Wednesday, May 23, 2007

Our constitutional system’s most fundamental rule!

In 1823 Thomas Jefferson wrote:


"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

Indeed, expounding upon our Constitution is not a matter of “interpretation” as some would have us believe…it is a task of “documentation”! Enemies of our constitutional system wish to ignore the recorded intentions for which our Constitution was adopted in order to be free to interpret the Constitution to mean whatever they wish it to mean.

Let us look at some authoritative sources concerning our constitutional system’s most fundamental rule.

Intent of constitution

16 Am Jur 2d Constitutional law

Par. 92. Intent of framers and adopters as controlling.

“The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.

“A constitutional provision is to be construed, as statutes are, to the end that the intent of those drafting and voting for it be realized."(Mack v Heuck (App) 14 Ohio L Abs 237)

"No part of the constitution should be so construed as to defeat its purpose or the intent of the people in adopting it."Pfingst v State (3d Dept) 57 App Div 2d 163 .


"the rule being that a written constitution is to be interpreted in the same spirit in which it was produced" Wells v Missouri P.R. Co.,110Mo 286,19SW 530.

"Where language used in a constitution is capable of two constructions, it must be so construed as to carry into effect the purpose of the constitutional convention.” Ratliff v Beal, 74 Miss.247,20 So 865 .

"In construing federal constitutional provisions, the United States Supreme Court has regularly looked for the purpose the framers sought to accomplish.”Everson v Board of Education, 330 US 1, 91 L Ed 711,67 S Ct 504, 168 ALR 1392.

"The primary principle underlying an interpretation of constitutions is that the intent is the vital part and the essence of the law." Rasmussen v Baker, 7 Wyo 117, 50 P 819.

And, see Rhode Island v. Massachusetts, 37 U.S. (12Pet.) 657,721(1838), in which the Supreme Court has pointed out that construction of the constitution "...must necessarily depend on the words of the Constitution; the meaning and intention of the conventions which framed and proposed it for adoption and ratification to the Conventions...in the several states...to which this Court has always resorted in construing the Constitution."

Fact is, even Congress understands this fundamental principle of constitutional law, even though they no longer follow it.:

"In construing the Constitution we are compelled to give it such interpretation as will secure the result intended to be accomplished by those who framed it and the people who adopted it...A construction which would give the phrase...a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution."_____ Senate Report No. 21, 42nd Cong. 2d Session 2 (1872), reprinted in Alfred Avins, The Reconstruction Amendments’ Debates 571 (1967),

Now, with regard to the Federalist Papers and other historical sources from which to document the intentions and beliefs under which our Constitution was adopted see vol.16, American Jurisprudence, "Constitutional Law", Par. 130


"The Federalist and other contemporary writings." which are acknowledged sources from which to determine the “intent” of those who framed and ratified the constitution.”

In addition to the above documentation, it is interesting to note a recent Supreme Court decision in which the Supreme Court of the united States references the Federalist Papers 18 times in order to document the legislative intent of our Constitution and enforce it. See:UNITED STATES v LOPEZ 1995, Also see: GREGORY v. ASHCROFT, 501 U.S. 452 (1991) and: Nixon v. United States (91-740), 506 U.S. 224 (1993).

The unfortunate truth is, both of our political party leaderships ignore abiding by our Constitution’s legislative intent as it may be documented from historical records___ there are those who believe in abiding by the intentions and beliefs under which our Constitution was adopted, and, there are those who wish to make the Constitution mean whatever they wish it to mean. I align myself with the former who believe in a system governed by the rule of law and abiding by the intentions and beliefs under which our Constitution was agreed to..

JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to interpret the Constitution to mean whatever they wish it to mean.

H.R.25 would violate Constitution's rule of apportionment !

BACKGROUND

Under the Articles of Confederation a general across-the- board tax to fill the national treasury was agreed upon. The amount to be contributed by each state was to be calculated from each state’s assessed land value and the improvements thereon.

Article VIII. of the Articles of Confederation states:

“All charges of war, and all other expences that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states in proportion to the value of all land within each state, granted to or surveyed for any Person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the united states in congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states within the time agreed upon by the united states in congress assembled.”


Each state was to make its contribution into the common treasury based upon the value of land within the state, and the value of land included an estimate of the “buildings and improvements thereon”. Taxes calculated from the value of property, real and personal, have always been considered to be direct taxation since the birth of our nation.

During the framing of our Constitution, states with superior wealth objected to allowing a power of taxation being granted which was based upon wealth and would leave them carrying more of the federal tax burden than poorer states. The wealthier Southern States felt that some compensation in their voting strength was necessary if they were to contribute a larger share of the federal tax burden.

