Weston White
07-03-2012, 02:47 AM
I wholly disagree with that article, it is plainly wrong on many counts. I will reference several quotations that make clear the fallacy on the part of the author:
U.S. Constitution (A.I,S.8,C.1): “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;”
Federalist Paper 41 (James Madison): “It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare. "But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?”
Federalist Paper 83 (Alexander Hamilton): “The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.”
In City of Boerne v. Flores, 521 U.S. 507, 519 (1997):
“It is also true, however, that “[a]s broad as the congressional enforcement power is, it is not unlimited.” Oregon v. Mitchell, supra, at 128 (opinion of Black, J.). …
Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. …”
In United States v. Butler, 297 U.S. 1, 61-62 (1936):
“ … A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the support of the Government. The word has never been thought to connote the expropriation of money from one group for the benefit of another. We may concede that the latter sort of imposition is constitutional when imposed to effectuate regulation of a matter in which both groups are interested and in respect of which there is a power of legislative regulation. But manifestly no justification for it can be found unless as an integral part of such regulation. The exaction cannot be wrested out of its setting, denominated an excise for raising revenue, and legalized by ignoring its purpose as a mere instrumentality for bringing about a desired end. To do this would be to shut our eyes to what all others than we can see and understand. Child Labor Tax Case, 259 U. S. 20, 259 U. S. 37.
…
There should be no misunderstanding as to the function of this court in such a case. It is sometimes said that the court assumes a power to overrule or control the action of the people's representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty -- to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question.”
In Olmstead v. United States, 277 U.S. 438, 478-479 (1928):
“The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
… Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”
In Nigro v. United States, 276 U.S. 332, 341-342 (1928):
“In interpreting the Act, we must assume that it is a taxing measure, for otherwise it would be no law at all. If it is a mere act for the purpose of regulating and restraining the purchase of the opiate and other drugs, it is beyond the power of Congress, and must be regarded as invalid, just as the Child Labor Act of Congress was held to be, in Bailey, Collector v. Drexel Furniture Co., 259 U. S. 20. Everything in the construction of § 2 must be regarded as directed toward the collection of the taxes imposed in § 1 and the prevention of evasion by persons subject to the tax. If the words cannot be read as reasonably serving such a purpose, § 2 cannot be supported.”
In Loan Association v. Topeka, 87 U.S. 655, 662-665 (1874):
“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, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is nonetheless a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many.
The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers.
There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B. [Footnote 4]
Of all the powers conferred upon government, that of taxation is most liable to abuse. Given a purpose or object for which taxation may be lawfully used and the extent of its exercise is in its very nature unlimited. It is true that express limitation on the amount of tax to levied or the things to be taxed may be imposed by constitution or statute, but in most instances for which taxes are levied, as the support of government, the prosecution of war, the National defense, any limitation is unsafe. The entire resources of the people should in some instances be at the disposal of the government.
The power to tax is therefore the strongest, the most pervading of all the powers of government, reaching directly or indirectly to all classes of the people. It was said by Chief Justice Marshall, in the case of McCulloch v. state of Maryland, [Footnote 5] that the power to tax is the power to destroy. A striking instance of the truth of the proposition is seen in the fact that the existing tax of ten percent imposed by the United States on the circulation of all other banks than the national banks drove out of existence every state bank of circulation within a year or two after its passage. This power can as readily be employed against one class of individuals and in favor of another, so as to ruin the one class and give unlimited wealth and prosperity to the other, if there is no implied limitation of the uses for which the power may be exercised.
To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is nonetheless a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.
Nor is it taxation. A "tax," says Webster's Dictionary, "is a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or state." "Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes." [Footnote 6]
Coulter, J., in Northern Liberties v. St. John's Church, [Footnote 7] says, very forcibly, "I think the common mind has everywhere taken in the understanding that taxes are a public imposition, levied by authority of the government for the purpose of carrying on the government in all its machinery and operations -- that they are imposed for a public purpose."
