Tag: Politics

Amendment XIX- Female Suffrage
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Contrary to popular belief, the United States Constitution of 1787 is a gender-neutral document. Throughout the original text, the Framers refer to “persons”—as opposed to “male persons”—and use the pronoun “he” only in the generic sense. The word “male” did not even appear in the Constitution until the Fourteenth Amendment was ratified in 1868.

Nothing in the original Constitution bars women from voting. Instead, the Framers left the matter of determining who was eligible to participate in the election of House Members and presidential electors almost entirely to the discretion of the states. Article I, Section 2, minimally requires that each state’s congressional electors “shall have the qualifications requisite for electors of the most numerous branch of the state legislature,” and Article II, Section 1, simply directs each state legislature to appoint its presidential electors in whatever manner it chooses. Although it is true that almost every state opted to restrict the vote to men, New Jersey did not. Accordingly, between the late 1780s and 1807, when that state’s legislature restricted the vote to men, many women participated in federal elections. Under the Constitution, in short, no change was needed to enable women to vote. This fact was ultimately reflected in the different strategies used by the advocates of woman suffrage to remove sexual qualifications for voting.

Although scholars typically trace the origins of the organized woman’s rights movement generally, and the drive for woman suffrage particularly, to a famous 1848 gathering in Seneca Falls, New York, the woman suffrage movement began to affect policy only during Reconstruction. In this period, the advocates of woman suffrage began pursuing three main strategies. The first was a judicial strategy involving the Fourteenth Amendment. From the standpoint of the woman suffrage movement, the Fourteenth Amendment represented both a setback and an opportunity. It was a setback insofar as its second section introduced the word “male” into the Constitution and did so in a clause penalizing any state that abridged the right of its “male inhabitants” to vote in state or federal elections for reasons other than crime or rebellion. In so doing, woman suffrage advocates worried, the second section lent credibility to the idea that the Constitution restricted the right to vote to men. Nevertheless, they also viewed the amendment as an opportunity, because they believed the first section of the amendment contradicted the implication of the second. When the Citizenship Clause was read in combination with the Privileges or Immunities Clause, they argued, the Fourteenth Amendment barred states from denying a woman’s right to vote in federal elections. In its 1874 decision of Minor v. Happersett, however, the Supreme Court unequivocally disagreed, holding that voting was not one of the privileges and immunities of citizens of the United States.

At the same time, various elements of the woman suffrage movement began pursuing other strategies. Consistent with the Framers’ arrangements in Articles I and II, the first such strategy involved persuading individual states and territories to eliminate sexual qualifications for voting. In 1869, the Wyoming territory became the first territorial government to do so; upon obtaining statehood in 1890, Wyoming became the first state since New Jersey to allow women to participate in federal elections on an equal basis with men. Although success was often slow in coming, by the time the Nineteenth Amendment was ratified in 1920, thirty states and one territory already permitted women to vote in at least some aspect in the selection of Members of the House (and by then the Senate) or presidential electors.

The other strategy begun in this period involved amending the federal Constitution in a way that would render such state action unnecessary. More precisely, the advocates of woman suffrage sought to reduce the power conferred upon the states in Article I, Section 2; Article II, Section 1; and eventually in the Seventeenth Amendment (which was ratified in 1913)—as well as their own constitutions—by explicitly barring the states from making sex a qualification for voting in federal and state elections. The first such amendment was introduced in Congress in 1869. In 1878, California Senator Aaron A. Sargent introduced the proposal that would, without any change in wording, be approved by Congress in 1919 and ratified by three-fourths of the states in 1920. Sargent’s proposal simply repeated the language of the Fifteenth Amendment save for one change: whereas the Fifteenth Amendment forbids both the U.S. and state governments from denying or abridging their citizens’ right to vote “on account of race, color, or previous condition of servitude,” the Nineteenth forbids the same “on account of sex.”

Unlike so many other clauses of the Constitution—including the Fifteenth Amendment itself—the Nineteenth Amendment has generated a remarkably small body of case law. In the first decade or so following ratification, a relatively small number of state courts implemented its restriction on the power of the states by striking down constitutional or statutory provisions that restricted the vote to men, made it more difficult for women to qualify than men, or otherwise treated male and female ballots differently. The amendment has generated even fewer federal cases. Although the Court has obliquely commented on the meaning of the amendment in various cases, it has confronted this question squarely on only one occasion. In Breedlove v. Suttles (1937), a Georgia law exempted payment of a one-dollar poll tax for unregistered female voters, but required male voters to pay the tax before registering to vote. In its decision, the Court stated that the amendment’s restriction on the power of the federal and state governments to deny or abridge their citizens’ right to vote “on account of sex” applied to men and women equally, and superseded all federal or state measures to the contrary. The Court concluded, however, that the amendment was not designed to restrict the state’s ability to tax.

