John R. Houk
© October 28, 2014
The 16th Amendment legitimizes the existence of the Internal Revenue Service (IRS).
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.
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HOWEVER, the 16th Amendment does not overrule the Bill of Rights (1st ten Amendments to Constitution) pertaining to the Civil Rights and Liberty guaranteed by the U.S. Constitution. And yet the IRS has mysteriously acquired the authority to seize property and bank accounts with the presumption of guilt BEFORE a criminal trial.
My son sent me a Daily Caller news story that focuses on small business owner Carole Hinders. Ms. Hinders has made the news ironically largely due to a NY Times articles about her and other small business owners being assaulted by the IRS without actual proof the law is being broken. Between yesterday and today Carole Hinders’ story his hit web in a huge way. The irony is all the sides of the political spectrum are displaying outrage over the abuse of power being exercised by the IRS. Could it be that Leftists and Conservatives can join forces over a constitutional issue affecting American citizens?
Published by InstituteForJustice
Published: Oct 27, 2014
Carole Hinders has worked hard at her family-owned restaurant, Mrs. Lady’s Mexican Food, for 38 years. The federal government took her entire bank account using civil forfeiture, even though she did nothing wrong. Now, they are refusing to return her money, so Carole and the Institute for Justice have teamed up to fight back.
Perhaps Congress can wise up and use this unified voter outrage to take some immediate legislative action to curb the power of the IRS. If Congress can enact a statesman form a legislative action pertaining to the IRS, you must realize it would only be a temporary fix. Most prominently these days the IRS is a political tool used by Obama against Conservative opponents, however there are more than one Federal agency that uses a law that has to be unconstitutional. State and Federal law enforcement ALSO utilize the Civil Asset Forfeiture law to seize property and money from American citizens. The thing is the public has looked the other way with government seizures because it is the primary weapon of law enforcement to pin down real criminals especially the kind that has built a criminal empire. Who can be unhappy about taking down criminals, right?
The thing is citizens like Carole Hinders or even those that have property that stifles the agenda of local, State or Federal authorities can have their property seized. WITHOUT A TRIAL!
As Americans on a grassroots level we have to figure out the legalese that protects law-abiding citizens while at the same go after moneyed criminals that break the law pretending to be law-abiding citizens.
The website End Civil Forfeiture explains the history of this practice in the USA and how State and Federal government have exploited this beyond the scope of the U. S. Constitution:
Civil forfeiture—where the government can take and sell your property without ever convicting or even charging you with a crime—is one of the greatest threats to property rights in the nation today. Civil forfeiture cases proceed against one’s cash, cars, or home, which means that property owners receive few if any of the protections that criminal defendants enjoy. To make matters worse, when law-enforcement agencies take and sell your property, they frequently get to keep all the proceeds for their own use. This gives agencies a direct financial incentive to “police for profit” by seizing and forfeiting as much property as possible.
Although the Founders didn’t believe in this superstition, they used civil forfeiture as a way to enforce the collection of customs duties, which provided 80 to 90 percent of the federal revenue during that time. The government often could not try owners of smuggling ships themselves (often because they were overseas), and so civil forfeiture let officials seize their ships and cargo as a second-best option.
With minor exceptions during the Civil War and Prohibition, civil forfeiture remained a legal backwater. But as the War on drugs heated up during the early 1980s, so too did civil forfeiture. A key legal change occurred in 1984 when Congress established the Assets Forfeiture Fund. Previously, all federal civil forfeiture revenues were deposited into the government’s general fund. But after the 1984 amendments, federal agencies could retain and spend forfeiture proceeds—subject only to very loose restrictions—giving them a direct financial stake in generating forfeiture funds. Similar amendments now allow law enforcement agencies in 42 states to keep and use some or all of the civil forfeiture proceeds they seize.
“Policing for Profit” Creates Incentives for Abuse
The changes at the federal and state levels led to an explosion of forfeiture activity. Because in most jurisdictions law enforcement can keep some or all of the proceeds from civil forfeiture, they have an incentive to seize and keep as much property as possible. …
… Here are four ways that civil forfeiture stacks the deck against property owners:
· Burden of Proof: For the government to keep your property using civil forfeiture, it must prove that the property is connected to criminal activity. But where criminal forfeiture requires the government to prove guilty “beyond a reasonable doubt,” under civil-forfeiture cases the government can prevail under much less rigorous standards.
· Guilty Until Proven Innocent: Although many jurisdictions provide an “innocent-owner” defense that allows owners to get their property back if they had no idea that it was involved in a crime, most jurisdictions presume, however, that owners are guilty and force them to prove their innocence.
· Legal Representation: Anyone who has watched a crime drama knows that the government must provide criminal defendants with an attorney if they cannot afford one. But civil forfeiture victims must either pay for a lawyer—which in many cases can cost more than the seized property is worth—or go it alone.
