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Constitutional Challenge: Repealing the 16th Amendment wouldn't kill the income tax
Reason Magazine ^ | January 1999 | David B. Levenstam

Posted on 02/23/2004 1:31:24 PM PST by ancient_geezer

Constitutional Challenge:
Repealing the 16th Amendment wouldn't kill the income tax.
By David B. Levenstam

Sen. Richard Lugar (R-Ind.), House Ways and Means Committee Chairman Bill Archer (R-Texas), and the Cato Institute's director of fiscal policy studies, Stephen Moore, all want to replace the federal income tax with a national sales tax. They say that repealing the 16th Amendment will eliminate the income tax. They're wrong. Income taxes existed--and were considered constitutional--before the 16th Amendment.

Ratified in 1913, the 16th Amendment states: "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 amendment gives Congress carte blanche to impose virtually any sort of income tax it desires--including our current labyrinthine system with its multiple rates, surtaxes, alternative taxes, deductions, phase-outs, double taxation of corporate earnings, and tax on phony gains caused by inflation. The current system also includes a combined tax on estates and gifts known as the unified transfer tax.

But contrary to popular belief, repealing the 16th Amendment wouldn't eliminate Congress' power to impose an income tax, because not all income taxes were held unconstitutional by the Supreme Court before the 16th Amendment was ratified. From 1861 to 1872, Congress imposed income taxes without any interference from the high court. In fact, in the 1881 case, Springer v. United States, the Court upheld the 1864 income tax. From 1862 to 1870, Congress imposed inheritance taxes, which applied to certain gifts as well. In 1874 the Supreme Court upheld the Civil War inheritance taxes in Scholey v. Rew, categorizing an inheritance tax as an excise or impost rather than a direct tax.

Embarrassed by large federal budget surpluses and facing re-election in 1872, President Grant and Congress allowed the income tax to lapse. Pressure from voters had already led Congress to repeal the inheritance tax before the 1870 elections.

But budget surpluses then and for the next 30 years didn't prevent supporters of the earlier income tax from clamoring for another one. From 1874 through 1894, members of Congress introduced 68 bills that would have imposed an income tax. Supporters and opponents alike viewed the income tax as "class legislation"--an attempt to redistribute income. Supporters believed that the tax system in use at the time, which relied primarily on tariffs, was regressive, and therefore unfairly distributed income away from the poor to the wealthy. Supporters hoped the income tax would stop or at least reduce regressive redistribution. Opponents saw the income tax as an attempt to set the poor against the wealthy and redistribute income away from those who generated it.

By 1894, a majority in Congress came to support some form of income taxation. It passed a law which imposed a 2 percent flat tax on corporate net income, and on individual incomes in excess of $4,000 ($76,000 in 1998 dollars).

Unlike the current system, however, the 1894 law didn't tax dividends, thus avoiding the current double taxation of corporate income. While the law didn't establish a gift or estate tax, it did include the value of gifts and estates in the income of the recipient for purposes of calculating the income tax.

Opponents of the income tax immediately challenged it in court. In 1895, the Supreme Court, in Pollack v. Farmers Loan and Trust Company, struck down the 1894 income tax as unconstitutional. But the Court didn't rule that every federal income tax would be unconstitutional.

At the core of the Pollack de- cision is the distinction between direct and indirect taxes. Article I, Section 9, paragraph 4 of the Constitution stipulates that "No Capitation [head], or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." "Publius" (presumed to be Alexander Hamilton), in Federalist 22, held that taxes "of the direct kind, which principally relate to land and buildings, may admit a rule of apportionment. Either the value of the land, or the number of the people, may serve as a standard." In the 1796 case, Hylton v. U.S., Hamilton, as chief counsel for the government, persuaded the Supreme Court that only head taxes and taxes on real estate should be considered direct taxes. A tax on tangible personal property, such as carriages, was not a direct tax.

So in ruling on the constitutionality of the 1894 income tax in Pollack, the Court faced a century-old precedent holding that the only taxes Congress could not impose without doing so proportionately among the states were head taxes and real property taxes. Opponents of the income tax argued that taxing income from property was the equivalent of taxing the property itself.

Determined to stop what they (correctly, it seems) saw as an entering wedge for wide-scale income redistribution, a majority of the eight justices who initially heard the case accepted the argument and expanded the list of direct taxes to include taxes on the income from real property. The Court also ruled unanimously (on this issue) that a federal tax on income from state and local bonds infringed the right of states and their subdivisions to borrow money.