The question here, in my mind, is since the Constitution is gender neutral in its construction regarding the franchise, was the nineteenth amendment simply a progressive “feelgood” exercise?

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(c) 2018

Amendment XVIII – Prohibition

Section 1
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

The Eighteenth Amendment, enacted in 1919, was one of four “Progressive” Amendments passed and ratified in quick succession. Although the American involvement with alcohol and with temperance movements had been present from the beginning of the country’s history, Prohibition rode to easy victory in an alliance with other elements of the Progressive Movement in the early twentieth century. The Sixteenth Amendment, permitting the income tax, freed the government from dependence on the tax on liquor. The direct election of Senators, through the Seventeenth Amendment, made the Senate more amenable to electoral pressure for temperance. Although the Nineteenth Amendment, guaranteeing women the right to vote, was ratified in 1920, it reflected a general acceptance of woman suffrage (and temperance support) already present in the states, many of which allowed women to vote even before the Nineteenth Amendment came into effect.

Businesses supported the amendment to ensure a more reliable workforce, while prejudice against German-Americans and their breweries during World War I helped make Prohibition a patriotic cause. The amendment passed through both Congress and the states with amazing speed. There were no committee hearings in Congress, and debate took less than six hours, most of it centering on the time limit for ratification. The states ratified the amendment within a month.

The only problematic element of the amendment was Section 2, granting Congress and the states concurrent enforcement powers. Under its Section 2 powers, Congress enacted the Volstead Act in 1919 over President Woodrow Wilson’s veto. The act defined “intoxicating liquors” as any drink with an alcohol content higher than .05 percent, a strict definition that prohibited even the intake of beer. It permitted exemptions for industrial, medicinal, and sacramental uses, and the act also contained a possession exemption for personal use within one’s own private dwelling.

In the 1920 National Prohibition Cases, the Supreme Court ruled that, under the Supremacy Clause, states could not enact legislation that conflicted with congressional enactments regarding Prohibition. Because the states had been the engines of much Progressive legislation, the Progressive Movement assumed that the states would actively enforce the amendment, federal law, and their own state laws. The unexpected and widespread reluctance among the states to enforce Prohibition, along with the concomitant development of organized crime and the loss of tax revenues after the start of the Depression, led to a national scandal.

Those behind Prohibition saw a ban on the sale of ‘intoxicating liquors’ as a crusade against a moral evil. But the big winners were the mob. In an age when individual freedom is all, it comes as something of a shock to reflect that in the world’s most prosperous and dynamic country the prohibition of alcohol lasted for almost 14 years. Today we often think of Prohibition as a deluded experiment. In fact, the campaign to prohibit alcohol had been deeply rooted in Anglo-American society for some two centuries. The American Society for the Promotion of Temperance, for example, was founded in 1826, and by the following decade as many as a million Americans belonged to an anti-alcohol group of some kind.

Far from being repressive authoritarians, Prohibition’s largely Protestant champions – a large proportion of whom were high-minded middle-class women – were the do-gooders of the day. Often deeply religious, they saw Prohibition as a kind of social reform, a crusade to clean up the American city and restore the founding virtues of the godly republic. Many were involved in other progressive campaigns.

The campaign for Prohibition was gathering momentum. This was the heyday of progressive reform: to a generation of Protestant reformers, using the power of the state to regulate the anarchy of the industrial city and improve the lot of ordinary workers seemed only natural and reasonable. Outlawing alcohol, which they associated with disease and disorder, fitted nicely into this agenda.

Once the United States entered the first world war, Prohibition became identified with patriotism – not least because German Americans, with their brewing traditions, were often against it.

By December 1917, with the war in full swing, both houses of Congress had approved a constitutional amendment to ban alcohol. In January 1919, the Eighteenth Amendment had been ratified by 36 states, and that October, the Volstead Act – passed over President Woodrow Wilson’s attempted veto – gave the federal authorities the power to stop the manufacture, sale or importation of “intoxicating liquor”.