Eventually, a compromise was reached [Article 1, Section 2, Clause 3] “Representatives and direct taxes shall be apportioned among the several States…….” The intention being, which is contrary to the popular myth that it made Blacks 3/5 of a person, was an agreed upon rule determining each states’ voting strength in Congress Assembled, and also determined each states’ share of a tax to be laid, if imposts, duties [external taxes], and miscellaneous internal excise taxes were found insufficient to meet Congress`s expenses.


The two rules regarding apportionment, considering subsequent amendments to our Constitution may be expressed as follows:

State`s Pop.
__________  X  Total number of Reps.  in  House 

U.S. Pop.



State`s Pop.

-----------------   X  SUM TO BE RAISED = STATE`S SHARE

U.S. Pop.


It should also be noted that during the ratification of our Constitution the above stated intentions were again noted on various occasions, e.g.: Mr. George Nicholas said: "the proportion of taxes is fixed by the number of inhabitants, and not regulated by the extent of territory, or fertility of soil. . . . Each State [*568] will know, from its population, its proportion of any general tax. As it was justly observed by the gentleman over the way, (Mr. Randolph), they cannot possibly exceed that proportion; they are limited and restrained expressly to it. The state legislatures have no check of this kind. Their power is uncontrolled." 3 Elliot, 243, 244.

Mr. Madison remarked that "they will be limited to fix the proportion of each State, and they must raise it in the most convenient and satisfactory manner to the public." 3 Elliot, 255.

After determining a total sum needed and each state’s apportioned share was calculated, each state’s Congressional Delegation was to return to their own state with a bill to extinguish their state’s share of the apportioned tax. Each state`s share was based upon its number of votes in Congress and the various state legislatures and Governors were intended to retain the responsibility of having to meet that financial responsibility in their own chosen way, which would prevent Congress from entering the states, taxing the people directly, and manipulating who shall pay the federal tax burden

Here are two examples of the rule of apportionment being applied by Congress:

Act laying a direct tax for $3 million August 2, 1813, and each state’s share of the tax.

Section 7 of direct tax of 1813 allowing states to pay their respective quotas and be entitled to certain deductions.

Bottom line is, the intended protection was that if imposts, duties [external taxes] and assorted internal excise taxes which Congress was authorized to lay were found insufficient to fill the national treasury, and a general tax among the states was found necessary to meet Congress’s exigencies, and especially in a wealth based tax being used as a primary source to fill the national treasury, those states carrying the lion’s share of such a tax would be compensated by a vote in Congress Assembled proportionately equal to their financial contribution___ a vote to be exercised in determining how their money would be spent by Congress!

This is what federalism is all about, a specific rule for direct taxation and the States retaining the power to meet their burden in their own chosen way! Of course, socialists and the friends of our Washington Establishment’s political plum job empire hate the rule of apportionment as it creates a very real moment of accountability [the various state Governors and Legislatures being burdened with extinguishing deficits created by Congress], and prevents Congress from bribing voters with favorable tax legislation!

Supporters of H.R. 25, the alleged fair tax, and the socialists who worked very hard to adopt the 16th Amendment, both have something very much in common ___ the subjugation of the rule of apportionment by which the people of the various states agreed they would contribute into the common treasury if imposts, duties [external taxes] and miscellaneous excise taxes [inland taxes which included taxes on specific articles of consumption] were found insufficient to meet Congress’s expenditures.

But the difference between the socialists who promoted the 16th Amendment and those who now promote the alleged fair tax is this.

The socialists who promoted the 16th Amendment were up front and promoted exactly what they wanted:

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.

But the weasels behind H.R. 25, who are obviously the friends of big government, are not being up front in saying exactly what they want, which is:

The Congress shall have power to lay and collect taxes within the various states on the sale of property, real and personal, without apportionment among the several states, and without regard to any census or enumeration.

Instead of saying exactly what they want, direct access to the people’s property, real and personal, in addition to laying taxes calculated from “incomes”, they hide their evil by calling it the “fairtax“! But when all is said and done, H.R. 25 is the same socialistic type taxing pig we now have but in a different dress and would extend Congress‘s taxing power to property, real and personal.!

The only tax reform freedom loving people need is to have the following words added to their Constitution, bringing us back to our FOUNDING FATHER’S ORIGINAL TAX PLAN which was created by tax rebels and designed to control the actions of Congress, rather than having Congress control the people:

The Sixteenth Amendment is hereby repealed and Congress is henceforth forbidden to lay ``any`` tax or burden calculated from profits, gains, interest, salaries, wages, tips, inheritances or any other lawfully realized money

Regards,

JWK

H.R.25 DOES NOT END TAXES CALCULATED FROM INCOMES!

