it had to be apportioned among the states according to their populations, as the Constitution sets forth in Article I, Section 2, clause 3 and in Article I, Section 9, clause 4. Since the tax at issue was not apportioned, it was struck down as unconstitutional.

The provisions at issue in the Pollock (and Springer) cases are as follows:  Article I, Section 2, clause 3: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”  Article I, Section 8, clause 1 provides that “all duties, imposts, and excises shall be uniform throughout the United States.”  Article I, Section 9, clause 4 provides that “no capitation, or other direct tax shall be laid, unless in proportion to a census or enumeration herein before to be taken.”  Section 2 of the Constitution deals with the House of Representatives specifically. Section 8 gives to Congress certain enumerated powers. And Section 9 lists what is prohibited to Congress.

How does apportionment work, as per Article I, Section 2, clause 3?  How would an “apportioned” income tax work?  If an income tax is subject to apportionment, a state with one-tenth the national population, for example, has to bear one-tenth the aggregate tax liability, regardless of the state’s financial condition. Suppose the populations of Iowa and Maine were equal, but Iowa’s per capita income were twice Maine’s. The rates for an apportioned income tax would have to be twice as high in Maine, the poorer state, as in Iowa.

How is direct tax supposed to based on a census, as per Article I, Section 9, clause 4?  If the government desired to raise $10 million and New York had 20% of the total U.S. population at that time, then New York would be required to raise $2 million. If New York had 1 million residents, each resident would owe $2 in taxes. Obviously, a tax based on income could not achieve such proportionality, since incomes differed across individuals.

By the turn of the century, the progressive movement was entrenched in politics. It was the era of social unrest. The movement began after the Reconstruction era (the 1890′s) in order to modernize society to the new industrial age. The movement was based on the assumption that the old principles of our founding were no longer adequate and so it sought to reform society and the role of government by addressing certain economic, political, and cultural issues. The common view of the Progressive movement, aside from the dismantling of traditional institutions and founding principles, was that government would need to grow and be actively involved in these reforms at every level. Furthermore, it held that the existing constitutional system was too constrained and outdated and must be transformed into a dynamic, evolving instrument to effect social change. Another theme was that the focus of government on the rights of the individual would have to be surrendered to seek the best for society as a whole. In certain aspects, such as basic rights and protections for factory workers, the movement helped government serve society well. But in many other aspects, such as the movement’s inherent hostility and resentment of the wealthy and its need to increase taxation to seek social justice, government veered sharply from its constitutional course.

At the same time, as public sentiment was changing, so did the complexion of the Supreme Court. The idea of using a tax to “soak the rich” began to take root among liberals in both major parties. Several times the Democrats introduced bills to provide a tax on higher incomes but each time the conservative branch of the Republican party killed it in the Senate. The Democrats used this as evidence that the Republicans were the “party of the rich” and should be thrown out of power.

In a speech on April 14, 1906, President Theodore Roosevelt endorsed a progressive estate tax:

“It is important to this people to grapple with the problems connected with the amassing of enormous fortunes, and the use of those fortunes, both corporate and individual, in business. We should discriminate in the sharpest way between fortunes well-won and fortunes ill-won; between those gained as an incident to performing great services to the community as a whole, and those gained in evil fashion by keeping just within the limits of mere law-honesty.

      Of course no amount of charity in spending such fortunes in any way compensates for misconduct in making them. As a matter of personal conviction, and without pretending to discuss the details or formulate the system, I feel that we shall ultimately have to consider the adoption of some such scheme as that of a progressive tax on all fortunes, beyond a certain amount either given in life or devised or bequeathed upon death to any individual — a tax so framed as to put it out of the power of the owner of one of these enormous fortunes to hand on more than a certain amount to any one individual; the tax, of course, to be imposed by the National and not the State Government.  Such taxation should, of course, be aimed merely at the inheritance or transmission in their entirety of those fortunes swollen beyond all healthy limits.” 

In 1907, he stepped up his campaign for several progressive additions to the nation’s tax system. In his message to Congress on December 7, he urged lawmakers to consider an income tax:

      “When our tax laws are revised the question of an income tax and an inheritance tax should receive the careful attention of our legislators. In my judgment both of these taxes should be part of our system of Federal taxation. I speak diffidently about the income tax because one scheme for an income tax was declared unconstitutional by the Supreme Court; while in addition it is a difficult tax to administer in its practical working, and great care would have to be exercised to see that it was not evaded by the very men whom it was most desirable to have taxed, for if so evaded it would, of course, be worse than no tax at all; as the least desirable of all taxes is the tax which bears heavily upon the honest as compared with the dishonest man. Nevertheless, a graduated income tax of the proper type would be a desirable feature of Federal taxation, and it is to be hoped that one may be devised which the Supreme Court will declare constitutional.”

The inheritance tax was even more desirable, Roosevelt continued. Not only did it serve the cause of social justice, but it had been upheld by the federal courts:

“The inheritance tax, however, is both a far better method of taxation, and far more important for the purpose of having the fortunes of the country bear in proportion to their increase in size a corresponding increase and burden of taxation. The Government has the absolute right to decide as to the terms upon which a man shall receive a bequest or devise from another, and this point in the devolution of property is especially appropriate for the imposition of a tax. Laws imposing such taxes have repeatedly been placed upon the National statute books and as repeatedly declared constitutional by the courts; and these laws contained the progressive principle, that is, after a certain amount is reached the bequest or gift, in life or death, is increasingly burdened and the rate of taxation is increased in proportion to the remoteness of blood of the man receiving the bequest.”

Roosevelt rejected arguments that an estate tax would penalize thrift.

“A heavy progressive tax upon a very large fortune is in no way such a tax upon thrift or industry as a like would be on a small fortune. No advantage comes either to the country as a whole or to the individuals inheriting the money by permitting the transmission in their entirety of the enormous fortunes which would be affected by such a tax; and as an incident to its function of revenue raising, such a tax would help to preserve a measurable equality of opportunity for the people of the generations growing to manhood. We have not the slightest sympathy with that socialistic idea which would try to put laziness, thriftlessness and inefficiency on a par with industry, thrift and efficiency; which would strive to break up not merely private property, but what is far more important, the home, the chief prop upon which our whole civilization stands. Such a theory, if ever adopted, would mean the ruin of the entire country–a ruin which would bear heaviest upon the weakest, upon those least able to shift for themselves. But proposals for legislation such as this herein advocated are directly opposed to this class of socialistic theories. Our aim is to recognize what Lincoln pointed out: The fact that there are some respects in which men are obviously not equal; but also to insist that there should be an equality of self-respect and of mutual respect, an equality of rights before the law, and at least an approximate equality in the conditions under which each man obtains the chance to show the stuff that is in him when compared to his fellows.”

The Bailey Bill –

In 1909, progressives in Congress were talking once again about enacting an income tax. They were going to  attempt, once again, to attach a provision for an income tax to a tariff bill. President William Howard Taft had called Congress into a special session in 1909, shortly after his inauguration, to discuss the issue. He wanted Congress to address tariff reform. House of Representatives immediately passed a tariff bill sponsored by Sereno E. Payne (R-NY), the House Majority Leader, which called for reduced tariffs, but including an inheritance tax to make up for lost revenue. However, the Senate quickly substituted a bill, written by Senator Nelson W. Aldrich (R-RI), Senate Majority Leader and chairman of the Senate Finance Committee, which called for fewer reductions and more increases in tariffs. Aldrich was a long-time advocate of protective tariffs. His answer was to increase the amount of duty items. The problem, however, was that there was an impending budget deficit that had to be addressed. A protracted debate ensued, and progressive Republicans maneuvered to add an income tax amendment to the Aldrich bill. In April, Senators Joseph W. Bailey, a populist Democrat from Texas, and Albert B. Cummins, a progressive Republican from Iowa, introduced separate versions of an income tax provision.  A compromise version was reached between the two – which became known as the Bailey-Cummins amendment – for inclusion in the Senate bill. In response to this amendment, Senator Aldrich defiantly declared: “There will be no income tax, no inheritance tax, no stamp tax, and no corporation tax!”  It soon became evident, however, that the opposition, comprised of Democrats and progressive Republicans from the Midwest, had enough votes to force the issue in the Senate and thereby enact an income tax.  Seeking to avoid that humiliation, Aldrich met with President Taft.

In a message to a joint session of Congress on June 16, Taft first reiterated his support for tariff reform but warned of an impending budget deficit.  On June 16, in a joint message to Congress, Taft  In order to fend off Congress’ proposed initiative for an income tax but yet provide for a mechanism to raise the revenue necessary (while making tariff reduction possible!), Taft  recommended that Congress enact a tax of 2% on the income of a corporation “for the privilege of carrying on or doing business as a corporation in the United States.” (Taft predicted – accurately, as it would later turn out – that the Supreme Court would view the corporate tax as an “excise” tax and not a “direct tax”). In his message, President Taft also endorsed the idea for a constitutional amendment that would grant Congress authority to impose a progressive income tax.

The debate in Congress was whether to include the income tax provision (Bailey-Cummins amendment) or the corporate tax provision in the tariff bill. This was June. Progressive Republicans (also known as “insurgent” Republicans) were joining the Democratic block in support of the income tax.  Their position on income tax was summed up by comments made by Rep. William Sulzer (D-NY) on the House floor:

“I am now, always have been, and always will be in favor of an income tax, because, in my opinion, an income tax is the fairest, the most just, the most honest, the most democratic, and the most equitable tax ever devised by the genius of statesmanship. . . . At the present time nearly all the taxes raised for the support of the Government are levied on consumption—on what the people need to eat and to wear and to live: on the necessities of life; and the consequence is that the poor man, indirectly, but surely in the end, pays practically as much to support the Government as the rich man—regardless of the difference of incomes. This system of tariff tax on consumption, by which the consumers are saddled with all the burdens of Government, is an unjust system of taxation, and the only way to remedy the injustice and destroy the inequality is by a graduated income tax that will make idle wealth as well as honest toil pay its share of the taxes needed to administer the National Government.”

The showdown by Democrats and Progressives regarding the Bailey amendment was perhaps intentionally orchestrated. The theory was that after the regular Republicans rejected the bill, the Democrats could then point a finger at them and claim, for political purposes, that Republicans rejected the Bailey bill to protect their corrupt wealthy corporate friends. They would use the rejection as proof of such an alignment between Republicans and the wealthy.

The conservative Republicans knew what the Democrats were up to and they launched a counter move. Facing an embarrassing loss on the income tax issue, regular Republicans in the Senate decided to make a political maneuver, capitalizing on the endorsement of a constitutional amendment made by President Taft. They proposed a constitutional amendment that would impose an income tax on the rich. The theory behind their plan was that  when the States refused to ratify the amendment, the Republicans could use that failure as proof that the people, through their State legislatures, were against the idea of a new income tax.  They could then use that argument to defeat the Bailey Bill, for how could Congress approve an income tax against the rich after the people, through their state legislatures, had spoken on the issue. Conservative Republicans were sure they did their homework. They were most certain that it could and would be defeated when it went to the states for ratification. They calculated that there were more than enough conservative states to defeat the 3/4 majority that were required under Article V to approve an amendment.

