NO NEW TAX, REMOVE THE FOOTNOTE
Idaho State Rep., Phil Hart
February 1, 2012
The ignorance of today’s Americans regarding political matters is an expensive luxury paid for by the blood and treasure of deceased American Patriots. Although this ignorance is widespread, there is no area where there are greater misconceptions than with regard to monetary policy and the income tax. The two issues are like twin sisters. This was not so in 1775, the year that gave birth to an armed struggle that resulted in the greatest gains of liberty in the history of mankind.
In a letter to King George, General Gage, the military governor of Boston, complained that:
“I have a nation of lawyers, they know your statutes better then you know them yourself.”
These patriots were not ignorant; they had studied the law for themselves. They knew their rights. And they were therefore willing to fight and risk everything to defend these rights. In 1775 more copies of Blackstone’s Commentaries on the Laws of England were sold in the colonies then were sold in England. This interest in law on the part of the average person and their willingness to make personal sacrifices in order to fight for what was right gave birth to the greatest nation on earth. Whereas today’s deliberate ignorance and cowardice in the face of injustice on the part of the progenery of these great patriots is causing the death of that once great nation.
If you were to pull the first volume of the United States Code off the shelf you would find the Constitution in that book. Then if you were to look at Article I, sections 2 and 9 of the Constitution where it provides that direct taxes must be apportioned among the states according to population, you would find a footnote. This footnote states that direct taxes, in the form of an income tax, can now be levied without being apportioned. (An income tax can be classified as either direct tax or an indirect tax, depending on what or who is being taxed.)
Nothing could be further from the truth. That footnote represents either a gross misconception of the affect of the Sixteenth Amendment (the Income Tax Amendment) or a deliberate lie meant to deceive.
The United States Constitution divides up the entire universe of taxes into two parts, direct taxes and indirect taxes. The father of these terms was Adam Smith who wrote the economic bible of the time of the drafting of the Constitution. Smith’s work entitled “Wealth of Nations,” is a popular work even today. Summarizing Smith’s work, we can say that a direct tax taxes a noun; and an indirect tax taxes a verb. A direct tax taxes something that exists, like real estate, a slave, a person or a person’s time. An indirect tax taxes a choice that a person makes, taxes a privileged activity or taxes the happening of an event.
Adam Smith was authoritatively quoted in the first taxation case (Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796)) that went up to the United States Supreme Court after the ratification of our Constitution. Smith's Wealth of Nations quote found in the Supreme Court’s Hylton Opinion reads:
“The impossibility of taxing people in proportion to their revenue, by any capitation, seems to have given occasion to the invention of taxes upon consumable commodities; the State, not knowing how to tax directly and proportionally the revenue of its subjects, endeavors to tax it indirectly by taxing their expense, which it is supposed, in most cases, will be nearly in proportion to their revenue. Their expense is taxed by taxing the consumable commodities upon which it is laid out.” Adam Smith, Wealth of Nations, Book V, 541 (Prometheus Books, Amherst, New York, 1991) (1776).
If we back up just two paragraphs from the paragraph of Adam Smith’s Wealth of Nations quoted authoritatively by the Supreme Court in the Hylton Case, we read about Smith’s categorization regarding taxes on wages:
“Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labor, and are attended with all the inconveniences of such taxes.” id. At 540.
When levying either type of tax, the Constitution has a regulating rule. The framers of the Constitution did not give our limited government an unlimited power to tax. The limiting rule when levying a direct tax is that the tax be apportioned among the States in the same manner that members of the House of Representatives are apportioned. But this rule only applies in the 50 several States; the four federal states are exempt from the apportionment limitation for direct taxes. (The four federal states include Guam, Puerto Rico, the Mariana Islands and the U.S. Virgin Islands. Additionally, any district or enclave would also be exempt from the apportionment rule, like the District of Columbia.) In other words, a direct tax can be levied without apportionment in the District of Columbia as the District of Columbia is outside of the several States.
The regulating rule for indirect taxes is that they be uniform throughout the United States. And here the term “United States” includes any place where our Congress exercises jurisdiction. That would be the 50 Several States, plus the four federal states, plus districts, plus enclaves ceded to the federal government by any of the state legislatures plus any chunk of real estate anywhere in the world where Congress can get away with levying a tax.
