Copyright © 2004, Jim Carter
NO TAX ON LIBERTY
Freedom is seldom lost overnight. In the usual setting, an established society will tolerate the form of government to which they have become accustomed and allow gradual encroachment on previous sacrosanct areas under a multitude of rationale---usually with silence. If citizens forget that they have a right, they will not be able to assert it. Pursuit of pastimes results in relinquishing protection of our most basic freedoms to the care of others---and a new master is acquired.
In the United States, lawyers have gradually filled that position. As public schools utilize state/federal mandated textbooks that are more concerned with social science than history, racial hegemony than property rights, and the conceived responsibilities of government rather than the rights of an individual, law school became the last bastion to teach the rights of man. But even there, Miranda rights and Blevins actions to control the local police have replaced instruction on limiting the expansion of fabian socialism. Law schools that teach politically incorrect concepts that restrict government may not be able to place interns in choice federal courts or receive lucrative federal grants. To strenuously argue economic limitations on the federal government in tax "court" will find permission to advocate is canceled. Such advocacy in district court will find an individual ridiculed, smeared, sanctioned, or find the state granted privilege to pursue a profession has been jeopardized.
If there is any one specific right firmly entrenched in our organic law, it is the right to Liberty as identified in the Declaration of Independence, the Preamble to the Constitution, the Fifth Amendment, and specifically applied to the states by the 14th Amendment. Our forefathers succinctly identified the purpose for lawful government: "That to secure these rights (of Life, Liberty, and the pursuit of Happiness), Governments are instituted among Men..." Declaration of Independence. It has been said that the rights to life, liberty, and property are so related that the deprivation of any one of these separate and independent rights may lessen or extinguish the value of the others. Smith v Texas, 233 US 630.
Liberty has been adjudicated to include a vast group of rights but perhaps the extent of its meaning can best be visualized by observing political systems that are considered as oppressive. In those countries we see persecution for statements deemed unpleasant to government; restrictions on travel; individuals and businesses that promote/contribute to political parties receiving government favors; housing allocated by government; and privacy from government non-existent. Our forefathers faced only slightly less oppression: taxation without consent; government indifferent to public lamentations; denial of judicial procedures/protections; arbitrary confiscation of property under color of law; and other items witnessed in the Declaration of Independence. With this hindsight and a desire to formulate a descriptive encapsulation of a word, it is suggested that the essence of liberty is freedom from government. Did I say these were historic or other nation's problems?
That liberty includes the right to pursue a livelihood and provide for a family is a most profound proviso of constitutional adjudication. Liberty "means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his facilities; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned." Allgeyer v Louisiana, 165 US 578, 589. And again: "It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the amendment to secure." Truax v Raich, 239 US 33, 41. Greene v McElroy, 300 US 474; Meyer v Nebraska, 262 US 390; Butchers Union v Crescent City, 111 US 746; Grosjean v American Press, 297 US 233: Regents v Roth, 408 US 564; Hall v Geiger-Jones, 242 US 539; Chicago B & Q R. Co v McGuire, 219 US 549.
Of what value is life if the individual cannot exchange the sweat of his brow for the things that make life worthwhile? If ever there was a fundamental right that is "preservative of all rights" (ref. Harman v Forssenius, 380 US 528, 537 referring to the right to vote), it is the right to make a living. What more fundamental right do citizens have than to feed and house themselves? An individual cannot maintain any freedom from government if the earnings of his labor are subject to some arbitrary self-serving government assessment made in the cavernous depths of some political bureaucracy without authorization by the citizenry. The question of whether the fruits of an individual's labor belonged to another resulted in a most violent period in this nation's history. Slavery is no less reprehensible because it is a government action.
We are informed by various pundits that taxes consume 40 to 60% of a citizen's wages, and increases annually. A study by the Office of Management and Budget included in the president's federal budget released in 1994 included projections on percentages of lifetime earnings future generations would pay in taxes. Various alternatives went to 82% and 93.7%. While subject to challenges and changes, just the potential of the figures being accurate is horrifying. Reflecting on the government propensity to understate future expenses and increase future taxes, it may be assumed the percentage will prove to be understated. At what percentage do we shift from peonage to slavery?
