judicial supremecy and the legitimacy of 16th amendment

[Cspeter8]

Would I be permitted to have a mutually respectful conversion on this topic with the judicial brain trust that lurks here? Sincerely, most of you folks are far more intelligent than me. I'd like to benefit from your collective wisdom.

[JamesVincent]

Would be pretty hard to have a conversion about it.

What's to discuss? It was passed and ratified. It has been ruled on multiple times. Any laws or rulings before the 16th were invalidated by the passage of the 16th. And the only thing it actually did was remove any requirement for apportionment per a direct tax. There, discussion over,

The Sixteenth Amendment does not purport to confer power to levy income taxes in a generic sense, as that authority was already possessed, or to limit and distinguish between one kind of income tax and another, but its purpose is to relieve all income taxes when imposed from apportionment from consideration of the source whence the income is derived.

Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916)
https://supreme.justia.com/cases/federal/us/240/1/

[wserra]

Would I be permitted to have a mutually respectful conversion on this topic with the judicial brain trust that lurks here?

While I agree with James that there isn't much to discuss, sure, have at it.

[The Observer]

If you are going to pursue a discussion along the lines that the 16th amendment wasn't properly ratified, make sure you read this first before you go down that road:

https://en.wikipedia.org/wiki/Tax_prote ... ification.

[Cspeter8]

If you are going to pursue a discussion along the lines that the 16th amendment wasn't properly ratified, make sure you read this first before you go down that road:
https://en.wikipedia.org/wiki/Tax_prote ... ification.

This seems like a pretty good place to start. From this Wikipedia entry I found

Secretary Knox declared that enough states had ratified the sixteenth amendment. The Secretary's decision is not transparently defective. We need not decide when, if ever, such a decision may be reviewed in order to know that Secretary Knox's decision is now beyond review.

Am I accurately construing this to indicate that the seventh circuit court of appeals didn't feel duty-bound to consider Benson's allegations beyond anything but the most superficial examination?

I read the case summary and thought Kenneth Thomas could have argued his case better. Knox claimed that 38 states had ratified, and at least 36 states were required. Benson found in the National Archives a 16 page document submitted by an official whose duties included providing legal opinions to Secretary Knox. Even Ignoring the cited details of punctuation and capitalization, the first 3 of the 10 defects cited in this document showed the failure of 13 states to ratify. Seven states even reported back to Knox that the amendment was NOT RATIFIED! Would this circuit court judge have been more thorough in examining the legal facts if these vital points were forcefully presented by the defense?

[JamesVincent]

Held: P was not entitled to a Court opinion addressing his frivolous arguments, and his motion for reconsideration will be denied.

Wnuck v. Commissioner, 136 T.C. 498, 501-13 (2011)

Courts are under no obligation to further read or discuss the merits of a case when it's blatantly frivolous. That position shows up in a couple different cases explicitly stated. It also shows up quite a bit when it isn't stated, like when the Supreme Court denies cert for an obviously defective case. It show's up on occasion when Wes tells someone that they are so wrong they aren't even wrong.

The district court enjoined William J. Benson, a “tax protester,” from promoting, organizing, or selling his “Reliance Defense Package” and “16th Amendment Reliance Package,” which were based on the false premise that customers could stop paying federal income taxes and avoid or defeat prosecution by relying on the materials in the Packages.   However, the court denied the government's request to require Benson to divulge a list of his customers.   We affirm the injunction, but reverse as to the customer list, and remand for further appropriate proceedings.

United States v. Benson (2009)

https://caselaw.findlaw.com/court/us-7t ... 37787.html

Did you seriously link to a website that the author was enjoined by the courts to prevent him from marketing and profiting from advice relating to the 16th amendment? If memory serves Benson mostly relied on Pollock to prove that the income tax was illegal..... except that Pollock is the main reason that the 16th was passed. Remember I said that any rulings or laws passed previous were rendered invalid?

Benson knew or had reason to know that his statements were false or fraudulent.  26 U.S.C. § 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.  United States v. Benson, 941 F.2d 598, 607 (7th Cir.1991) (“In Thomas, we specifically examined the arguments made in The Law That Never Was, and concluded that ‘Benson ․ did not discover anything.’ ” (quoting United States v. Thomas, 788 F.2d 1250, 1253 (7th Cir.1986))).  “[W]e have repeatedly rejected the claim that the Sixteenth Amendment was improperly ratified.   One would think this repeated rejection of Benson's Sixteenth Amendment argument would put the matter to rest.”   Benson, 941 F.2d at 607 (citations omitted).

