16th Amendment follow up

[the inquirer]

A little while ago, I posted that according to the California State Archives, California never voted on the 16th (and 17th) Amendment yet was counted as having voted yes (I was doing some research on the 17th and the 16th was mentioned in the same legislative journals). There were some interesting replies and it got me thinking. Remember, there were 48 States at the time; so, it required 36 to pass. If California did not vote on the Amendment, what other States may not have; so, I decided to do some more research.

An easy one, Kentucky, 22 to 9 opposed but Kentucky was counted as having voted in favor. In N.H., it was positively rejected and then Gov. Bass notified Philander Knox of the vote. Supposedly in a 2nd pass, it was ratified but there is no original or any copy period of the purported ratification. PA & CT both rejected it. RI rejected. MA rejected it 3 times and supposedly ratified it too late, after the Proclamation of Ratification was made. TN never voted on it even though they attempted to circumvent their own State Constitution to do so. LA State Constitution allows their Legislature to pass revenue measures for State purposes, but not Federal, and they were prohibited from passing the resolution in ratification of a federal taxing authority. TX State Constitution listed the purposes for which tax burdens could be imposed by the Legislature and, guess what, the federal govt. wasn't one of them.

AK was interesting because they initially rejected it then later apparently ratified it. This resulted in the Solicitor (of the U.S.) contending that official notice of a rejection did not constitute a final official notice because it was a notice of a rejection which could later be changed to a ratification; however, an official notification of a ratification was a final official notice because a ratification could not later be changed to a rejection. Interesting, I wonder if an accused date rapist could use that argument in his defense. She said no but it wasn't really a no because she could change her mind and later say yes...

The KS State constitution requires a 2/3 majority of number of legislators elected to pass an amendment to the U.S. Constitution, not the number of legislators present. Guess which method they used? Not the correct one. NE & IA failed to ratify according to their legislative journals but were claimed to have voted yes. WI failed to ratify.

Cowboy land WY passed on the title to their resolution, not the resolution and, therefore, not the proposed amendment. oops! UT rejected. NV created a whole new amendment because the Governor didn't submit the certified copy of the Congressional Joint Resolution to the NV Legislature; instead, he submitted one abolishing one tax and liberal tax relief for another. That document is missing and only a copy of a copy exists in the National Archives. NJ passed it with a vote of 57% of the Legislature not the required 2/3, nor was it signed by either of the presiding officers of the Legislature. By the way, MD passed it with 29 changes from the original resolution. FL & VA rejected the 16th. SC made 19 changes while NC only made 9.

No original of MI ratification documents can be found. OH sent theirs in without the required GREAT SEAL OF Ohio attached (necessary to conform to section 205 of the Revised Statutes) and sent in 22 months after the supposed passage of the resolution by the Legislature. WV rejected then passed...too late. OK completely butchered the 16th and turned their resolution into gibberish. MO amended the amendment and the Governor failed to sign it.

In AZ, land of no illegals, the House had to declare an emergency session because they were supposed to have passed the resolution the day before they voted on it according to the date of signing on the ratification document which went to D.C. Kind of a "I need it yesterday" moment.

There were a number of other States that also changed the amendment. It looks like only 4 States actually passed the 16th Amendment as written and passed by Congress. All this has been quite an interesting revelation. What I thought I knew turned out to be really quite different from the reality. Amazing! What a world...

Any comments are always welcome but I would prefer that you not shoot from the hip and do some of your own research (really, do some actual checking) before making negative remarks.

[Arthur Rubin]

Even if this were correct, it would be moot. (At least some of the arguments made are completely bogus. The claims that LA and TX couldn't legally have ratified the amendment are absurd. Obviously, it isn't absurd to state that the governor or Secretary of State incorrectly transmitted a ratification to the Federal government.)

The question becomes, after all that "research": Why should we care?

[the inquirer]

Well, some of us did swear an oath to protect, defend and preserve the Constitution and take it seriously (after all, if you can't keep one of the most sacred pledges you have made in your life, I pity your spouse because you won't honor that one either or to anyone else, for that matter). Back on point, the Supreme Court has ruled in the past that any law that violates the Constitution is "moot" as you so eloquently stated. I would think that an Amendment that was improperly ratified in violation of the Constitution would meet that condition.

[notorial dissent]

It is then a pity that you didn’t swear an oath to actually do some research, which you very obviously didn’t. If so, you would have checked with the National Archives who will have all of the details of the ratifications as and when received by the SOS, and the final proclamation of completion by same.

While your flights of fancy might be interesting if one were interested in fiction, they are in the same vein as Banister’s nonsense, and are just that, based on not one scintilla of fact or reality. This is no different than the self serving drivel of Joe Banister, and quite frankly no where near as creative.

