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THE KNOXVILLE PATRIOTS
Greg S Barnett
March 30, 2009
A task that we all can perform at this time:
DEMAND that our state legislators call for a Constitutional Convention and have them
1)
2)
3)
Repeal the 16th amendment.
Repeal the 17th amendment.
Set term limits upon US House Representatives and Senators
What can we achieve by doing this?
Repealing the 16th amendment and implementing a viable plan such as the Fair Tax would put
the USA back in control of its economy in the world.
Repealing the 17th amendment would allow Senators to be appointed by the state and not elected
by popular vote. The senators were intended to represent the state in Washington DC, not the people. The
members of congress are intended to represent the people.\
Term limits are needed. We need members of congress that are representatives of the people.
The founding fathers designed the reps to be citizen representatives. We need members that have some
type of real life experience and not to make politics a career. Everyday folks know what is going on and
live in the results of the politicians’ decisions, not in a crystal palace on the hill.
We can restore the rights and power to the states and the good people in the states. This is how
the framers of our country intended it all to work. State sovereignty would not be a bad idea.
AMENDMENT XVI
Passed by Congress July 2, 1909. Ratified February 3, 1913.
Note: Article I, section 9, of the Constitution was modified by amendment 16.
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 Sixteenth Amendment (Amendment XVI) to the United States Constitution was ratified on February
3, 1913. This Amendment overruled Pollock v. Farmers' Loan & Trust Co. (1895), which greatly limited
the Congress' authority to levy an income tax. This Amendment allows the Congress to levy an income tax
without apportioning it among the States or basing it on Census results.
In order to raise revenue to fund the Civil War, the income tax was introduced in the United States with the Revenue Act of 1861.[6] It
was a flat rate tax of 3% on annual income above $800. The following year, this was replaced with a graduated tax of 3-5% on income
above $600 in the Revenue Act of 1862, which specified a termination of income taxation in 1866. The Socialist Labor Party
advocated for a graduated income tax in 1887.[7] The Populist Party "demanded a graduated income tax" in their 1892 platform.[8] The
Democratic Party, led by William Jennings Bryan, advocated the income tax law passed in 1894,[9] and proposed an income tax in
their 1908 platform.[10]
Prior to the U.S. Supreme Court's decision in Pollock v. Farmers' Loan & Trust Co.,157 U.S. 429 (1895), aff'd on reh'g, 158 U.S. 601
(1895) all income taxes had been considered to be excises (indirect taxes) required to be imposed with geographical uniformity; such
taxes were not required to be apportioned by state according to population (as are direct taxes). [11]
The Wilson-Gorman Tariff Act of 1894 attempted to impose a federal tax of 2% on incomes over $4,000. Derided as "un-Democratic,
inquisitorial, and wrong in principle,"[12] it was challenged in federal court. Until that time, direct taxes had been deemed to include
only capitations, or poll taxes (taxes directly on persons) and taxes imposed on property by reason of its ownership (generally,
ordinary ad valorem taxes on property). Until 1895, all income taxes — regardless of the sources of the incomes — had been
considered indirect taxes ("excises").[13]
The Pollock case
In the case of Pollock v. Farmers' Loan & Trust Co. the Supreme Court declared certain income taxes — taxes on income from
property under the 1894 Act — to be unconstitutionally unapportioned direct taxes. The Court reasoned that a tax on income from
property should be treated as a tax on "property by reason of its ownership," and should therefore be required to be apportioned. The
reasoning was that taxes on the rents from land, the dividends from stocks and so on burdened the property generating the income in
the same way that a tax on "property by reason of its ownership" burdened that property.
After Pollock, while income taxes on wages (as indirect taxes) were still not required to be apportioned by population, taxes on
interest, dividends and rent income were required to be apportioned by population. The Pollock ruling made the source of the income
(e.g., property versus labor, etc.) relevant in determining whether the tax imposed on that income was deemed to be "direct" (and thus
required to be apportioned among the states according to population) or, alternatively, "indirect" (and thus required only to be imposed
with geographical uniformity).
