A SPECIAL EDITORIAL COMMENT
An Unreasonable Report
Brian Doherty has had a little fun at the expense of some members of the ‘tax honesty’ movement in a lengthy piece about this past January’s ‘We The People’ convention just published in the May edition of Reason magazine. He has surprised and disappointed me in so doing. Focusing his attention almost entirely on the considerable diversity of opinion (and sometimes, fantasy) advanced by the convention’s participants in regard to the “How is the scam being perpetrated?” side of the “income tax fraud” equation, Doherty pays no serious attention at all to what should have been any libertarian journalist’s main story: the nature and cause of the overwhelming unanimity within the same group on the “Why it HAS to be a scam...” side.
That unanimity arises from the participants commitment to, and defense of, the rule of law; and the obvious and inescapable questions regarding the nature of the income tax-- questions which are readily revealed by even a modest amount of the research one would expect of any professional journalist. After all, the U. S. Constitution DOES prohibit unapportioned federal capitations very explicitly:
“No Capitation, or other Direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken,” U.S. Constitution, Article 1, Section 9;
the Supreme Court HAS declared-- particularly while holding forth on the meaning and effect of the 16th Amendment-- that this prohibition remains intact, and was entirely unaffected by the amendment:
are of opinion, however, that the confusion is not inherent, but rather
arises from the conclusion that the 16th 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. And the far-reaching effect of this
erroneous assumption will be made clear by generalizing the many
contentions advanced in argument to support it...”
it clearly results that the proposition and the contentions under it, if
acceded to, would cause one provision of the Constitution to destroy
another; that is, they would result in bringing the provisions of the
Amendment exempting a direct tax from apportionment into irreconcilable
conflict with the general requirement that all direct taxes be
Court, Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916);
and the income tax, as it is made to affect most Americans, IS unquestionably a capitation:
A poll tax; an imposition which is yearly laid on each person according to
his estate and ability.
Constitutional Law Dictionary, 6th Edition, 1856
taxes which, it is intended, should fall indifferently upon every
different species of revenue, are capitation taxes,”… “Capitation
taxes, if it is attempted to proportion them to the fortune or revenue of
each contributor, become altogether arbitrary. The state of a man's
fortune varies from day to day, and without an inquisition more
intolerable than any tax, and renewed at least once every year, can only
be guessed at.”…”Capitation taxes, so far as they are levied upon
the lower ranks of people, are direct taxes upon the wages of labour, and
are attended with all the inconveniences of such taxes.”…”
In the capitation which has been levied in France without any interruption
since the beginning of the present century, the highest orders of people
are rated according to their rank by an invariable tariff; the lower
orders of people, according to what is supposed to be their fortune, by an
assessment which varies from year to year.”
Smith, Book V, CH. II, Art. IV of ‘The Wealth of Nations’, 1776.
these simple facts, the inescapable conclusions to which
they lead, and that they are the common focal point around which the
entire ‘tax honesty’ movement has coalesced, barely show up on
Doherty’s radar screen, much less occupy the premiere place they
deserve. Instead, these key elements are dismissed with the
parroting of a few hoary and obvious absurdities, such as that the Brushaber decision,
cited above, says nothing of greater substance than that Congress had
always had the power to tax "incomes"-- but only if apportioned,
until the 16th Amendment. This is nearly the exact opposite of the
what this important case actually established. Rather, this
ruling unambiguously declares that the 16th Amendment DID NOT make
anything which had
previously been taxable only under the apportionment rule now taxable
without apportionment. The court holds, rather, that the amendment
does just what is said by its words (
Instead, these key elements are dismissed with the parroting of a few hoary and obvious absurdities, such as that the Brushaber decision, cited above, says nothing of greater substance than that Congress had always had the power to tax "incomes"-- but only if apportioned, until the 16th Amendment. This is nearly the exact opposite of the what this important case actually established. Rather, this ruling unambiguously declares that the 16th Amendment DID NOT make anything which had previously been taxable only under the apportionment rule now taxable without apportionment. The court holds, rather, that the amendment does just what is said by its words (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 mandates that a tax on "income"-- something which has always been taxable by Congress without apportionment, because it is not "all that comes in" (or anything else a tax upon which would constitute a capitation), but is, rather, a highly specialized type of revenue-- can not be stymied in its application even if the receipt of that specialized type of revenue is connected with a source which, itself, IS only taxable by apportionment.
It is telling that in his summary of the erroneous "mainstream" (read: "defensive of the status quo") view of Brushaber, Mr. Doherty describes the ruling as an "extremely hard-to-follow" decision. Indeed, it is-- if one is trying to tease a meaning out of the court's words that is not there, or deny the meaning that IS there. If one is content with no more and no less than what the court actually says, it is easy to follow (though poorly written).
