Posted on 03/25/2013 5:53:17 AM PDT by JOHN W K
In answering this question the following rules of constitutional law are to be followed:
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.--- numerous citations omitted__ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19
Meaning of Language
Ordinary meaning, generally
Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption _ (my emphasis) 16 Am Jur 2d Constitutional law
Proceedings of conventions and debates.
Under the principle that a judicial tribunal, in interpreting ambiguous provisions, may have recourse to contemporaneous interpretations so as to determine the intention of the framers of the constitution, the rule is well established that in the construction of a constitution, recourse may be had to proceedings in the convention which drafted the instrument.
The Federalist and other contemporary writings
Under the rule that contemporaneous construction may be referred to it is an accepted principle that in the interpretation of the Constitution of the United States recourse may be had to the Federalist since the papers included in that work were the handiwork of three eminent statesmen, two of whom had been members of the convention which framed the Constitution. Accordingly, frequent references have been made to these papers in opinions considering constitutional questions and they have sometimes been accorded considerable weight. __ 16 Am Jur, Constitutional Law, Rules of Construction, Generally
Now, with that in mind, our task is to determine what our founders considered to be a direct tax, and what was their intentions for requiring direct taxes to be apportioned?
It is interesting to note that during the framing of our Constitution, on AUGUST 18th of the Convention as recorded in Madison’s Notes on the Convention “Mr. King asked what was the precise meaning of direct taxation? No one answered.”
But a review of Adam Smith, Wealth of Nations, a contemporary writing of the time which our Founders were very much familiar with, we find the following reference regarding a capitation tax as being a direct tax:
“Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labor.” Adam Smith, Wealth of Nations, id. at pg. 540.
The shared responsibility payment is in fact to be computed from the wages which working people earn, and thus takes the form of a direct tax as understood by our founders!
And what were the very intentions for which our founders required all direct taxes to be apportioned?
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
And Mr. George Nicholas, during the ratification debates of our Constitution states:
“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. 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 confusion about the rule of apportionment being intentionally designed to insure that any general tax laid directly upon the people shall be apportioned, just as each states’ Representation are apportioned, PENDLETON says:
“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, she had no more weight in public counsels than Delaware, which paid but a very small portion”3 Elliot’s 41
Thus, the evil to be corrected by the rule of apportioned was to insure that the people of those states paying the lions share of any tax laid directly upon the people would be proportionately equal to their representation in Congress.
And how is the rule of apportionment to be applied, both to representation and when taxing the people directly?
State`s Pop.
___________ X HOUSE SIZE (435) = STATE`S NO. OF REPS.
U.S. total pop
State`s pop.
_____________ X SUM BEING RAISED = STATE`S SHARE
Total U.S. Pop.
Now, let us look at some historical information regarding direct taxation.
Representative Williams warns us during a debate on Direct Taxes January 18th, 1797:
"History, Mr. Williams said, informed them of the annihilation of nations by means of direct taxation. He referred gentlemen to the situation of the Roman Empire in its innocence, and asked them whether they had any direct taxes? No. Indirect taxes and taxes upon luxuries and spices from the Indies were their sources of revenue; but, as soon as they changed their system to direct taxation, it operated to their ruin; their children were sold as slaves, and the Empire fell from its splendor. Shall we then follow this system? He trusted not."
See an Act laying a direct tax for $3 million in which the rule of apportionment is applied to direct taxation.
In Hylton v. United States (1796) which Roberts cites in his opinion, the tax there was held to be an indirect tax because the tax was not laid directly upon the person or property but upon a particular use of property considered to be a luxury.
In Flint v. Stone Tracy Co, 1911, a tax calculated from income is held to be indirect because the tax is laid upon a privilege granted by government while the measure of the tax is calculated from income earned under the privilege.
In Stanton v. Baltic Mining Co.1916, a tax calculated from the annual production of mines was held to be indirect and an excise levied on the product of mining operations which was the subject matter being taxed and made the tax indirect.
