In an ongoing Email conversation regarding whether or not the 16th Amendment (Income Tax) was properly ratified, a reader of Political Pistachio and listener of my Constitution Study radio program, has become quite bothered by my style of teaching in the sense that he believes I have left out critical information regarding the notion that the 16th Amendment was not properly ratified. The following is my latest response to this person:
I read the material in the links you sent me, though I have not read the books your recommended. I am fully aware of the notion that the 16th Amendment was not properly ratified. I even say, often, while talking about the ratification of the 16th Amendment, that it was "allegedly" ratified. Reality is, however, whether or not it was properly ratified, that the 16th Amendment is in force, and we have an income tax. The battle to prove it was not properly ratified, I believe, is a losing battle. The goal must be to change income tax, reform income tax, and eventually repeal the 16th Amendment.
You are welcome to continue your fight to bring to the attention of America your theories, and I am aware that the direct taxation the 16th Amendment unleashed was against the original intent of the Founding Fathers. However, nobody will be convinced to eliminate the 16th Amendment until it becomes no longer necessary. That, my friend, can only be accomplished by reducing federal spending to constitutional levels. If the federal government only spent as allowed by the Constitution, spending would be about 5% of GDP. Prior to 1913, spending was about 2-3% GDP. We also have to remember that the 16th Amendment, according to the proponents of that time period, said (to convince those against it to change their votes) that it would be voluntary, and temporary.
As much as things change, things stay the same.
I do appreciate your passion, I did read the material you sent, and I am fully aware of the opinion the 16th Amendment was not properly ratified. And this is not the first time amendments have been played with. The original 13th Amendment, for example, was ratified, and in full force, and then suddenly vanished (interestingly enough about a decade before the formation of the American Bar Association). We didn't even know about the existence of that amendment until researchers happened across it when they found an old 1825 Constitution in a library in Maine in 1983. The amendment made illegal titles of preference, for one, which would eliminate the title of "your honor" given to judges, or "esquire" for lawyers. It also would not allow rules such as that only lawyers can run for District Attorney. The amendment was written on the idea that we are all created equal, and nobody (including lawyers and judges) should be able to receive preferential treatment, or have titles of preference.
That was then, this is now. When it comes to the old 13th Amendment, or the 16th Amendment, we must use the tools available to us to make the changes necessary. I believe that though the argument the 16th Amendment was not properly ratified may very well be a valid argument, the way to eliminate the income tax is a very different path.
Thank you for the feedback, and listening to my Constitution Study radio program.
Oh, by the way, I find it interesting that you rightly conclude the courts do not have the authority to "interpret" the Constitution, and then turn around and use the Pollock v. Farmer’s Loan and Trust Co 157 U.S. 429,558 (1895) and the Brushaber v. Union Pacific RR Co. 240 U.S. 1, 17-18 (1916) case to validate your argument. The courts can declare something unconstitutional, but it is only opinion by the courts. Laws cannot be struck down unless done legislatively. Regardless of Constitutionality prior to 1913, and regardless of any court cases where judges say anything to the contrary, the fact that there is an amendment to the Constitution makes the income tax, as wrong as the concept of a direct tax is and as against the founders the concept of a direct income tax is, constitutional. . . or at least in the eyes of the system that does not buy into your argument that the thing was not properly ratified. They, the establishment, even with proof that cannot be refuted, will never accept your argument. As I said earlier, I do not believe that is the right path for restoring our Constitution. Though a mere mention of the theory the 16th Amendment was not properly ratified in my teaching of the Constitution sometimes arises, I do not believe spending a lot of time on the questions concerning the ratification of the 16th Amendment will help the average person who knows little to nothing about the Constitution is going to be helpful in assisting the average person to understand the Constitution as a whole.
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