From 1895 up to when the Sixteenth Amendment was ratified, while Congress could have re-imposed taxes on income from labor and
other non-property sources without apportionment by population, imposing taxes on interest, dividends and rent income would not
have been practical (as the dollar amount of income from interest, dividends and rent would virtually never be exactly the same
amount for each and every taxpayer in the United States for any year). The Congress was unwilling to impose an income tax on labor
and other non-property sources without also imposing a tax on income from property — and taxes on income from property were no
longer realistic. The Pollock ruling made imposition of an income tax politically unfeasible from 1895 until the ratification of the
Sixteenth Amendment. At the same time, the Congress was reflecting the growing concern among many elements of society that the
wealthiest Americans had consolidated too much economic power.[14]
In his dissent to the Pollock decision, Justice Harlan stated:
When, therefore, this court adjudges, as it does now adjudge, that Congress cannot impose a duty or tax upon
personal property, or upon income arising either from rents of real estate or from personal property, including
invested personal property, bonds, stocks, and investments of all kinds, except by apportioning the sum to be so
raised among the States according to population, it practically decides that, without an amendment of the
Constitution — two-thirds of both Houses of Congress and three-fourths of the States concurring — such
property and incomes can never be made to contribute to the support of the national government.[15]
Ratification process
On June 16, 1909, President Taft proposed a constitutional amendment in an address to Congress to allow federal income taxes on
individuals and an excise tax "upon the privilege of doing business as an artificial entity and of freedom from a general partnership
liability enjoyed by those who own the stock."[16][17]
On July 12, 1909, the resolution proposing the Sixteenth Amendment was passed by the Sixty-first Congress and submitted to the state
legislatures. Support for the income tax was strongest in the western states and opposition was strongest in the northeastern states.[18]
The governor of New York, Charles Evans Hughes, who a few years later became a Supreme Court justice, opposed the income tax
amendment because he believed "from whatever source derived" implied that passage would confer the federal government with the
power to tax state and municipal bonds and thus excessively centralize government power.[19]
The presidential election of 1912 was contested between three advocates of an income tax.[20] On February 25, 1913, the Secretary of
State Philander Knox proclaimed that the amendment had been ratified by the necessary three-fourths of the states, and thus had
become part of the Constitution. An income tax, the Revenue Act of 1913, was shortly passed by the Congress.
According to the United States Government Printing Office, the following states ratified the amendment:[21]
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Alabama (August 10, 1909)
Kentucky (February 8, 1910)
South Carolina (February 19, 1910)
Illinois (March 1, 1910)
Mississippi (March 7, 1910)
Oklahoma (March 10, 1910)
Maryland (April 8, 1910)
Georgia (August 3, 1910)
Texas (August 16, 1910)
Ohio (January 19, 1911)
Idaho (January 20, 1911)
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
Oregon (January 23, 1911)
Washington (January 26, 1911)
Montana (January 27, 1911)
Indiana (January 30, 1911)
California (January 31, 1911)
Nevada (January 31, 1911)
South Dakota (February 1, 1911)
Nebraska (February 9, 1911)
North Carolina (February 11, 1911)
Colorado (February 15, 1911)
North Dakota (February 17, 1911)
Michigan (February 23, 1911)
Iowa (February 24, 1911)
Kansas (March 2, 1911)
Missouri (March 16, 1911)
Maine (March 31, 1911)
Tennessee (April 7, 1911)
Arkansas (April 22, 1911), after having previously rejected the amendment
Wisconsin (May 16, 1911)
New York (July 12, 1911)
Arizona (April 3, 1912)
Minnesota (June 11, 1912)
Louisiana (June 28, 1912)
West Virginia (January 31, 1913)
New Mexico (February 3, 1913)
Ratification (by the requisite thirty-six states) was completed on February 3, 1913 with the ratification by New Mexico. The
amendment was subsequently ratified by the following states, bringing the total number of ratifying states to forty-two of the fortyeight then existing:
37. Delaware (February 3, 1913)
38. Wyoming (February 3, 1913)
39. New Jersey (February 4, 1913)
40. Vermont (February 19, 1913)
41. Massachusetts (March 4, 1913)
42. New Hampshire (March 7, 1913), after rejecting the amendment on March 2, 1911
The following states rejected the amendment without ever subsequently ratifying it:
1.