Senator Norris Brown (R-NE) was the first to propose an income-tax amendment to the Constitution, on June 17, 1909, but it was rejected. On June 28, Senator Aldrich submitted a proposal (Senate Joint Resolution 40). It authorized Congress to “lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states and without regard to any census or enumeration.” It passed the Senate by a vote of 77 to 0, with 15 members abstaining. On July 12, the proposal passed in the house, by a vote of 318 to 14. The resolution proposing the 16th Amendment therefore passed the 61st Congress and was submitted to the state legislatures.

Once the amendment was submitted, it was clear that it had more support than was anticipated. Rep. Sereno Payne, a conservative Republican, was so concerned and was so convinced that their plan would backfire that he took to the House floor, denounced the resolution that he himself introduced in the House, and made a last-ditch effort to appeal to Congress:

As to the general policy of an income tax, I am utterly opposed to it. I believe with William Gladstone that it tends to make a nation of liars. I believe it is the most easily concealed of any tax that can be laid, the most difficult of enforcement, and the hardest to collect; that it is, in a word, a tax upon the income of honest men and an exemption, to a greater or lesser extent, of the income of rascals; and so I am opposed to any income tax in time of peace…I hope that if the Constitution is amended in this way the time will not come when the American people will ever want to enact an income tax except in time of war.”

Not all states were initially in favor of an amendment. The gamble that the conservative Republicans were taking at first seemed to pay off.  Many states realized that the imposition of a federal income tax would mean the rise of a federal revenue bureaucracy that extended from Washington, D.C., throughout the country and into the personal and business transactions of every American and every business. Private transactions would no longer be private; government would be able to monitor what everyone was doing.

Richard E. Byrd, speaker of the Virginia House of Delegates, voiced his concerns on March 3, 1910, during the debate on whether to ratify the 16th Amendment:

“It means that the state must give up a legitimate and long established source of revenue and yield it to the Federal government. It means that the state actually invited the Federal government to invade its territory, to oust its jurisdiction and to establish Federal dominion within the innermost citadel of reserved rights of the Commonwealth. This amendment will do what even the 14th and 15th Amendments did not do — it will extend the Federal power so as to reach the citizens in the ordinary business of life. A hand from Washington will be stretched out and placed upon every man’s business; the eye of a Federal inspector will be in every man’s counting house.

      The law will of necessity have inquisitorial features, it will provide penalties. It will create a complicated machinery. Under it, businessmen will be hauled into courts distant from their homes. Heavy fines, imposed by distant and unfamiliar tribunals, will constantly menace the taxpayer. An army of Federal inspectors, spies and detectives will descend upon the state. They will compel men of business to show their books and disclose the secrets of their affairs. They will dictate forms of bookkeeping. They will require statements and affidavits. On the one hand the inspector can blackmail the taxpayer and on the other, he can profit by selling his secret to his competitor.

      When the Federal government gets a strangle hold on the individual businessman, state lines will exist nowhere but on the maps. Its agents will everywhere supervise the commercial life of the states…. I am not willing by any voluntary act to give up revenue which the State of Virginia herself needs, nor to surrender that measure of state’s rights which was, and the construction of the Federal courts have permitted to remain.”

Much to everyone’s surprise, the amendment was ratified by one state legislature after another, and on February 25, 1913, with the certification by Secretary of State Philander C. Knox (Woodrow Wilson had just taken office), the Sixteenth amendment took effect.  “Soaking the Rich” was clearly a popular policy. “Shifting the growing burden of federal finance to the wealthy” make a lot of sense to those who, at the time, were sure they weren’t in the income bracket that would be targeted.  The end run of the Republican leadership did indeed backfire.

As James Madison had feared, the seeds of class warfare were sown in the strategy of different rates for different incomes.

Not only were conservative Republicans burned by their attempt to end Congress’ scheming for a progressive income tax by in fact ensuring that such a tax would become the law of the land, but the Payne-Aldrich Tariff Act of 1909 was also passed and signed by President Taft on August 5, 1909. (The corporate tax was reduced to 1% by the time the bill was signed)

[As a side note, the bill hurt Taft greatly, and in fact, would have disastrous consequences for the Republican Party in general. Lowering the tariff caused a big split in the party by pitting producers (manufacturers and farmers) against merchants and consumers. Failure to address tax reform was another sore spot. The debate split the Republican Party into Progressives and Old Guards and led the split party to lose the 1910 congressional election. Two years later, with the 1912 presidential election, the tariff issue continued to split votes amongst Republicans in most states, resulting in Democratic candidate Woodrow Wilson being elected. That was the election where Teddy Roosevelt returned to politics to “save the Republican party from Taft” by running for president under the new political party he created, the Progressive Party – commonly called the “Bull Moose.” He had entered the race too late and Taft has already secured the GOP nomination].

It turns out that Sixteenth Amendment was Congress’ way to get around the Pollock decision (much the way the 14th Amendment got around the Dred Scott decision) and enact an income tax, progressive in nature, without having to worry about whether the tax is classified as “direct” or not and whether it needs to be apportioned among the states on the basis of population.

It should be noted that there is credible evidence to suggest that the 16th Amendment was not properly and legally ratified pursuant to the requirements set out in Article V of the US Constitution (the “Amendment Process”).   See the Appendix for a summary of this evidence, as researched by Bill Benson.

How the Income Tax Grew –

On April 21, 1913, the House Committee on Ways and Means, chaired by Rep. Oscar W. Underwood (D-AL), took up consideration of a revenue bill, which included tariff reductions as well as an income tax. The Underwood bill (H.R. 3321) was heartily approved by the Democratic-controlled House but reached opposition in the Senate. While the bill was clearly a Democratic bill, it was the Democrats and regular Republicans that wanted the most modest progressive tax rates. It was the progressives, on the other hand, that wanted higher rates.  For the conservative (regular) Republicans and the vast majority of Democrats, wealth redistribution of any significance was not among the sanctioned uses. When Robert La Follette, the progressive Republican from Wisconsin proposed a maximum individual income tax of 10% and an inheritance tax reaching 75%,  John Sharp Williams (D-MS) protested that “the object of taxation is not to leave men with equal incomes after you have taxed them.”  Explaining that the Democrats had no such radical intentions for the power to impose an income tax, Williams declared:

No honest man can wage war upon great fortunes, per se. The Democratic party never has done it, and when the Democratic party begins to do it, it will cease to be the Democratic party and become the Socialistic party of the United States; or better expressed, the Communistic Party of the United States.”

Neither traditional Democrats nor regular Republicans were willing to use income taxation to redistribute wealth.  Such a radical policy was repudiated by all but a handful of Progressives and Populists on the fringe. Senator Henry Cabot Lodge (R-MA) warned that “it will be an evil day for us when we enter on confiscation of property under the guise of taxation.”  The income tax of 1913 was intended to raise revenue to finance tariff reduction and not to level incomes or to destroy the wealthy as a class. According to those representatives who looked at the income tax objectively, they believed it was only fair that the wealthy pay the bulk of the income tax because they benefited most from the high tariffs. In other words, they felt it was only “equitable” that they should contribute their “fair share” of the cost of government via the federal income tax.

On October 3, the Underwood bill was signed into law by President Woodrow Wilson. It enacted the first income tax – a minor income tax – under the authority of the new constitutional amendment. After decades of political controversy and conflict, the federal government once again had an income tax. To be sure, this was a minor levy. Most federal revenue still came from the tariff and federal excise taxes (especially those on alcohol and tobacco products).  Corporations were subject to a flat tax of 1%, with no exemption allowed and for individuals, a tax of 1% was imposed on income above $3,000 for single taxpayers (and above $4,000 for married couples). Those were very generous exemptions, as fewer than 4% of families had an annual income

of $3,000 in 1913. As a result, less than 1% of the population (or 2% of households) was subject to income taxation the first year of the new tax regime. With regard to the progressive aspect of the tax, there was a surtax of 1% imposed on income above $20,000 and 6% on incomes above $500,000.  Thus, the maximum marginal rate reached 7% on income above $500,000. In 1913, there were very few taxpayers in that upper bracket.  The tax provided for only a handful of exemptions, exclusions, and deductions, and the same tax rate applied to both earned and unearned income.

All that would change over the next 100 years. Even more dramatically, it would require only a few years for the federal income tax to become the chief source of income for the government, far outdistancing tariff revenues.  The age of big government had officially begun.

The Underwood Act defined taxable income as:

“….. subject only to such exemptions and deductions as are hereinafter allowed, the net income of a taxable person shall include gains, profits, and income derived from salaries, wages, or compensation for personal service of whatever kind and in whatever form paid, or from professions, vocations, businesses, trade, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in real or personal property, also from interest, rent, dividends, securities, or the transaction of any lawful business carried on for gain or profit, or gains or profits and income derived from any source whatever…”

And the Act then provided, in part:

  • An income tax of 1% on individual income over $3,000 (or $4,000 for married couples), up to incomes of $20,000.
  • A progressive surtax ranging from 1% to 6%, depending on income.
  • Returns for the new tax were to be kept secret
  • Exemptions for charitable organizations (using language from the 1894 and 1909 tariff bills with regard to charitable purpose – Under these statutes, tax exemption was granted to “any corporation or association organized and operated exclusively for religious, charitable, or educational purposes…” In other words, these organizations were to be considered “non-profits”; Under the 1913 bill, tax-exempt organizations could earn tax-free income from both mission-related activities and commercial business activities that were unrelated to the purpose for which they were exempt, as long as they used the net profits for exempt purposes. That would change with the Revenue Act of 1950)
  • Income taxes to be collected at the source, meaning that some kinds of income would be taxed before it reached the taxpayer, as with the modern system of tax withholding.
  • The Bureau of Internal Revenue established a Personal Income Tax Division to collect the new tax. (Recall that the IRS has its roots in the Lincoln administration. The position of Commissioner of Internal Revenue, within the Treasury Department, was created by the Revenue Act of 1862).
  • In general, it established the modern federal income tax system

When the Act was passed and sent out to the people, Congress predicted confidently that “all good citizen will willingly and cheerfully support and sustain this, the fairest and cheapest of all taxes.” And indeed it was harmless at first. The first tax ranged from merely 1% on the first $20,000 of taxable income and was only 7% on incomes over $500,000. Who could complain?  (How harmless was this tax?  Famed author, Cleon Skousen, put it this way: “If the tax was expressed in 1994 dollars, this sentence (above) would read, ‘the first tax ranged from merely 1% on the first $298,000 of taxable income and was only 7% on incomes above $7,460,000.’”)

In the beginning, hardly anyone had to file a tax return because the tax did not apply to the vast majority of America’s work-a-day citizens. As mentioned above, when the tax was first imposed, only 1% of the population was subject to a federal income tax.  In 1939, twenty-six years after the Sixteenth Amendment was adopted, only 5% of the population, counting both taxpayers and their dependents, was required to file returns. In 1994, more than 80% of the population were required to file and pay.  Today, it is 50% of the population.

Those who support this scheme of taxation are exactly what our Founders warned us about.  Thomas Jefferson wrote: “To take from one, because it is thought his own industry and that of his father’s has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.”    

