Beware of New Constituional Experts Who've Uncovered Diabolical Subversions!

Originally posted on facebook on Tuesday, March 30, 2010

I've noticed a recent spate of newly-minted Constitutional scholars who purport to have uncovered some great subversion of the Constitution that NO ONE ever discovered before. I have a word of advice: you can't simply go to the copy of the US Constitution in the back of your kid's civics text book and become an instant authority on constitutional law. In nearly every case there's a body of legislative and/or case law that surrounds, supports, clarifies, and delimits the basic principles outlined in the text itself.

For example, a person on facebook recently cited Article I, Section 2, Clause 3 of the Constitution to criticize the US Census, saying, “the only information you are empowered to request is the total number of occupants at this address. My ‘name, sex, age, date of birth, race, ethnicity, telephone number, relationship and housing tenure’ have absolutely nothing to do with apportioning direct taxes or determining the number of representatives in the House of Representatives. Therefore, neither Congress nor the Census Bureau have the constitutional authority to make that information request a component of the enumeration outlined in Article I, Section 2, Clause 3.” This is simply not true, since in addition to directing that the Census be conducted every ten years, Article I, Section 2 Clause 3 adds that it be done, “in such Manner as they [Congress] shall by Law direct.” Congress has subsequently directed that the Census gather additional limited information, and as the power to do so is directly enumerated in the Constitution and given to Congress, it is well within the power of Congress to so direct.

Similarly, a good friend recently posted a video made by a gentleman who claims that there is no legal basis for a federal income tax. This video maker asserts that the Sixteenth Amendment to the Constitution – which he erroneously maintains is the legal basis the government uses to justify the federal income tax – was never legally approved by three-fourths of the states. Of course, it WAS approved by nearly ALL the states, but EVEN if it hadn’t been, the Sixteenth Amendment has nothing to do with the federal income tax; it specifically involves the assessment of federal taxes on corporations.

Even the citation of the Sixteenth Amendment in this issue is historically inaccurate: the first federal individual income tax was assessed in 1862, and the Sixteenth Amendment was enacted FIFTY years later, in 1913.

In fact, however, the power to levy a federal income tax is based on the specific language of Article I, Section 8, [Powers of Congress] which states: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence (sic) and general welfare of the United States…” Furthermore, Article I, section 8, clause 18 – known as the “Necessary and Proper Clause” – clearly states that, “The Congress shall have Power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” And, finally, several Supreme Court rulings have buttressed the power of Congress to levy taxes when and as it sees fit (United States v. Butler, 1936, is only one example).

So, regarding these new Constitutional experts, who are propelled – no doubt – by voices on the right who are willing and able to use any tactic and spread any untruth or misrepresentation to further their goals and ends: I’d counsel a very wary approach.