Myth #23: The Progressive Income Tax Rate is Constitutional Because of the 16th Amendment

This is the Twenty-Third Myth in the series: 25 Myths of the U.S. Constitution.

Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.

By Douglas V. Gibbs

The income tax became a part of the American landscape in 1913 with the ratification of the 16th Amendment. There is some argument over whether or not the 16th Amendment was properly ratified, and I believe there may be some merit to that argument, but the reality is that the 16th Amendment has been in force since February 3, 1913, so we must treat it as if it is a fully ratified law.

The original intention, or at least this was the argument of the proponents of the amendment, was to pay off the debt incurred by the United States as a result of the Spanish-American War. The proponents of the amendment, in order to convince those not too sure about instituting an income tax, promised it to be only voluntary, and temporary, and would be repealed once the national debt was paid off. The results that followed were hardly as promised, showing us once again that the age old truth is in fact true - politicians lie.

An income tax is a direct tax, which is something the founders determined should not be a part of the American system. In fact, it was direct taxation like the Sugar Act, and the Stamp Act, that roused the colonists to rebellion.

The progressive income tax rates have become a system in place the politicians have used to campaign for office. Two schools of thought have emerged regarding the progressive tax rates. Democrats tend to support increasing taxes on wealthier Americans, thus further widening the gap between the lower tax rates and the higher tax rates; Republicans traditionally support reducing that gap, arguing that the rich are the producers and achievers of society, and such a tax break for the richer members of society encourages economic growth.

The ten steps to creating a communist system from the original ten planks within the Communist Manifesto written by Karl Marx in 1848 include a progressive tax rate. The second plank of the Ten Planks of The Communist Manifesto reads: A heavy progressive or graduated income tax. That communist step to create a communist society comes right after the abolition of private property, and right before the abolition of all rights of inheritance.

In step with Karl Marx, widening progressive income tax rates redistributes more money from the upper income to the Middle Class.

Historically, reducing the top marginal rates, such as Presidents Kennedy and Reagan did, spurs growth. Lowering the top rates gives the top earners an incentive to invest in innovation, expand their businesses, and spend on consumer items, all of which grow the economy and increase revenue.

Raising the top brackets creates uncertainty, and disincentivizes the producers and achievers from investing, and growing their businesses.

From the point of view of the Constitution, progressive tax rates does something else, as well. Expecting one group to pay a higher percentage than another group by the government is unequal treatment of the citizens. Not only is widening the gap between the tax rates a method to redistribute income, capital and benefits (like health care) from the upper income to the Middle Class and poor, but the unequal treatment of the different income classes is in violation of the Equal Protection Clause of the Fourteenth Amendment.

The Equal Protection Clause was designed to ensure the emancipated slaves were treated as individuals, and that these individuals were subject to the same laws as all other citizens. No individual or group could have special legal privileges, nor be treated unequally in the eyes of the law.

In an active redistribution agenda, wealthier Americans are being singled out, or are being treated differently than the rest of the population, because they are expected to pay a higher income tax rate. If the rate was flat across the board the rich would still pay more taxes by the sheer fact that they have larger incomes, so in reality it is not about paying their "fair share."

The use of taxes as a punishment against success is unconstitutional in other ways, as well. For example, taxes against specific parts of the private industry that are essentially designed to punish an industry constitutes a bill of attainder. An example of this kind of policy was the proposed $90 billion bank fee (or tax). The banks claimed the proposed tax to be an unfair bill of attainder. The constitution bars bills of attainder in Article I, Section 9. While members of government may have seen such a policy as being nothing more than making the banks "pay their fair share," and keeping the banks in check, such a policy was in reality yet another attempt to punish the upper incomes with higher taxes for redistribution, making such a policy unconstitutional twice. No bills of attainders are allowed by the Constitution, and a segment of the American private sector through the bank fee policy would be singled out and treated unequally by the federal government - in violation of the Equal Protection Clause of the Fourteenth Amendment - making the policy unconstitutional a second time.

The Sixteenth Amendment may allow the existence of an income tax, but the amendment does not specifically enable a progressive income tax rate, and the very existence of a progressive income tax rate is, as stated, in direct violation of the Fourteenth Amendment - making the progressive income tax rate unconstitutional.

-- Political Pistachio Conservative News and Commentary