What the renegade footnote to the direct taxation clause found in today’s written Constitution implies is that the Sixteenth Amendment created a third category of taxes sanctioned by the Constitution. This third category would be a direct tax in the form of an income tax that was not subject to the apportionment rule yet could be levied in the several States.
Today we are not in a position to determine if the footnote is correct or incorrect. We can only discover its correctness or incorrectness. We can only discover the facts, because it was those who drafted, debated and approved the Income Tax Amendment to the Constitution who have already made that determination. We can call them “The Framers of the Sixteenth Amendment.”
In our search to discover the truth, we start with the Congressional Record. Here we find that Congress considered three versions of the Income Tax Amendment. These include Senate Joint Resolution #25, Senate Joint Resolution #39 and Senate Joint Resolution #40. It was S.J.R. #40 that ultimately became the Sixteenth Amendment. But the language of the first two proposals tells us everything we need to know about the intent of Congress.
The first draft of the Income Tax Amendment, Senate Joint Resolution #25, reads: “The Congress shall have power to lay and collect taxes on incomes and inheritances.” 44 Cong. Rec. 1568 (1909). This proposed amendment was offered by Senator Brown from Nebraska. The very next statement made after the introduction of S.J.R. #25 was from Senator Rayner of Maryland who raised the issue of harmony with the direct taxation clauses of the Constitution. Senator Rayner stated:
“I will call the Senator’s attention to the fact that unless you change the clause of the Constitution which provides for apportionment [of direct taxes] the joint resolution would not repeal that clause. The two clauses would stand in pari materia together and you would still have an apportionment.” 44 Cong. Rec. 1568-9 (1909).
The main objection to the proposal was that S.J.R. #25 was going to create an exception to the apportionment rule for the direct taxation clauses of the Constitution. As a result, S.J.R. #25 fizzled on the Senate floor. Then came the next proposal, S.J.R. #39 which read:
“The Congress shall have power to lay and collect direct [emphasis mine] taxes on incomes without apportionment among the several States according to population.” 44 Cong. Rec. 3377 (1909).
The immediate response to S.J.R. #39 was criticism from Senator McLaurin who stated:
“I think if the Senator from Nebraska will change his amendment to the Constitution so as to strike out the words ‘and direct taxes’ in clause 3, section 2, of the Constitution, and also to strike out the words ‘or other direct’ in clause 4 of section 9 of the Constitution, he will accomplish all that his amendment proposes to accomplish and not make a constitutional amendment for the enacting of a single act of legislation.” id. at 3377.
Not only did S.J.R. #39 also fizzle on the Senate floor during debate, but it was resurrected on July 5, 1909 to be voted on just before the vote on what ultimately became the Sixteenth Amendment. On that morning S.J.R. #39 failed by a voice vote.
The desired effect of S.J. R. #25 and #39 were the same, that being the creation of an exception to the apportionment rule for any income tax that meets the criteria of a direct tax. Congress rejected this option. At this point we would do well to remind ourselves what Article I section 1of the Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States….” Only Congress is vested with the power to write the laws. The courts don’t have that power, nor does any executive agency. So we are stuck with the actions of Congress.
The Sixteenth Amendment was said to have been ratified in February of 1913. In the fall of that year, Congress imposed an income tax making it retroactive to March 1, 1913. Very quickly this new income tax was challenged in court and the first cases were decided by the Supreme Court in 1916. Initially there were five cases bundled together with the lead case being the Brushaber v. Union Pacific Railroad Case (240 U.S. 1 (1916). Three of these cases had the same New York attorney, a Mr. Davies of the firm Davies, Tolles, Glenn and Schurick. In his three cases (including Tyee Realty Co. v. Anderson, 240 U.S. 115 (1916) and Thorne v. Anderson, October term 1915, No. 394 (24,613)) Mr. Davies argued that the income tax was a direct tax and that the Sixteenth Amendment created an exception to the apportionment rule so that a direct income tax could be levied without apportionment. Even the government argued this position in an amicus brief to the Burshaber Case.
So, the very issue addressed by our renegade footnote was presented directly to the Supreme Court. And the Supreme Court ruled that the income tax in Brushaber was inherently an indirect tax and that the Sixteenth Amendment forever prevents any court (as was done in the 1895 Pollock Case) from “taking an excise [tax] out of the class [of indirect taxes] to which it belongs and transferring it to a class [of direct taxes] in which it cannot be placed consistently within the requirements of the Constitution.” Brushaber v. Union Pacific Railroad Case (240 U.S. 1, 19 (1916). Furthermore, the Supreme Court ruled that neither Brushaber nor the government could be right without destroying the harmony of the Constitution. In an overly wordy opinion, the Supreme Court said they were all wrong, because there was no exception to the apportionment rule created by the Sixteenth Amendment.