Today, it is still a popular idea to tax the wealthy so that the less fortunate can live easier and more comfortably with their more modest salaries and without having any income tax liability. For example, 82% of Democrats polled in 2011 supported raising taxes on millionaires (compared to 54% of Republicans). In 2008, 58% of Americans (mind you, 48-49% weren’t required to pay income taxes) thought it was a good idea to raise taxes for the wealthy (by wealthy, they meant those who have an income in excess of $250,000)  in order to pay for “new government programs and tax cuts for those making less money,” as well as to help lower the nation’s deficit.

As our Founders would frown upon that mindset if they were here today, they would surely comment: Those who don’t respect the rights of others don’t deserve it for themselves.

American economist Thomas Sowell has written quite a lot about this mindset of allowing the government to arbitrarily decide what is considered “poverty” and what is considered “wealth.” When that happens, of course, classes of people are treated differently. Different sets of standards and rules apply, which is not what “Equal Protection of Laws” is all about. Even worse, Sowell writes, is allowing the people themselves to decide when others should be taxed. That is exactly what Founders like James Madison labored to avoid. He referred to a democracy as “mob rule.” He, as well as the other Founders, understood that individual rights could never be secure in a pure democracy. A republic – a constitutional republic – would be the system of choice.

A republic is representative government ruled by law (specifically, the US Constitution). That’s why we say that we are a nation of laws and not of men.  A democracy, on the other hand, is government ruled by the will of the majority (mob rule; “mobocracy”). Benjamin Franklin defined it as: “A democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!” And Thomas Jefferson defined: “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.”

A republic recognizes the unalienable rights of individuals (which no majority rule can violate) while democracies are only concerned with the wants or needs of a majority group. Social justice is easier to pursue when there is mob rule or when the rule of law disintegrates.

In a constitutional republic as ours, lawmaking is a slow, deliberate process, requiring approval (and surviving scrutiny) from all three branches of government, in order that cool heads prevail and the fairest laws are produced.  In a democracy, laws are passed by majority polls or voter referendums. 50% plus 1 vote (ie, the majority) is enough to take away anything away from the 50% minus 1 vote (ie, the minority). For purposes of this article, a perfect example would be this: If 51% of the people don’t pay taxes and want to keep up that lifestyle or even want more from those 49% that pay taxes, they can easily vote a tax increase. Income is no longer a protected property right in the United States, thanks to the Sixteenth Amendment, so in effect, taxation is subject to mob rule. And to the conscience of every elected official in Washington DC.

History records that democracies always self-destruct when the non-productive majority realizes that it can vote itself handouts from the productive minority by electing the candidate promising the most benefits from the public treasury. These candidates, in order to remain popular, must adopt ever-increasing tax and spend policies to satisfy the ever-increasing desires of the majority. As taxes increase, the incentive to produce decreases, causing many of the once productive to drop out and join the non-productive. When there are no longer enough producers to fund the legitimate functions of government and the socialist programs, the democracy inevitably collapses due to economic depression and chaos, and almost always, it is followed by some sort of dictatorship or socialist/communist regime. Prior to its decline (around 100-44 BC), Roman emperors couldn’t meet the demands of its poor They taxed heavily to provide “bread and circuses” (free grain, gladiator games) to the poor and the disillusioned – those who no longer valued historic Roman civic virtues. This system of state bribery worked for awhile; it placated them so that they wouldn’t riot and cause problems for the Emperor. “For the People who once upon a time took an interest in military command, high civil office, the legions, and the state of the republic, they now restrain themselves and anxiously hope for just two things: bread and circuses.” But in the end, the policies disillusioned too many Romans and the empire simply wasn’t worth fighting for any longer.

Back to Thomas Sowell and his views regarding the government’s power to arbitrarily decide what is considered “poverty” and what is considered “wealth” for purposes of re-distribution…  On that subject, he wrote:

“Leaders of the left in many countries have promoted policies that enable the poor to be more comfortable in their poverty. But that raises a fundamental question: Just who are ‘the poor’? … ‘Poverty’ once had some concrete meaning — not enough food to eat or not enough clothing or shelter to protect you from the elements, for example. Today it means whatever the government bureaucrats, who set up the statistical criteria, choose to make it mean. … Most Americans with incomes below the official poverty level have air-conditioning, television, own a motor vehicle and, far from being hungry, are more likely than other Americans to be overweight. But an arbitrary definition of words and numbers gives them access to the taxpayers’ money. This kind of ‘poverty’ can easily become a way of life, not only for today’s ‘poor,’ but for their children and grandchildren. Even when they have the potential to become productive members of society, the loss of welfare state benefits if they try to do so is an implicit ‘tax’ on what they would earn that often exceeds the explicit tax on a millionaire. If increasing your income by $10,000 would cause you to lose $15,000 in government benefits, would you do it? In short, the political left’s welfare state makes poverty more comfortable, while penalizing attempts to rise out of poverty.”   

“Soaking the Rich” or Re-distribution of Wealth? –

So, did the income tax actually “soak the rich” as the slogan described?  The wealthy, especially the super-wealthy, had anticipated the adoption of a progressive federal income tax and had created a clever device to protect their riches. It was called a “charitable foundation.” The idea was to co-sign the ownership of wealth, including stocks and securities, to a foundation and then get Congress and the state legislatures to declare all such charitable institutions exempt from taxes. By setting up boards which were under the control of these wealthy benefactors they could escape the tax and still maintain control over the disposition of their fabulous fortunes.

In fact, long before the federal income tax was in place, multimillionaires such as John D. Rockefeller, J.P. Morgan, and Andrew Carnegie had their foundations set up and operating. What they needed to do was make certain that the tax bill passed by Congress contained a provision specifically exempting their treasure houses from taxation. And sure enough, the Underwood bill included such a provision (Section 2, paragraph G). The bill borrowed language from the 1894 and the 1909 tariff bills, both of which provided exemptions for charitable organization. Under these statutes, tax exemption was granted to “any corporation or association organized and operated exclusively for religious, charitable, or educational purposes…” In other words, these organizations were to be considered “non-profits.” Under the 1913 bill, charitable (non-profit) organizations could earn tax-free income from both mission-related activities and commercial business activities that were unrelated to the purpose for which they were exempt, as long as they used the net profits for exempt purposes. (That would change with the Revenue Act of 1950; In 1950, Congress established the “unrelated business income tax,” or UBIT, which would be imposed on any activity that was not “regularly carried on” and “substantially related” to the organization’s charitable purpose).

Section 2, paragraph G provides: “Provided, however, that nothing in this section shall apply…to any corporation or association organized and operated exclusively for religious, charitable, scientific or educational purposes.” This magical provision locked up the riches of the super wealthy for all of their foundations were specifically designed to qualify under one or more of these categories.

Within a few years, President Woodrow Wilson would hijack the income tax to pay for WWI. He would tax the very wealth at 67% and then up to 77%.  On April 2, 1917, he stood before a joint session of Congress, requesting a declaration of war. This, of course, led to an even greater need for additional revenue. The debate over taxing versus borrowing to finance the war raged over several months across the country. Taxes would have to be increased.  But what taxes should be imposed, and by how much? Once again the question was raised as to whether to broaden the tax base or raise the rates on the wealthiest. The War Revenue Act of 1917 imposed a 2% tax on individual incomes over $1,000 (or $2,000 for married couples), featured graduated surtaxes reaching as high as 67% (63% on incomes over $1 million and 67% on incomes over $2 million), and increased a variety of excises and duties (including on automobiles). It also added an additional tax of 4% to the existing corporate income tax. Revenue grew exponentially. In the years prior to 1917, the Bureau of Internal Revenue (BIR) took in an average of about $281 million. In the years following the War Revenue Act of 1917, the average was $2.78 billion….   ten times the amount of tax revenue!

The Agency grew dramatically; it had to. The number of income tax returns that were filed after the Act of 1917 increased by over 1000%.

In his famous “Politics is Adjourned” address to a joint session of Congress on May 27, 1918, President Wilson made a strong pitch for more revenues. He urged: “Our financial program must sustain it to the utmost. Our financial program must no more be left in doubt or suffered to lag more than our ordnance program or our ship program, or our munitions program or our program for making millions of men ready.” In defense of the new taxes requested on war profits, he said the American people were not just willing to send their men to possible death overseas, but “to bear any burden or undergo any sacrifice” to win the war including taxes. “We need not be afraid to tax them, if we lay taxes justly.” If the American people know that the burden is being distributed equally, he went on, “they will carry it cheerfully and with a sort of solemn pride.”  Wilson made it sound almost as if Americans were actually seeking a tax increase in order to feel the joy of sacrificing their hard earned money for a righteous cause.

And so, the Revenue Act of 1918 (which actually passed in early 1919) increased taxes further. Corporations were given an exemption of $2,000, but rates were raised to 12% on net taxable income and the surcharge on the highest incomes was increased to 77%.  The income tax now occupied a central place in the federal revenue system. In 1916, income taxes had been providing 16% of federal revenue, but from 1917 to 1920, that percentage ranged as high as 58%. The tax was now a pillar of federal finance. Still, however, it remained a narrow levy on the American people. In 1920, only 5.5 million returns showed any tax due.

By 1919, there was a clear and broad consensus that held that steep wartime tax rates were unsustainable. Even Wilson himself finally agreed, and in his State of the Union that year, he suggested the possibility of reducing taxes.  A series of tax cuts (called Mellon tax cuts, for Andrew Mellon, the Treasury Secretary at the time) began in 1921, as legislators from both parties set about revising the wartime tax system. In the end, the tax cuts in the Revenue Act of 1921 were generally a disappointment for everyone and actually included a hike in the corporate tax rate.

Herbert Hoover and Franklin D. Roosevelt, using the excuses of depression and war, permanently enlarged the income tax. Under Hoover, the top rate was hiked from 24 to 63%. Under Roosevelt, the top rate was again raised – first to 79% and later to 90%.  [If he had his way, in 1941, a 99.5% marginal tax rate of 99.5% would have been imposed on all incomes over $100,000. That was his proposal. After that proposal failed, Roosevelt issued an executive order to tax all income over $25,000 at the astonishing rate of 100%. Congress later repealed the order, but still allowed top incomes to be taxed at a marginal rate of 90%].

It was one thing to impose taxes but another to collect them. The collection process was greatly facilitated in 1943 by a device created by President Franklin D. Roosevelt to pay the costs of WWII.  It was the tax withholding provision, also called “withholding from wages and salaries.” In other words, income tax would be collected at the source – collected at the payroll window before it was paid to the taxpayer.  Economists point out that this device, more than any other single factor, shifted the tax from its original design as a tax on the wealthy to a tax on the masses – mostly the middle class.

In 1946, Beardsley Ruml, then the chairman of the Federal Reserve Bank of New York, wrote an article in American Affairs in which he explained the real function of the income tax. The article was entitled “Taxes for Revenue Are Obsolete.” Ruml theorized that with the Federal Reserve, an institution and mechanism were in place to provide the federal government with a constant and virtually unlimited flow of dollars. That, of course, is inflationary, so Ruml believed that income taxes served the purpose of dampening inflation by lowering demand, a measure achieved by reducing the purchasing power of the masses by taking money out of their paychecks.