Now prohibition was law. Unfortunately for its advocates, however, the federal government was never really equipped to enforce it. By the time the Volstead Act came into force, the heyday of progressive reform had already passed.

Americans with a taste for liquor were determined to get hold of a drink one way or another. Illegal drinking dens had long flourished in big cities; indeed, the word “speakeasy” probably dates from the late 1880s.

When the Michigan state police raided one Detroit bar, they found the local congressman, the local sheriff and the city’s mayor all enjoying a drink.

The big winners from Prohibition were, of course, the nation’s gangsters. The law had only been in operation for an hour when the police recorded the first attempt to break it, with six armed men stealing some $100,000-worth of “medicinal” whisky from a train in Chicago. From the very beginning, criminals had recognized that Prohibition represented a marvelous business opportunity; in major cities, indeed, gangs had quietly been stockpiling booze supplies for weeks. Legend has it that the first gangster to grasp the real commercial potential of Prohibition, though, was racketeer Arnold Rothstein, whose agents had been responsible for rigging the baseball World Series in 1919. Establishing his “office” at Lindy’s Restaurant in Midtown Manhattan, Rothstein brought alcohol across the Great Lakes and down the Hudson from Canada, and supplied it – at a handsome profit – to the city’s gangsters.

By far the most celebrated gangster of the day, though, was Al Capone, a New York-born hoodlum who controlled much of the Chicago underworld in the mid-1920s. Living in splendor in the city’s Lexington hotel, he was said to be raking in some $100m a year from casinos and speakeasies. To many people, he seemed a real-life Robin Hood, opening soup kitchens for the unemployed and giving large sums to charity. “I’m just a businessman,” he used to say, “giving the public what they want.”

The idea of prohibition lives on. Alcohol is not, after all, the only drug to have been prohibited by law; many people who regard Prohibition as bizarre and misguided think nothing of outlawing marijuana.

According to a research study, 71 percent of evangelical Christians believe there is a moral decline in our country because too many laws legislating morality have been struck down. That means that there are professed religious citizens who believe, at least to some extent, that laws regulating moral behavior are the best way to produce morality in people.

Legislating morality doesn’t actually change people.

Scripture teaches that holiness (morality) is something that God works in our lives from the inside out, not the other way around (Romans 12:1-2, Ephesians 4:21-24).

God doesn’t look at the outward appearance but at the heart. (1 Samuel 16:7) If the outward appearance is going to be right, the heart has to be right first. Scripture tells us God does care about the outward. He does care about our actions and the kind of lives we live, but a heart can’t become righteous through externally imposed regulations.

I’m not saying we should promote lawlessness and allow people to rob and murder as they wish with no repercussions. And yes, I recognize there is an inherent moral quality in declaring some things legal and illegal based on their impact on society, even if all people may not agree on where that moral standard comes from. But we need to evaluate whether laws are producing morality and change in people. They are not.

The Constitution affords rights to all citizens of our nation of free speech, freedom of the press, freedom to practice their respective faiths or not practice any faith at all. People have a right to live in ways you disagree with. Legislating morality is about preserving our own comfort and history has shown, time and again, that it doesn’t work.

It’s interesting that, when political activists talk of promoting moral values, they are rarely referring to universal ethics. What they strive to legislate instead are, more accurately, social customs — many of which seem arbitrary and sometimes even harmful, but which have been retained and perpetuated by cultural reinforcement alone, often through the teachings of religions. Devout religious believers consider their doctrines to be stipulations of fact. But to accept a faith’s teachings as fact, one must first adopt the faith itself.

It is perhaps because of this difficulty of convincing others, by reason alone, of deeply held traditional beliefs that political force is so often sought to enforce these conventions. That feeling of powerlessness to persuade others, rationally, to accept one’s own deeply held moral beliefs, tempts some to resort to legal force — which is, after all, a standing threat of physical force.

It is because legislation amounts to a codified threat of physical force and punishment that makes the legislation of non-universal “opinion morals” ethically wrong.

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(c) 2018

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

–Amendment XVII

On May 12, 1912, the Seventeenth Amendment, providing for direct popular election of the Senate, was approved by the Congress; the requisite three-fourths of the state legislatures ratified it in less than eleven months. Not only was it ratified quickly, but it was also ratified by overwhelming numbers. In fifty-two of the seventy-two state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all thirty-six of the ratifying states the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from the lower chambers of Vermont and Connecticut.