Seems pretty clear and dried.


edit: forgot link

[JamesVincent]

I read the case summary and thought Kenneth Thomas could have argued his case better.

3. This assumes, however, that the petit jury properly convicted Thomas, which he denies. He asserts that the evidence was insufficient. Not so. Thomas filed returns for at least ten years, so he knew of the tax laws. The IRS sent Thomas a letter in 1978 informing him of the need to file (and the penalties for not filing). He was a field engineer at IBM, obviously capable of understanding enough to act wilfully. He failed to file a tax return for 1983, even though this was due after the return of the first indictment. It is not for want of information that Thomas did not file. A jury was entitled to find his neglect wilful, as that term is used in tax law. United States v. Pomponio, 429 U.S. 10, 97 S. Ct. 22, 50 L. Ed. 2d 12 (1976); United States v. Copeland, 786 F.2d 768 (7th Cir. 1985). The false certificates claiming exemption were filed knowingly; Thomas's evidentiary position here is that because IBM (on the advice of the IRS) ignored his certificates, he cannot be convicted. Section 7205 forbids the filing of "false" forms, however, and reliance on the forms is not an element of the offense. United States v. Lawson, 670 F.2d 923, 928 (10th Cir. 1982).

https://law.justia.com/cases/federal/ap ... 50/300551/

The exact same case you linked, United States of America v. Kenneth L. Thomas, 788 F.2d 1250 (7th Cir. 1986). Doesn't seem to say what you imply it says.

[wserra]

Would this circuit court judge have been more thorough in examining the legal facts if these vital points were forcefully presented by the defense?

Short answer: no, and should not have been.

The key sentence from Thomas is one you did not quote: "If a legislative document is authenticated in regular form by the appropriate officials, the court treats that document as properly adopted." In other words, it is not a court's function to "go behind" the amendment or legislative final result to examine the process by which the provision at issue was adopted, so long as the final result is authenticated in a way prescribed by law. This principle - the so-called "enrolled bill" rule - was first enunciated by the Supreme Court in a case Thomas cites, Field v. Clark, 143 U.S. 649 (1892), which sees it as a necessary corollary to the separation of powers. The Supreme Court applied it to a Constitutional amendment (the 15th) in another case Thomas cites, Leser v. Garnett, 258 U.S. 130 (1922). So the Thomas opinion is nothing new, and is fully consistent with binding Supreme Court precedent in not looking into the ratification process itself.

For me, the most interesting part of Thomas has always been the line that you do quote, Judge Easterbrook's hint that there may exist circumstances which do justify pulling up the curtain. Easterbrook is one of the best writers on the federal bench, and doesn't tend to add superfluous stuff to his opinions. While I of course note the "if ever", I'm still quite curious as to why that is there.

Not that it matters here.

[wserra]

when Wes tells someone that they are so wrong they aren't even wrong.

The exact quote, usually attributed to Nobel laureate physicist Wolfgang Pauli, is "that is not only not right, it is not even wrong". And yes, it's a favorite line.

[Cpt Banjo]

The validity of the 16th Amendment is somewhat of a moot point when you realize:

1. Article I, Section 8, Clause 1 of the Constitution is what authorizes Congress to impose an income tax.

2. The issue of whether such a tax is a direct tax that has to be apportioned was answered in Springer v. United States, 102 U.S. 586 (1881) in which the Supreme Court held that the only direct taxes under the Constitution are capitations and taxes on land and that therefore an income tax needn't be apportioned because it is in the nature of a duty or excise.

3. Springer was modified by the 1895 Pollock case (157 U.S. 429 and 157 U.S. 601) in two respects: the Court held that taxes on personal property were direct taxes and that a tax on the income from real or personal property (i.e., rent, royalties, dividends, and interest) was also a direct tax because it is properly viewed as a tax on the underlying property. But the Court went out of its way to state that its holding applied only to investment income and not to income consisting of compensation for work.

4. The 16th Amendment overturned the second prong of the Pollock rationale by providing that no income tax needed to be apportioned, regardless of the income's source. But the Court itself later weakened (if not completely killed) Pollock's second prong -- that in determining whether a tax on income is a direct tax one needs to look at the source of the income -- by stating that it was based on a "mistaken theory" (Stanton v. Baltic Mining Co., 240 U.S. 103, 113 (1916).