And after the ninth justice returned from illness, upon rehearing the case the majority expanded the definition of a direct tax even further, to include taxes on income from tangible personal property. With such a large portion of the law disabled, the majority decided to toss it out entirely.

But the Supreme Court did not say that the remaining provisions of the law, had they passed independently, would have been unconstitutional. To the contrary, the Court made clear that Congress could impose a tax on income from wages, salaries, and other compensation for personal services, as well as on income from intangible property such as stocks, bonds, patents, and copyrights. The Court ruled the law unconstitutional because it taxed income from tangible property without apportionment.

So even without the 16th Amendment, Pollack would allow Congress to impose a tax on a broad range of income. The Supreme Court clarified the point in a series of cases, including Brushaber v. Union Pacific Railroad (1915), Stanton v. Baltic Mining Company (1916), and Eisner v. Macomber (1920). In these cases, the Court ruled that the 16th Amendment granted Congress no new power to tax; the 16th Amendment simply reclassified an income tax on tangible property as an indirect tax. Demonstrating that the 16th Amendment granted no new power, the Court held that Congress still couldn't tax interest earned on state and local bonds--much to the chagrin of not only Progressives but also of Secretary of the Treasury Andrew Mellon and other tax cutters, who believed that the tax-exempt status of state and local bonds was redirecting capital from efficient allocation in the private marketplace into bloated state and local government bureaucracies.

Three years after Pollack, Congress passed the War Revenue Act to fund the Spanish-American War. The act imposed a tax of 0.25 percent on the gross receipts over $200,000 of companies in the sugar and oil refining businesses and a progressive estate tax ranging from 0.75 percent to 15 percent. (An estate tax is imposed on the estate, while an inheritance tax is imposed on the recipients of the estate.) In Spreckles Sugar Refining Company v. McClain (1902), the Supreme Court upheld the gross receipts tax as an excise tax. Two years earlier, in Knowlton v. Moore, the Court had decided that Pollack hadn't overturned Scholey, so that an inheritance or estate tax still constituted an indirect excise rather than a direct tax.

Fourteen years after Pollack, Congress imposed a 1 percent flat tax on corporate net income in excess of $5,000 ($95,000 in 1998 dollars). By taxing corporations on dividends from other corporations, the 1909 act began the practice of double taxing corporate income. Opponents challenged the 1909 act in court, too. In 1911 --two years before the adoption of the 16th Amendment--the Supreme Court ruled in Flint v. Stone Tracy Company that the tax on corporations was constitutional as "an excise upon the particular privilege of doing business in a corporate capacity." In other words, according to the Court's reasoning in 1911, just because the corporation tax was a tax on income didn't mean it was an income tax.

So even before the 16th Amendment, the Pollack, Spreckles, and Flint decisions gave a clear signal to Congress that it could impose a tax on wages, salaries, professional service fees, interest, dividends, royalties from intellectual property, estates, gifts, gross receipts, and any income earned by corporations. Congress could even double tax corporate income.

Eliminating Congress' power to tax income, as many supporters of a national sales tax propose, would require more than merely repealing the 16th Amendment. We would have to ratify an amendment prohibiting Congress from imposing any income tax as well as estate, gift, and gross receipts taxes. Otherwise, Congress could rely on the earlier Supreme Court decisions to continue collecting these and other related taxes. And as the residents of Canada and Western Europe could tell us, we'd probably end up with the worst of both tax worlds: paying both a national sales tax and an income tax.

David B. Levenstam was the Louis Pelzer Fellow in American History at the University of Iowa and a Salvatori Fellow at the Heritage Foundation. A tax practitioner since 1982, he is working on his Ph.D. dissertation, titled The Triumph of Competition: The American Political Economy, 1887-1933.


TOPICS: Business/Economy; Constitution/Conservatism; Government
KEYWORDS: 16thamendment; axixofevil; fairtax; incometax; nrst; reason; taxes; taxreform
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To: eyespysomething
My bad, only the Republicans have signed on. But both Chambliss and Miller have, and when herman Cain gets elected senator in November, he is even a stronger proponent of undoing the mess we call the IRS.
21 posted on 02/24/2004 8:55:23 AM PST by eyespysomething (There is no threat. The Communists are not about to take over our McDonald hamburger stands. JFK '71)
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To: eyespysomething
IIRC, NRST legislation was drafted in 1997, it has been introduced into every session of Congress since then.

The interesting thing is the rapid growth of Congress Critter interest with this session, having gone from 7 co-sponsors to 43, plus introduction into the Senate as well.