We have established, we think, beyond cavil that there can be no lawful tax which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense and what is not.
It is undoubtedly the duty of the legislature which imposes or authorizes municipalities to impose a tax to see that it is not to be used for purposes of private interest instead of a public use, and the courts can only be justified in interposing when a violation of this principle is clear and the reason for interference cogent. And in deciding whether, in the given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation.”
In Budd v. New York, 143 U.S. 517, 550-551 (1892) [DISSENTING]:
“Surely the matters in which the public has the most interest are the supplies of food and clothing; yet can it be that by reason of this interest the state may fix the price at which the butcher must sell his meat, or the vendor of boots and shoes his goods? Men are endowed by their Creator with certain unalienable rights -- "life, liberty, and the pursuit of happiness" -- and to "secure," not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations: first that he shall not use it to his neighbor's injury, and that does not mean that he must use it for his neighbor's benefit; second, that if the devotes it to a public use, he gives to the public a right to control that use, and third, that whenever the public needs require, the public may take it upon payment of due compensation.
…
The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government. If it may regulate the price of one service which is not a public service, or the compensation for the use of one kind of property which is not devoted to a public use, why may it not with equal reason regulate the price of all service, and the compensation to be paid for the use of all property? And if so, "Looking Backward" is nearer than a dream.”
And concerning the matter of “creative-taxation” (i.e., the legislative practice of morphing what is very obviously a direct tax so as to appear to be an indirect tax, or otherwise an unconstitutional tax so as to appear constitutional) was well addressed in Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 581 (1895)):
“Thus, in Brown v. Maryland, 12 Wheat. 419, 25 U. S. 444, it was held that the tax on the occupation of an importer was the same as a tax on imports, and therefore void. And Chief Justice Marshall said:
"It is impossible to conceal from ourselves that this is varying the form without varying the substance. It is treating a prohibition which is general as if it were confined to a particular mode of doing the forbidden thing. All must perceive that a tax on the sale of an article imported only for sale is a tax on the article itself."
In Weston v. Charleston, 2 Pet. 449, it was held that a tax on the income of United States securities was a tax on the securities themselves, and equally inadmissible. …
So, in Dobbins v. Commissioners, 16 Pet. 435, it was decided that the income from an official position could not be taxed if the office itself was exempt.
In Almy v. California, 24 How. 169, it was held that a duty on a bill of lading was the same thing as a duty on the article which it represented; in Railroad v. Jackson, 7 Wall. 262, that a tax upon the interest payable on bonds was a tax not upon the debtor, but upon the security, and in Cook v. Pennsylvania, 97 U. S. 566, that a tax upon the amount of sales of goods made by an auctioneer was a tax upon the goods sold.
In Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326, and Leloup v. Mobile, 127 U. S. 640, it was held that a tax on income received from interstate commerce was a tax upon the commerce itself, and therefore unauthorized. And so, although it is thoroughly settled that, where by way of duties laid on the transportation of the subjects of interstate commerce, and on the receipts derived therefrom, or on the occupation or business of carrying it on.a tax is levied by a State on interstate commerce, such taxation amounts to a regulation of such commerce, and cannot be sustained, yet the property in a State belonging to a corporation, whether foreign or domestic, engaged in foreign or domestic commerce, may be taxed, and when the tax is substantially a mere tax on property, and not one imposed on the privilege of doing interstate commerce, the exaction may be sustained. "The substance, and not the shadow, determines the validity of the exercise of the power." Postal Telegraph Co. v. Adams, 155 U. S. 688, 155 U. S. 698.”