5. Recall that Pollock was a very unpopular 5-4 decision that has the distinction of being one of only three Supreme Court decisions to precipitate a constitutional amendment to overturn its holding. Accordingly, it is extremely doubtful that even if the 16th Amendment were held to have not been legally ratified the Court would follow Pollock and hold that the income from real or personal property is a direct tax.

6. In any event, it is clear that Pollock doesn't apply to taxes on wages and salaries, and that they are valid pursuant to I.8.1 of the Constitution.

[Burnaby49]

For me, the most interesting part of Thomas has always been the line that you do quote, Judge Easterbrook's hint that there may exist circumstances which do justify pulling up the curtain. Easterbrook is one of the best writers on the federal bench, and doesn't tend to add superfluous stuff to his opinions. While I of course note the "if ever", I'm still quite curious as to why that is there.

This actually happens occasionally in disputes regarding the interpretation of Canadian income tax legislation. Canadian tax legislation can be so complex and so poorly written (convoluted legalese that defies anyone to understand it) that it's possible to interpret a section of the Income Tax Act in more than one way. I've read a number of decisions where the opposing lawyers have presented differing interpretations and I've had to agreed that both fit within the Act's wording.

When that happens the courts allow the parties to enter into evidence the history of why the specific legislation was written. Things like parliamentary debates, discussion papers and working papers by the department of finance, input by the tax community, anything showing the government's intent. If this reveals a clear purpose for the law the court will utilize the interpretation that follows that purpose.

[JamesVincent]

When that happens the courts allow the parties to enter into evidence the history of why the specific legislation was written. Things like parliamentary debates, discussion papers and working papers by the department of finance, input by the tax community, anything showing the government's intent. If this reveals a clear purpose for the law the court will utilize the interpretation that follows that purpose.

That sounds like.... fun.

[Burnaby49]

Just another day at the office for we income tax types. I spent my working life reading convoluted legislation.

[JamesVincent]

when Wes tells someone that they are so wrong they aren't even wrong.

The exact quote, usually attributed to Nobel laureate physicist Wolfgang Pauli, is "that is not only not right, it is not even wrong". And yes, it's a favorite line.

Well, they always say that memory is the first thing to......

What was I talking about again?

[Cspeter8]

Would this circuit court judge have been more thorough in examining the legal facts if these vital points were forcefully presented by the defense?

Short answer: no, and should not have been.

The key sentence from Thomas is one you did not quote: "If a legislative document is authenticated in regular form by the appropriate officials, the court treats that document as properly adopted." In other words, it is not a court's function to "go behind" the amendment or legislative final result to examine the process by which the provision at issue was adopted, so long as the final result is authenticated in a way prescribed by law. This principle - the so-called "enrolled bill" rule - was first enunciated by the Supreme Court in a case Thomas cites, Field v. Clark, 143 U.S. 649 (1892), which sees it as a necessary corollary to the separation of powers. The Supreme Court applied it to a Constitutional amendment (the 15th) in another case Thomas cites, Leser v. Garnett, 258 U.S. 130 (1922). So the Thomas opinion is nothing new, and is fully consistent with binding Supreme Court precedent in not looking into the ratification process itself.

For me, the most interesting part of Thomas has always been the line that you do quote, Judge Easterbrook's hint that there may exist circumstances which do justify pulling up the curtain. Easterbrook is one of the best writers on the federal bench, and doesn't tend to add superfluous stuff to his opinions. While I of course note the "if ever", I'm still quite curious as to why that is there.

Not that it matters here.

Wserra, you strike me as someone who perhaps is a judge or attorney, or a law school professor. Your mind is far more sharp than mine. You probably know of Edwin Vieira. I found in a google search that he made a speech in 2000 at National Press Club, and touched upon the 16th amendment controversy, judicial supremacy, and some related concepts that had me quite excited. Maybe you might deflate my excitement, I am not sure.