To be charitable, we might speculate that Mr. Doherty is suffering from a common conceptual error which demonstrates the wisdom of Thomas Paine’s observation in Common Sense: “...a long habit of not thinking something wrong, gives it the superficial appearance of being right, and raises at first a formidable outcry in defense of custom.” Presuming (as we must) that he is conscious of the apparent reality of a tax which obviously amounts to a prohibited capitation and yet continues in existence, Doherty must recognize that something isn’t what it seems. However, rather than suspect that maybe what “isn’t as it seems” is the real language and meaning buried in the 3,413,780 word Internal Revenue Code and the law it represents (of which he has probably never read nor seen more than 1%, if that), perhaps he genuinely imagines that the incongruity must result from some subtle, inexplicable nuance of the 53 words of the Constitution dealing with the subject.
Or, it may be simpler than that. That the problem is with the Constitution rather than with what is claimed to be the meaning and language of a body of law that precious few ever get around to actually reading is, after all, the version of reality preferred by the IRS-- an agency known for its dedication to encouraging everyone to “get their mind right,” and avoid inconvenient topics. Mr. Doherty may simply be unwilling to perceive the central element of the tax honesty story, since to do so would conflict with the comforting fallacy by which he has made his peace with the status quo and the scary bureaucrats whose interests it serves.
Whatever the other faults of the ‘tax honesty’ advocates, this sort of intellectualist self-deception is not one from which they suffer. They can read. They understand that since the prohibition of Art. 1, Sec. 9 stands as written, the “income” referred to in the 16th amendment and the various revenue acts CANNOT be “every different species of revenue”, “the wages of labour”, or, “what is supposed to be their fortune” as measured by “an assessment which varies from year to year.” Thus, their very reasonable inquiries as to what “income” really is, in the context of the law; and how it is being made to appear to be otherwise-- some of the answers to which afford Mr. Doherty his amusement.
Undeniably (and forgivably), many of the attempts to answer such questions by navigating through the immensity of federal revenue law-- particularly those attempts made prior to the law being digitized-- have resulted in ‘gems of insight’ which have proven to be incomplete, out-of-context, contradictory to each other, and/or outright wrong. Also undeniably (and less forgivably), the typically long delay before these gems are challenged-- either through peer-review or in a courtroom-- has often resulted in their becoming widely disseminated, wholeheartedly embraced, and so deeply rooted as to be clung to even in the face of their eventual debunking, and even to the point of concluding that only rank and relentless corruption explains their failure to prevail. Consequently, there is much grist for Doherty’s mill as he derisively lists some of the more fanciful misunderstandings being defended at the convention, or compares one error or inconsistency to another. All the while, though, he remains completely oblivious to the fallacy mis-informing his own perspective; in fact, he invites his readers to chuckle with him at the convention's naifs for their failure to share his affliction.
Mr. Doherty’s condescending mockery of a coalition which, at bottom, exists simply to ensure that the federal government obeys the law-- and whose members are, as he himself acknowledges, wholeheartedly and courageously pledged at the risk of their lives and fortunes to the task-- appears to expose his embrace of the cynicism of realpolitik, if not a streak of elitism. It also brings to mind the kind of cultural decay against which C. S. Lewis warned us when he observed of modern times that, “We make men without chests and expect of them virtue and enterprise. We laugh at honor and are shocked to find traitors in our midst.” These people should be heroes to Doherty. Which subterfuge or usurpation, by which authority not granted to the federal government is being nonetheless seized or exercised, is HE putting it all on the line to oppose? Actually, I am uncertain that Mr. Doherty recognizes any limits to federal authority, as he makes a point in his article of comprehensively disparaging the 'tax honesty' advocate's focus on the words of the laws. Apparently Doherty is comfortable with the idea that such words mean only what those whose power they are intended to define and circumscribe say they mean. "Living" words, so to speak. I'd like to have Mr. Doherty over to my place for a night of poker, which will be played under "living" house rules.
Frankly, even if the tax honesty warriors were wrong in their cause, every libertarian should celebrate their willingness to stand defiant in the path of Leviathan, and especially in challenge of the mechanism by which so many of that relentlessly growing beast’s other offenses are underwritten or justified. Ironically-- to say it in the nicest possible way-- it is likely that the next edition of Reason will find Mr. Doherty smugly and scornfully criticizing one of those very offenses (reminding us all that talk is cheap). If so, this will serve to emphasize the disservice his current piece has done to an otherwise generally admirable magazine. Maybe he should consider a soapbox with a less libertarian and anti-pragmatic pedigree. You know what I mean. Something more... "in the mainstream".
© Peter E. Hendrickson
P.S. For the actual answers to those important questions being asked by the tax honesty patriots, and to learn how the tax dis-honesty scheme is perpetrated, read ‘Cracking the Code- The Fascinating Truth About Taxation In America’
ye love wealth greater than liberty, the tranquility of servitude greater
than the animating contest for freedom, go home from us in peace. We seek
not your counsel, nor your arms. Crouch down and lick the hand that feeds
you. May your chains set lightly upon you; and may posterity forget that
ye were our countrymen.”
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