That was but one purpose of taxation, according to Ruml. The other was the redistribution of wealth from one class of citizens to another. Though done under the banner of social justice and equality, the real purpose was to supplant the decisions of a free people in a free market with the rule of the masters of a planned economy. As Ruml put it in his own words:

“The second principal purpose of federal taxes is to attain more equality of wealth and of income than would result from economic forces working alone. The taxes which are effective for this purpose are the progressive individual income tax, the progressive estate tax, and the gift tax. What these taxes should be depends on public policy with respect to the distribution of wealth and of income. These taxes should be defended and attacked in terms of their effect on the character of American life, not as revenue measures.”

T. Coleman Andrews, who served as Commissioner of the IRS for nearly 3 years during the early 1950s, made the following remarks after his resignation in 1955:

Congress, in implementing the Sixteenth Amendment, went beyond merely enacting an income tax law and repealed Article IV of the Bill of Rights, by empowering the tax collector to do the very things from which that article says we were to be secure. It opened up our homes, our papers and our effects to the prying eyes of government agents and set the stage for searches of our books and vaults and for inquiries into our private affairs whenever the tax men might decide, even though there might not be any justification beyond mere cynical suspicion.

The income tax is bad because it has robbed you and me of the guarantee of privacy and the respect for our property that were given to us in Article IV of the Bill of Rights. This invasion is absolute and complete as far as the amount of tax that can be assessed is concerned. Please remember that under the Sixteenth Amendment, Congress can take 100% of our income anytime it wants to. As a matter of fact, right now it is imposing a tax as high as 91%. This is downright confiscation and cannot be defended on any other grounds.

      The income tax is bad because it was conceived in class hatred, is an instrument of vengeance and plays right into the hands of the communists. It employs the vicious communist principle of taking from each according to his accumulation of the fruits of his labor and giving to others according to their needs, regardless of whether those needs are the result of indolence or lack of pride, self-respect, personal dignity or other attributes of men.

      The income tax is fulfilling the Marxist prophecy that the surest way to destroy a capitalist society is by steeply graduated taxes on income and heavy levies upon the estates of people when they die.

[As matters now stand, if our children make the most of their capabilities and training, they will have to give most of it to the tax collector and so become slaves of the government. People cannot pull themselves up by the bootstraps anymore because the tax collector gets the boots and the straps as well.]

The income tax is bad because it is oppressive to all and discriminates particularly against those people who prove themselves most adept at keeping the wheels of business turning and creating maximum employment and a high standard of living for their fellow men.

      I believe that a better way to raise revenue not only can be found but must be found because I am convinced that the present system is leading us right back to the very tyranny from which those, who established this land of freedom, risked their lives, their fortunes and their sacred honor to forever free themselves…

Taxation today is clearly used as a scheme of wealth distribution. In his bid for the presidency in 2008 and again in 2012, Obama talked about increasing taxes on the wealthy. His favorite line was: “We can restore the American dream where everyone gets a fair shot, everyone does their fair share, and everyone plays by the same set of rules.” He was referring to some sort of “advantage” that those who work hard and earn more money have over those who don’t have much. Even Joe Biden, in 2009, urged the wealthy to pay more in taxes, to “do their patriotic duty.”  And as we see, what President Obama wasn’t willing to do outright (raise taxes on the wealthy) because of political backlash, he did deviously.  Obamacare contains a whole host of new taxes, only a few of which apply to middle-class Americans.

Under what notion of fairness is it OK for people to be relieved in their economic “discomfort” by using the funds that taxpayers have to work 1/3 of the year for and then surrender to the government?  Under what notion of fairness is it OK for people can be relieved in their decisions not to become educated, seek training, or look for work by simply living off the finances that taxpayers have to work 1/3 of the year for and then surrender to the government?  Under what notion of fairness is it OK for people to have lots of children without adequate ability to provide for them while the funds to raise them come from taxpayers who take money from their own families (affecting their own decisions to have more children) and who have to work 1/3 of the year for and then surrender to the government?  President Obama should not surrender the American Dream of one segment of society to serve the dreams of another segment.

IRS Scandal #5 (childrens Tea Party)

Audits for Enemies –

FDR became the first president to practice on a large scale what James Madison called “the spirit of party and faction” and what Justice Stephen Field called the “war of the poor against the rich.” With a steeply progressive income tax in place, Roosevelt used the federal treasury to reward, among others, farmers (who were paid not to plant crops), silver miners (who had the price of their product artificially inflated), and southerners in the vote-rich Tennessee Valley (with dams and cheap electricity).  In the 1936 presidential election, Senator Hiram Johnson (D-CA), a Roosevelt supporter, watched in amazement as the President mobilized “the different agencies of government” to “dole out subsidies for votes.” In other words, he was using government funding to ultimately serve his re-election. Johnson calculated: “He started out with probably 8 million votes bought. The other side will have to buy their votes one by one, and they cannot hope to match his money.” In that campaign, Roosevelt defeated the Republican Alf Landon by an electoral vote of 523–8.

The flip side of rewarding supporters was investigating political opponents. It started with an investigation of Senator Huey Long of Louisiana, who had threatened to run for president against Roosevelt. Next came an audit of William Randolph Hearst, whose newspaper empire strongly opposed Roosevelt for president in 1936. Moses Annenberg, publisher of the Philadelphia Inquirer, criticized the New Deal and vehemently opposed Roosevelt’s re-election campaign in 1936 and ‘coincidently,’ became a target of a full-scale audit the following year (which was followed by a prison term). But perhaps no one was harassed more aggressively than Andrew Mellon, a powerful Republican and former Treasury Secretary. Remember it was Andrew Mellon who fought so hard to reduce the federal income tax rate, both for individuals and corporations.  The Roosevelt administration tasked the IRS and an army of tax inspectors and prosecutors to scrutinize Mellon’s financial records, especially to find out whether deductions for his vast philanthropic activities amounted to tax evasion. Even after IRS agents found nothing irregular, the Justice Department pursued the investigation. Historians have found no documents explaining the Roosevelt administration’s focus on Mellon, but a comment Roosevelt made about him in 1926 may offer a clue: Roosevelt dubbed him “the master mind among the malefactors of great wealth. A federal grand jury declined to indict Mellon for tax fraud in 1934. But the IRS was still pursuing claims against Mellon for at least $3 million in back taxes. Mellon’s “tax trial” before the Board of Tax Appeals in Pittsburgh and Washington lasted 14 months. At a private meeting with Roosevelt during the trial in 1936, Mellon offered to build the National Gallery and endow it with his own collection. Roosevelt accepted the offer, but instructed federal prosecutors to make “no change whatsoever” in the government’s position on the Mellon tax case (according to Mellon biographer David Cannadine). Mellon died the next year, and the suits, including any against his estate, died with him.

The president’s own son, Elliott Roosevelt, conceded in 1975 that “my father may have been the originator of the concept of employing the IRS as a weapon of political retribution.”

President John F. Kennedy  – together with his brother, Robert Kennedy, the Attorney General – used the IRS to go after mobsters and similar types suspected of racketeering for possible tax evasion. But JFK soon expanded the scope of IRS investigation to include political enemies as well. In November 1961, President Kennedy turned to the IRS to challenge the tax-exempt status of “right-wing extremist groups,” as well as fundamentalist Christian ministers who had been openly opposed him for president because of his religion – a Roman Catholic.  In a move not made public at the time, the Kennedy administration established an “Ideological Organizations Audit project” within the IRS, which targeted  conservative groups, such as the John Birch Society. In November, the IRS launched audits of 22 “extremist organizations,” several of which lost their tax-exempt status, jeopardizing their fundraising.

President Richard Nixon used the IRS as his own special gestapo agency. In effect, he re-directed Kennedy’s “Audit Project” to target left-wing groups. After he took office, his administration quickly created a Special Services Staff to mastermind what a memo called “all IRS activities involving ideological, militant, subversive, radical, and similar type organizations.” More than 10,000 individuals and groups were targeted for tax audits because of their political activism or slant between 1969 and 1973, including Nobel Laureate Linus Pauling (a left-wing critic of the Vietnam War) and the far-right John Birch Society. Nixon went after quite a wide range of political “enemy” groups, including anti-war groups (and the churches and other nonprofits that sheltered them), civil rights groups, reporters, and prominent Democrats.

Additionally, the IRS was also given Nixon’s enemies list to, in the words of White House counsel John Dean, “use the available federal machinery to screw our political enemies.” Luckily, as a result of Watergate investigation (1973-4) and, especially, the disclosure of White House tapes, many of these unethical, unauthorized activities became public. The tapes provided a direct line of accountability from the IRS to the Oval Office that was often missing in previous administrations. They provide unambiguous evidence that Nixon used his power to direct aides to use the IRS to get back at political enemies. In a taped conversation on Sept. 8, 1971, Nixon told his chief domestic policy adviser, John Ehrlichman, to direct the IRS to audit potential Democratic rivals, including Sens. Hubert Humphrey of Minnesota, Edward Kennedy of Massachusetts, and Edmund Muskie of Maine.  “Are we going after their tax returns? I … you know what I mean? There’s a lot of gold in them thar hills,” Nixon said.

Article 2 of the Articles of Impeachment brought against President Nixon in 1974 charged him with “acting personally and through his subordinates and agents, to endeavor to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigation to be initiated or conducted in a discriminatory manner.”

Bill Clinton liked to deny that he would ever use the IRS to target political and personal enemies. Yet the audits speak for themselves..  The list of women, and other persons who faced tax audits – some immediately after going public with their accusations of sexual harassment or rape (Paula Jones and Juanita Broaddrick), who alleged sexual affairs (Gennifer Flowers and Liz Ward Gracen), or who agreed to offer testimony in such cases (such as Linda Tripp), as well as persons involved with the Whitewater scandal – suggests a pattern of political retaliation.  Even Bill O’Reilly was audited three times by the Clinton administration and the watchdog group, Judicial Watch, was audited as well.  It was no wonder the IRS targeted Judicial Watch. The organization alone filed more than 50 lawsuits against the Clinton administration for improper targeting of individuals by the IRS, in violation of privacy rights and IRS policy. In a meeting with Judicial Watch officials in January 12, 1999 to discuss the audits, an IRS agent boldly stated: “What do you expect when you sue the President?”

Under Clinton, the IRS was notoriously used as a tool to harass and intimidate.  As was done by the administrations before him, the IRS was tasked with auditing a wide range of organizations that were viewed as hostile to the White House agenda. These included leading conservative publications, think tanks, and interest groups, among them The American Spectator, the National Review, the Heritage Foundation, the National Rifle Association, the National Center for Public Policy Research, the American Policy Center, American Cause, Citizens for Honest Government, Citizens Against Government Waste, Progress and Freedom Foundation, Landmark Legal Foundation, and Concerned Women for America.