Support is growing and it is being felt in Congress more each day.
22 posted on 02/24/2004 8:59:14 AM PST by ancient_geezer (Equality, the French disease: Everyone is equal beneath the guillotine.)
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To: eyespysomething

when herman Cain gets elected senator in November

He is running for Zen Miller's vacating seat in the Senate, isn't he? Too bad we couldn't have both, even with Zen being Dem.

23 posted on 02/24/2004 9:04:49 AM PST by ancient_geezer (Equality, the French disease: Everyone is equal beneath the guillotine.)
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To: ancient_geezer
He is running for the Republican nomination for Zell's seat. That's ok, though. Saxby Chambliss, the senator who unseated Cleland in 2002, proposed the Senate version.

Herman Cain is a true conservative, who espouses common sense conservatism instead of compassionate conservatism. If you have a second, check out his web page. He would be a real asset to the senate.

http://www.cainforussenate.org
24 posted on 02/24/2004 9:18:08 AM PST by eyespysomething (There is no threat. The Communists are not about to take over our McDonald hamburger stands. JFK '71)
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To: eyespysomething

If you have a second, check out his web page. He would be a real asset to the senate.

I know, LOL, a few of my collection of Cain articles:

Herman Cain, position regards tax reform, May 9 2002:

Breaking the Mold: Herman Cain and the Rise of Black Conservatives

Herman Cain on National Review Online


25 posted on 02/24/2004 9:50:14 AM PST by ancient_geezer (Equality, the French disease: Everyone is equal beneath the guillotine.)
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To: ancient_geezer
LOL, here I am preachin' to the choir again!

I have his bumpersticker on my van, so does the Mr.(on his car), and we are NOT bumpersticker people. It was weird putting it on there.

Yard sign is up also.

I am SO excited about him as a candidate!!!
26 posted on 02/24/2004 11:47:57 AM PST by eyespysomething (There is no threat. The Communists are not about to take over our McDonald hamburger stands. JFK '71)
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To: eyespysomething

here I am preachin' to the choir again!

And to other's as well. FR makes a great soapbox :O)

27 posted on 02/24/2004 11:59:07 AM PST by ancient_geezer (Equality, the French disease: Everyone is equal beneath the guillotine.)
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To: ancient_geezer
Interesting bit of tax trivia (per Charles L. Adams, "For Good and Evil; The Impact of Taxes on the Course of Civilization"):

In 1814, England abolished the income tax which had been levied in 1799, and the Chancellor of the Exchequer was ordered to destroy all copies of the income tax law.

Revenues (excises and import duties, primarily) to the English government were such that the Napoleanic War debt was paid off in short order (I forget how many years, but it did not take long) and the English economy was the envy of all Europe.

In 1894, England reinstituted the very same income tax that had been abolished in 1814. Seems the Chancellor of the Exchequer had kept one copy of the law, and after everybody who remembered how bad the 1799-1814 income tax was had died, Parliament reimposed it.

Coincidentally, the period 1814 to 1894 was the period which became known as the "Industrial Revolution."

Hello? Is there a connection here? Can we learn FRom history?

Also, and perhaps not so coincidentally, the first US (discounting Lincoln's Civil War) income tax was levied by the Congress in 1894. It was declared unconstitutional in 1895, and it took the US LIEberal/Socialist/Marxist Bastard element another 18 years to get the 16th Amendment passed and an income tax implemented in the US.

BTW, I highly commend Adams' book to all of you who are interested in fundamental tax reform. One will not be surprised to learn that a common element of most of the famous revolutions of the people against their governments throughout history have been over/for/about or because of tax policy.

The other common element is FReedom.

Draw your own conclusion.
28 posted on 02/24/2004 6:19:01 PM PST by Taxman
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To: *Taxreform
Ping to my #28.
29 posted on 02/24/2004 6:22:29 PM PST by Taxman
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To: Taxman

It was declared unconstitutional in 1895

Actually the only thing they declared unconstitutional about it, was that the Court decided that rents and income from investment property were fruits of property and thus could only be taxed as direct taxes(i.e. taxes upon property) through apportionment.

They voided the entire tax statute, not because they saw taxes on wages, salaries etc to be unconstitutional but because the predominate revenues generated were from said investment income and they held that Congress could not have intended to tax employments alone.

