In defense of Mark Levin’s attack on a wealth based tax

9/24/2013 | johnwk

[JOHN W K]

About a year ago two professors of law at Yale wrote an article titled Why (and how) to tax the super-rich which appeared in the LA Times. Mark Levin immediately responded to the article which proposed an annual “wealth tax” and identified Bruce Ackerman as a “Left wing disgusting professor at Yale Law as is Anne Alstott” ___ the two professors who wrote the article. I agree! But what I cannot understand is why Mark Levin now proposes to perpetuate a tax upon wealth under one of his “Liberty Amendments”, especially when our founding fathers rejected an unrestrained tax upon wealth by requiring “Representatives and direct taxes to be apportioned among the several states”, and further commanded that ”No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”

In defense of Mark Levin’s condemnation of a wealth based tax and his admonishment of Bruce Ackerman and Anne Alstott’s sophomoric article, we need to review and document our founding fathers clear intentions with regard to the manner in which they decided to allow Congress to fill our national treasury. And what is most distressing about Bruce Ackerman’s article is, he exaggerates and misrepresents the Great Compromise of the Convention of 1787.

Ackerman writes: ”In the United States, anti-tax zealots will try to use the Constitution to cut off debate about a wealth tax before it begins. Article 1, Section 8 grants Congress plenary power to impose any and all "taxes, duties, imposts and excises," but it contains a special limitation on "capitation and other direct taxes." Under this little-known proviso, such taxes may be imposed only if they are apportioned among the states according to their population. This provision was part of a compromise with the slave-holding South, and its intention was to prevent the North from imposing a "head tax" on slaves because this could not be apportioned equally among the population of all the states.” Ackerman goes on to write: ” In 1895, the court used the clause to declare the income tax unconstitutional, but this judgment was reversed by the 16th Amendment.” The fact is, Ackerman’s comments are factually and historically incorrect! The 16th Amendment did not reverse the rule requiring direct taxes to be apportioned as Ackerman suggests. For example see Eisner v. Macomber 252 U.S. 189, 206 (1920), a case dealing with direct vs. indirect taxation and a tax upon incomes in which the tax was struck down by the Supreme Court as being direct and not apportioned as required by the Constitution. The Court stated:

“[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.”

Any tax laid by Congress, even if it is calculated from “incomes”, if it takes the form of a direct tax, must still be laid by the rule of apportionment! Even the “Roberts court” which Ackerman refers to in his article unequivocally points this out in the Obamacare decision!

Now that we all know “direct taxes”, regardless of the 16th Amendment, are still required to be apportioned, let us move on to the bigger question ___ the legislative intent for which our founders required direct taxes to be apportioned.

During the framing of our existing Constitution the question of how each State would be represented in Congress became a matter of heated debate and deciding upon a rule which fixed each State’s representation in Congress created an impasse during the Convention. On July 2nd of the Convention Sherman of Connecticut remarked: “We are now at a full stop, and nobody he supposed meant that we should break up without doing something”

The Convention did not sit for the next couple of days to allow an appointed committee to hopefully come up with a workable plan for how the States would be represented in Congress. Then, on THURSDAY July 5th 1787, IN CONVENTION, Madision’s Notes records the following:

Mr. GERRY delivered in from the Committee appointed on Monday last the following Report.

"The Committee to whom was referred the 8th. Resol. of the Report from the Committee of the whole House, and so much of the 7th. as has not been decided on, submit the following Report: That the subsequent propositions be recommended to the Convention on condition that both shall be generally adopted. 1. That in the 1st. branch of the Legislature each of the States now in the Union shall be allowed 1 member for every 40,000 inhabitants of the description reported in the 7th. Resolution of the Come. of the whole House: that each State not containing that number shall be allowed 1 member: that all bills for raising or appropriating money, and for fixing the Salaries of the officers of the Governt. of the U. States shall originate in the 1st. branch of the Legislature, and shall not be altered or amended by the 2d. branch: and that no money shall be drawn from the public Treasury. but in pursuance of appropriations to be orginated in the 1st. branch" II. That in the 2d. branch each State shall have an equal vote."

This proposal sparked some of the most important debates of the Convention regarding representation and the manner in which the federal treasury would be filled. And all those who now complain of our federal government’s excesses and unjust taxation, ought to read these debates which eventually led to the Great Compromise of the Convention under which taxation and representation were thoughtfully tied by the same standard ___ each to be apportioned based upon a States’ population size.

On July 12 of the Convention, and after fierce debates concerning taxation and representation, Mr. MORRIS proposed a workable compromise, “that taxation shall be in proportion to Representation."

Eventually this compromise became part of Article 1, Section 2, Clause 3 of our existing Constitution “Representatives and direct taxes shall be apportioned among the several States…….” The intention agreed upon with these words--- contrary to the myth advanced by our progressive sympathizing news media and government operated schools, which includes pinko law professors, that our Constitution made Black’s 3/5ths of a person --- the real intention for these words was the creation of two rules: one was intended to determine each state’s allotted number of representatives in Congress; and a second rule for filling the national treasury was agreed upon if imposts, duties and miscellaneous excise taxes were found insufficient to meet Congress’s expenditures, and Congress found it necessary to resort to a general tax among the States which fell directly upon the people and/or their property.

The two rules, considering subsequent amendments to our Constitution, may be represented as follows: one applies to any general tax among the States which taxes the people or their property directly, and the other rule applies to each state’s number of allotted representatives in Congress.


State`s Pop.
__________ X House size (435) = State`s No. of Reps
Pop. of U.S.



State`s Pop.
__________ X SUM NEEDED = STATE`S SHARE OF TAX
U.S. Pop.



In speaking of direct taxes, and the evils of an unrestrained power to impose them, our founders were fully cognizant of the destructive nature of this tax which was noted by Representative Williams 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."

And to correct the oppressive and destructive nature of direct taxation, our founders intentionally agreed that direct “taxation shall be in proportion to Representation" and they went on to command that ”No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”

Contrary to professor Ackerman’s misleading interpretation of our founders legislative intent regarding the rule of apportionment, here are the very words of our founding fathers expressing their intentions requiring direct taxes to be apportioned:

Pinckney addressing the S.C. ratification convention with regard to the rule of apportionment:

“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 says:

“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 the people of each state contribute a share of this tax directly in proportion to their voting strength in Congress, Mr. PENDLETON points out:

“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

The bottom line is, we only need 32 words to restore our Constitution’s ORIGINAL TAX PLAN as our founders intended it to operate!

The Sixteenth Amendment is hereby repealed and Congress is henceforth forbidden to lay ``any`` tax or burden calculated from profits, gains, interest, salaries, wages, tips, inheritances or any other lawfully realized money

Hopefully Mark Levin will take up the cause and introduce his listening audience to our Constitution’s original tax plan.

JWK


Obamacare by consent of the governed (Article 5) our amendment process --- tyranny by a majority vote in Congress or a Supreme Court’s majority vote!