In Eisner v. Macomber, 252 U.S. 189 (1920), after the 16th Amendment is adopted, the court strikes down a tax calculated from income because the tax takes the form of a direct tax and is not apportioned!
And so, the question is, how can the shared responsibility payment not be a direct tax when it is calculated from and levied directly upon a working person’s earned wage without reference to a privilege, a particular occupation being taxed, nor the manufacture, sale or consumption of commodities, which would make it indirect and not requiring an apportionment? Was our Supreme Court confused when it stated in crystal clear language that:
"Duties and imposts are terms commonly applied to levies made by governments on the importation or exportation of commodities. Excise taxes are those laid upon the manufacture, sale or consumption of commodities within the country, upon licenses to pursue certain occupations, and upon corporate privileges." Flint v. Stone Tracy Co., 220 U.S. 107, 151 {1910).
What is the subject matter being taxed, over which our federal government has jurisdiction, when it levies the shared responsibility payment, and would make the tax indirect and not requiring an apportionment?
JWK
If the America People do not rise up and defend their Constitution and the intentions and beliefs under which it was adopted, who is left to do so but the very people who it was designed to control and regulate?
Think You Know the IRS? Learn the Truth! Know Your Rights!
Strange but True Questions and Answer Facts about
the Internal Revenue Service that might just surprise you
31 questions about the IRS
http://www.supremelaw.org/sls/31answers.htm
1. Is the Internal Revenue Service (“IRS”) an organization within the U.S. Department of the Treasury?
Answer: No. The IRS is not an organization within the United States Department of the Treasury. The U.S. Department of the Treasury was organized by statutes now codified in Title 31 of the United States Code, abbreviated “31 U.S.C.” The only mention of the IRS anywhere in 31 U.S.C. §§ 301 310 is an authorization for the President to appoint an Assistant General Counsel in the U.S. Department of the Treasury to be the Chief Counsel for the IRS. See 31 U.S.C. 301(f)(2).
At footnote 23 in the case of Chrysler Corp. v. Brown, 441 U.S. 281 (1979), the U.S. Supreme Court admitted that no organic Act for the IRS could be found, after they searched for such an Act all the way back to the Civil War, which ended in the year 1865 A.D. The Guarantee Clause in the U.S. Constitution guarantees the Rule of Law to all Americans (we are to be governed by Law and not by arbitrary bureaucrats). See Article IV, Section 4. Since there was no organic Act creating it, IRS is not a lawful organization.
2. If not an organization within the U.S. Department of the Treasury, then what exactly is the IRS?
Answer: The IRS appears to be a collection agency working for foreign banks and operating out of Puerto Rico under color of the Federal Alcohol Administration (“FAA”). But the FAA was promptly declared unconstitutional inside the 50 States by the U.S. Supreme Court in the case of U.S. v. Constantine, 296 U.S. 287 (1935), because Prohibition had already been repealed.
In 1998, the United States Court of Appeals for the First Circuit identified a second “Secretary of the Treasury” as a man by the name of Manual Díaz-Saldaña. See the definitions of “Secretary” and “Secretary or his delegate” at 27 CFR 26.11 (formerly 27 CFR 250.11), and the published decision in Used Tire International, Inc. v. Manual Díaz-Saldaña, court docket number 97 2348, September 11, 1998. Both definitions mention Puerto Rico.
When all the evidence is examined objectively, IRS appears to be a money laundry, extortion racket, and conspiracy to engage in a pattern of racketeering activity, in violation of 18 U.S.C. 1951 and 1961 et seq. (“RICO”). Think of Puerto RICO (Racketeer Influenced and Corrupt Organizations Act); in other words, it is an organized crime syndicate operating under false and fraudulent pretenses.
3. By what legal authority, if any, has the IRS established offices inside the 50 States of the Union?
Answer: After much diligent research, several investigators have concluded that there is no known Act of Congress, nor any Executive Order, giving IRS lawful jurisdiction to operate within any of the 50 States of the Union.