Although state ratification of the Seventeenth Amendment came quickly and easily, congressional approval of the idea of popular election of the Senate did not.

The first resolution calling for direct election of the Senate was introduced in the House of Representatives on February 14, 1826. From that date, until the adoption of the Seventeenth Amendment eighty-six years later, 187 subsequent resolutions of a similar nature were also introduced before Congress, 167 of them after 1880. The House approved six of these proposals before the Senate gave its consent.

By 1912, Senators were already picked by direct election in twenty-nine of the forty-eight states. As Senator William E. Borah said in 1911, “I should not have been here [in the U.S. Senate] if it [direct election] has not been practiced, and I have great affection [for this system].” What happened is that the people in most of the states gradually turned to nonbinding primary elections to select their Senator; state legislators promised to vote for the Senator that the people had selected in this “advisory” election. This “advisory” election had real teeth because many state laws provided that candidates for state legislator had to sign pledges (which were placed on the ballot) that they would promise (or refuse to promise) to vote for the U.S. Senate candidate that the people had selected in their nonbinding election. If the state legislative candidate refused to sign the pledge, the people would vote against him, and so the Senate gradually became populated with people who were, in effect, selected by popular, direct election.

The Seventeenth Amendment was approved and ratified, it was said, to make the Constitution more democratic, (a word which does not appear anywhere in the Constitution).

Progressives argued forcefully, persistently, and ultimately successfully that the democratic principle required the Senate to be elected directly by the people rather than indirectly through their state legislatures. By altering the manner of election, however, they also altered the principal mechanism employed by the framers to protect federalism. The framers understood that the mode of electing (and especially reelecting) Senators by state legislatures made it in the self-interest of Senators to preserve the original federal design and to protect the interests of states as states (see Article I, Section 3, Clause 1).

This understanding was perfectly encapsulated in a July 1789 letter to John Adams, in which Roger Sherman emphasized that “[t]he senators, being eligible by the legislatures of the several states, and dependent on them for re-election, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States.”

In addition to its impact on federalism, the ratification of the Seventeenth Amendment has also had demographic, behavioral, and institutional consequences on the Senate itself. Demographically, popularly elected Senators are more likely to be born in the states they represent, are more likely to have an Ivy League education, and are likely to have had a higher level of prior governmental service. In other words, popularly elected senators are more likely to be creatures of the political elite.

The Seventeenth Amendment, ratified in 1913, provided for the direct election of United States Senators, replacing the original method that had left the choice to state legislatures. Previously, state legislatures could choose Senators and fill vacancies at any time during a regular or special legislative session. After the ratification of the Seventeenth Amendment, it was recognized that the expense and inconvenience of election by popular vote made it necessary to schedule elections for Senators at regular intervals. To avoid the hardship to a state suffering a lack of representation pending a regular election, the Seventeenth Amendment also provided for methods of election or appointment to fill any unexpired term. (Once more giving lie to the idea that popular election makes senators more responsive to the will of the electorate).

The language and history of the clause indicate that the states have the power to balance conflicting goals of a speedy popular election versus the state’s interests in conducting elections on a regularized basis so as to maximize voter participation and minimize administrative expense.

The clause does not define when a vacancy exists.

During the 2000 election, the people of Missouri knowingly voted for the deceased Mel Carnahan for Senator. The governor of the state declared this election to have created a vacancy, which he filled by appointing Carnahan’s widow, Jean Carnahan, and then issued a writ of election for 2002. It remains an open question, however, whether the voters can create a Senate “vacancy” by knowingly voting for an ineligible candidate and allowing the governor to fill the position with an individual of his choice, as opposed to simply declaring the votes to be improper or “spoiled” ballots.

Are there drawbacks to direct election of senators?

The late Justice Anton Scalia wrote: “The 17th Amendment has changed things enormously,” Scalia said. “We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the twentieth century.”

The 17th Amendment was added at the height of the progressive era, when the government started telling us how to live.

Former Sen. Zell Miller explained that “instead of senators who thoughtfully make up their own minds, as they did during the Senate’s greatest era of Clay, Webster and Calhoun, we now have many senators who are mere cat’s paws for the special interests.” George Will wrote in a 2009 column that “the Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate — Henry Clay, Daniel Webster and John Calhoun — and thrived.”