“[t]he contention that the Amendment treats a tax on income as a direct tax, although it is relieved from apportionment and is necessarily therefore not subject to the rule of uniformity as such rule only applies to taxes which are not direct, thus destroying the two great classifications which have been recognized and enforced from the beginning, is also wholly without foundation....” Brushaber v. Union Pacific Railroad Case (240 U.S. 1, 18 (1916).
The position of the Supreme Court, that direct taxes levied without apportionment are not sanctioned by the Sixteenth Amendment, was affirmed by the Supreme Court in Tyee Realty Co. v. Anderson and Thorne v. Anderson. Tyee Realty Co.'s Counsel of Davies, Tolles, Glenn and Schurick, argued: “The Sixteenth Amendment authorizes a direct tax without apportionment only in so far as that tax is on income.” Brief for Appellant at 12, Tyee Realty Co. v. Anderson, supra. In the Thorne v. Anderson Case, the same law firm claimed: “...one of the great limitations upon the power of Congress to levy direct taxes has been abrogated by the Sixteenth Amendment.” Brief for Plaintiff at 38, Thorne v. Anderson, supra. Of this contention, this Court ruled: “But we need not now enter into an original consideration of the merits of these contentions, because each and all of them were considered and adversely disposed in the Brushaber v. Union Pacific R.R. Co. Case.” Tyee Realty Co. v. Anderson, supra at 117. In other words, there is no Sixteenth Amendment exemption to the direct taxation clauses of the original Constitution.
Our evidence that the renegade footnote is wrong gets piled higher and deeper. In the next income tax case to get to the Supreme Court (Stanton), the same arguments were made, that the income tax was a direct tax and that the Sixteenth Amendment allowed for an exception to the apportionment rule such that a direct income tax could be levied without apportionment.
A review of this Court's Transcript of Record for the Stanton v. Baltic Mining Co. Case (240 U.S. 103 (1916)) shows that Stanton 12 times claimed the Sixteenth Amendment provided this “apportionment rule exception” for direct taxes in the nature of an income tax. Then another 10 times, Stanton alluded to this perceived exception. In addition, so did a Mr. John R. Van Derlip, who filed an amicus curiae brief in the Stanton Case. The “exception to apportionment” argument was a central argument in both these briefs. The government and Mr. Van Derlip made the same claim 15 times. A sampling of Stanton's assertions is as follows:
“The Sixteenth Amendment authorizes direct taxes upon ‘incomes,’ but not upon capital or property. Income taxes may now be imposed without regard to apportionment among the States, according to their population.
All forms of direct taxation other than taxes on ‘incomes,’ clearly remain subject to the same constitutional limits as formerly.” Brief for Appellant at 24, Stanton v. Baltic Mining Co., 240 U.S. 103 (1916).“This is a direct tax on ‘net income,’ and nothing else can constitutionally be taxed directly, without apportionment.” id. at 36.
“The Sixteenth Amendment only authorizes direct taxes on ‘incomes.’” id. at 60.
“All forms of direct taxation of real and personal property, other than income taxes, still require apportionment; otherwise they are unconstitutional.” id. at 139.
In Mr. Van Derlip's amicus curiae brief, he claimed:“By the [Sixteenth] Amendment, sec. 2 of Article I of the Constitution had been modified as respects the persons to be included in any enumeration which should be the basis for the laying of a direct tax. This same section has now been modified for a second time by the Sixteenth Amendment with the result that the first sentence of the section, in effect, now stands as if enacted in the following words: ‘Representatives and direct taxes shall be apportioned among the several states [sic] which may be included within this Union, according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed; provided, however, that the Congress shall have power to lay and collect direct taxes upon incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.’” Amicus Curiae Brief by Van Derlip at 24-25. Stanton v. Baltic Mining Co., supra.