2.
3.
Connecticut
Rhode Island
Utah
The following states never took up the proposed amendment:
1.
2.
3.
Pennsylvania
Virginia
Florida
Pollock overruled
The Sixteenth Amendment overruled the effect of Pollock.[22][23] That essentially means that when imposing an income tax, the
Congress may impose the tax on income from any source without having to apportion the total dollar amount of tax collected from
each state according to each state's population in relation to the total national population. [24] In Abrams v. Commissioner, the United
States Tax Court stated:
Since the ratification of the Sixteenth Amendment, it is immaterial with respect to income taxes, whether the tax
is a direct or indirect tax. The whole purpose of the Sixteenth Amendment was to relieve all income taxes when
imposed from [the requirement of] apportionment and from [the requirement of] a consideration of the source
whence the income was derived.[25]
Case law
The federal courts' interpretations of the Sixteenth Amendment have changed considerably over time and there have been many
disputes about the applicability of the amendment.
The Brushaber case
In Brushaber v. Union Pacific Railroad, 240 U.S. 1 (1916), the Supreme Court ruled that (1) the Sixteenth Amendment removes the
Pollock requirement that certain income taxes (such as taxes on income "derived from real property" that were the subject of the
Pollock decision), be apportioned among the states according to population; [26] (2) the Federal income tax statute does not violate the
Fifth Amendment's prohibition against the government taking property without due process of law; (3) the Federal income tax statute
does not violate the uniformity clause of Article I, section 8 of the U.S. Constitution (relating to the requirement that excises, also
known as indirect taxes, be imposed with geographical uniformity).
The Kerbaugh-Empire Co. case
In Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926), the Supreme Court, through Justice Butler, stated:
It was not the purpose or the effect of that amendment to bring any new subject within the taxing power.
Congress already had the power to tax all incomes. But taxes on incomes from some sources had been held to
be "direct taxes" within the meaning of the constitutional requirement as to apportionment. [cites omitted] The
Amendment relieved from that requirement and obliterated the distinction in that respect between taxes on
income that are direct taxes and those that are not, and so put on the same basis all incomes "from whatever
source derived". [cites omitted] "Income" has been taken to mean the same thing as used in the Corporation
Excise Tax of 1909 (36 Stat. 112), in the Sixteenth Amendment, and in the various revenue acts subsequently
passed. [cites omitted] After full consideration, this court declared that income may be defined as gain derived
from capital, from labor, or from both combined, including profit gained through sale or conversion of capital.
The Glenshaw Glass case
In Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955), the Supreme Court laid out what has become the modern
understanding of what constitutes 'gross income' to which the Sixteenth Amendment applies, declaring that income taxes could be
levied on "accessions to wealth, clearly realized, and over which the taxpayers have complete dominion." Under this definition, any
increase in wealth—whether through wages, benefits, bonuses, sale of stock or other property at a profit, bets won, lucky finds, awards
of punitive damages in a lawsuit, qui tam actions—are all within the definition of income, unless the Congress makes a specific
exemption as it has for items such as life insurance proceeds received by reason of the death of the insured party, [27] gifts, bequests,
devises and inheritances,[28] and certain scholarships.[29]
Income taxation of wages, etc.