IRS official Paul Breslan knew exactly what the organization was doing. And a memo was used to tie Clinton himself to the audits. In the memo, White House Associate Counsel William Kennedy is documented as saying that the IRS is “on top of it.”  In a speech on the House floor in 1996, Rep. John Mica (R-FL) said: “The fact is, the White House in this case misused the IRS and the FBI in an incredible abuse of power.”  During the Clinton years, conservatives used to joke back that if Clinton didn’t have the IRS audit you, then you weren’t a real conservative.

And now we see that the Obama administration has used the IRS to single out and target Tea Party, patriot groups, and other conservative organizations in their applications for tax-exempt status.  According to a House probe, for the past 18 months (although it is likely the abuse has gone back as far as 2010), the IRS used “inappropriate criteria” – that is, focusing on groups with conservative-sounding words or phrases in their name, such as “Tea Party,” or “patriot – for scrutiny in their tax-exemption applications. As if that wasn’t bad enough, IRS agents also misappropriated the information contained in the confidential tax returns of conservative organizations and donors to GOP candidates (such as Mitt Romney) and leaked it to political enemies, in violation of federal law.

IRS - Internal Revenge Service

Conclusion –

Glenn Beck summarized the Tax Code and the IRS rather well a few years ago: “The tax code is not meant to be read and understood by the people. It’s meant as a shelter for those who’ve taken power from us, and a weapon of selective enforcement to be used against any who would dare to raise an opposing voice. The law is not for them; it’s for you.” I guess what we are seeing right now is this explanation being exposed for the truth that it offers.  Beck continued: “Right now, at least a hundred thousand federal employees together owe a billion dollars in back taxes, and the Treasury Secretary, Timothy Geithner, himself is one of them. There is no reason why the person who runs the IRS, the congressmen who writes our tax code, including repeat tax cheat Charlie Rengal, or the CEO who has friends in the White House, should get a free pass when you and I must pay taxes and pay the consequences of our decisions not to do so.”

John Adams once said: “We are a government of laws, not men.”  Somewhere along the way, we’ve lost this fundamental truth.

Also, somewhere along the way, the government has gotten off track in its goal of enlarging its powers and responsibilities. Of course, government couldn’t grow without the financial resources to do so. First it created the Federal Reserve to print the money and provide the loans it needed and then came the unlimited ability to tax citizens.  There is a fine line between taxation and plunder. What isn’t such a fine line is that which is constitutional and what is unconstitutional. The Founders wrote our Constitution for the common man to understand.  The average citizen was meant to read the Constitution and easily understand the bounds of government and its extent in his life. Again, transparency and simplicity are what is expected in a free society. Our Founders never expected the Constitution to be interpreted according to the whims and views of nine justices who too often have rejected the principles on which the nation was founded and have lost the ability “to see the forest for the trees” (meaning, they’ve lost the ability to see the most relevant points because they’re too busy focusing on smaller issues that take their eye off the big picture). The pressure of necessity (the need for government to take control of matters) has often clouded their view of what government was instituted for.

Our government is bloated because it is funding too projects not authorized by the Constitution. In addition to its constitutional responsibilities, Congress is taxing for unconstitutional purposes as well. State grants (to coerce financially what it can’t require constitutionally) is an example. And this brings us to the current state of taxation, which amounts to plunder – legal plunder.

Frederic Bestiat (1801-1850), the French economist who championed private property, free markets, and limited government, defined legal plunder: “Legal plunder can be committed in an infinite number of ways.  We have an infinite number of plans for organizing it: tariffs, protection, benefits, subsidies, encouragements, progressive taxation, public schools, guaranteed jobs, guaranteed profits, minimum wages, a right to relief, a right to the tools of labor, free credit, and so on, and so on. All these plans as a whole – with their common aim of legal plunder – constitute socialism.” 

We know our federal government was able to sell its plan of progressive income taxation – its plan of legal plunder – on its promise to “soak the wealthy.” After all, who doesn’t look at the very wealthy and conclude that they have more than enough and that they won’t miss millions of their dollars. The current administration continues to sell this plan as a “patriotic duty” and a “fairness” thing.  Bestiat explained why legalized plunder is such an attractive plan by explaining the human nature behind its mentality: “Now since man is naturally inclined to avoid pain – and since labor is pain in itself – it follows that men will resort to plunder whenever plunder is easier than work. History shows this quite clearly. And under these conditions, neither religion nor morality can stop it….   It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder.”

Socialism recognizes that there are some people who, by their human nature and ability to develop their gifts, will be producers and there are those who will reject the opportunities to invest in themselves  and resist the need to become producers. And so, for the common good comes the policy that states: “From each according to his ability, to each according to his need.”  (the slogan popularized by Karl Marx in his 1875 Critique of the Gotha Program). In other words, only in the situation where the government organizes and arranges for the abundance of goods and services will there be enough to satisfy everyone’s needs. That’s the Marxist view.  But this is the United States. We don’t think like that. That’s not in the lifeblood that courses through our veins. We are not Russia or Germany or any other nation that looks at people only in the collective sense. People are individuals first, with individual God-given rights to be individuals.

Bestiat warned those who value freedom to be ever vigilante for legislation that “takes from some persons what belongs to them and gives it to other persons to whom it does not belong… That benefits one citizen at the expense of another by giving to that person what he has the ability to provide for himself.” He explains how essential it is that such legislation be rooted out.  “The tool of socialists is legal plunder. To prevent this, you must exclude socialism from entering into the making of laws. You must prevent socialists from entering the Legislative Palace.  If you do not succeed, legal plunder will continue to be the main business of the legislature…. Socialism is the state whereby everyone tries to live at the expense of everyone else. When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it.”

That’s why the time has come for the legalized plunder to stop and for the innovative, liberty-minded people of the United States to come up with a viable solution for government revenue that doesn’t imperil individual freedom and prosperity.  The Fair Tax – a national consumption tax – is one such plan.

As it is so true about history, the past holds the answers to the future. That’s why we have the saying: “Those who fail to learn from history are doomed to repeat it.”  Frederic Bestiat (1801-1850), who, like our Founders, saw the wisdom and inherent freedom in a government that was: (i) designed primarily to protect the lives, liberty, and private property of citizens from theft or aggression and the designs of evil-intentioned individuals (and from government itself) and (ii) sufficiently limited in its ability to coerce the People in their exercise of freedom as well as in their economic pursuits, wrote that men will naturally rebel against an injustice when they find that they have sufficiently become its victims. It is also human nature, he explained. This was the case of the Boston Tea Party, various other displays of civil disobedience, and eventually, the American Revolution itself.  (He also suggested a second course – instead of a rebellion against the plunder, men will capitulate on a large scale, refuse to work, invent, educate, etc and demand government provide for everyone).

Bestiat wrote that burdensome government restrictions, legalized plunder, indentured servitude, and slavery find defenders only among those who profit from them. Unfortunately, as almost 100 years of American history has shown, defenders will also be found among those who suffer from them. The question is whether the time has come for another simple act of civil disobedience — the petition and protest of honest, hard-working Americans against our current unfair system of taxation.

“In our time, many seem to think ‘the Declaration’ was penned to proclaim eternal verities about the human condition — a poetic tribute to ‘life, liberty and the pursuit of happiness’ — as if it were a collection of fine words about high-minded ideals. No!  It was a rebellion against bad governance, against political arrogance, against oppressive laws, against restriction, constraint, and imposition without representation.” (Scott Ott, of PJ Media) We call it ‘The Declaration,’ as if it merely declares our moral purpose.  But that’s not the object. Its purpose is to provide the blueprint for true and everlasting human liberty… for true ‘Independence.’  ”The members of the Second Continental Congress did not expect to forfeit their lives, fortunes, and sacred honor for stating the obvious about the ‘laws of nature and of nature’s God.’  Their necks ripened for the noose because they altered, abolished, and threw off the yoke of their government.” (Ott)  They desired to be absolved of any allegiance to a government that did not respect their rights.  They counted all as loss to obtain freedom; to be absolved of allegiance to their government, to dissolve all political connections between themselves and the state which they had always referred to as their own.

The Declaration of Independence offers a daily reminder of the exhaustive reasons for holding government accountable and rejecting it when it becomes corrupt, abusive, and oppressive…   to preserve Liberty.

The Declaration would clearly instruct us to move (peacefully) to abolish the federal income tax and to do away with the IRS.

IRS Scandal #2

 

RESOLUTION TO ABOLISH THE INCOME TAX and THE IRS

T. Coleman Andrews served as commissioner of IRS for nearly 3 years during the early 1950s. Following his resignation, he made the following statement:

“Congress, in implementing the Sixteenth Amendment, went beyond merely enacting an income tax law and repealed Article IV of the Bill of Rights, by empowering the tax collector to do the very things from which that article says we were to be secure. It opened up our homes, our papers and our effects to the prying eyes of government agents and set the stage for searches of our books and vaults and for inquiries into our private affairs whenever the tax men might decide, even though there might not be any justification beyond mere cynical suspicion.

      The income tax is bad because it has robbed you and me of the guarantee of privacy and the respect for our property that were given to us in Article IV of the Bill of Rights. This invasion is absolute and complete as far as the amount of tax that can be assessed is concerned. Please remember that under the Sixteenth Amendment, Congress can take 100% of our income anytime it wants to. As a matter of fact, right now it is imposing a tax as high as 91%. This is downright confiscation and cannot be defended on any other grounds 

      The income tax is bad because it was conceived in class hatred, is an instrument of vengeance and plays right into the hands of the communists. It employs the vicious communist principle of taking from each according to his accumulation of the fruits of his labor and giving to others according to their needs, regardless of whether those needs are the result of indolence or lack of pride, self-respect, personal dignity or other attributes of men 

      The income tax is fulfilling the Marxist prophecy that the surest way to destroy a capitalist society is by steeply graduated taxes on income and heavy levies upon the estates of people when they die.

[As matters now stand, if our children make the most of their capabilities and training, they will have to give most of it to the tax collector and so become slaves of the government. People cannot pull themselves up by the bootstraps anymore because the tax collector gets the boots and the straps as well.]

The income tax is bad because it is oppressive to all and discriminates particularly against those people who prove themselves most adept at keeping the wheels of business turning and creating maximum employment and a high standard of living for their fellow men.

      I believe that a better way to raise revenue not only can be found but must be found because I am convinced that the present system is leading us right back to the very tyranny from which those, who established this land of freedom, risked their lives, their fortunes and their sacred honor to forever free themselves…”

The progressive income tax was imposed on the American people in 1913 following the ratification of the Sixteenth Amendment, which states: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.” It was never intended to be a primary source of funding for government. It was merely intended to make up for revenue losses from tariffs, which were the primary source of funding for the constitutional.