As I read some paragraphs of Vieira, I cannot find where this "enrolled bill" rule is acknowledged in his speech. Vieira is retired; I think we ought to persuade him to come on this board and share his view about this principle. In this lengthly excerpt below, I am seeing Vieira taking a wrecking crane to the concept of Judicial Supremecy. And he does this in other parts of his speech as well:

First, the judiciary. Ah, the judiciary. The inferior Federal courts, I'm not saying that to be derogatory, that's the constitutional term, right? The inferior courts ... say that the invalidity of the "16th Amendment" raises a "political question" which is not justiciable, but belongs exclusively to Congress. Well, that's rather a highly questionable, you know, or even question-begging conclusion. As many as you probably know, the term "political question", or even any words or phrases that intimate that kind of a doctrine, do not appear in the Constitution. The doctrine of political questions is another of those rather imaginative patterns that the courts have cut from whole cloth in order to avoid being confronted with issues that they would rather not hear.

Now, in some very narrow context, that idea may serve a practical purpose. But in this particular context, it makes no sense at all. If you recall, the theory of judicial review, which is the basis for the Supreme Court and the other courts deciding on the constitutional questions of statutes that come before them, that was first excogitated in the case of Marbury v. Madison by John Marshall, long, long, ago [5 U.S. 137, 173, 176 (1803)], and it says that because of their oaths or affirmations of office to support this Constitution, in any case or controversy that comes before the judges, they must put the Constitution ahead of any mere statute or other action by public officials.

So, no matter what Congress or the President or the States may say some provision of the Constitution means to them, the judges must decide the matter for themselves. In fact, they have a saying, which is attributed usually to Chief Justice Charles Evans Hughes that encapsulates this sort of unbridled power that they have: "The Constitution is what the judges say it is." Well, of course, that's nonsense! But let's take them at their word, and see where that leads. If the judges' oaths or affirmations require them to decide for themselves what some provision of the Constitution means, why then do those same oaths or affirmations not equally compel them to decide the even more consequential matter of whether some alleged provision of the Constitution actually exists? Alright? Existence usually precedes meaning, one would hope. No matter what Congress or the Secretary of State or the President or the States may say, or not say.

Are we supposed to believe that this doctrine of judicial review is so inconsistent in its logic, and so porous in its coverage, that, on the one hand, the courts will not suffer Congress, the President or the States, to make the least little mistake about some provision or amendment of the Constitution, what those mean, let alone to lie about it? But, on the other hand, the courts will allow Congress, the Secretary of the State, the President, the States, whomever, to lie or to make glaring mistakes about whether a particular amendment actually exists? -- is rather implausible theory.

Are we further to believe that the courts will not allow Congress to lie or to make a glaring mistake about whether an Amendment actually exists, but then will also suffer themselves to be perverted as willing tools to convict, fine, or incarcerate people, who, if the Amendment doesn't exist, are innocent of any crime? That strikes me as even less likely.

Here is my favorite paragraph in this 7385 word speech, preceded by the text explaining what Vieira is describing as The Commission:

So, in what I call "the program of the four I's," Investigate, Inculpate, Indict, Incarcerate, [audience laughter] the first and most important step must be investigation. The machinery of investigation should center around a Citizen's Constitutional Investigatory Commission, composed of legal scholars, historians, other qualified individuals who are capable of assessing and arriving at correct conclusions from pertinent evidence. This Commission, however, must not seek any governmental direction, assistance, or other involvement. Public officials may appear before it as witnesses, and indeed many should be summoned to testify and to submit documentary evidence. But otherwise, no public official should be allowed to participate in such a Commission's work, as any such connection would raise insoluble conflicts of interest....

Third, if a tax on individual income from labor is held to be an excise by the Commission, then the Commission should determine an issue that was also broached earlier this morning, whether such a tax constitutes a badge or incidence of slavery or involuntary servitude, and is therefore unconstitutional under the 13th Amendment. I won't go into this in great detail, but you figure it out. The premise of this tax is that the tax is generated by labor, labor creates this tax. And the tax is taken, in principle, directly from the labor. Which, of course, to the government, has no value except in so far as it produces the wealth that can expropriated. This is precisely the master-slave theory of wealth generation. And I think if one went back to the antebellum American and Colonial literature, you would find a great deal of information on that subject which would verify that interpretation. In any event, that particular issue has to be settled.

This supports my previous assertion that Peymon Mottahedah is motivated not by money, but by being free of slavery.

[JamesVincent]

Problem.

Are we further to believe that the courts will not allow Congress to lie or to make a glaring mistake about whether an Amendment actually exists, but then will also suffer themselves to be perverted as willing tools to convict, fine, or incarcerate people, who, if the Amendment doesn't exist, are innocent of any crime?