“States’ Rights” however is a misnomer. Properly viewed, governments do not have “rights.” State governments, like the federal government, have powers, and they derive their just powers from the consent of the governed. The arguments for the amendment at the time revolved around “special interests”. By 1890, they owned the state legislatures. Railroads, banks, mining companies and other corporations showered state officials with free passes, gifts, and outright bribes.

In 1906, journalist David Graham Phillips scored a publishing sensation with The Treason of the Senate, an expose of corporate influence that gave rise to the term “muckraker.” Phillips wrote that “the Senate is the eager, resourceful, indefatigable agent of interests as hostile to the American people as any invading army could be.” That was because “a man cannot serve two masters. The Senators are not elected by the people. They are elected by ‘the interests.'”

It seems as if 112 years later not much has changed except one further unnecessary trashing of the Founders’ original vision.

This page and its links contain opinion. As with all opinion, it should not be relied upon without independent verification. Think for yourself. Fair Use is relied upon for all content. For educational purposes only. No claims are made to the properties of third parties.

(c) 2018

Amendment XVI
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.

The Taxing Clause in Article I, Section 8, grants Congress the broad “Power To lay and collect Taxes, Duties, Imposts and Excises,” but Article I also provides (twice) that a “direct” tax must be apportioned among the states on the basis of population. This means that if a tax is a “direct” tax, a state with one-tenth of the national population must bear one-tenth of the total liability.

This Amendment was part of a wave of federal and state constitutional amendments championed by Progressives in the early twentieth century. The Amendment reversed an 1895 Supreme Court decision that had made a nationwide income tax effectively impossible by invoking the distinction between “direct” and “indirect” taxes.

February 3rd was the anniversary of the ratification of the 16th Amendment in 1913. Its champion was President William Howard Taft, and its ratification was an effort to make sure more higher-income people paid taxes, and that the government wasn’t wholly dependent on tariffs and taxes on goods.

It wasn’t the first national income tax that was enacted. In fact, it was the third. But this third attempt had the power of a constitutional amendment behind it, and it’s still in force today.

The Founding Fathers and the generation of leaders that followed them weren’t big on the idea of an income tax. Tariffs and sales taxes helped fund the federal government in the early days. But the financial needs of the Civil War led to the first national income tax.

The Civil War income tax instituted by the federal government was one of several financing tools it used against the Confederacy. The government also issued bonds and used excise taxes. The Confederacy also had its own version of an income tax, too, which wasn’t as effective. The Union’s income tax went away during the period of Reconstruction, with the idea of an income tax returning two decades later.

The combination of a huge government surplus and a heavy tax burden on consumers led President Grover Cleveland’s administration to pass a second income tax law in 1894.

The new tax, however, was very different from the Civil War income tax, which had exempted only the poor. The new one hit only the rich, imposing a 2 percent tax on incomes above $4,000. Less than 1 percent of American households in 1894 met that income threshold.

The second income tax law was soon overturned by the Supreme Court in the 1895 decision of Pollack v. Farmers’ Loan & Trust. In a 5-4 decision, the court said the Cleveland income tax was a direct tax that violated a constitutional provision because it taxed interest, dividends, and rent. That act violated Article 1, Section 2 of the Constitution, which required such taxes to be imposed in proportion to states’ population.

By the time President Taft took office in 1909, the public outcry grew over a tax system that undertaxed the rich and overtaxed the poor. In June 1909, Taft sent a letter to Congress to lobby for the 16th Amendment. He explained that part of the Pollack decision allowed the federal government to levy a corporate income tax as an excise tax. “The decision in the Pollock case left power in the National Government to levy an excise tax, which accomplishes the same purpose as a corporation income tax and is free from certain objections urged to the proposed income tax measure,” he said.

The President then defined a basic two-tax system where income taxes were collected from citizens and businesses. He also understood that the amendment wouldn’t allow the Supreme Court to overturn a personal income tax based on the Pollack decision.

“I recommend, then, first, the adoption of a joint resolution by two-thirds of both Houses, proposing to the States an amendment to the Constitution granting to the Federal Government the right to levy and collect an income tax without apportionment among the several States according to population; and, second, the enactment, as part of the pending revenue measure, either as a substitute for, or in addition to, the inheritance tax, of an excise tax upon all corporations, measured by 2 percent of their net income,” Taft said.