Weston White
07-03-2012, 02:50 AM
And a few relative quotes to be considered:
The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests. - Patrick Henry
It is in the interest of tyrants to reduce the people to ignorance and vice. For they cannot live in any country where virtue and knowledge prevail. - Samuel Adams
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. - Alexander Hamilton
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. - Alexander Hamilton
The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. - Alexander Hamilton
If it be asked, what is the most sacred duty and the greatest source of our security in a republic? The answer would be, an inviolable respect for the Constitution and laws - the first growing out of the last... A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government. - Alexander Hamilton
As riches increase and accumulate in few hands, as luxury prevails in society, virtue will be in a greater degree considered as only a graceful appendage of wealth, and the tendency of things will be to depart from the republican standard. This is the real disposition of human nature; it is what neither the honorable member nor myself can correct. It is a common misfortunate that awaits our State Constitution, as well as all others. - Alexander Hamilton
This balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them. - Alexander Hamilton
While the constitution continues to be read, and its principles known, the states, must, by every rational man, be considered as essential component parts of the union; and therefore the idea of sacrificing the former to the latter is totally inadmissible. - Alexander Hamilton
The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. - Alexander Hamilton
Enlightened statesmen will not always be at the helm. - James Madison
[H]owever weak our country may be, I hope we shall never sacrifice our liberties. - James Madison
Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations; but, on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have, more frequently than any other cause, produced despotism. If we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from those causes. - James Madison
Finally, there seem to be but three ways for a nation to acquire wealth. The first is by war as the Romans did in plundering their conquered neighbours. This is robbery. The second by commerce which is generally cheating. The third by agriculture the only honest way; wherein man receives a real increase of the seed thrown into the ground, in a kind of continual miracle wrought by the hand of God in his favour, as a reward for his innocent life, and virtuous industry. - Benjamin Franklin
Arbitrary power is most easily established on the ruins of liberty abused to licentiousness. - George Washington
Liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge, as their great Creator, who does nothing in vain, has given them understandings, and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge; I mean, of the characters and conduct of their rulers. - John Adams
Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other. - John Adams
[D]emocracy will soon degenerate into an anarchy, such an anarchy that every man will do what is right in his own eyes and no man's life or property or reputation or liberty will be secure, and every one of these will soon mould itself into a system of subordination of all the moral virtues and intellectual abilities, all the powers of wealth, beauty, wit and science, to the wanton pleasures, the capricious will, and the execrable cruelty of one or a very few. - John Adams
I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. - Thomas Jefferson
A government that is large enough to supply everything you need is large enough to take everything you have. - Thomas Jefferson
Let no more be said about the confidence of men, but bind them down from mischief with the chains of the Constitution. - Thomas Jefferson
And to preserve their independence, we must not let our rulers load us with perpetual debt. We must make our election between economy and liberty, or profusion and servitude. - Thomas Jefferson
If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be. - Thomas Jefferson
A society that will trade a little liberty for a little order will lose both and deserve neither. - Thomas Jefferson
The Constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the Constitution. - Joseph Story
We, the People, are the rightful masters of both the Congress and the Courts. Not to overthrow the Constitution, but to overthrow the men who have perverted it. - Abraham Lincoln
Weston White
07-03-2012, 05:25 AM
Now, as far as the whole “ripple effects through the national economy” claim is concerned that could very well be said about anything, not just healthcare, e.g., ticket scalpers, copyright violators (noting that such is explicitly an enumerated power within our U.S. Constitution, A.I,S.8,C.8), shoplifters, thieves, murders, people that purchase only locally, the Amish, home gardeners, those self-learned or self-sufficient, etc. Therefore, should Congress act against those that oppose the so-called “national economy”?
Moreover, what is this entire allegiance to the national economy all about anyways? Where did this notion derive from and why is it wrought with such priority? The national economy should exist as a free and unregulated market that follows the desires and impressions of the people of the time, period. The prospects of the nation ought not take preference over those of the individual states, including the people thereof, they should coexist, in unison. End of discussion. It is not for the federal government to deride statehood sovereignty.
Also as to the polluter example, a polluter would had willfully committed an (wrongful) action, while engaging in a privilege for both personal gain and professional profit; such is not a valid example with consideration to the average day-laborer and their family going about their own business, trying their best to enjoy the shortness of their hectic lives. Neither is it for the national government to step in and become so intimate with the masses; for to otherwise do so, would serve only as a grave travesty.
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