1). The alleged fair tax does not repeal all taxes which Congress may calculate from profits, gains salaries, and other “incomes”.


2) The alleged fair tax does not propose to get rid of all taxes which Congress may calculate from profits, gains, salaries and other “incomes”.


3) None of the co-sponsors of H.R. 25, at this point in time, propose to get rid of all taxes which Congress may calculate from profits, gains salaries and other “incomes”.

The architects of H.R. 25 have left a very clever loophole in the language of H.R. 25 allowing Congress to continue calculating taxes from profits, gains, salaries and other “incomes“. This of course would also allow a continuance of the existing misery of record keeping under taxes which are now laid upon “incomes“, and such misery would be in addition to the new rules and regulations of the alleged fair tax.

H.R.25 stipulates the following:

SEC. 101. INCOME TAXES REPEALED.
SEC. 102. PAYROLL TAXES REPEALED.
SEC. 103. ESTATE AND GIFT TAXES REPEALED.


But, there is no language in H.R. 25 suggesting to repeal all taxes which may be calculated from profits, gains, salaries and other “incomes”! Why is this pertinent and ought to cause alarm? To understand this one must study FLINT v. STONE TRACY CO., 220 U.S. 107 (1911), a case decided prior to the adoption of the 16th Amendment! The Court upheld an excise tax, the corporation tax law of 1909, which was laid upon the privilege of being a Corporation, and the amount of tax to be paid was calculated from profits and gains realized under the corporate charter granted by government. Although such a tax looks like and quacks like an “income tax”, it is not a generic “income tax” and is not even suggested to be repealed by the language of H.R. 25!

If H.R. 25 were adopted and our socialist Congress needed additional revenue, would they really have difficulty gaining public support to use their “excise” taxing power to enact an excise tax on the “windfall profits” of those evil corporations so the 23 percent sales tax would not have to be increased to fund federal expenditures? Or, how about our socialist Congress laying a windfall profits excise tax on those evil and wealthy scoundrels in America who make millions of dollars a year in profits by bleeding the poor working people, such as was alleged about Leona Helmsley who they sent to jail for an alleged tax fraud, but who actually contributed more in federal taxes than any twenty average working people in New York? Would she be free from the grip of a socialist Congress?

If the architects of H.R. 25 were really sincere and determined about ending taxes calculated from income, then they would have said so in crystal clear language such as:

“The Sixteenth Amendment is hereby repealed and Congress is henceforth forbidden to lay ``any`` tax or burden calculated from profits, gains, interest, salaries, wages, tips, inheritances or any other lawfully realized money”

But as it turns out, not one of the co-sponsors of H.R.25 have proposed a companion bill to H.R. 25 with specific language proposing a constitutional amendment to forbid Congress from calculating any tax or burden from “profits, gains, interest, salaries, wages, tips, inheritances or any other lawfully realized money”, when such wording is absolutely necessary to end the misery now suffered under “income taxation”. What has been proposed is the following:


109th CONGRESS
1st Session
H. J. RES. 16

Proposing an amendment to the Constitution of the United States to repeal the sixteenth article of amendment.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:

`Article --
`The sixteenth article of amendment to the Constitution of the United States is hereby repealed.'.


But as we have learned from the FLINT CASE, the 16th Amendment was not needed to lay an excise tax calculated from “incomes”. And so, repealing the 16 Amendment with the above stated language, is meaningless!

And what do the architects of H.R. 25 propose within the language of H.R. 25? The language of H.R. 25 merely says that the 16th Amendment “should be repealed”.

But if H.R. 25 were adopted, and 10 or 15 years down the road the 16th Amendment by some remote chance is finally repealed by the above proposed language in H. J. RES. 16, Congress still maintains the power to calculate taxes from profits, gains, salaries and other “incomes” under its excise taxing powers, and, the SCOTUS has already upheld such a tax in the FLINT CASE mentioned above!

H.R. 25, if adopted and enforced, would expand Congress’s taxing power to reach property, real and personal, with a 23 percent tax, while keeping alive Congress’s power to lay and collect taxes calculated from profits, gains and other “incomes”.

H.R.25 also appears to be designed to divide the people and distract them from real tax reform such as:

“The Sixteenth Amendment is hereby repealed and Congress is henceforth forbidden to lay ``any`` tax or burden calculated from profits, gains, interest, salaries, wages, tips, inheritances or any other lawfully realized money”

The above wording would bring us back to our FOUNDING FATHER’S ORIGINAL TAX PLAN which was created by tax rebels and designed to control the actions of Congress, rather than having Congress control the people.

Regards,

JWK