Is it possible that a constitutional right can properly be an object of taxation? Perhaps in the rare case where the police powers of government are necessary to protect the health and safety of the public, but the income tax is not a police power---it is the exercise of mere revenue power. Even a regulatory tax involving police powers must be closely drawn within constitutional restraints or be denied. Lochner v New York, 198 US 45, 56; Schneider v New Jersey, 308 US 147, 150. Nor can a valid regulatory tax be expanded to infringe on constitutional rights. Bates v Little Rock, 361 US 516. A revenue tax on a constitutional right is summarily rejected: "A (government) may not impose a charge for the enjoyment of a right granted by the federal constitution." Murdock v Pennsylvania, 319 US 105, 113. Taxes exacted as a price of exercising freedoms protected by the constitution are presumptively invalid for "on their face they are a restriction of the free exercise of those freedoms." id 114. If it were otherwise, all constitutional rights could be taxed out of existence.
Taxation has been adjudicated to be a matter of sovereignty, and that over which the government is not sovereign is not a suitable basis for taxation. McCulloch v Maryland, 17 US 316. The U.S. Constitution is accepted as a grant of authority to the government from the people and any authority not granted is retained by We the sovereign people. Adkins v Children's Hospital, 261 US 525, 559. If the right to pursue a livelihood is retained by "We the [sovereign] people," how then does the government acquire the necessary sovereignty to make the pursuit of our livelihood a suitable object for taxation? A sovereign is not subject to taxation. Pittman v Home Owners Loan, 308 US 21.
The court has recognized the power to tax is "the power to control or suppress its enjoyment." Murdock v Pennsylvania, 317 US 105, 112. The Bill of Rights specifically enumerates areas forbidden to the federal government; they are reserved and secured for the people. A tax upon any right secured by the Bill of Rights would require relinquishing control of that right to the government. We the people do not desire to relinquish control of our livelihood nor are we aware of any such action in the past. Acquiescence in loss of fundamental rights will not be presumed. Ohio Bell v. Public Utilities Commission, 301 U.S. 292.
Perhaps the concept escapes the casual observer: the right to trial by jury cannot be conditioned upon the payment of $10,000 in advance to defray the costs of the trial; an annual fee of $3000 cannot become a condition to keep a rifle in the house; the right to security of papers in a home or of the freedom of the press cannot be conditioned to only papers that do not contain unpleasant remarks about the government; the assistance of counsel is not conditioned to an ability to pay; the right to cross a state boundary cannot be taxed. Crandall v Nevada, 73 US 35. "The right...is too precious, too fundamental, to be so burdened or conditioned." Harper v Virginia, 383 US 663, 670. Surely the right to vote in the Harper case is no more precious or fundamental than putting food on the table and a roof over your family. The $1.50 optional poll tax forbidden by the Harper court pales when compared with the criminally enforced mandatory burden on pursuing a livelihood. "The mere chilling of a constitutional right by a penalty on its exercise is patently unconstitutional." Shapiro v Thompson, 394 US 618. If conditions can be imposed on constitutional rights, all constitutional rights can be conditioned out of existence.
But, it might be suggested, the law was passed by the
elected representatives of the people; they were empowered to pass the
legislation and to cause its enforcement. The court declares otherwise.
"The very purpose of a Bill of Rights was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied
by the courts. One's right to life, liberty, and property, to free speech, a
free press, freedom of worship and assembly, and other fundamental rights may
not be submitted to vote; they depend on the outcome of no elections." West
Virginia v Barnett, 319 US 624, 638. If a direct vote of the people cannot
accomplish an object, neither can an indirect vote by elected representatives.
Perhaps it might be suggested that title 26 authorizes a tax on wages? The
court states the priorities: "(A) legislative act contrary to the
Constitution is not law." Carter v Carter Coal Co., 298 US 238. ovrd
on other grounds
Is it possible that the exercise of a constitutional right can properly be the basis for a criminal act? If a citizen earns dollars exercising a constitutional right, must a percentage be surrendered to Caesar to avoid incarceration? Of course not. An individual cannot become guilty of a crime for exercising his right to avoid self-incrimination. Counselman v Hitchcock, 142 US 547; Miranda v Arizona, 384 US 436. Nor can denying government access to a man's house except upon presentation of a warrant be considered a criminal act. See v Seattle, 387 US 541. Nor must speech be censored to the tastes of government or risk sedition charges. If the exercise of a constitutional right can become the cause for imprisonment, the constitution has been nullified and there is no security from omnipotent government; the constitution has become a worthless scrap of paper. Marchetti v US, 390 US 39, 57.