The ratification of a submitted amendment is a “special” Federal function of the states, and falls under Federal not state jurisdiction. As far as the amendment itself is concerned, all they get to do is approve or reject, so it doesn’t matter how they title it, how correct their enunciation of it is or anything else, as long as they approved that tax amendment, and said approval was transmitted by the Governor to the SOS, they had done their little bit in the amendment process. I don’t know that there has ever been an issue on the matter, but I suspect that all that would be required for approval would be a simple majority of the members present for passage since again it falls under Federal not State rules in this matter.

[Ragnar]

Not sure I get the point to inquirer's "research". Even if the 16th Amendment was thrown out - and it won't be since its legal - the Constitution still allows Congress to tax.

Article 1, Section 8

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

[Prof]

Yes, some of us took an oath to defend and protect the U.S. Constitution. I have taken that oath 3 times as a member of the US Army and SCANG and a number of times in connection with admission to various state bars and the bars of various US Courts, as well as as a federal employee. I took the oath seriously each and every time.

This does not mean that I get to decide which portions of the Constitution I think are valid. That decision is largely a political decision; it is an issue which even the Courts do and should shun.

I also do not get to decide which agencies of the US government I think are "real." A court might address such an issue, but as a lawyer, all I can do is -- on behalf of a client -- argue to a court that an agency is not an agency, etc.

Of course, in order to raise such issues, I would have to believe, in good faith, that such issues were not the product of a fevered imagination. In my opinion, these are the fevered imagings of a tax denier.

[The Operative]

This has long been a dead argument. The simple fact is the list of states ratifying the amendment was well publicized in 1913. To the best of my knowledge, not one of the listed ratifying states complained that they did not really ratify the amendment or intended to ratify the amendment. Therefore, after 97 years, the 16th amendment is definitely, without question, a part of the U.S. Constitution. So, if you really take your oath to defend the Constitution seriously, then you should be against those that spout silly arguments like the 16th amendment is not ratified.

[Imalawman]

Even assuming you are correct, which are not, the only thing the 16th changed was that income from real property could be taxed. This was due to the wrongfully decided Pollock case which held that income derived from real property was a direct tax and had to be apportioned. The Supreme Court in Brubasher later cast doubt on the validity of Pollock without directly rejecting it. So, if you were to strike down the 16th, it would only serve to benefit those in the rental business. The SCOTUS has always allowed taxation on wages as an indirect tax. Should the 16th be repealed, life would probably not change given the case law since the 16th. The SCOTUS would probably hold (if a case were to make it there) that even rental income is an indirect tax and is not subject to the apportionment requirement.

So, the very real question is, "So what?". But in case you are still interested, see http://evans-legal.com/dan/tpfaq.html#ratification . I trust LPC's research on this, and seeing how its a moot issue, I don't think I care enough to my own research.

[fortinbras]

The research that started this thread was very specific: The California State Archives lacked documentation of ratifying the 16th & 17th Amendments (the notes to the Constitution say that Calif ratified both). But, I ask, what would this documentation look like? Was there documentation of the 18th Amendment (Calif ratified the Prohibition Amendment in Jan. 1919)? What did it look like?

The reason I am asking is that (according to the US Supreme Court) the ratification of an Amendment to the US Constitution is a special kind of legislation that skips a lot of the hurdles that ordinary legislation must endure; for example, it's a straight yes-or-no vote without any opportunity to amend the language, and the President and the Governor have no opportunity to sign (or veto). Since it's such a peculiar, and relatively rare, process, the documentation of it may not have been treated the way it is for ordinary legislation.

It may well be that California newspapers of the time may be more helpful. One very significant fact is that, when the US Secretary of State announced the adoption of these Amendments, nobody in California denied that the legislature had ratified them.

[Demosthenes]

It must really bum out the "inquirer" that the bill of rights were never ratified.

[Famspear]

The argument that the Sixteenth Amendment was not properly ratified is legally frivolous.

An ex-con named Bill Benson pushed this nonsense for years, even after he went to prison after using it in his own federal criminal tax case. In one of his cases, the United States Court of Appeals for the Seventh Circuit stated:

Benson knew or had reason to know that his statements were false or fraudulent. 26 U.S.C. [section] 6700(a)(2)(A). Benson's claim to have discovered that the Sixteenth Amendment was not ratified has been rejected by this Court in Benson's own criminal appeal.... Benson knows that his claim that he can rely on his book to prevent federal prosecution is equally false because his attempt to rely on his book in his own criminal case was ineffective.