The courts have interpreted the Sixteenth Amendment as standing for the rule that the Amendment allows a direct tax on "wages,
salaries, commissions, etc. without apportionment."[30]
The Penn Mutual case
Although the Sixteenth Amendment is often cited as the "source" of the Congressional power to tax incomes, at least one court has
reiterated the point made in Brushaber and other cases that the Sixteenth Amendment itself did not grant the Congress the power to
tax incomes (a power the Congress has had since 1789), but only removed the requirement, if any, that any income tax be apportioned
among the states according to their respective populations. In the Penn Mutual Indemnity case, the United States Tax Court stated:
In dealing with the scope of the taxing power the question has sometimes been framed in terms of whether
something can be taxed as income under the Sixteenth Amendment. This is an inaccurate formulation [ . . . ] and
has led to much loose thinking on the subject. The source of the taxing power is not the Sixteenth Amendment;
it is Article I, Section 8, of the Constitution.[31]
In that same Penn Mutual Indemnity case, on appeal, the United States Court of Appeals for the Third Circuit agreed, stating:
It did not take a constitutional amendment to entitle the United States to impose an income tax. Pollock v.
Farmers' Loan & Trust Co., 157 U. S. 429, 158 U. S. 601 (1895), only held that a tax on the income derived
from real or personal property was so close to a tax on that property that it could not be imposed without
apportionment. The Sixteenth Amendment removed that barrier. Indeed, the requirement for apportionment is
pretty strictly limited to taxes on real and personal property and capitation taxes.
It is not necessary to uphold the validity of the tax imposed by the United States that the tax itself bear an
accurate label. Indeed, the tax upon the distillation of spirits, imposed very early by federal authority, now reads
and has read in terms of a tax upon the spirits themselves, yet the validity of this imposition has been upheld for
a very great many years.
It could well be argued that the tax involved here [an income tax] is an "excise tax" based upon the receipt of
money by the taxpayer. It certainly is not a tax on property and it certainly is not a capitation tax; therefore, it
need not be apportioned. We do not think it profitable, however, to make the label as precise as that required
under the Food and Drug Act. Congress has the power to impose taxes generally, and if the particular
imposition does not run afoul of any constitutional restrictions then the tax is lawful, call it what you will. [32]
The Murphy case
On December 22, 2006, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit vacated[33] its
own unanimous August 2006 opinion in Murphy v. Internal Revenue Service and United States.[34] The original three judge panel then
agreed to rehear the case itself. In its original August 2006 decision, the Court had ruled that 26 U.S.C. § 104(a)(2) was
unconstitutional under the Sixteenth Amendment to the extent that the statute purported to tax, as income, a recovery for a nonphysical personal injury for mental distress and loss of reputation not received in lieu of taxable income such as lost wages or
earnings.
Because the August 2006 opinion was vacated, the full court did not hear the case en banc.
On July 3, 2007, the Court (through the original three-judge panel) ruled (1) that the taxpayer's compensation was received on account
of a non-physical injury or sickness; (2) that gross income under section 61 of the Internal Revenue Code[35] does include
compensatory damages for non-physical injuries, even if the award is not an "accession to wealth," (3) that the income tax imposed on
an award for non-physical injuries is an indirect tax, regardless of whether the recovery is restoration of "human capital," and therefore
the tax does not violate the constitutional requirement of Article I, section 9, that capitations or other direct taxes must be laid among
the states only in proportion to the population; (4) that the income tax imposed on an award for non-physical injuries does not violate
the constitutional requirement of Article I, section 8, that all duties, imposts and excises be uniform throughout the United States; (5)
that under the doctrine of sovereign immunity, the Internal Revenue Service may not be sued in its own name. [36]
The Court stated that "[a]lthough the 'Congress cannot make a thing income which is not so in fact,' [ . . . ] it can label a thing income
and tax it, so long as it acts within its constitutional authority, which includes not only the Sixteenth Amendment but also Article I,
Sections 8 and 9."[37] The court ruled that Ms. Murphy was not entitled to the tax refund she claimed, and that the personal injury
award she received was "within the reach of the congressional power to tax under Article I, Section 8 of the Constitution" -- even if
the award was "not income within the meaning of the Sixteenth Amendment". [38] See also the Penn Mutual case cited above.
On April 21, 2008, the Supreme Court declined to review the decision of the Court of Appeals. [39]
AMENDMENT XVII
Passed by Congress May 13, 1912. Ratified April 8, 1913.
Note: Article I, section 3, of the Constitution was modified by the 17th amendment.
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and
each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous
branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of
election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary
appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the
Constitution.