Congress passed its resolution about the 16th Amendment a month later, but the amendment wasn’t ratified until early 1913, when Delaware became the 36th state to approve it. Incoming President Woodrow Wilson pushed for the Revenue Act of 1913, which included the income tax along with changes in tariffs.

The first 1040 form appeared in 1914. It was three pages long. The first income tax act after the 16th Amendment was 14 pages long, and the federal tax code was about 400 pages long. Today, one estimate puts the federal tax code at more than 70,000 pages. An IRS report from 2008 said that no one really knew how big the current tax code is, and it estimated the code at 3.7 million words, (it has surely grown larger and more complicated in ten years).

A convincing case can be made that the 16th amendment was not legally ratified and that Secretary of State Philander Knox was not merely in error, but committed fraud when he declared it ratified in February 1913. What follows is a summary of some of the major findings for many of the states, showing that their ratifications were not legal and should not have been counted.

The 16th amendment had been sent out in 1909 to the state governors for ratification by the state legislatures after having been passed by Congress. There were 48 states at that time, and three-fourths, or 36, of them were required to give their approval in order for it to be ratified. The process took almost the whole term of the Taft administration, from 1909 to 1913.

Knox had received responses from 42 states when he declared the 16th amendment ratified on February 25, 1913, just a few days before leaving office to make way for the administration of Woodrow Wilson. Knox acknowledged that four of those states (Utah, Conn, R.I. and N.H.) had rejected it, and he counted 38 states as having approved it.

In Kentucky, the legislature acted on the amendment without even having received it from the governor (the governor of each state was to transmit the proposed amendment to the state legislature). The version of the amendment that the Kentucky legislature made up and acted upon omitted the words “on income” from the text, so they weren’t even voting on an income tax! When they straightened that out (with the help of the governor), the Kentucky senate rejected the amendment. Yet Philander Knox counted Kentucky as approving it!

In Oklahoma, the legislature changed the wording of the amendment so that its meaning was virtually the opposite of what was intended by Congress, and this was the version they sent back to Knox. Yet Knox counted Oklahoma as approving it, despite a memo from his chief legal counsel, Reuben Clark, that states were not allowed to change it in any way.

Attorneys who have studied the subject have agreed that Kentucky and Oklahoma should not have been counted as approvals by Philander Knox, and, moreover, if any state could be shown to have violated its own state constitution or laws in its approval process, then that state’s approval would have to be thrown out. That gets us past the “presumptive conclusion” argument, which says that the actions of an executive official cannot be judged by a court, and admits that Knox could be wrong.

If we subtract Kentucky and Oklahoma from the 38 approvals above, the count of valid approvals falls to 36, the exact number needed for ratification.

The state constitution of Tennessee prohibited the state legislature from acting on any proposed amendment to the U.S. Constitution sent by Congress until after the next election of state legislators. The intent, of course, is to give the proposed amendment a chance to become an issue in the state legislative elections so that the people can have a voice in determining the outcome. It also provides a cooling off period to reduce the tendency to approve an idea just because it happens to be the moment’s trend. You’ve probably already guessed that the Tennessee legislature did not hold off on voting for the amendment until after the next election, and you’d be right – they didn’t; hence, they acted upon it illegally before they were authorized to do so. They also violated their own state constitution by failing to read the resolution on three different days as prescribed by Article II, Section 18. These state constitutional violations should make their approval of the amendment null and void. Their approval is and was invalid, and it brings the number of approving states down to 35, one less than required for ratification.

Texas and Louisiana violated provisions in their state constitutions prohibiting the legislatures from empowering the federal government with any additional taxing authority. Now the number is down to 33.

Twelve other states, besides Tennessee, violated provisions in their constitutions requiring that a bill be read on three different days before voting on it. This is not a trivial requirement. It allows for a cooling off period; it enables members who may be absent one day to be present on another; it allows for a better familiarity with, and understanding of, the measure under consideration, since some members may not always read a bill or resolution before voting on it (believe it or not!). States violating this procedure were: Mississippi, Ohio, Arkansas, Minnesota, New Mexico, West Virginia, Indiana, Nevada, North Carolina, North Dakota, Colorado, and Illinois. Now the number is reduced to 21 states legally ratifying the amendment.

