Friday, May 14, 2004
leser evil:
julian sanchez points to a tax protestor refutation page.
it's pretty good overall. this gave me pause:
Another claim is that the ratification of the 16th Amendment by several states was invalid because the constitutions of those states prohibited an income tax. A similar argument as to the 19th Amendment was flatly rejected by the U.S. Supreme Court in Leser v. Garnett, 258 U.S. 130 (1922):
"The second contention is that in the Constitutions of several of the 36 states named in the proclamation of the Secretary of State there are provisions which render inoperative the alleged ratifications by their Legislatures. The argument is that by reason of these specific provisions the Legislatures were without power to ratify. But the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a state." 258 U.S. at 136-137.
is garnett still good law? i'm not sure it was right.
any dissents? i don't know why the people of a state couldn't adopt a state constitutional provision prohibiting the legislature from ratifying certain amendments. this would be the sort of check and balance the framers intended.
This doesn't resolve the issue; a clause saying rhode island shall not have an income tax doesn't mean the legislature couldn't vote for a federal income tax, and i don't know the history well enough. i discuss a general principle, perhaps one with no concrete examples.
but it would seem to leave the question open, although contra some rather stale stare decisis.
also, reading the whole case might change the context: leser v garnett also says courts can't decide political questions. if true, scratch the state legislative rule case.. garnett admits it can't decide that issue. i'd be very suspicious of garnett till i read it and possibly even then.
if courts can't decide political questions, that doesn't mean the protesters are wrong, just that court is not the right venue. if there's no court to resolve a dispute, does that mean we are in a state of nature as to tax collectors?
The (T)Reason article julian mentions is pretty good too.
More charitably, the tax honesty people are staunch exemplars of America’s glorious Protestant heritage.
This observation is not merely a pun on their status as "tax protesters." Their attitude toward the Constitution and the statutes and legal decisions regarding the income tax are uniquely Protestant, relying on a layman’s ability -- indeed, obligation -- to read and study and parse the original documents himself, to come to his own personal relationship with the law and the cases, and to prefer his understanding to that of the priesthood of lawyers, judges, and accountants.
edited to add, well it's a really good article.
the usual irwin schiff jokes. his book "the federal mafia" will have a lot more impact now that it's illegal. i bought a copy once, it's trash. i had lunch with irwin once, and one of my clients in majors v abell says she was his girlfriend at one time. he'd be played by danny divito in the movie version.
[julian's next post is about secretary. "spanking and bondage". i had a third date with a nice young woman to see secretary when it got to town, but it never did, or we missed it, and she's moved away :( .]
update on reading leser: it's readily distinguishable. at the least, it leavesthequestion very open. leser wanted the court to deny women the vote, brandeis wasn't going to go for that. and it was about procedure, not substance. it might be supported by bush v gore, but it's an open question. i did not see in leser any claim that such issues are non-justiciable; the court did reach and decide questions of law.
I am not saying I have the answers - i'm saying the so called answers don't hold up too well. I have no interest in becoming an expert on this stuff.
Now, what's the deal with the flag and the fringe?
julian sanchez points to a tax protestor refutation page.
it's pretty good overall. this gave me pause:
Another claim is that the ratification of the 16th Amendment by several states was invalid because the constitutions of those states prohibited an income tax. A similar argument as to the 19th Amendment was flatly rejected by the U.S. Supreme Court in Leser v. Garnett, 258 U.S. 130 (1922):
"The second contention is that in the Constitutions of several of the 36 states named in the proclamation of the Secretary of State there are provisions which render inoperative the alleged ratifications by their Legislatures. The argument is that by reason of these specific provisions the Legislatures were without power to ratify. But the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a state." 258 U.S. at 136-137.
is garnett still good law? i'm not sure it was right.
any dissents? i don't know why the people of a state couldn't adopt a state constitutional provision prohibiting the legislature from ratifying certain amendments. this would be the sort of check and balance the framers intended.
This doesn't resolve the issue; a clause saying rhode island shall not have an income tax doesn't mean the legislature couldn't vote for a federal income tax, and i don't know the history well enough. i discuss a general principle, perhaps one with no concrete examples.
but it would seem to leave the question open, although contra some rather stale stare decisis.
also, reading the whole case might change the context: leser v garnett also says courts can't decide political questions. if true, scratch the state legislative rule case.. garnett admits it can't decide that issue. i'd be very suspicious of garnett till i read it and possibly even then.
if courts can't decide political questions, that doesn't mean the protesters are wrong, just that court is not the right venue. if there's no court to resolve a dispute, does that mean we are in a state of nature as to tax collectors?
The (T)Reason article julian mentions is pretty good too.
More charitably, the tax honesty people are staunch exemplars of America’s glorious Protestant heritage.
This observation is not merely a pun on their status as "tax protesters." Their attitude toward the Constitution and the statutes and legal decisions regarding the income tax are uniquely Protestant, relying on a layman’s ability -- indeed, obligation -- to read and study and parse the original documents himself, to come to his own personal relationship with the law and the cases, and to prefer his understanding to that of the priesthood of lawyers, judges, and accountants.
edited to add, well it's a really good article.
the usual irwin schiff jokes. his book "the federal mafia" will have a lot more impact now that it's illegal. i bought a copy once, it's trash. i had lunch with irwin once, and one of my clients in majors v abell says she was his girlfriend at one time. he'd be played by danny divito in the movie version.
[julian's next post is about secretary. "spanking and bondage". i had a third date with a nice young woman to see secretary when it got to town, but it never did, or we missed it, and she's moved away :( .]
update on reading leser: it's readily distinguishable. at the least, it leavesthequestion very open. leser wanted the court to deny women the vote, brandeis wasn't going to go for that. and it was about procedure, not substance. it might be supported by bush v gore, but it's an open question. i did not see in leser any claim that such issues are non-justiciable; the court did reach and decide questions of law.
I am not saying I have the answers - i'm saying the so called answers don't hold up too well. I have no interest in becoming an expert on this stuff.
Now, what's the deal with the flag and the fringe?
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