Originally, each Senator was to be elected by his state legislature to represent his state, providing one of the many American
governmental checks and balances. The delegates to the Convention also expected a Senator elected by his state's legislature would be
able to concentrate on the governmental business at hand without direct, immediate pressure from the populace of his state, also aided
by a longer term (six years) than the one afforded to members of the House of Representatives (two years).
This process worked without major problems through the mid-1850s, when the American Civil War was in the offing. Because of
increasing partisanship and strife, many state legislatures failed to elect Senators for prolonged periods. For example, in Indiana the
conflict between Democrats in the southern half of the state and the emerging Republican Party in the northern half prevented a Senate
election for two years. The aforementioned partisanship led to contentious battles in the legislatures, as the struggle to elect Senators
reflected the increasing regional tensions in the lead up to the Civil War.
After the Civil War, the problems multiplied. In one case in the mid-1860s, the election of Senator John P. Stockton from New Jersey
was contested on the grounds that he had been elected by a plurality rather than a majority in the state legislature.[1] Stockton defended
himself on the grounds that the exact method for elections was murky and varied from state to state. To keep this from happening
again, Congress passed a law in 1866 regulating how and when Senators were to be elected from each state. This was the first change
in the process of senatorial elections. While the law helped, there were still deadlocks in some legislatures and accusations of bribery,
corruption, and suspicious dealings in some elections. Nine bribery cases were brought before the Senate between 1866 and 1906, and
45 deadlocks occurred in 20 states between 1891 and 1905, resulting in numerous delays in seating Senators. Beginning in 1899,
Delaware did not send a senator to Washington for four years.
Reform efforts began as early as 1826, when direct election was first proposed. In the 1870s, voters sent a petition to the House of
Representatives for popular election. From 1893 to 1902, the popularity of this idea increased considerably. Each year during that
period, a constitutional amendment to elect Senators by popular vote was proposed in Congress, but the Senate resisted greatly. In the
mid-1890s, the Populist Party incorporated the direct election of Senators into its platform, although neither the Democratic Party nor
the Republican Party paid much notice at the time. Direct election was also part of the Wisconsin Idea championed by the Republican
progressive Robert M. La Follette, Sr. and the Nebraskan Republican reformer George W. Norris. In the early 1900s, Oregon
pioneered direct election of Senators, and it experimented with different measures over several years until success in 1907. Soon
thereafter, Nebraska followed suit, and it laid the foundation for other states to adopt measures for direct election of Senators.
After the turn of the century, support of Senatorial election reform grew rapidly. William Randolph Hearst expanded his publishing
empire with Cosmopolitan, which became a respected general-interest magazine at that time, and which championed the cause of
direct election with muckraking articles and strong advocacy of reform. Hearst hired a veteran reporter, David Graham Phillips, who
wrote scathing pieces on Senators, portraying them as corrupt pawns of industrialists and financiers. The pieces became a series titled
"The Treason of the Senate," which appeared in several monthly issues of the magazine in 1906. [2]
Increasingly, Senators were elected based on state referenda, similar to the means developed by Oregon. By 1912, as many as 29
states elected Senators either as nominees of party primaries, or in conjunction with a general election. As representatives of a direct
election process, the new Senators supported measures that argued for new legislation, but in order to achieve total election reform, a
constitutional amendment was required. In 1911, Senator Joseph L. Bristow from Kansas offered a resolution, proposing an
amendment. The notion enjoyed strong support from Senator William Borah of Idaho, himself a product of direct election. Eight
Southern Senators and all of the Republican Senators from New England, New York and Pennsylvania opposed Bristow's resolution.
Nevertheless, the Senate approved the resolution largely because of the Senators who had been elected by state-initiated reforms,
many of whom were serving their first terms, and therefore were more willing to support direct election. After the Senate passed the
Amendment resolution, the measure moved to the House of Representatives.