When Secretary Knox transmitted the proposed amendment to the states, official certified and sealed copies were sent. Likewise, when state results were returned to Knox, it was required that the documents, including the resolution that was actually approved, be properly certified, signed, and sealed by the appropriate official(s). This is no more than any ordinary citizen has to do in filing any legal document, so that it’s authenticity is assured; otherwise it is not acceptable and is meaningless. How much more important it is to authenticate a constitutional amendment! Yet a number of states did not do this, returning uncertified, unsigned, and/or unsealed copies, and did not rectify their negligence even after being reminded and warned by Knox. The most egregious offenders were Ohio, California, Arkansas, Mississippi, and Minnesota – which did not send any copy at all, so Knox could not have known what they even voted on! Since four of these states were already disqualified above, California is now subtracted from the list of valid approvals, reducing it to 20.

These last five states, along with Kentucky and Oklahoma, have particularly strong implications with regard to the fraud charge against Knox, in that he cannot be excused for not knowing they shouldn’t have been counted. Why was he in such a hurry? Why did he not demand that they send proper documentation? They never did.

Further review would make the list dwindle down much more, but with the number down to 20, sixteen fewer than required, this is a suitable place to rest, without getting into the matter of several states whose constitutions limited the taxing authority of their legislatures, which could not give to the federal government authority they did not have.

The results from the six states Knox had not heard from at the time he made his proclamation do not affect the conclusion that the amendment was not legally ratified. Of those six: two (Virginia and Pennsylvania) he never did hear from, because they ignored the proposed amendment; Florida rejected it; two others (Vermont and Massachusetts) had rejected it much earlier by recorded votes, but, strangely, submitted to the Secretary within a few days of his ratification proclamation that they had passed it (without recorded votes); West Virginia had purportedly approved it at the end of January 1913, but its notification had not yet been received (remember that West Virginia had violated its own constitution, as noted above).

Much of the information in this post is attributable to a book; The Law That Never Was: The Fraud of the 16th Amendment and Personal Income Tax is a 1985 book by William J. Benson and Martin J. “Red” Beckman which claims that the Sixteenth Amendment to the United States Constitution, commonly known as the income tax amendment, was never properly ratified.

The Benson book was published in 1985. The earliest reported court cases where the book was mentioned appear to be United States v. House and United States v. Wojtas. Benson testified unsuccessfully in the House case. In the latter case, defendant Wayne Wojtas was unsuccessful in his attempt to use Benson’s theory to have his indictment for failure to file federal tax returns dismissed. In the case the judge ruled that Benson’s evidence was inadmissible, stating that:

[T]he few cases that have been asked to deal with issues comparable to the one now tendered to this Court have uniformly held questions as to compliance with Article V’s requirements are within the sole province of Congress and not the courts—in the language that has come to characterize such issues, they are “political” (that is, nonjusticiable).

Wojtas was convicted, sentenced to prison, and released in August 1986.

Benson’s claim was also rejected in Miller v. United States. The court stated, “We find it hard to understand why the long and unbroken line of cases upholding the constitutionality of the Sixteenth Amendment generally, Brushaber v. Union Pacific Railroad Company … and those specifically rejecting the argument advanced in The Law That Never Was, have not persuaded Miller and his compatriots to seek a more effective forum for airing their attack on the federal income tax structure.” The court then sanctioned the litigants for advancing a “patently frivolous” position.

Similar “Sixteenth Amendment arguments” have been uniformly rejected by the courts in other cases including United States v. Thomas. In Thomas the court, in affirming the tax convictions of Kenneth L. Thomas, referred to Benson’s book and noted that the errors found by Benson had already been investigated by Secretary of State Knox at the time of ratification of the Sixteenth Amendment, and had been determined to be insignificant.

Arguments that the Sixteenth Amendment was not properly ratified were also rejected in Sisk v. Commissioner; United States v. Sitka; and United States v. Stahl. The non-ratification argument has also been deemed legally frivolous in Brown v. Commissioner and Lysiak v. Commissioner.

The argument that the Sixteenth Amendment was not ratified, and variations of this argument, have been officially identified by the courts as legally frivolous federal income tax return positions for purposes of the $5,000 frivolous tax return penalty imposed under Internal Revenue Code section 6702(a).

In one of Benson’s cases, the United States Court of Appeals for the Seventh Circuit stated:

Benson argues that he did not need to file tax returns or pay income taxes because the Sixteenth Amendment was not properly ratified. [….] The district court denied Benson’s request for an evidentiary hearing on this issue and refused to hear any Sixteenth Amendment argument.