· “Equitable” Sharing: Federal law provides a loophole called “equitable sharing” to law enforcement in states with good civil forfeiture laws. This program allows state law enforcement to turn seized assets over to the federal government, which forfeits the property under federal law. In turn, the feds give up to 80 percent of the forfeited property back to the state agency for its own use, even if state law would have required those proceeds to go into a general fund.
The only way I see to change all the law – civil and criminal – to protect the individual rights of law-abiding citizens is to amend the Constitution. I don’t care how much Leftists and Conservatives can agree on reforming the powers of the IRS, you know one day a President will come along to push the envelope of the Constitution citing case law to warp the legalese to go after political opponents. You do realize it won’t matter if that President is a Democrat or a Republican or the emergence of a Third Party to attain the White House, the legalese will be abused.
Unfortunately on a Federal level this nation’s governance is way too polarized to effect a Constitutional Amendment to change the definition and application of Civil Asset Forfeiture laws that protects the Rights and Liberty of law-abiding citizens as opposed to moneyed criminals. The only way to amend the Constitution via by-passing Congress is in the Constitution but in the 225 years our Founding document has been the foundation of America’s rule of law the by-pass Congress method to amend the Constitution has never taken place. Why?
The reason is political fear. No one active in government seriously thought of the ‘by-pass Congress’ method of amending the Constitution until the 20th century when political polarization seemed to become a hindrance to good governance. The method of offering an Amendment apart from Congress can be accomplish directly by the several States calling for a Constitution Convention. Neither the President, Congress nor the Judicial Branch can nullify or prevent such a convention from occurring. It would be the call of a majority of States. The fear is that a convention to amend the Constitution would evolve beyond the intentions of the reason the States called for it. The very real fear – both Leftist and Conservative – is a Constitutional Convention could take it upon itself to scrap the entire current Constitution. The fear is the potential for a Leftist vision or a Conservative vision to become the rule of law to the detriment of the losing side of the political spectrum.
I personally have wavered back and forth on the pluses and minuses of a Constitutional Convention. BUT NOW with the abuses of the IRS simply becoming way too egregious, something must be done. The best thing would be to scrap the whole current tax system developing a new paradigm whether it is income or National sales tax or a combination of both to be fair to the taxpayers while also still have the ability to go after the moneyed criminals of whatever kind of organized crime network might exist (violent criminals or white collar criminals). And whatever that standard is should be applied equally criminally and civilly according to the Fourth Amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Fourth Amendment; Legal Information Institute (LII) – Cornell University Law School)
On a personal level I don’t feel comfortable to suggest a different tax system to shoot for. My primary concern here is the abuse of government power on the Civil Rights and Liberty of American citizens. The very reason and cause of the American Revolutionary War in which the British citizens of America’s Thirteen Colonies felt abused by unjust taxation, improper representation and the abuse of government authority.
WHEN, in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume, among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s GOD entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the Causes which impel them to the Separation.
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed, by their CREATOR, with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.–That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. … READ THE REST (In Congress, July 4, 1776. The unanimous declaration of the thirteen United States of America; by the signing delegates and penned by Thomas Jefferson; Library of Congress)
TODAY I feel like the risk is necessary for the USA to have a Constitutional Convention. The Federal government cannot be trusted for a long term reform eliminating the IRS as a political attack dog of whatever political party. Just like the Founding Fathers felt a risk was necessary to throw off the bonds of an abusive government, it has become necessary to throw off the bonds of a politically oriented tax agency as well as other Federal agencies that have gone beyond bounds of the guaranteed Liberty of the Bill of Rights.
Citizens concerned for the future of their country, under a federal government that’s increasingly bloated, corrupt, reckless and invasive, have a constitutional option. We can call a Convention of States to return the country to its original vision of a limited federal government that is of, by and for the people. (Convention of States: This One Amendment Could Solve Forty-Five Problems; By Steve Robinson; The Maine Wire; 7/15/14)
Article Five of the U.S. Constitution enumerates the two ways to amend the Constitution:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate. (The Constitution of the United States – Article V; National Archives – Federal Register)
Our current tax system is a progressive income tax:
A progressive tax structure is one in which an individual or family’s tax liability as a fraction of income rises with income. If, for example, taxes for a family with an income of $20,000 are 20 percent of income and taxes for a family with an income of $200,000 are 30 percent of income, then the tax structure over that range of incomes is progressive. One tax structure is more progressive than another if its average tax rate rises more rapidly with income. (Progressive Taxes; By Joel B. Slemrod; Library of Economics and Liberty)
DEFINITION OF ‘PROGRESSIVE TAX’
A tax that takes a larger percentage from the income of high-income earners than it does from low-income individuals. The United States income tax is considered progressive: in 2010, individuals who earned up to $8,375 fell into the 10% tax bracket, while individuals earning $373,650 or more fell into the 35% tax bracket. Basically, taxpayers are broken down into categories based on taxable income; the more one earns, the more taxes they will have to pay once they cross the benchmark cut-off points between the different tax bracket levels.
