Perhaps My Only Defense of the Income Tax

The other day I was watching a show on extreme tax protesters, specifically those who believe the entire income tax system to be illegal and thus they actually owe no taxes.

While I am sympathetic to issues folks have with taxation, from a legal and Constitutional perspective the income tax actually comes from a better, almost more quaint time.  Why?  Because instead of dealing with the Constitutional problems with the income tax by having a series of judges stare at the Constitution with their eyes crossed until the problem disappears, they actually wrote and passed a freaking Constitutional amendment.  Granted that the amendment was passed under false pretexts (e.g. that the tax would never apply to more than the top 1% of earners or earners with less than $1 million in income).  But they sought an amendment.  The took the wording of the Constitution seriously.

In fact, the 18th Amendment (prohibition) and the 21st Amendment (its repeal) were the last times the Constitution has been amended to give or take away Federal powers (everything since has been related to voting and elections).  Ever since 1933, we have effectively added non-enumerated powers by essentially ignoring the Constitution, such amendment process being seen as too much of a hassle to stand in the way of critical regulations on seat belts or marijuana.

Everyone knows it took a Constitutional Amendment to get alcohol prohibition, but think about this in today's world.  Would we even bother?  No way!  Congress has taken on the power to regulate or prohibit just about anything it wants by stretching the commerce clause form its original meaning of preventing states from setting up barriers to interstate trade to an all-encompassing power of fiat to do anything Congress freaking wants.

My kids and I were watching 2081, the excellent short movie based on the Vonnegut short story "Harrison Bergerson."  That story posits a government department of handicapping that solves the inequality issue once and for all by handicapping the most able down to some lowest common denominator.

Anyway, the intro to the movie said it was based on something like the 280th amendment to the Constitution.   But I don't think we are ever going to get that high.  Certainly those who want more government power don't need any more amendments, as the Constitution is no longer constraining in the least and an increasing number of the Bill of Rights are either bad jokes (9,10) or are being gutted as we speak (2,4).

I don't expect another Amendment in my lifetime.  The only way I think we will see one is if we get some sort of libertarian revolution, and the only Amendment we would need would be the one saying "Look, we were't freaking kidding in the 10th amendment, go read it again."  OK, maybe some clarity on the commerce clause would be good as well.

I am not a big fan of the income tax, or of Prohibition, but it was a better world when we knew we had to at least amend the Constitution to do these things because we took the enumerated powers seriously.


  1. NL_:

    That's a good point (and good evidence that drug prohibition should have necessitated an amendment). But it's worth noting that they had passed a number of federal income taxes as early as the Civil War. The Supreme Court found that the tax on wage income was an indirect tax (and so no requirement it be apportioned) but that taxes on dividends, rents and interest were taxes on property that must be apportioned. Since it'd be so difficult to manage to apportion such taxes by state, they had to amend to get the tax past the Court.

    As long as the Supreme Court rubberstamps these things, the amendment process is unnecessary. Also, as long as the Supreme Court is flexible about rewriting the Constitution, the amendment process is less attractive; there's a good chance that all the effort that went into passing the amendment could be undermined by the Supreme Court.

  2. Chris K.:

    I'm not fond of the constitution anyway. Too many people expect it to protect them.

  3. Rob:

    Personally, I'm in favor of scrapping the entire, fraudulent "Constitution" and reverting to the Articles of Confederation (if anything.)

  4. chuck martel:

    I didn't agree with the Constitution so I didn't sign it. I haven't agreed to co-sign all these loans that the feds are getting, either. So, since I didn't sign these contracts, as a free individual, how can I be held to them? Except at gun point.

  5. caseyboy:

    The problem isn't the Constitution, its the people we've elected to office and the judges that they in turn have appointed. What need have we of amendments when we have activist judges? In essence we are the problem. We didn't pay enough attention to our civic responsibilities. Well we are paying for that now and it is going to get a lot worse before it gets better.

  6. aczarnowski:

    See also, Declaration of War.

  7. danh:

    The problem with to commerce clause, is the we read "congress shall regulate" and assume that means control, slow down or otherwise hamper. The original meaning was "to make regular". the fear of the founders was that states would have tarriffs (outlawed directly in the constitution), or some other means of keeping other states from selling in their states (hampering commerce). They wanted to make sure that the trade would flow WITHOUT restrictions. We have totally reversed the meaning of it.

  8. Roy Lofquist:


    You are inspired today. I'm loving it.


  9. Dr. T:

    "... Ever since 1933, we have effectively added non-enumerated powers by essentially ignoring the Constitution..."