Which amendment doesn't exist? Cite where someone was accused of a crime that didn't exist.

The machinery of investigation should center around a Citizen's Constitutional Investigatory Commission, composed of legal scholars, historians, other qualified individuals who are capable of assessing and arriving at correct conclusions from pertinent evidence.

Seems to be pushing Citizen Grand Jury. So... who decides who the experts are? And what exactly is the qualification to be on a commission deciding laws when it doesn't need to be a lawyer or judge? Neither profession is mentioned. That seems, oh, I don't know, what is the opposite of right?

Third, if a tax on individual income from labor is held to be an excise by the Commission, then the Commission should determine an issue that was also broached earlier this morning, whether such a tax constitutes a badge or incidence of slavery or involuntary servitude, and is therefore unconstitutional under the 13th Amendment.

So a bunch of people who are not attorneys or judges get to decide what the Constitution says. They meeting at Denny's or IHOP?

I won't go into this in great detail, but you figure it out.

"I'm not gonna make myself liable for giving bad legal advice, I'll let you make that assumption so I have plausible deniability."

This is precisely the master-slave theory of wealth generation.

Superman would have trouble making that leap.

[JamesVincent]

Just to make it absolutely and perfectly clear how much of a whackjob this speech is I want to quote the first little bit. I'm sure everyone will understand completely after reading it.

So, I'm not going to talk about that, I'm going to talk, in general, about some of the problems that I see from a constitutionalist's perspective with the "16th Amendment" and the wonderful work that Bill Benson has done, and that Larry Becraft and others have followed up on.

https://www.constitution.org/2-Authors/ ... speech.htm

Third paragraph.

[The Observer]

In addition to what James has already pointed out I am seeing that Vieira is looking for facts to fit his theory instead of looking at the facts and conluding what those facts really mean. When he starts quoting the likes of Benson and Becraft you have to realize that he is really, really stretching to reach some sort of justification for his opinion that the 16th was not properly ratified. But opinions do not cancel out judicial rulings. At some point the law must be recognized as the law. If you do not like the law, then work to repeal it. Not liking a law does not give you the right to disobey the law and then expect not to suffer the consequences of breaking the law.

[The Observer]

Third paragraph.

Yeeeesh, you don't even have to go to the third paragraph. Look at the first line from the person who introduces Vieira: Bob Schulz. Mr. "We the People" himself. The man who refused to file returns for 2001 through 2004. The man who was enjoined, along with his organization, from advising people that they didn't have to file returns or pay taxes. The man who was found being in contempt of court for failing to turn over information regarding the people to whom he had been sending tax materials. The man who filed over a hundred court actions, none of which succeeded. The man who published pictures of Walter Thompson, Dick Simakin and Nick Jesson, as examples of people who were refusing to pay taxes - all of whom who ended up serving jail time after being convicted of tax evasion.

Vieira's statements at this "conference" that Schulz organized lack substance once you have to consider that he was probably a paid speaker and was playing to Schulz's audience of like-minded tax deniers.

And at this point, I don't think we need to give Vieira any credit regarding his view on taxes. I might if he had actually argued and won any cases in front of the Supreme Court that involved his insights on the Constitution regarding taxes or the 16th amendment. His only cases before the Court had nothing to do with those issues - they involved labor union issues. So I am guessing when it comes to Vieira putting his money where his mouth is regarding his 16th amendment musings, he had better things to do than go into court and argue an already decided issue.

And if this is the motivation for Peymon, it certainly can't be equated with anything other than wanting money.

[Pottapaug1938]

Third, if a tax on individual income from labor is held to be an excise by the Commission, then the Commission should determine an issue that was also broached earlier this morning, whether such a tax constitutes a badge or incidence of slavery or involuntary servitude, and is therefore unconstitutional under the 13th Amendment. I won't go into this in great detail, but you figure it out. The premise of this tax is that the tax is generated by labor, labor creates this tax. And the tax is taken, in principle, directly from the labor. Which, of course, to the government, has no value except in so far as it produces the wealth that can expropriated. This is precisely the master-slave theory of wealth generation. And I think if one went back to the antebellum American and Colonial literature, you would find a great deal of information on that subject which would verify that interpretation. In any event, that particular issue has to be settled.

The courts have long since decided that the existence of the income tax does not trigger the 13th Amendment's provisions. Aside from that: what Peymon believes to be the law has no legal force; at best, it might be pleaded in mitigation.