Sunday, July 03, 2011

The big myth: the Sixteenth Amendment repealed apportionment of direct taxes

Do a little research on the internet with regard to our Constitution’s rule requiring direct taxes to be apportioned among the States and you will find countless sources spreading a myth that the Sixteenth Amendment repealed that requirement! Many of those who offer tax reform proposals, especially those who would circumvent the very intentions for which the rule of apportionment was adopted, constantly misinform the public about the rule of apportionment in addition to perpetrating the myth that the Sixteenth Amendment repealed the rule requiring any general tax laid among the States would have to be laid by the rule of apportionment.

I once believed this myth but after a very extensive research project at the University of Maryland, I learned I had been lied to! Now, let us look at some facts concerning this myth.

The 16th Amendment does not mention “direct” taxes, and, there is no language in the 16th Amendment repealing Article 1, Section 9, Clause 4 which states: ” No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”

Prior to the adoption of the 16th Amendment our Supreme Court repeatedly held that Congress had power to lay and collect a tax calculated from “income’ without having to apportion such a tax. See, for example, Springer v. United States, 102 U.S. 502, (1880) involving a challenge that the tax calculated from income laid during the war between the States was a direct tax, and therefore required an apportionment, in which the Court upheld the tax as not being direct! Also see FLINT v. STONE TRACY CO., 220 U.S. 107 (1911), which upheld a tax calculated from profits and gains without apportionment.

And so, from the historical evidence (the above S.C. opinions) it seems quite clear that the 16th amendment merely confirmed Congress always had power to lay and collect taxes calculated from incomes without having to apportion the tax, and that power was found in Congress’ power to lay and collect excise taxes, and the 16th Amendment granted no new power of taxation. This line of reasoning seems to be supported by what the SC stated in Stanton v. Baltic Mining Co. (1916):

" the previous ruling (the previous ruling was Brushaber v. Union Pacific R.R. Co. 1916), it was settled that the provisions of the 16th Amendment conferred no new power of taxation but simply prohibited the previous 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.."

As to direct taxes, see BROMLEY VS MCCAUGHN, 280 U.S. 124 (1929) in which the Supreme Court states in crystal clear language “As the present tax is not apportioned, it is forbidden, if direct.”

In addition see: Eisner v. Macomber, 252 U.S. 189, 206 (1920) , in which the Court had already pointed out:

“[T]his amendment shall not be extended by loose construction, so as to repeal or modify, except as applied to income, those provisions of the Constitution that require an apportionment according to population for direct taxes....This limitation still has an appropriate and important function, and is not to be overridden by Congress or disregarded by the courts.”

And so, we learn that direct taxes are still required to be apportioned.

And now, let us explore the stated intentions of our founding fathers regarding the rule of apportionment as applied to taxation?

Our founding fathers intended that Congress raise its primary revenue from imposts and duties (taxes at our water’s edge) and if need be, internal “excise” taxes on judiciously selected articles of consumption. But if these sources were found insufficient for the "Public Exigencies", and a deficit arose, then, and only then was a general tax to be laid among the states for a specific sum of revenue and then the rule of apportionment was intended to guarantee to the people of those States who paid the lion’s share of the tax, a proportionate representation in Congress proportionately equal to their contribution! But don’t take my word for it, let our founding fathers speak!

See: Ratification of the Constitution by the State of New Hampshire; June 21, 1788 Similar language is contained in several of the other State Ratification documents.

"Fourthly That Congress do not lay direct Taxes but when the money arising from Impost, Excise and their other resources are insufficient for the Publick Exigencies; nor then, until Congress shall have first made a Requisition upon the States, to Assess, Levy, & pay their respective proportions, of such requisitions agreeably to the Census fixed in the said Constitution in such way & manner as the Legislature of the State shall think best and in such Case if any State shall neglect, then Congress may Assess & Levy such States proportion together with the Interest thereon at the rate of six per Cent per Annum from the Time of payment prescribed in such requisition-

And Pinckney addressing the S.C. ratification convention with regard to the rule of apportionment says:

With regard to the general government imposing internal taxes upon us, he contended that it was absolutely necessary they should have such a power: requisitions had been in vain tried every year since the ratification of the old Confederation, and not a single state had paid the quota required of her. The general government could not abuse this power, and favor one state and oppress another, as each state was to be taxed only in proportion to its representation 4 Elliot‘s, S.C., 305-6

Also see:

“The proportion of taxes are fixed by the number of inhabitants, and not regulated by the extent of the territory, or fertility of soil” 3 Elliot’s, 243 ,“Each state will know, from its population, its proportion of any general tax” 3 Elliot’s, 244 ___ Mr. George Nicholas, during the ratification debates of our Constitution.

Mr. Madison goes on to remark about Congress’s “general power of taxation” 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

And if there is any question as to our founding fathers specifically intending the rule of apportionment being adopted to insure those States who pay the lion’s share under a general tax are guaranteed a representation in Congress proportionately equal to their contribution, Mr. PENDLETON explains in very clear language:

“The apportionment of representation and taxation by the same scale is just; it removes the objection, that, while Virginia paid one sixth part of the expenses of the Union, [under the Articles of Confederaltion] she had no more weight in public counsels than Delaware, which paid but a very small portion” 3 Elliot’s 41

And just what is the founder's formula for a general tax among the States?

States’ Pop.

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

U.S. Pop.

One of the reasons our Washington Establishment hates the rule of apportionment for any general tax laid among the States is that it removes the class warfare game from Congress' hands which is used as a distraction to divide and conquer while Congress plunders what America’s businesses and labor have produced.


Our tyrants in Washington force the productive to pay income taxes so they can spread their wealth and buy votes, but the Washington Establishment does not force their beloved 40 % who pay no income taxes to work for the taxes they get___ Our Washington Establishment’s Republican/Democrat Marxist game plan