Whereas, the current U.S. tax system is huge convoluted mess. The Internal Revenue Service (IRS) has six federal income tax brackets ranging from 10% to 35%, depending on “income.” This progressive tax system punishes the most productive members of society with a higher tax rate yet turns around and gives a tax credit to lower income earners that often amounts to a tax refund larger than the amount of tax paid in through withholding. The current tax system is riddled with loopholes and biases that hurt individuals who save money for the future. Not only does our tax code treat citizens differently but it is so hopelessly complicated that it frightens most taxpayers. It is far too complex, intrusive, and long; and

Whereas, once government undertakes to tax income, it acquires even more power through its authority to define “income,” “taxable income,” subsidiary terms, and the rules of exemption. The potential for abuse, capriciousness (arbitrary treatment), harassment, and corruption is great; and

Whereas, there is credible evidence to show that there were significant ratification discrepancies which call into question the legality of the Sixteenth Amendment; the evidence supports the conclusion that the Sixteenth Amendment was not properly and legally ratified by 3/4 of the states of the Union in 1913, as per Article V of the US Constitution; and

Whereas, the progressive income tax has become an instrument of government plunder of American income and property, in total disregard of our founding principle which states that property is as essential to a free man as his Life and Liberty. Rather, a heavy progressive income tax (as we have) is the second plank of the Communist Manifesto, written by Karl Marx and Friedrich Engels in 1948; and

Whereas, the current tax code is 73,954 pages of legalese (over 3 million words; taller than a giraffe and weighs 145 pounds), which the ordinary person living in the United States has no time to read or is capable of understanding, and it continues to grow and become more convoluted. (To emphasize this point, consider this: the average person can read 250 words per minute.  Assuming the average reader took no breaks, it would take 15,200 minutes, 253 hours, or 10.5 days (without a single break) to read the tax code. Ayn Rand’s famous book Atlas Shrugged has 645,000 words.  The tax code has 5.9 times that amount); and

Whereas, the progressive income tax scheme (the Tax Code) imposes a heavy burden on all American taxpayers, with respect to both money and time. Saving and collecting records and receipts is time-consuming, a hassle, and a big headache. According to the IRS, the average taxpayer spends 26.5 hours preparing and sending in their taxes. Just complying with our voluminous and complicated federal tax system costs Americans about $431 billion a year, according to economist Arthur Laffer (although other estimates go as high as $600 billion). American taxpaying families often have to hire a CPA. Furthermore, another $1000 to $2000 in embedded costs are passed on to the average consumer each year by businesses who have to add the cost of tax compliance to their “cost of doing business” and therefore to the cost of their products and services (for every dollar sent to the IRS, it costs 30 cents in compliance); and

Whereas, the progressive income tax allows the federal government to pry into the private records, private accounts, private business, and personal affairs of individual citizens in order to find out what income and property it considers to be “taxable income”; and

Whereas, with the IRS able to look at the financial records of Americans, it gives the government power to make decisions as to when certain citizens “have enough already,” and then wage war on their “excess”; an

Whereas, the average working American, poor, rich, or in-between, hates, and fears the IRS for good reason. It is able to seize one’s bank account or house without a court order, able to shut down one’s business overnight, and subject one to fines for failure to report income correctly, even when it is done innocently. In the eyes of the average American taxpayer, the tax code is unfair, overly complex, arbitrary in its requirements and exemptions, horribly politicized, harmful to individuals and the economy, helpful to the forces of Big Government, and impossible to understand without a CPA; and

Whereas, the harmful effects of the income tax are obvious. First and foremost, it has enabled government to expand far beyond its proper constitutional limits, regulating virtually every aspect of our lives. It has given government a claim on our lives and work, has created class warfare (taxpayers v. non-taxpayers), and it has destroying our privacy in the process. It takes billions of dollars out of the legitimate private economy, with most Americans giving more than a third of everything they make to the federal government. This economic drain destroys jobs and penalizes productive behavior. It has created class warfare (taxpayers v. non-taxpayers; producers v. non-producers; contributors v. takers) and in many cases, it has destroyed the incentive to work, to become more successful, and to accumulate wealth and property. The ridiculous complexity of the tax laws makes compliance a nightmare for both individuals and businesses. All things considered, our Founders would be dismayed by the income tax mess and the tragic loss of liberty which has resulted; and

Whereas, the progressive income tax is inherently corruptible and subject to arbitrary rules and application. The tendency is for government to create exemptions in return for political favors or to coerce a political agenda. The language providing guidelines for such exemptions is invariably vague, which means the IRS has room to “interpret” and decide who qualifies and who doesn’t qualify for a particular exemption. The line between vigilance and harassment is not bright and the potential for abuse is great. This power, which is inherently arbitrary, ill suits a society that sees itself as free.  Furthermore, where possible, people will naturally strive for tax exemption and will push the boundaries of tax guidelines. Such a tax scheme, therefore, encourages dishonesty and corruption; and

Whereas, the progressive income tax relieves some people from a shared responsibility to contribute to a government that serves them. Philosophically, no person or business should be exempt from a general taxation scheme. The current tax code imposes a tax burden on approximately half the US population while half are excused or exempted. The common government protects everyone equally (except under the taxation scheme) yet serves some more extensively than others. The tax code is progressive in tax burden but not progressive in services/benefits enjoyed.  The current tax scheme – the progressive income tax created by the 16th Amendment – should be replaced by a Fair Tax (a national sales tax of about 23%) so that every American does his patriotic duty, has skin in the game, and has an interest in fiscal responsibility by their government. At the very least, the progressive income tax should be replaced by a low, flat-rate income tax (Flat Tax), 10% or lower, to be applied to all wage earners; and

Whereas, the federal income tax has become a wealth distribution scheme. Taxes that are soaked from the middle and upper classes are used to fund social programs that they are not entitled to and which go towards relieving a huge segment of society of their lower economic status.  The object of federal taxation was not to leave men with equal incomes after they’ve been taxed”; and

Whereas, the IRS puts the government tax collector in a position of extraordinary power over fellow citizens (the “gorilla” role); he has the power to intimidate citizens who are unlucky enough to be audited by making them feel that they somehow “cheated” the government (rather than the most likely scenario – that they are merely “victims” of an unfair system); and

Whereas, the IRS often finds it difficult to avoid the attitude that each taxpayer is a cheat, even a criminal, who must somehow be cornered and caught. This has brought the nature of the entire income tax collection process into question; and

Whereas, thousands of complaints have poured into the IRS concerning the tactics used by some of its agents. Citizens feel they are treated as criminals rather than suspects who are innocent until proven guilty; and

Whereas, the IRS has been guilty of many transgressions and has cost the American taxpayers billions of dollars. For example, one of the things the IRS is well known for is giving incarcerated criminals who prepare fraudulent returns tens of millions of dollars in refunds they’re not entitled to. The figure actually increases annually, which means the IRS continues to do so. According to a federal audit, the latest count is that the IRS has doled out more than $35 million to criminals. A few years ago the IRS came under fire for allowing 1 million foreigners, many in the U.S. illegally, to improperly claim close to $9 billion in tax credits even though they did not provide valid Social Security numbers on their return.  Not long after that, the tax agency got in trouble for handing out $33 million in bogus electric car credits. As recently as April 2013, two dozen IRS employees were charged with stealing hundreds of thousands of dollars in government benefits, including food stamps, welfare and housing vouchers. The scheme fleeced U.S. taxpayers out of at least a quarter of a million dollars, according to federal prosecutors; and

Whereas, the IRS chills the First Amendment rights of churches and nonprofit organizations which now hesitate to use them for fear of losing tax-exempt status; and

Whereas, the most damaging aspect of the Sixteenth Amendment is the fact that it violates the unalienable rights provided in the 4th Amendment. This is the amendment which protects privacy–privacy of the home, business, personal papers and personal affairs of the private citizen. None of these are disturbed by a poll (head or capitation) tax because it is so much per person regardless of the circumstances, but when the tax is based on income, the IRS is assigned the most unpleasant task of making certain that everyone pays his fair share. This task is physically impossible without prying into the private papers, private business and personal affairs of the individual citizens. By any standard, it is a miserable assignment. Furthermore, it is impossible to run audits and surveys of all taxpayers and so the audits seldom check more than 2% of them;  and

Whereas, the Internal Revenue Service (IRS) is the closest thing to the Gestapo that the United States has ever had; administrations have used its awesome power to audit tax returns as an effective means to silence and intimidate political opponents; and

Whereas, the IRS has gotten out of control:

– The IRS has admitted to intentionally and deliberately targeting conservative groups (especially those containing the terms “Tea Party” or “patriot” in their names) since at least 2011. In some cases, conservative individuals have been targeted. The targeting was done with malicious intent;

– The IRS has admitted that it has deliberately harassed said conservative political organizations claiming tax exempt status by singling them out for additional scrutiny and investigation;

–  Lois Lerner, who heads the IRS division that oversees tax exempt groups, has admitted that at least 75 organizations were singled out because they included the words “Tea Party” or “patriot” in their applications for tax exempt status. She acknowledged that actions were clearly violations of IRS policies;

–  The IRS’ inappropriate and intimidating investigation tactics included probing questions about organizations’ board members, officers, employees, and their families. There were also demands for extraordinary detail on employee training, vending, and advertising. Among other IRS demands, they required lists of “all issues important to your organization” with requests to “indicate your position regarding each issue”;

–  The IRS intentionally and maliciously leaked confidential taxpayer information of said conservative groups to Leftist allies;

–  The IRS has admitted that it engaged in political profiling while processing applications for tax-exempt status. It searched tax applications for words like “Tea Party” and even “patriot.” Once it found those groups, it made intrusive and unconstitutional inquiries, demanding answers “upon penalty of perjury.”  [In this case it was against organizations with “tea-party” or “patriot ” in their names and other right-wing groups. Next time it could be libertarian or left-wing antiwar and pro-civil-liberties groups. No dissenter can ever rest assured he is safe from the arbitrary power of the IRS];

–  The IRS targeted conservative groups in swing states before the 2012 election. The chilling effect on such organizations because of said targeting together with alleged instances of voter fraud (showing higher than expected voter turn-out for Democrats) in the same areas calls into question the results of the election;

–  This ongoing IRS abuse continues today, as the ACLJ represents dozens of these targeted groups;

– IRS officials threw lavish parties for themselves, spending millions of dollars even as Americans struggled to keep their jobs and pay their taxes;

– Pro-life and Christian groups report extreme and intrusive demands, including one reported demand that a pro-life group promise not to picket Planned Parenthood. The intent was to chill and even shut down their First Amendment rights of free speech expression and of conscience;

– The IRS conducted mass-scale audits of adoptive families, auditing 100,000 in 2011 alone – simply because they adopted a child.