As the district court noted, we 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 is the co-author of The Law That Never Was, a book that purports to “review the documents concerning the states’ ratification of the Sixteenth Amendment” and to show “that only four states ratified the Sixteenth Amendment [and that] the official promulgation of the amendment by Secretary of State Knox in 1913 is therefore void.” […] Benson insists that as the co-author of The Law That Never Was, and the man who actually reviewed the state documents “proving” improper ratification, he is uniquely qualified to make the “exceptionally strong showing” we spoke of in Foster. Because of this, Benson insists, the district court should have at least granted him an evidentiary hearing on the Sixteenth Amendment issue.

Benson is wrong. In Thomas, we specifically examined the arguments made in The Law That Never Was, and concluded that “Benson … did not discover anything.” We concluded that Secretary Knox’s declaration that sufficient states had ratified the Sixteenth Amendment was conclusive, and that “Secretary Knox’s decision is now beyond review.” [….] It necessarily follows that the district court correctly refused to hold an evidentiary hearing; no hearing is necessary to consider an issue that is “beyond review.”

The Court of Appeals 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.

The Court of Appeals also ruled that the government could obtain a ruling ordering Benson to turn his customer list over to the government. Benson petitioned the United States Supreme Court, (on first amendment free speech grounds), and the Supreme Court denied his petition in November 2009.

Obviously, the courts disagree with this, but I think the Founders, many of them anyway, thought the apportionment rule for direct taxes wasn’t a glitch. It was intended to be a real limitation on the congressional taxing power. It worked by making direct taxation cumbersome, and often impossible. Many Founders thought direct taxation was dangerous—it lacked built-in protections against governmental overreaching.

When considering the actions of the Executive, (DOJ prosecutors) and the Judiciary, (local, appellate and SCOTUS) regarding actions and decisions over the 16th amendment and it’s legality, you can, perhaps, see the wisdom of the Founding Fathers in the resultant ubiquitous overreach of the government in opposition to the Constitution.

I direct you to a quote from Mel Brooks in the 1981 film “History of the World-Part I”: “It’s Good To Be King,”

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On April 21, 1836, shortly before noon, Sam Houston held a council of war with Edward Burleson, Sidney Sherman, Henry W. Millard, Alexander Somervell, Joseph L. Bennett, and Lysander Wells.

Two of the officers suggested attacking the enemy in his position; the others favored waiting Santa Anna’s attack.

Houston withheld his own views at the council but later, after having formed his plan of battle had it approved by Rusk. Houston disposed his forces in battle order about 3:30 in the afternoon while all was quiet on the Mexican side during the afternoon siesta.

The Texans’ movements were screened by trees and the rising ground, and evidently Santa Anna had no lookouts posted. The battle line was formed with Edward Burleson’s regiment in the center, Sherman’s on the left wing, the artillery under George W. Hockley on Burleson’s right, the infantry under Henry Millard on the right of the artillery, and the cavalry under Lamar on the extreme right.

The Twin Sisters, (canon), were wheeled into position, and the whole line, led by Sherman’s men, sprang forward on the run with the cry, “Remember the Alamo!” “Remember Goliad!”

The battle lasted but eighteen minutes. According to Houston’s official report, the casualties were 630 Mexicans killed and 730 taken prisoner. Against this, only nine of the 910 Texans were killed or mortally wounded and thirty were wounded less seriously. Houston’s ankle was shattered by a musket ball.

The Texans captured a large supply of muskets, pistols, sabers, mules, horses, provisions, clothing, tents, and $12,000 in silver. Santa Anna disappeared during the battle and search parties were sent out on the morning of the 22nd.

The party consisted of James A. Sylvester, Washington H. Secrest, Sion R. Bostick, and a Mr. Cole discovered Santa Anna hiding in the grass. He was dirty and wet and was dressed as a common soldier. The search party did not recognize him until he was addressed as “el presidente” by other Mexican prisoners.

One of the eight inscriptions on the exterior base of the San Jacinto Monument reads: “Measured by its results, San Jacinto was one of the decisive battles of the world. The freedom of Texas from Mexico won here led to annexation and to the Mexican War, resulting in the acquisition by the United States of the states of Texas, New Mexico, Arizona, Nevada, California, Utah, and parts of Colorado, Wyoming, Kansas, and Oklahoma. Almost one-third of the present area of the American nation, nearly a million square miles of territory, changed sovereignty.”

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