Can conditions for the exercise of a constitutional right be imposed? Can the government properly require an individual to inform the government of the extent and nature of the exercise of a constitutional right (i.e., file 1040 forms, submit books and records, etc.) or risk punitive action/incarceration? Of course not. The conditions are only a subterfuge---a diversion of attention. It is the exercise of the constitutional right that is the nexus of potential incarceration; it is for its exercise that the individual risks punishment. The government's action is a means to simplify gathering of information so the fruits of the individual's exercise of constitutional rights can be confiscated. If the object of taxation cannot properly be taxed, penalties for gathering information for the (illegal) taxation cannot be sustained.
Perhaps a rational analysis is not required. The court has flatly rejected the imposition of a tax upon a right secured by the Bill of Rights. Murdock v Pennsylvania, 319 US 105. Likewise a tax levied on a federal right of interstate commerce was invalidated. McGoldrick v Berwind-White, 309 US 33; Hood v Dumond, 336 US 525. Nor can the exercise of religion be taxed. Follett v McCormick, 321 US 573. Nor can the right to vote (an implied right) be taxed. Harper v Virginia, 383 US 663. The poll tax is "a penalty imposed on those who wish to exercise their right (and) ...the tying of its collection to the franchise would be invalid as a charge on a very precious constitutional right." U.S. v Texas, 252 FSup 234, 255; affirmed 384 US 155. [This eloquent district court opinion must be read !!] Constitutional rights are not suitable objects for taxation.
It may be suggested that the revenue from the income tax is required by the government, or more euphemistically: "There is an overriding government interest to uphold" or "A sound tax system is of such a high order." (King John reportedly made similar platitudes when forced to accept the Magna Carta; King Charles shortly before he lost his head; King George before he lost the colonies.) It is submitted there is no higher order, in a republic as guaranteed by article 4, section 4 of the constitution than the rights of the people. A claim of necessity has little sway if the constitution has any significance. "It must be conceded that there are such rights in every free government beyond the control of the state. A government which recognized no such rights...is after all but a despotism...of all the powers conferred upon government, that of taxation is most liable to abuse...the power to tax is the power to destroy." Loan Association v Topeka, 87 US 655, 663.
There are political forms espousing ideologies that include government control of common occupations. We try to believe these forms are not within the United States. If the power to tax exists, it is a matter of indifference to the courts if the tax destroys the object of the tax. Magnona v Hamilton, 292 US 40, 46. Whether the income tax is destroying the secured liberty of the U.S. citizen may depend on whether the beholder is a taxpayer or a tax beneficiary, but it is irrelevant for adjudication. The issue is principle, not feigned necessity.
There are those who would suggest the United States got along much better for 165 years without a significant income tax than the last 60 years with continually heavier taxation. A significant reduction of the tax burden is analyzed by some economic pundits to result in a great boon for the U.S. economy. In adamant concurrence, former Secretary of the Treasury William E. Simon repeatedly warned a deaf Congress during innumerable hearings that the level of taxation threatens "the liberty of the American people...that the state itself is a threat to individual liberty." A Time for Truth, p 12, 14. [Mr. Simon accuses the U.S. and New York City of cooking their accounting books. Judging from numerous recent accounting and management fiascoes in private business, "the government is the potent, the omnipresent, teacher which breeds contempt for law among the people by its example."] But the courts have wisely declared the social/economic philosophies of Herbert Spencer---or John Maynard Keynes or Murray Rothbard---are irrelevant to the court. The issue is still principle. This is a constitution we are propounding.
Our judicial system has recognized the status of the sovereign citizen and acknowledged individuals voluntarily comply with provisions of the tax law. Flora v U.S., 362 US 145. This individual has decided that he no longer wishes to volunteer further and hereby claims his constitutional rights. For that action, he cannot properly be found guilty of a crime or be incarcerated. A law that improperly infringes on constitutional rights is void from its inception and no person can be obligated to obey such a law. 16A AmJur2d Constitutional Law, §203 (1998). Habeas Corpus may be used to challenge the unconstitutionality of legislation. id §134, ref. 13 AmJur Pl & Pr forms, Hab C.§§81,82. Federal Rule of Civil Procedure 60(b)(4) controls post trial motions ( in form of corum nobis ?) relating to void judgments. Federal Rule of Criminal Procedure 12(b)(2) authorize challenge to jurisdiction at anytime. Legal encyclopedia 46 AmJur2d Judgments, section 27, informs us "in the absence of jurisdiction over the person, any judgment or order the court might enter against defendant is void." Section 31 continues with "a void judgment is a complete nullity and without legal effect...and is open to attack or impeachment in any proceeding, direct or collateral...where the invalidity appears upon the face of the record."
This article is not to be considered as legal advice. The case analysis is considered to be accurate but the writer is not responsible for any use made of the information.
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