In consideration of all of the above, the ________________________  (group name) concludes that –

Taxation, other than sales tax (which is tied to contract law and includes an element of consent), is nothing less than confiscation under threat of force of the property and/or income of individuals. Progressive taxation is government plunder of the wealthy, offensive to our notions of equal treatment and equal protection under the law; and

The progressive income tax is the targeted confiscation of the fruits earned by creative, industrious, and productive individuals; it punishes success, productivity, creativity, ingenuity, hard work, investment, and risk-taking and is inconsistent with a nation committed to the freedom to “pursue happiness;  and

The progressive income tax has no place in a free society. It amounts to the plunder of property and the frustrates the Pursuit of Happiness;

Elimination of an income tax will do more than anything else to return political and government power from Washington DC back to the People; and

The IRS targeting of political opponents represents some of the most shameful abuses of government power in 20th century American history. A government organization like the IRS discriminating against political organizations is an outrageous abuse of power, and the American people have every right to demand answers and accountability; and

As recent testimony has made clear, the IRS is institutionally incapable of governing itself (let alone that it has no constitutional authority) and departments such as the legislative and executive branches are incapable of managing it, providing oversight, or providing transparency to the American people in its regard; and

The Internal Revenue Service cannot be used as a weapon against political enemies. There must be a thorough investigation of IRS abuse (as well as abuse at the hands of other government agencies), and those responsible must be punished. There is no excuse for turning the full power of the IRS – and the federal government in general – on American citizens; and

Use of the IRS as a harassment, intimidation, and bullying arm of the President’s administration has set a dangerous precedent (we’ve also seen it use Homeland Security for the same purpose); and

The IRS has successfully chilled the fundamental rights that Americans are entitled to under the US Constitution (and specifically, the Bill of Rights); and

When government goes after political opponents, that is the very definition of tyranny; and

Americans have a rightful expectation to have trust in their government. Trust in government is a hallmark of a free society.  The current IRS scandal has destroyed that trust; and

Because trust in government has been destroyed and because it appears that the IRS has become a Gestapo agency, the American people cannot be expected to allow it  to be the enforcement arm of Obamacare – the healthcare program the government has forced them to comply with; and

Therefore, be it –

Resolved, that the American people can no longer trust the IRS to enforce Obamacare, apply tax laws fairly, evenly, and without bias, and to be respectful of the information shared in healthcare records, tax records, and even private, personal information to be mined through Common Core; and

Resolved, that the  progressive federal income tax has become arbitrary, unfair, overly convoluted, and an exercise of government plunder, and the IRS has become an agency used by government for the improper scrutiny of American citizens; and

 Resolved, that the ________________________  (group name) believes the time has come to reform the tax code and by extension, abolish the Internal Revenue Service.

 

References:

The US Constitution

The Fair Tax –  http://www.fairtax.org

Congressional Record-House, July 12, 1909, p.4404

Congressional Record-House, July 12, 1909, p.439

Pollock v. Farmers Loan & Trust Company, 157 U.S. 429 (1895)

Federalist No. 10.  http://www.constitution.org/fed/federa10.htm

“The Income Tax Arrives,” Tax History.  http://www.taxhistory.org/www/website.nsf/Web/THM1901

“How Some States Did Not Legally Ratify the Sixteenth Amendment”  –http://www.givemeliberty.org/features/taxes/notratified.htm

Jack Kenny and John Larabell, “100 Years Ago: Instituting the Income Tax,” The New American, February 4, 2013.  Referenced at:  http://www.thenewamerican.com/culture/history/item/14410-100-years-ago-instituting-the-income-tax

Sheldon D. Pollack, “Origins of the Modern Income Tax,” Tax Lawyer Winter, Vol. 66, No. 2, Winter 2013.  (Very detailed history of the Modern Income Tax).   Referenced at:  https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CFsQFjAC&url=http%3A%2F%2Fwww.buec.udel.edu%2Fpollacks%2FDownloaded%2520SDP%2520articles%2C%2520etc%2Facademic%2520articles%2FOrigins%2520of%2520the%2520Modern%2520Income%2520Tax%2520in%2520Tax%2520Lawyer%2520Winter%25202013.pdf&ei=-67IUZLPM9On4AOuoYDAAg&usg=AFQjCNELWbU-x8YvwgSiReYZAXs18HA36A&sig2=znteVrEa3AsercrlR6YVCA

W. Cleon Skousen, “History of the 16th Amendment,” Latter Day Conservative.  Referenced at: http://www.latterdayconservative.com/articles/history-of-the-16th-amendment/

Burton Fulsom, “The Progressive Income Tax in US History,” The Freeman, May 1, 2003.  Referenced at: http://www.fee.org/the_freeman/detail/the-progressive-income-tax-in-us-history

“History of Federal Individual Income Bottom and Top Bracket Rates,” National Taxpayers Union.  Referenced at:  http://www.ntu.org/tax-basics/history-of-federal-individual-1.html

Diane Schrader, “The Top 7 Reasons (and One Promising Way) to Abolish the IRS For Good,” News Real Blog, February 2, 2011.  Referenced at: http://www.newsrealblog.com/2011/02/02/the-top-7-reasons-and-one-promising-way-to-abolish-the-irs-for-good-1/ 

Frederic Bestiat (1801-1850) –  http://mises.org/page/1447/Biography-of-Frederic-Bastiat-18011850

“Policy Basics: Where Do Our Federal Tax Dollars Go?,” Center on Budget and Policy Priorities, March 12, 2013.  Referenced at:  http://www.cbpp.org/cms/?fa=view&id=1258

Gail Russell Chaddock, “Playing the IRS Card: Six Presidents Who Used the IRS to Bash Political Foes,”The Christian Science Monitor, May 17, 2013.  Referenced at:  http://www.csmonitor.com/USA/DC-Decoder/2013/0517/Playing-the-IRS-card-Six-presidents-who-used-the-IRS-to-bash-political-foes/President-John-Kennedy-D

“IRS Conservative Witch Hunt is Just Latest of Many Offenses,” Judicial Watch, May 17, 2013.  Referenced at:  http://www.judicialwatch.org/blog/2013/05/irs-conservative-witch-hunt-just-latest-of-many-offenses/

 

APPENDIX:

I.   HOW SOME STATES DID NOT LEGALLY RATIFY THE 16TH AMENDMENT

http://www.givemeliberty.org/features/taxes/notratified.htm

Bill Benson’s findings, published in “The Law That Never Was,” make a convincing case that the 16th amendment was not legally ratified and that Secretary of State Philander Knox was not merely in error, but committed fraud when he declared it ratified in February 1913. What follows is a summary of some of the major findings for many of the states, showing that their ratifications were not legal and should not have been counted.

The 16th amendment had been sent out in 1909 to the state governors for ratification by the state legislatures after having been passed by Congress. There were 48 states at that time, and three-fourths, or 36, of them were required to give their approval in order for it to be ratified. The process took almost the whole term of the Taft administration, from 1909 to 1913.

Secretary Knox had received responses from 42 states when he declared the 16th amendment ratified on February 25, 1913, just a few days before leaving office to make way for the administration of Woodrow Wilson. Knox acknowledged that four of those states (Utah, Conn, R.I. and N.H.) had rejected it, and he counted 38 states as having approved it. We will now examine some of the key evidence Bill Benson found regarding the approval of the amendment in many of those states.

In Kentucky, the legislature acted on the amendment without even having received it from the governor (the governor of each state was to transmit the proposed amendment to the state legislature). The version of the amendment that the Kentucky legislature made up and acted upon omitted the words “on income” from the text, so they weren’t even voting on an income tax! When they straightened that out (with the help of the governor), the Kentucky senate rejected the amendment. Yet Philander Knox counted Kentucky as approving it!

In Oklahoma, the legislature changed the wording of the amendment so that its meaning was virtually the opposite of what was intended by Congress, and this was the version they sent back to Knox. Yet Knox counted Oklahoma as approving it, despite a memo from his chief legal counsel, Reuben Clark, that states were not allowed to change it in any way.

Attorneys who have studied the subject have agreed that Kentucky and Oklahoma should not have been counted as approvals by Philander Knox, and, moreover, if any state could be shown to have violated its own state constitution or laws in its approval process, then that state’s approval would have to be thrown out. That gets us past the “presumptive conclusion” argument, which says that the actions of an executive official cannot be judged by a court, and admits that Knox could be wrong.

If we subtract Kentucky and Oklahoma from the 38 approvals above, the count of valid approvals falls to 36, the exact number needed for ratification. If any more states can be shown to have had invalid approvals, the 16th amendment must be regarded as null and void.

The state constitution of Tennessee prohibited the state legislature from acting on any proposed amendment to the U.S. Constitution sent by Congress until after the next election of state legislators. The intent, of course, is to give the proposed amendment a chance to become an issue in the state legislative elections so that the people can have a voice in determining the outcome. It also provides a cooling off period to reduce the tendency to approve an idea just because it happens to be the moment’s trend. You’ve probably already guessed that the Tennessee legislature did not hold off on voting for the amendment until after the next election, and you’d be right – they didn’t; hence, they acted upon it illegally before they were authorized to do so. They also violated their own state constitution by failing to read the resolution on three different days as prescribed by Article II, Section 18. These state constitutional violations make their approval of the amendment null and void. Their approval is and was invalid, and it brings the number of approving states down to 35, one less than required for ratification.

Texas and Louisiana violated provisions in their state constitutions prohibiting the legislatures from empowering the federal government with any additional taxing authority. Now the number is down to 33.

Twelve other states, besides Tennessee, violated provisions in their constitutions requiring that a bill be read on three different days before voting on it. This is not a trivial requirement. It allows for a cooling off period; it enables members who may be absent one day to be present on another; it allows for a better familiarity with, and understanding of, the measure under consideration, since some members may not always read a bill or resolution before voting on it (believe it or not!). States violating this procedure were: Mississippi, Ohio, Arkansas, Minnesota, New Mexico, West Virginia, Indiana, Nevada, North Carolina, North Dakota, Colorado, and Illinois. Now the number is reduced to 21 states legally ratifying the amendment.

When Secretary Knox transmitted the proposed amendment to the states, official certified and sealed copies were sent. Likewise, when state results were returned to Knox, it was required that the documents, including the resolution that was actually approved, be properly certified, signed, and sealed by the appropriate official(s). This is no more than any ordinary citizen has to do in filing any legal document, so that it’s authenticity is assured; otherwise it is not acceptable and is meaningless. How much more important it is to authenticate a constitutional amendment! Yet a number of states did not do this, returning uncertified, unsigned, and/or unsealed copies, and did not rectify their negligence even after being reminded and warned by Knox. The most egregious offenders were Ohio, California, Arkansas, Mississippi, and Minnesota – which did not send any copy at all, so Knox could not have known what they even voted on! Since four of these states were already disqualified above, California is now subtracted from the list of valid approvals, reducing it to 20.

These last five states, along with Kentucky and Oklahoma, have particularly strong implications with regard to the fraud charge against Knox, in that he cannot be excused for not knowing they shouldn’t have been counted. Why was he in such a hurry? Why did he not demand that they send proper documentation? They never did.

Further review would make the list dwindle down much more, but with the number down to 20, sixteen fewer than required, this is a suitable place to rest, without getting into the matter of several states whose constitutions limited the taxing authority of their legislatures, which could not give to the federal govern authority they did not have.

The results from the six states Knox had not heard from at the time he made his proclamation do not affect the conclusion that the amendment was not legally ratified. Of those six: two (Virginia and Pennsylvania) he never did hear from, because they ignored the proposed amendment; Florida rejected it; two others (Vermont and Massachusetts) had rejected it much earlier by recorded votes, but, strangely, submitted to the Secretary within a few days of his ratification proclamation that they had passed it (without recorded votes); West Virginia had purportedly approved it at the end of January 1913, but its notification had not yet been received (remember that West Virginia had violated its own constitution, as noted above).

