The Constitution I

It's tax day - well, actually, this year Monday is tax day, but you know - and it is with a mixture of happiness and amusement that I see a coming together of various threads and strands from a variety of discussions and matters that are leading me to write a couple posts on the United States Constitution. Being tax day, it's always fun to note there are cranks out there - I've even seen them covered on C-SPAN, years back - who insist the income tax, despite having its very own amendment, is unconstitutional. It is easy enough to find refutation of this claim.

This argument [viz., that the income tax is unconstitutional] is based on the premise that all federal income tax laws are unconstitutional because the Sixteenth Amendment was not officially ratified, or because the State of Ohio was not properly a state at the time of ratification. This argument has survived over time because proponents mistakenly believe that the courts have refused to address this issue.[emphasis added]

Here is the Law: The Sixteenth Amendment provides that Congress shall have the power to lay and collect taxes on income, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration. U.S. Const. amend. XVI. The Sixteenth Amendment was ratified by forty states, including Ohio (which became a state in 1803; see Bowman v. United States, 920 F. Supp. 623 n.1 (E.D. Pa. 1995) (discussing the 1953 joint Congressional resolution that confirmed Ohio's status as a state retroactive to 1803), and issued by proclamation in 1913. Shortly thereafter, two other states also ratified the Amendment. Under Article V of the Constitution, only three‑fourths of the states are needed to ratify an Amendment. There were enough states ratifying the Sixteenth Amendment even without Ohio to complete the number needed for ratification. Furthermore, the U.S. Supreme Court upheld the constitutionality of the income tax laws enacted subsequent to ratification of the Sixteenth Amendment in Brushaber v. Union Pacific R.R., 240 U.S. 1 (1916). Since that time, the courts have consistently upheld the constitutionality of the federal income tax.

I use this as an example in order to make a broader point. We so often hear or read, more recently from those on the right, but certainly those on the left as well, this or that function of the federal government or even this or that agency of the federal government, is unconstitutional. Recently, a commenter on another site wrote the following:

I suggest that we eliminate every Federal program which is constitutionall prohibited, such as the Departments of Agriculture, the Interior, Education, Health and Human Services, Housing, non-military NASA programs, the EPA (which we need, but is actually unconstitutional), the NEA, the NEH, the DEA, NPR, and PBS. To name just a few off the top of my head.

And the insane war on drugs is, of course, spectacularly unconstitutional, destructive to our society, and expensive.

Sell off all federal lands and buildings not used for constitutional purposes and use the funds to make one-time block payments to retired people or people nearning retirement who are or will be dependent on Social Security. Then eliminate Social Security (which is also unconstitutional).

That's quite a laundry list of totally illegal actions on the part of the federal government, don't you think? Except, of course, the author is dead wrong. As in the case of the income tax claims, one often reads such nonsense from people who do not know - or do not care if they do know - that these matters have already been adjudicated.

In the course of preparing these two posts, I discovered this marvelous annotated rendering of the 14th Amendment to the United States Constitution. The annotations are nothing more or less than summaries of court cases which have defined and clarified the relevant portions of this particular amendment as it has been contested in law. For example, as the author noted above claimed that the Department of Housing and Urban Development is unconstitutional, the question of the constitutionality of enforcing, via the federal constitution, housing laws might be an important consideration:

Buchanan v. Warley 98 invalidated an ordinance which prohibited blacks from occupying houses in blocks where the greater number of houses were occupied by whites and which prohibited whites from doing so where the greater number of houses were occupied by blacks. Although racially restrictive covenants do not themselves violate the equal protection clause, the judicial enforcement of them, either by injunctive relief or through entertaining damage actions, does violate the Fourteenth Amendment. 99 Referendum passage of a constitutional amendment repealing a ''fair housing'' law and prohibiting further state or local action in that direction was held unconstitutional in Reitman v. Mulkey, 100 though on somewhat ambiguous grounds, while a state constitutional requirement that decisions of local authorities to build low-rent housing projects in an area must first be submitted to referendum, although other similar decisions were not so limited, was found to accord with the equal protection clause. 101 Private racial discrimination in the sale or rental of housing is subject to two federal laws prohibiting most such discrimination. 102 Provision of publicly assisted housing, of course, must be on a nondiscriminatory basis. 103

As there is a large body of substantive case law in which the equal protection clause of the 14th amendment applies to housing, and as the executive branch of the government is the branch that executes the law, then it stands to reason, without too much thought, that having a federal department to oversee the enforcement of housing laws is quite constitutional.

The counter-claim on this topic, as on so many others related to the insistence that this or that or even most functions currently including a federal jurisdiction, actually violate the constitution of the United States simply ignores the facts of the matter. For example, the above author claims Social Security is unconstitutional. Unsurprisingly, the Supreme Court found, in a 1937 case, the exact opposite to be true. Which is why we still have Social Security.

Now, one can, I suppose, claim to disagree with the reasoning behind this or that Supreme Court case. After all, not too many people would agree with Chief Justice Taney's decision in the Dred Scott case, which included the legal finding that Americans of African descent were not citizens, enjoying - in the words of that decision - "no rights a white man has to honor." All the same, since the cases cited in the annotations are still binding, it might be better perhaps to claim, "I do not agree with the current law that sees Social Security (or whatever else might be the pet peeve of the day) as constitutional." The first construction is, quite simply, wrong. Like claims about the income tax, the Department of Housing and Urban Development, and pretty much anything else, it is false. False beliefs are fine, no one can insist an individual must hold beliefs that align with facts (the internet would be a dull place if everyone thought that!). All the same, to claim something is the case when it manifestly is not, and to go on making these claims even after abundant evidence has borne this out, is to lie. Pure and simple.