Their presence within the 50 States appears to stem from certain Agreements on Coordination of Tax Administration (“ACTA”), which officials in those States have consummated with the Commissioner of Internal Revenue. A template for ACTA agreements can be found at the IRS Internet website and in the Supreme Law Library on the Internet.
However, those ACTA agreements are demonstrably fraudulent, for example, by expressly defining “IRS” as a lawful bureau within the U.S. Department of the Treasury. (See Answer to Question 1 above.) Moreover, those ACTA agreements also appear to violate State laws requiring competitive bidding before such a service contract can be awarded by a State government to any subcontractor. There is no evidence to indicate that ACTA agreements were reached after competitive bidding processes; on the contrary, the IRS is adamant about maintaining a monopoly syndicate.
4. Can IRS legally show “Department of the Treasury” on their outgoing mail?
Answer: No. It is obvious that such deceptive nomenclature is intended to convey the false impression that IRS is a lawful bureau or department within the U.S. Department of the Treasury. Federal laws prohibit the use of United States Mail for fraudulent purposes. Every piece of U.S. Mail sent from IRS with “Department of the Treasury” in the return address, is one count of mail fraud.
5. Does the U.S. Department of Justice have power of attorney to represent the IRS in federal court?
Answer: No. Although the U.S. Department of Justice (“DOJ”) does have power of attorney to represent federal agencies before federal courts, the IRS is not an “agency” as that term is legally defined in the Freedom of Information Act or in the Administrative Procedures Act. The governments of all federal Territories are expressly excluded from the definition of federal “agency” by Act of Congress. See 5 U.S.C. 551(1)(C).
Since IRS is domiciled in Puerto Rico (RICO?), it is thereby excluded from the definition of federal agencies which can be represented by the DOJ. The IRS Chief Counsel, appointed by the President under authority of 31 U.S.C. 301(f)(2), can appear, or appoint a delegate to appear in federal court on behalf of IRS and IRS employees. Again, see the Answer to Question 1 above. As far as powers of attorney are concerned, the chain of command begins with Congress, flows to the President, and then to the IRS Chief Counsel, and NOT to the U.S. Department of Justice.
0bama the Usurper has never signed a budget into law.
When he does, we all have standing
The 16th amendment ended for all times the founders’ wisdom advising against direct taxation.
Article 1, Section 8 "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."
… was replaced with the 16th Amendment in 1913.
"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."
I have bee wondering about that. Where do the feds get the authority to collect taxes on all the other things they tax that are not "income"? Such as the new almost 4% ObamaCare tax on real estate. There is no "income" involved its just theft.
The 16th Amendment was adopted in 1913. After the adoption of the 16th Amendment, which I might add does not mention “direct taxes” nor suggests a repeal requiring “direct taxes” to be apportioned, the Court has repeatedly held direct taxes are still required to be apportioned!
For example, in Eisner v. Macomber 252 U.S. 189, 206 (1920), a case dealing with direct vs. indirect taxation, the tax was struck down as being direct and not apportioned. The Court stated with regard to the 16th Amendment:
“[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 a few years latter in another case dealing with direct vs. indirect taxation, in BROMLEY VS MCCAUGHN, 280 U.S. 124 (1929), the Court emphatically stated “As the present tax is not apportioned, it is forbidden, if direct.” Even Justice Roberts acknowledged direct taxes are still required to be apportion when he stated in the Obama case:
A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, "without regard to property, profession, or any other circumstance." Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.
JWK
That’s nice, we thoretically have rights here, but does it matter in practice?
One can cure cancer in vitro, but the real test is whether cancer can be killed in vivo.
The Constitution grants Congress the sole power to legislate.
The very first words in the Constitution after the Preamble grants Congress the power to legislate within the powers granted.
Section 7 grants the House of Representatives the power to originate legislation to raise revenue.
Section 8 grants Congress the power to raise revenue to fund legislation they are empowered to enact.
Section. 8.The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
The enumerated powers are listed and Section 8 concludes with … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Jump head to the 10th amendment and find that … The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. I like to read the 10th amendment this way … and if we forgot anything, you can’t do that either.
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