THERE IS NO LAW REQUIRING ORDINARY AMERICAN EMPLOYEES TO PAY FEDERAL INCOME TAX !! –  http://www.youtube.com/watch?feature=player_embedded&v=1UCcW0RoNdc#at=282

***  Bill Benson wrote a book in 1985 – The Law That Never Was.  Summary:  The authority of the federal government to collect its income tax depends upon the 16th Amendment to the U.S. Constitution, the federal income tax amendment, which was allegedly ratified in 1913. After a year of extensive research, Bill Benson discovered that the 16th Amendment was not ratified by the required 3/4 of the states, but nevertheless Secretary of State Philander Knox fraudulently announced ratification.

Article V of the U.S. Constitution defines the ratification process and requires three-fourths of the states to ratify any amendment proposed by Congress. There were forty-eight states in the American Union in 1913, meaning that affirmative action of thirty-six was necessary for ratification. In February 1913, Secretary of State Philander Knox proclaimed that thirty-eight had ratified the Amendment.

In 1984 Bill Benson began a research project, never before performed, to investigate the process of ratification of the 16th Amendment. After traveling to the capitols of the New England states and reviewing the journals of the state legislative bodies, he saw that many states had not ratified. He continued his research at the National Archives in Washington, D.C.; it was here that Bill found his Golden Key.

This damning piece of evidence is a sixteen-page memorandum from the Solicitor of the Department of State, among whose duties is the provision of legal opinions for the Secretary of State. In this memorandum, the Solicitor lists the many errors he found in the ratification process.

These four states are among the thirty-eight from which Philander Knox claimed ratification:

  • California: The legislature never recorded any vote on any proposal to adopt the amendment proposed by Congress.
  • Kentucky: The Senate voted on the resolution, but rejected it by a vote of nine in favor and twenty-two opposed.
  • Minnesota: The State sent nothing to the Secretary of State in Washington.
  • Oklahoma: The Senate amended the language of the 16th Amendment to have a precisely opposite meaning.

When his project was finished at the end of 1984, Bill had visited the capitol of every state from 1913 and knew that not a single one had actually and legally ratified the proposal to amend the U.S. Constitution. Thirty-three states engaged in the unauthorized activity of altering the language of an amendment proposed by Congress, a power that the states do not possess.

Since thirty-six states were needed for ratification, the failure of thirteen to ratify was fatal to the Amendment. This occurs within the major (first three) defects tabulated in Defects in Ratification of the 16th Amendment. Even if we were to ignore defects of spelling, capitalization and punctuation, we would still have only two states which successfully ratified.

 

II.     Historical Income Tax Rates & Brackets

   

Tax Rates

 

Bottom bracket

Top bracket

Calendar Year

President

Rate
(percent)

Taxable Income Up to

Rate
(percent)

Taxable
Income over

1913-15

Woodrow Wilson

1 20,000 7 500,000
1916

Woodrow Wilson

2 20,000 15 2,000,000
1917

Woodrow Wilson

2 2,000 67 2,000,000
1918

Woodrow Wilson

6 4,000 77 1,000,000
1919-20

Woodrow Wilson

4 4,000 73 1,000,000
1921

Warren Harding

4 4,000 73 1,000,000
1922

Warren Harding

4 4,000 56 200,000
1923

Warren Harding

3 4,000 56 200,000
1924

Calvin Coolidge

1.5 4,000 46 500,000
1925-28

Calvin Coolidge

1? 4,000 25 100,000
1929

Herbert Hoover

4? 4,000 24 100,000
1930-31

Herbert Hoover

1? 4,000 25 100,000
1932-33

Hoover, then FDR

4 4,000 63 1,000,000
1934-35

Franklin D. Roosevelt

4 4,000 63 1,000,000
1936-39

Franklin D. Roosevelt

4 4,000 79 5,000,000
1940

Franklin D. Roosevelt

4.4 4,000 81.1 5,000,000
1941

Franklin D. Roosevelt

10 2,000 81 5,000,000
1942-434

Franklin D. Roosevelt

19 2,000 88 200,000
1944-45

FDR, then Truman

23 2,000 94 200,000
1946-47

Harry S. Truman

19 2,000 86.45 200,000
1948-49

Harry S. Truman

16.6 4,000 82.13 400,000
1950

Harry S. Truman

17.4 4,000 91 400,000
1951

Harry S. Truman

20.4 4,000 91 400,000
1952

Harry S. Truman

22.2 4,000 92 400,000
1953

Dwight D. Eisenhower

22.2 4,000 92 400,000
1954-60

Dwight D. Eisenhower

20 4,000 91 400,000
1961-63

John F. Kennedy

20 4,000 91 400,000
1964

Lyndon B. Johnson

16 1,000 77 400,000
1965-67

Lyndon B. Johnson

14 1,000 70 200,000
1968

Lyndon B. Johnson

14 1,000 75.25 200,000
1969

Richard M. Nixon

14 1,000 77 200,000
1970

Richard M. Nixon

14 1,000 71.75 200,000
1971

Richard M. Nixon

14 1,000 70 200,000
1972-73

Richard M. Nixon

14 1,000 70 200,000
1974-76

Gerald R. Ford

14 1,000 70 200,000
1977-1978

Jimmy Carter

14 1,000 70 200,000
1979-80

Jimmy Carter

814 2,100 70 212,000
1981

Ronald Reagan

13.825 2,100 69.125 212,000
1982

Ronald Reagan

12 2,100 50 106,000
1983

Ronald Reagan

11 2,100 50 106,000
1984

Ronald Reagan

11 2,100 50 159,000
1985

Ronald Reagan

11 2,180 50 165,480
1986

Ronald Reagan

11 2,270 50 171,580
1987

Ronald Reagan

11 3,000 38.5 90,000
1988

Ronald Reagan

15 29,750 28 29,750
1989

George H. Bush

15 30,950 28 30,950
1990

George H. Bush

15 32,450 28 32,450
1991

George H. Bush

15 34,000 31 82,150
1992

George H. Bush

15 35,800 31 86,500
1993

Bill Clinton

15 36,900 39.6 250,000
1994

Bill Clinton

15 38,000 39.6 250,000
1995

Bill Clinton

15 39,000 39.6 256,500
1996

Bill Clinton

15 40,100 39.6 263,750
1997

Bill Clinton

15 41,200 39.6 271,050
1998

Bill Clinton

15 42,350 39.6 278,450
1999

Bill Clinton

15 43,050 39.6 283,150
2000

Bill Clinton

15 43,850 39.6 288,350
2001

George W. Bush

15 42, 200 39.1 297,350
2002

George W. Bush

10 12,000 38.6 307,050
2003

George W. Bush

10 14,000 35.0 311,950
2004

George W. Bush

10 14,300 35.0 319,100
2005

George W. Bush

10 14,600 35.0 326,450
2006

George W. Bush

10 15,100 35.0 336,550
2007

George W. Bush

10 15,650 35.0 349,700
2008

George W. Bush

10 16,050 35.0 357,700
2009

Barack Obama

10 16,700 35.0 372,950
2010

Barack Obama

10 16,700 35.0 373,650
2011

Barack Obama

10 17,000 35.0 379,150

 

 

III.    WHERE DO OUR FEDERAL TAX DOLLARS GO?

April 12, 2013, Center on Budget and Policy Priorities

The federal government collects taxes to finance various public services. As policymakers and citizens weigh key decisions about revenues and expenditures, it is instructive to examine what the government does with the money it collects.

In fiscal year 2012, the federal government spent $3.5 trillion, amounting to 23 percent of the nation’s Gross Domestic Product (GDP). Of that $3.5 trillion, nearly $2.5 trillion was financed by federal revenues. The remaining amount (about $1.1 trillion) was financed by borrowing; this deficit will ultimately be paid for by future taxpayers. As the graph on the next page shows, three major areas of spending each make up about one-fifth of the budget:

  • Defense and international security assistance: In 2012, 19 percent of the budget, or $689 billion, paid for defense and security-related international activities. The bulk of the spending in this category reflects the underlying costs of the Department of Defense. The total also includes the cost of supporting operations in Afghanistan and other related activities, described as Overseas Contingency Operations in the budget, funding for which totaled $127 billion in 2012.
  • Social Security: Another 22 percent of the budget, or $773 billion, paid for Social Security, which provided monthly retirement benefits averaging $1,262 to 36.7 million retired workers in December 2012. Social Security also provided benefits to 2.9 million spouses and children of retired workers, 6.3 million surviving children and spouses of deceased workers, and 10.9 million disabled workers and their eligible dependents in December 2012.
  • Medicare, Medicaid, and CHIP: Three health insurance programs — Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP) — together accounted for 21 percent of the budget in 2012, or $732 billion. Nearly two-thirds of this amount, or $472 billion, went to Medicare, which provides health coverage to around 48 million people who are over the age of 65 or have disabilities. The remainder of this category funds Medicaid and CHIP, which in a typical month in 2012 provided health care or long-term care to about 60 million low-income children, parents, elderly people, and people with disabilities. Both Medicaid and CHIP require matching payments from the states.

Two other categories together account for another fifth of federal spending:

  • Safety net programs: About 12 percent of the federal budget in 2012, or $411 billion, supported programs that provide aid (other than health insurance or Social Security benefits) to individuals and families facing hardship.  Spending on safety net programs declined in both nominal and real terms between 2011 and 2012 as the economy continued to improve.

These programs include:  the refundable portions of the Earned Income Tax Credit and Child Tax Credit, which assist low- and moderate-income working families through the tax code; programs that provide cash payments to eligible individuals or households, including Supplemental Security Income for the elderly or disabled poor and unemployment insurance; various forms of in-kind assistance for low-income families and individuals, including SNAP (food stamps), school meals, low-income housing assistance, child care assistance, and assistance in meeting home energy bills; and various other programs such as those that aid abused and neglected children.

Such programs keep millions of people out of poverty each year. A CBPP analysis shows that government safety net programs kept some 25 million people out of poverty in 2010. Without any government income assistance, either from safety net programs or other income supports like Social Security, the poverty rate would have been 28.6 percent in 2010, nearly double the actual 15.5 percent.

  • Interest on the national debt: The federal government must make regular interest payments on the money it has borrowed to finance past deficits — that is, on the national debt held by the public, which reached $11 trillion by the end of fiscal year 2012. In 2012, these interest payments claimed $220 billion, or about 6 percent of the budget.

As the chart above shows, the remaining fifth of federal spending goes to support a wide variety of other public services. These include providing health care and other benefits to veterans and retirement benefits to retired federal employees, assuring safe food and drugs, protecting the environment, and investing in education, scientific and medical research, and basic infrastructure such as roads, bridges, and airports. A very small slice — about 1 percent of the total budget — goes to non-security programs that operate internationally, including programs that provide humanitarian aid.

***  Estimates of spending in fiscal year 2012 were based on the most recent historical data released by the Office of Management and Budget (OMB). (The federal fiscal year 2012 ran from October 1, 2011 to September 30, 2012.)

Reference:   “Policy Basics: Where Do Our Federal Tax Dollars Go?,” Center on Budget and Policy Priorities, March 12, 2013.  Accessed at:  http://www.cbpp.org/cms/?fa=view&id=1258