FairTaxers, let's put the 16th Amendment, and it's repeal, into order:

( 1 ) The FairTax, along with enacting a national sales tax including a "prebate", eliminates the "income tax" by law. It also repeals funding for the IRS; thus, no more income tax nor IRS with its passage, by majority vote of U.S. House and Senate, plus a signature by the President.

However, the FairTax "program", calls for repeal of the 16th Amendment which "allows", but doesn't "require" an income tax. That must be done by a separate piece of legislation because it requires a super majority of the House and Senate and results in a "referendum" by the legislatures of the 50 States. No Presidential signature is required on the Congressional bill.

Thus, it's apparent that eliminating the income tax and repealing an Amendment to the Constitution are two separate procedures under our Constitution. (HJR 16, a bill in Congress now, has started the ball rolling on repeal of the 16th.)

However, notice, please, that those who say we CANNOT pass the FairTax without repealing the 16th Amendment are either liars or merely misinformed.

( 2 ) The question then arises, won't the Congress, after enactment of the FairTax but before repeal of the 16th Amendment, be tempted to add a new income tax in which case we would then have both a national sales tax and an income tax?

At least two comments are appropriate here:
    A) Today, we already have both an income tax and a "hidden" and "embedded" national sales tax in the form of the federal taxes included in the prices of all U.S. made goods and services. The FairTax will eliminate one of these, the income tax, and replaces the embedded and hidden national sales tax with an obvious sales tax, along with adding the prebate.

    B) Consider: Congress will have just recently gotten rid of the hated income tax; are they likely to incur the rath of the voters by then reinstating what we will all be relieved to be rid of? Not likely. Could they do it? Yes; they CAN do it, but then, they CAN do lot's of things, but getting reelected always comes first.

( 3 ) Next, after enactment of the FairTax and repeal of the 16th Amendment, "vhromiko" (email attached) brings up the issue of whether or not an income tax might be levied even without the license of the 16th amendment.

History tells us, speaking from my recollection, that an income tax was levied twice in the USA in the 19th century; once during the civil war, later repealed, and later again that century. The U.S. Supreme Court then decided that the income tax was unconstitutional. Thus, the need for the 16th Amendment was apparent in order to legally impose the monster.

Is it at all possible that the Constitution could be interpreted so as to allow an income tax without an enabling amendment? Answer: yes, anything is possible, although this is not likely. Consider: the U.S. Supreme Court has essentially rewritten very significant parts of the Constitution in the last 60 years without any enabling legislation. There are many books on the subject. The only thing that keeps people in power toeing the acceptable line is people like you and me who hold their feet to the fire.

Bottom line: it is legal to eliminate the income tax without repealing the 16th Amendment. Also, once the FairTax is passed, it is highly unlikely that any politician would want to be associated with enacting a new income tax on top of the sales tax; people who cry wolf about that are really using it as a red herring and are ignoring the fact (or don't realize) that we presently have both an embedded sales tax along with an income tax.

Furthermore, once the FairTax is passed and, later, the 16th Amendment is repealed, it is highly unlikely that the Constitution could be interpreted to allow an income tax. Look at what is happening today in relation to the "Kelo vs. New London" decision by the Supreme Court to rewrite the "eminent domain" wording in the 5th Amendment. The Supremes, by a 5 to 4 vote, wrote out "public use" and reworded it "public purpose"; a huge difference and it's created a storm around the country which is being addressed state by state. Reinterpreting the Constitution to allow an income tax withnout the aid of the 16th Amendment might result in the Supreme Court being burned to the ground and the Justices fleeing for their safety, in my opinion.

Persevere,
Bill Spillane

--- vhromiko wrote:
<--- In [email protected]

Bill Spillane wrote:
http://morningsentinel.mainetoday.com/view/letters/2649637.shtml

I don't have a problem with repealing the 16th amendment except that doing so probably would not accomplish the desired affect. Were it repealed, the establishment would likely return to older legal positions regarding the meaning and affect of the 16th amendment -- and realize that Congress doesn't need the 16th amendment in order lay and collect an income tax.

A very early court case regarding the 16th amendment provided clarification about it's intent and any power it might grant Congress. I would be happy to pull out the old court cases to quote directly when I get home from work tonight. But maybe someone else is familiar with this?

The principle almost always missed in modern history textbooks (and in the recent posting on the Morning Sentinel) is that according to the Supreme Court, the 16th amendment does not grant Congress the power to lay and collect the income tax. The taxing power comes from Article I Section 8 of the Constitution. Congress had collected income tax more than once previous to the 16th amendment. The problem was, there were constitutional challenges to those tax regimes based on the tax payer's sources of income.

According to the Supreme Court at the time, the purpose of the amendment was to clarify that Congress could exercise its already existing power to lay and collect taxes on income "from whatever source derived" and "without apportionment." The clarification involved identifying the income tax not as a "direct tax" as many suppose it is today, but as an excise tax, which does not require apportionment among the several states.

If it were a direct tax, then Article 1 Section 2 would require it to be apportioned among the several states -- unless of course Article 1 Section 2 of the Constitution were amended. The Supreme Court clearly stated, however, that the 16th amendment did NOT amend Article 1 Section 2's requirement that direct taxes be apportionment. What the 16th amended did was remove from the question whether or not the income tax was in fact a direct tax or an excise tax. Remember, an excise tax does not require apportionment. And the income tax, according to the Court, is an excise tax. Yes, it's weird. But fact is stranger than fiction, especially when it comes to the power to tax.