The most significant soundbytes from that decision:

POLLOCK v. FARMERS' LOAN & TRUST CO., 158 U.S. 601 (1895):


30 posted on 02/24/2004 6:37:15 PM PST by ancient_geezer (Equality, the French disease: Everyone is equal beneath the guillotine.)
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To: Taxman

it took the US LIEberal/Socialist/Marxist Bastard element another 18 years to get the 16th Amendment passed

With the bonehead help from conservatives of the time:

read: The Bailey Bill

Sometimes our own representation shoots us in the foot and all liberal/populist cadres need do is stand aside let us doit to ourselves.

Learn from history indeed!

31 posted on 02/24/2004 6:43:13 PM PST by ancient_geezer (Equality, the French disease: Everyone is equal beneath the guillotine.)
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To: ancient_geezer
This guy who wrote the article is a bold face lier, income tax was declared UNCONSTITUTIONAL. And it is debatable whether the 16th Amendment was ever properly ratified in Kansas.
32 posted on 02/24/2004 6:46:25 PM PST by Paul C. Jesup
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To: Paul C. Jesup
See replies 30 & 31. Pollock only declared investment income to be taxed unconstitutionally.

Read the opinions of the court that made the decision not the personal opinions of later commentators, many with personal and financial agendas beyond the exposition of truth behind them.
33 posted on 02/24/2004 6:59:32 PM PST by ancient_geezer (Equality, the French disease: Everyone is equal beneath the guillotine.)
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To: ancient_geezer
Thass Right!
34 posted on 02/24/2004 7:16:18 PM PST by Taxman
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To: ancient_geezer; *Taxreform; Bigun
I knew you'd have the documentation and set the record right re: Pollock. But that was not my main point.

What is of interest to me, and should be of interest to our fundamental tax reformers, is the period between 1814 and 1894 when there were no income taxes in England and the government thrived (as did Her Majesty's subjects) in a consumption tax environment.

England, of course, was home to Marx and Engels, who published the Communist Manifesto in 1848 and whose work was a proximate cause for first England and then the US to implement an income tax in 1894 (cf Second Plank of the Communist Manifesto).

How that came to pass: The old line LIEberal/Socialist/Marxist Bastards who controlled most of the wealth in England (not earned, BTW -- mostly land and estates given to them because they they were of the Royal family or FRiends of same) paid Marx and Engels to write the Communist Manifesto and promulgate a theology which, when implemented, would guarantee their continuued monetary and political supremacy.

These old line socialists could not stand the fact that ordinary people were creating extraordinary wealth with their hands, hearts and minds in the "tax FRee" environment that England was between 1814 and 1894.

So they put and end to it in 1894 by re-imposing the English income tax. And the rest, as they say, is history.

Read Adams' book. It is most worthwhile.
35 posted on 02/24/2004 7:33:03 PM PST by Taxman
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To: ancient_geezer
My belief is, it's all corrupt. The baby is dead, let's throw out the bathwater.
36 posted on 02/24/2004 7:35:04 PM PST by Paul C. Jesup
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To: ancient_geezer
A valiant effort on the part of these statesmen, but it will never see the light of day. Most Americans are spineless, and would rather stick with the income tax, because they think they know what to expect from that system.

It's ironic to think that most Americans are the descendants of men who went to war over taxes in excess of 10%! We've come a long way!! /sarcasm

37 posted on 02/24/2004 7:43:17 PM PST by Destructor
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To: Destructor

A valiant effort on the part of these statesmen, but it will never see the light of day.

Only takes enough to make a sqeaky door. A commited 1% of the public rattling Congress Critter cages is more than sufficient.

See reply #25 above, for how things are progessing with just the effort among a few dedicated persons to see it done. It is happening and advancing one bit at a time.

38 posted on 02/24/2004 8:03:22 PM PST by ancient_geezer (Equality, the French disease: Everyone is equal beneath the guillotine.)
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To: Paul C. Jesup

My belief is, it's all corrupt. The baby is dead, let's throw out the bathwater.

To accomplish that successfully it pays to know what the baby and bathwater look like and where the sewer pipe is so you can throw it out without making a total mess.

The result of such investigation is the NRST proposals H.R.25, S.1493 and related proposed constitutional amendment H.J.RES.61.

39 posted on 02/24/2004 8:08:50 PM PST by ancient_geezer (Equality, the French disease: Everyone is equal beneath the guillotine.)
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To: ancient_geezer
Fair Tax Bump!

BTW, now is an excellent time to push the issue, in anticipation of April 15th. If I were able to acquire Fair Tax bumper stickers I'd go around and stick them to signs advertising tax preparation services and around post offices. But the folks at Americans for Fair Taxation seem rather stingy with bumper stickers.

40 posted on 02/24/2004 8:14:13 PM PST by ForOurFuture
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