--Entry 58, pp. 8 & 9, April 6, 2009, case no. 08-1312 and case no. 08-1586, United States v. Benson, 561 F.3d 718 (7th Cir. 2009), cert. denied, no. 09-464 (Nov. 30, 2009).

Sixteenth Amendment arguments have been uniformly rejected by other United States Circuit courts in other cases including Sisk v. Commissioner, 791 F.2d 58, 86-1 U.S. Tax Cas. (CCH) paragr. 9433 (6th Cir. 1986); United States v. Sitka, 845 F.2d 43, 88-1 U.S. Tax Cas. (CCH) paragr. 9308 (2d Cir.), cert. denied, 488 U.S. 827 (1988); and United States v. Stahl, 792 F.2d 1438, 86-2 U.S. Tax Cas. (CCH) paragr. 9518 (9th Cir. 1986), cert. denied, 107 S. Ct. 888 (1987).

The 16th Amendment non-ratification argument has been specifically deemed legally frivolous in Brown v. Commissioner, 53 T.C.M. (CCH) 94, T.C. Memo 1987-78, CCH Dec. 43,696(M) (1987); Lysiak v. Commissioner, 816 F.2d 311, 87-1 U.S. Tax Cas. (CCH) paragr. 9296 (7th Cir. 1987); and Miller v. United States, 868 F.2d 236, 89-1 U.S. Tax Cas. (CCH) paragr. 9184 (7th Cir. 1989).

If a defendant argues in a federal criminal tax case that the federal income tax is unconstitutional on the frivolous ground that the Sixteenth Amendment was not properly ratified, that argument may actually backfire, as the argument may provide evidence that the defendant willfully violated a known legal duty.

[Noah]

Even assuming you are correct, which are not, the only thing the 16th changed was that income from real property could be taxed. This was due to the wrongfully decided Pollock case which held that income derived from real property was a direct tax and had to be apportioned. The Supreme Court in Brubasher later cast doubt on the validity of Pollock without directly rejecting it. So, if you were to strike down the 16th, it would only serve to benefit those in the rental business. The SCOTUS has always allowed taxation on wages as an indirect tax. Should the 16th be repealed, life would probably not change given the case law since the 16th. The SCOTUS would probably hold (if a case were to make it there) that even rental income is an indirect tax and is not subject to the apportionment requirement.

BINGO.... that was my position when I first "washed ashore" here. I got hammered.

[Duke2Earl]

Isn't amazing how some people "research" and "discover facts" that many before them already "discovered?" And they seem to be even amazed is that others have been down those blind alleys and ran into brick walls. And they expect us to want to "discuss" the rotten fruits of their "research" even though the courts have already ruled conclusively and repeatedly that they are wrong. At the very least they ought to come up with something new.

[Evil Squirrel Overlord]

The Illuminati approved this amendment in the Admiralty Assembly. What other documentation is needed?

[Cathulhu]

The Illuminati approved this amendment in the Admiralty Assembly. What other documentation is needed?

Approval from the shapeshifting lizards, natch!

[Harvester]

Inquirer, the history surrounding the 16th's ratification is a bit odd, nevertheless Philander Knox declared it ratified. The best book I've come across on this is the Idaho legislator's Constitutional Income. He sensed something fishy with our income tax but rather than explore the tax code (which he found full of smoke & mirrors) he explores the Congressional Record and newspapers of the day to determine the intent of The People and Congress. He learned that the upper echelon of society was profiting greatly off the govt's protective tariff system, whose costs were passed along to wage-earners, and there began some public outcry for the rich to 'pay their share.' This was the genesis of the amendment and the intent was to bring relief to the middle class, not tax their wages. Indeed the meaning of income at that time was 'unearned' or 'idle income.' It would now appear, in 2010, that we've missed the mark entirely.

http://newswithviews.com/Hart/phil100.htm

[LPC]

One very significant fact is that, when the US Secretary of State announced the adoption of these Amendments, nobody in California denied that the legislature had ratified them.

I've often wondered the very same thing.

The ratification of the 16th Amendment was fairly fast. It was proposed in 1913 and was declared to be ratified in 1916, only three years later. All of the legislators who had debated the amendment and voted in favor or against the amendment were not only still alive, but presumably capable of remembering what they had voted for (or against) only two or three years before. And this was not some technical change in a statute, but a major amendment to the Constitution that received a great deal of attention. So if the results of the votes in the legislatures was falsely (or erroneously) reported, why didn't somebody say something?

And maybe some glitch might result in a reporting error in one state, but two or three or even a dozen?

It really doesn't sound like something that is likely, or even possible.

[Famspear]

Inquirer, the history surrounding the 16th's ratification is a bit odd, nevertheless Philander Knox declared it ratified.