    It goes back much further than that. Just three years after the Constitution was ratified, the federal government taxed domestic sales of whiskey but no other beverage, alcoholic or not, despite the Constitutional requirement that "all Duties, Imposts and Excises shall be uniform throughout the United States." Three years later (1794), the federal government used force against those who opposed the tax.

    Lincoln believed that we had a national government rather than a federated government comprised of sovreign states. He deemed it proper to war on states that chose to leave the union. Congress implemented a federal draft during the Civil War, a direct violation of the Tenth Amendment since the Constitution did not enumerate a power to conscript men into an army.

    There are numerous examples of pre-FDR Congresses, presidents, and US Supreme Courts ignoring the Constitution to allow continual expansion of national government.

  10. IgotBupkis, President, United Anarchist Society:

    Dr. T -- true, but there were always counter-forces working to weaken, prevent, or otherwise block such attitudes from becoming commonplace.

    I cite to you that one of our greatest PotUSes was Grover Cleveland:

    President Cleveland's veto of the Texas Seed Bill (February 16, 1887) is the most famous of his many vetoes; in it he makes the case for limited government and supports the role of private charity.

    To the House of Representatives:

    I return without my approval House bill number ten thousand two hundred and three, entitled "An Act to enable the Commissioner of Agriculture to make a special distribution of seeds in drought-stricken counties of Texas, and making an appropriation therefor."

    It is represented that a long-continued and extensive drought has existed in certain portions of the State of Texas, resulting in a failure of crops and consequent distress and destitution.

    Though there has been some difference in statements concerning the extent of the people's needs in the localities thus affected, there seems to be no doubt that there has existed a condition calling for relief; and I am willing to believe that, notwithstanding the aid already furnished, a donation of seed-grain to the farmers located in this region, to enable them to put in new crops, would serve to avert a continuance or return of an unfortunate blight.

    And yet I feel obliged to withhold my approval of the plan as proposed by this bill, to indulge a benevolent and charitable sentiment through the appropriation of public funds for that purpose.

    I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people.

    The friendliness and charity of our countrymen can always be relied upon to relieve their fellow-citizens in misfortune. This has been repeatedly and quite lately demonstrated. Federal aid in such cases encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood.

    It is within my personal knowledge that individual aid has, to some extent, already been extended to the sufferers mentioned in this bill. The failure of the proposed appropriation of ten thousand dollars additional, to meet their remaining wants, willnot necessarily result in continued distress if the emergency is fully made known to the people of the country.

    It is here suggested that the Commissioner of Agriculture is annually directed to expend a large sum of money for the purchase, propagation, and distribution of seeds and other things of this description, two-thirds of which are, upon the request of senators, representatives, and delegates in Congress, supplied to them for distribution among their constituents.

    The appropriation of the current year for this purpose is one hundred thousand dollars, and it will probably be no less in the appropriation for the ensuing year. I understand that a large quantity of grain is furnished for such distribution, and it is supposed that this free apportionment among their neighbors is a privilege which may be waived by our senators and representatives.

    If sufficient of them should request the Commissioner of Agriculture to send their shares of the grain thus allowed them, to the suffering farmers of Texas, they might be enabled to sow their crops; the constituents, for whom in theory this grain is intended, could well bear the temporary deprivation, and the donors would experience the satisfaction attending deeds of charity.


    I believe it is clear that we need -- and desperately -- a number of classes of Congress and a series of PotUSes who share the grasp of Mr. Cleveland as to the proper role of government.

  11. John O.:

    There is in fact an attempt to reform the Federal governmnet through clarification admendments as well as appropriately assign the Federal govenrment delegate powers that it currently unconstitutionally excercising.

    -- John O.

  12. txjim:

    Helpful Internet editor: “Harrison Bergerson.” should be “Harrison Bergeron”

  13. el coronado:

    TPTB have made their 'refinements' to the system such that "if voting actually made a difference, it would have been outlawed decades ago". they're not _about_ to let us take a whack at their constitutional fig leaf. ah, well. was nice while it lasted. sure hope our first few emperors are in the trajan/hadrian mode, rather than caligula/nero/valerian. but i rather doubt it.

  14. TomG:

    I'll just mention one of my own pet peeves about the disregard for the Constitution - NOWHERE in it did it ever say that the Legislative branch was permitted to delegate any law-making power to any other body. And yet, what else are regulations, but law? Backed by force? All agencies have been given a de facto grant to create and enforce laws.

    I do not know if there was ever a Supreme Court case to ask that specific question - is it constitutional for Congress to ALLOW (or DIRECT) any other body to create and enforce laws (e.g. "regulations")?