The House initially had fared no better than the Senate in its early discussions of the proposed Amendment. During the summer of
1912, the House finally passed the amendment and sent it to the States for ratification. The campaign for public support was aided by
Senators such as Senator Borah and the political scientist George H. Haynes, whose scholarly work on the Senate contributed to
passage of the amendment.[1]
On April 8, 1913, the Seventeenth Amendment was adopted, upon its ratification by Connecticut, a year and a half prior to the 1914
Senate election.
The Seventeenth Amendment restates the first paragraph of Article I, § 3 of the Constitution and provides for the election of Senators
by replacing the phrase "chosen by the Legislature thereof" with "elected by the people thereof." It also allows each state's governor, if
authorized by that state's legislature, to appoint a Senator in the event of an opening, until an election occurs.
The Seventeenth Amendment did not affect the restriction in Article I, § 4, cl. 1, which prohibits the Congress from exercising a
power to "make or alter" state regulations of elections in order to determine where Senators must be chosen. When the State
Legislatures chose the Senators, allowing the Congress to regulate the "places of choosing Senators" would have allowed the Congress
to essentially stipulate where the state's legislature had to meet, at least for the purposes of choosing its Senators, which would have
been inconsistent with state sovereignty.
Term Limits
Term limits have a long history. Ancient Greece and Ancient Rome, two early civilizations which had elected offices, both imposed
limits on some positions. In ancient Athenian democracy, no citizen could serve on the council of 500, or boule, for two consecutive
annual terms, nor for more than two terms in his lifetime, nor be head of the boule more than once. In the Roman Republic, a law was
passed imposing a limit of a single term on the office of censor. The annual magistrates—tribune of the plebs, aedile, quaestor,
praetor, and consul—were forbidden reelection until a number of years had passed.[1] (see cursus honorum, Constitution of the Roman
Republic).
Many modern presidential republics employ term limits for their highest offices. The United States, one of the first countries of the
modern era to have elected political offices, placed a limit of two terms on its presidency by means of the 22nd Amendment to the
United States Constitution in 1951. There are no term limits for Vice Presidency, members of Congress—Representatives and
Senators, although there have been calls for term limits for those offices. Under various state laws some state governors and state
legislators have term limits. Formal limits in America date back to the 1682 Pennsylvania Charter of Liberties, and the colonial frame
of government of the same year, authored by William Penn and providing for triennial rotation of the provincial council, the upper
house of the colonial legislature.[2] (See also term limits in the United States).
The Russian Federation has a common rule for head of state which allows the President to serve more than two terms if they're not
consecutive. For governors of federal subjects, the same two-term limit existed in the 1990s, but since 2004 there have been no term
limits for governors.
Term limits are also common in Latin America, where most countries are also presidential republics. Early in the last century, the
Mexican revolutionary Francisco Madero popularized the slogan Sufragio Efectivo, no Reelección (effective suffrage, no reelection).
In keeping with that principle, members of the Congress of Mexico (the Chamber of Deputies and Senate) cannot be reelected for the
next immediate term under article 50 and 59 of the Constitution of Mexico, adopted in 1917. Likewise, the President of Mexico is
limited to a single six-year term. This makes every presidential election in Mexico a non-incumbent election.
Countries which operate a parliamentary system of government are less likely to employ term limits on their leaders. This is because
such leaders rarely have a set "term" at all: rather, they serve as long as they have the confidence of the parliament, a period which
could potentially last for life. Nevertheless, such countries may impose term limits on the holders of other offices—in republics, for
example, a ceremonial presidency may have a term limit, especially if the office holds reserve powers.
Term limits may be divided into two broad categories: consecutive and lifetime. With consecutive term limits, a legislator is limited to
serving a particular number of years in that particular office. Upon hitting the limit in one office or chamber, a legislator may run for
election to the other chamber or leave the legislature. After a set period of time (usually two years), the clock resets on the limit, and
the legislator may run for election to his/her original seat and serve up to the limit again.
With lifetime limits, on the other hand, once a legislator has served up to the limit, she/he may never again run for election to that
office. Lifetime limits are much more restrictive than consecutive limits.
Offices of local government, such as a mayoralty, may also have term limits. Examples include New York, New York and Los
Angeles, California.