No, the history of the ratification is not "odd."

The best book I've come across on this is the Idaho legislator's Constitutional Income. He sensed something fishy with our income tax but rather than explore the tax code (which he found full of smoke & mirrors)

No, he did not sense something "fishy." He was simply "fishing" for an excuse to avoid paying income tax.

And no, the tax code is not full of "smoke and mirrors." The tax code is full of mind-numbing complexity. There's a difference.

He [Phil Hart] learned that the upper echelon of society was profiting greatly off the govt's protective tariff system, whose costs were passed along to wage-earners, and there began some public outcry for the rich to 'pay their share.' This was the genesis of the amendment......

Arguably, that may be right.

Indeed the meaning of income at that time was 'unearned' or 'idle income.'

No. That was not the meaning of "income" at the time. The meaning of "income" has never been limited to "unearned" or "idle" income. Even in the 1800s, with the first U.S. federal income tax laws, the term "income" was clearly understood to include income earned through labor -- and there is no record in any court case of anyone ever even challenging that.

It would now appear, in 2010, that we've missed the mark entirely.

No. The only people who have missed the mark are people like you, Harvester, and Phil Hart, who want to create a fake history.

Part of the problem for tax protesters/tax deniers today, in the 21st Century, is that with all their ballyhooed claims of having studied "history," they really don't know history. They don't have a sense of the march of time when it comes to the history of the federal income tax. The Sixteenth Amendment was ratified in 1913. And despite protestations to the contrary, the earnings from "labor" were taxed in the 1920s, 1930s, and 1940s, and yet there is no record in any of the reported court cases, of anyone having ever claimed that the term income did not include such earnings. Indeed, the people who were paying the income tax in the 1920s and 1930s were the high income earners, who above all had the financial resources to hire the best tax lawyers to represent them in court, and neither the taxpayers nor their lawyers ever came up with the stupid argument that income from labor (whether connected or not connected to an "activity" involving the exercise of a "federal privilege") was not "income" under the law.

Now, let's look at the Sixteenth Amendment. There is no record of anyone having ever claimed that the Sixteenth Amendment was not properly ratified in all the years 1913 through 1919.

No court cases mentioning that in the 1920s, either.

No court cases in the 1930s.

No court cases in the 1940s.

No court cases in the 1950s.

No court cases in the 1960s.

The very earliest court case I have found where a court mentioned someone (i.e., the "United Tax Action Patriots") claiming that the Sixteenth Amendment was not properly ratified was in the 1970s. The case is Ex parte Tammen, 438 F. Supp. 349, 78-1 U.S. Tax Cas. (CCH) paragr. 9302 (N.D. Tex. 1977).

Thus, a taxpayer who was 18 years old on the day the Amendment was ratified in 1913 would have been eighty-two years old by the time the Tammen case was decided.

Yet tax protesters continue to spout the laughable argument that the Sixteenth Amendment was not ratified by numerous states who were certified by the Secretary of State as having ratified it, even though NO ONE in any of those states -- in the sixty-four years from the year 1913 to the year 1977 -- ever raised the issue in court.

[Gregg]

Thus, a taxpayer who was 18 years old on the day the Amendment was ratified in 1913 would have been eighty-two years old by the time the Tammen case was decided.

Yet tax protesters continue to spout the laughable argument that the Sixteenth Amendment was not ratified by numerous states who were certified by the Secretary of State as having ratified it, even though NO ONE in any of those states -- in the sixty-four years from the year 1913 to the year 1977 -- ever raised the issue in court.

But there could have been a secret gag order like in the NESARA law where anyone who knew faced the death penalty if they said anything....

I'm jus' sayin'.....

[Famspear]

Thus, a taxpayer who was 18 years old on the day the Amendment was ratified in 1913 would have been eighty-two years old by the time the Tammen case was decided.

Yet tax protesters continue to spout the laughable argument that the Sixteenth Amendment was not ratified by numerous states who were certified by the Secretary of State as having ratified it, even though NO ONE in any of those states -- in the sixty-four years from the year 1913 to the year 1977 -- ever raised the issue in court.

But there could have been a secret gag order like in the NESARA law where anyone who knew faced the death penalty if they said anything....

I'm jus' sayin'.....

Or, lots of people raised the issue, but all the judges -- who are, after all, shape-shifting lizard alien left-wing liberal pinko commie bedwetters -- sealed all the court records. Oh, the humanity!



"Yeah, that's the ticket!"

--Jon Lovitz as Tommy Flanagan, the Pathological Liar

http://en.wikipedia.org/wiki/Saturday_N ... gical_Liar