Every quote just cited from the Stanton Case’s Transcript of Record was rejected by the Supreme Court. In every way, shape, and form, the claim was made that the Sixteenth Amendment provided an exception to the apportionment rule. If true, this would have been the “new rule" spoken of in the Stanton Opinion and would have created a “new tax”. All this was rejected by the Supreme Court, which stated in their Stanton Opinion:“But aside from the obvious error of the proposition intrinsically considered, it manifestly disregards the fact that by the previous ruling [Brushaber] it was settled that the provisions of the Sixteenth Amendment conferred no new power of taxation but simply prohibited the previously complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged and being placed in the category of direct taxation subject to apportionment by a consideration of the sources from which the income derived.” Stanton v. Baltic Mining Co., supra.
We are further buttressed by what the New York Times reported on the Brushaber Case. On January 25, 1916, the New York Times wrote of the Brushaber Case:
“The basic error of those who attacked the constitutionality of the tax, Chief Justice White holds... was in regarding the Sixteenth Amendment as empowering the United States to levy a direct tax without apportionment among the States according to population. In substance, the court holds that the Sixteenth Amendment did not empower the Federal Government to levy a new tax....
“We are of the opinion, however, that the confusion is not inherent, but rather arises from the conclusion that the Sixteenth Amendment provides for a hitherto unknown power of taxation: that is, a power to levy an income tax which, although direct should not be subject to the regulation of apportionment applicable to all other direct taxes.”” Income Tax Upheld In Broad Decision, New York Times, p. 5, January 25, 1916.
Also writing about the Brushaber Case, Harvard Law Review had this to say:“In Brushaber v. Union Pac. R.R. Co., Mr. Chief Justice White, upholding the income tax imposed by the Tariff Act of 1913, construed the Amendment as a declaration that an income tax is ‘indirect,’ rather than as making an exception to the rule that direct taxes must be apportioned.” The Income Tax and the Sixteenth Amendment, 29 Harvard Law Review 536 (1915-6).
See also The Federal Income Tax Law of 1913: Construction of the Sixteenth Amendment, 1 Cornell Law Quarterly 298, 299 and 301 (1916), Constitutional Law: Income Tax: Sixteenth Amendment, 4 California Law Review 333, 335-6 (1915-6), and Washington Notes, The Income Tax Decision, 24 The Journal of Political Economy 299, 300 (1916).
In the early income tax cases of Brushaber, Stanton, Tyee, Dodge, and Thorne, the Supreme Court ruled correctly. The Court had to as the legislative record, the historical record and the will of the American People were clear and necessarily relied upon as the foundation for the Supreme Court’s position on the question.
There is no exception to the apportionment rule for any direct tax, including an income tax on wages and salaries. The footnote in the United States Code is wrong. And the implications of this are huge. What this means is that any income tax that conforms to Adam Smith’s criteria of what constitutes a direct tax must be apportioned among the states just like members of the House of Representatives are apportioned. And any income tax that meets Adam Smith’s criteria for what constitutes in indirect tax must be uniformly levied throughout the United States. The practical effect of this is to disallow how the income tax on wages and salaries is currently being collected within the 50 several States.
[Note, in determining whether a tax is a direct tax or an indirect tax is dependent on how a specific tax meets the criteria for each of the two types of taxes as defined by Adam Smith. For example, and income tax on wages and salaries is a direct tax; whereas an income tax on interest income or investment income is an indirect tax.]
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But don’t expect this misplaced footnote to disappear easily, as such a long entrenched bad habit on the part of tax collectors will be hard to change. Change will come only when millions of Americans begin to believe and act like our ancestors did who in 1775 “knew your [King George’s] statutes better then you know them yourself.”
If this article has stimulated an interest in you for this issue, you can read a more in-depth analysis in my book, Constitutional Income. If you don’t have time to read a 450 page book, you can read my 30 page Petition to the United States Supreme Court. Both publications are available at www.constitutionalincome.com
© 2012 Phil Hart - All Rights Reserved
Phil received a bachelor's degree in Civil Engineering from the University of Utah and a master's degree in Business Administration from the Wharton School at the University of Pennsylvania.
In 2004, Phil Hart was elected by the Citizens of North Idaho to represent District 3 in the Idaho Legislature. District 3 encompasses the northern part of Kootenai County. Phil Hart is actively seeking re-election for the 2008 legislative term.
Phil has dedicated a significant amount of personal time for the past ten years in trying to resolve the constitutionality Income Tax. His efforts have resulted in the publication of his book Constitutional Income, which is in its third edition. His book has been steadily covering ground across the United States. He also litigated the issue with the IRS and petitioned the Supreme Court.