INVESTOPEDIA EXPLAINS ‘PROGRESSIVE TAX’
The U.S. progressive income tax is effectively a means of income redistribution. Individuals who earn more pay higher taxes; those taxes are then used to fund social welfare programs that are used primarily by individuals who earn less. Critics of the progressive tax consider it to be discriminatory and believe that a flat tax system, which imposes the same tax on everyone regardless of income, is a fairer method of taxation. (Progressive Tax; Investopedia)
Yup, IRS/Progressive Tax is evil. If small potatoes like me has to hire a tax service to figure out the complications of owing or receiving refund then it is evil. How do we replace the evil IRS? The suggestions I have read are the flat tax, fair tax, National Sales Tax or some kind of combination.
According to my search engine perusals it appears the Fair Tax seems to be the current favorite tax to terminate the IRS and end political head hunting. I personally see how the Fair Tax (which is actually a national sales tax) looks good on paper; however if things go south versions of the Fair Tax shows sales tax climbing anywhere from 50% to 70% of purchase or service to keep sufficient revenue flowing. Fair Tax proponents tell you the rate is 23% if everything goes as foreseen with a monthly prebate of cash from the government for families that make less than the poverty line in income. The prebate for a family of four below the poverty line utilizing the 23% sales tax rate would receive a monthly government check of $1,983.33 for an annual total of $23,800. Like I said that sounds favorable to me; however if the revenue collection does not complete the Federal budget, does anyone think the sales tax rate will remain at 23%?
The Flat Tax still sounds attractive to me. The first problem of a Flat Tax is an agency still has to be around to administer collection of the tax. My God, that agency CANNOT be the same bureaucracy of the Internal Revenue Service. Its management has become politically corrupt that bad things undoubtedly continue to occur. The management level portions of the current IRS must be jettisoned and a whole new agency created under strict guidelines that insures the enforcement of the Bill of Rights in the new tax agency’s collection methods.
However in full disclosure Fair Tax proponents do have problems with the Flat Tax. For one thing the politicians are looking for a Flat Tax rate that actually mind cause discomfort for poor to moderate income families while the more wealthy tax payers will jump for glee. I currently fit into the poor to moderate category that would feel a squeeze from higher taxes. On the other hand I also realize across the board less of a tax strain on higher wage earners to wealthy people will release entrepreneurial development that will result in better jobs, more available spendable money and hence a better economy which will also translate into more tax revenue without putting the bite on all Americans.
So here are website article with Flat Tax and Fair Tax plusses and minuses leaning to favoring one or the other (in no particular order):
o Summary: H.R.25 — 113th Congress (2013-2014) Introduced in House; (01/03/2013): Fair Tax Act of 2013 – Repeals the income tax, employment tax, and estate and gift tax. Redesignates the Internal Revenue Code of 1986 as the Internal Revenue Code of 2013.
A Constitutional Convention needs to restore Liberty as well as narrowly define the duty of the Executive, Legislative and Judicial Branches to uphold restored and defined Liberty. Here’s part the Leftists will become apoplectic about: A Constitutional Convention needs to simultaneously protect Religious Freedom and NOT prevent religion from being a moral advocate politically to influence government. At the same time government specifically be defined as not involving or inserting itself on how a religion involves itself in politics UNLESS that religion’s specific purpose is to terminate the Constitution, overthrow the government and end the Liberty of the Bill of Rights. Separation of Church and State is a one-way street and not a two-way street. No government in religion but lots of religion as a moral pulpit to influence the morality of society. The Constitution needs to address the issue of preventing the laws and customs of foreign lands from being used as precedents in any judicial case law. There can be no foreign treaties entered into that contradicts the U.S. Constitution without an Amendment change to correspond to that foreign treaty. And as America has traditionally been the melting pot of many national peoples seeking a new life those people must be amenable to swear to abide and uphold the U.S. Constitution adopting the traditions of America first while honoring their former culture second.
Well that is the part of a Constitutional Convention I am certain Leftists will cry a convention run-amok. For our Republic to survive future generations the traditions that have made us a desirable melting pot must be preserved. Losing those traditions to some kind of transforming diverse multicultural Socialist Democracy that descends into cultural chaos polarized racially to the extent political polarization tears the nation apart under political ideology rather than preserve national patriotism. Oh yeah … Let’s really drive the Left looney. We should throw in personhood establishing the rights of an unborn baby rather than perpetuate the myth that an unborn baby is an appendage of a woman’s body.
JRH 10/28/14 (Hat Tip: Adam)