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March 2017 Policy Study, Number 17-5


A Commentary on the American Constitution


Part 3



Section 8 begins, “The Congress shall have the power . . . ”  These are the things, and the only things, that Congress shall have the power to do.  Section 8, Clause 1 states, “ . . . 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” (Emphasis added).  Our attention is first turned to the understanding of “common” defense:


COMMON, a[djective]
1.  Belonging equally to more than one, or to many indefinitely . . .
2.  Belonging to the public; having no separate owner
3.  General; serving the use of all . . .
4.  Universal, belonging to all


COMMON, n[oun]
1.  A tract of ground, the use of which is not appropriated to an [specific] individual, but belongs to the public or to a number.  [to many, to any indeterminate number] (Webster’s Dictionary 1828).


Next, we turn to “general” welfare.  Referring to a modern dictionary, we find a very long list of possibilities.  The first is, “of or pertaining to all persons or things belonging to a group or category . . . ”  Perusing down the page, we come to the last two entries and find this: “Archaic. The general public” and “with respect to the whole class referred to; as a whole” (Emphasis added).


GENERAL, a[djective]
1.  Properly, . . . relating to a whole class . . .
2.  Public; common; relating to or comprehending the whole community   .
3.  Having a relation to all; common to the whole
(Webster’s Dictionary 1828).


Please bear with me.  While this exercise may seem boring at first, it becomes much more interesting when we acknowledge two things: first, that words mean something, and second, that what they mean affects us.  Here’s what I mean.  If we take the first definition of the word “general” found in the modern dictionary and determine it to signify the individual, specific interests of “all persons or things belonging to a group or category” and further determine that this is the connotation implied by our Founders, then it means that it is not only the federal government’s job, but also its duty, to provide the welfare for all persons belonging to the group, i.e. the general needs of the specific member of the group.  This seems to be the popular current understanding.  If, on the other hand, the second set of definitions from the modern dictionary or the Webster’s 1828 definitions are more nearly the connotation implied by our Founders, something entirely different happens.  Then it becomes the federal government’s responsibility to address the broad needs of the group as a whole.  Two things lead me to believe this is the more proper reading of the phrase “general welfare.”  First, the fact that this is the archaic, or time-honored, sense of the word “general,” most probably in service at the time of the writing of the Constitution. 


Second, the fact that this phrase is placed immediately after the phrase “common defense,” which has the same connotation, and which we seem to not have a problem understanding. One determination of the phrase “general welfare” produces a meek, irresolute, and subservient populace.  The other determination is meant for a proud, strong, and independent people.  Which do you think was the meaning of the term “general welfare” in our Founders’ minds when they wrote the Constitution; which do you think they intended for their posterity; and which meaning is being applied today?


Last in this section is the “small” matter of taxes.  Section 8 states that it is Congress’s duty “to lay and collect taxes, duties, imposts and excises,” “but all duties, imposts and excises shall be uniform throughout the United States.”  You will notice that in the final quotation, the word “taxes” is omitted from the list (duties, imposts, and excises). all of which must be uniform.  Were our Founders again careless?  Or did they have reason for this omission?  Were these taxes of a different kind than duties, imposts, and excises?  Refer back to Section 2 or ahead to Section 9, where they stated that direct taxes must be apportioned (proportional) according to their respective numbers.  We clearly have two kinds of taxes: direct taxes that are to be proportional; and, by inference, the indirect taxes of duties, imposts, and excises, which are to be uniform.


A direct tax is a capitation tax, or a poll tax, the nature of which is a tax on a person, i.e. so much per head.  The direct method of taxation is first mentioned in Section 2 of this Article and will be mentioned yet again in Section 9.  The tax was to be collected by the state.  Thus, if a state contained ten percent of the population of the Union, then the state was liable for ten percent of the tax to be raised by this method.  To the best of my knowledge, one would have to go back to the time of the Civil War to find the last time that this method was employed.  It was quickly discontinued because of resistance by the general populace.


As you will see, our courts have determined that an indirect tax is laid on an activity, i.e. the activities of exportation, importation, and sales.  This means that every port of export in the nation will levy the same amount of tax on every bushel of corn exported; every port of entry in the nation will levy the same amount of tax on every barrel of crude oil which is imported; and every gas station in the nation will collect the same excise (federal sales tax) on every gallon of gas sold. Every levy on a specific quantity of every transaction is to be uniform throughout the nation.


So far, so good; but that brings us to a category of tax which is glaringly conspicuous by its absence.  That would be income tax.  Try as you might, you will not find the word in any bona fide copy of the Constitution, and so it must fall under one of the categories we have just discussed.  That is direct or indirect.  Again, our courts have determined it to be of the indirect variety, stating “the Sixteenth Amendment confers no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged . . . ” (Emphasis added).  (Stanton v. Baltic Mining Co., 240 U.S. 103, p. 112, 1916).


They have also determined that the levy is not on the dollars earned.  Those dollars are only used as a measure of the amount of activity.


It is therefore well settled by the decisions of this court that when the sovereign authority has exercised the right to tax a legitimate subject of taxation as an exercise of a franchise or privilege, it is no objection that the measure of taxation is found in the income. (Emphasis added).  (Flint v. Stone Tracy Co., 220 U.S. 107, p. 154, 1911).


But what activity do they measure?  What lawful activities are we engaged in that make us liable to a tax?  Is it our labor — or the fruit of our labor?  These are both our private property.


. . .the individual, unlike the corporation cannot be taxed for the mere privilege of existing.  The corporation is an artificial entity, which owes its existence and charter powers to the state: but the individual’s rights to live and own property are natural rights for the enjoyment of which an excise cannot be imposed.  (Emphasis added).   (Redfield v. Fisher, 292 p. 813, p. 819, 1930).


It has been well said that, “The property which every man has is his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable.  The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of the most sacred property.” [Two Treatises of Government by John Locke].  (Emphasis added).  (Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746, p. 757, 1883).


Patrimony is the estate or condition of life inherited from your father or ancestors.  Thus, it is an asset that even the poorest of the poor possess.  It is the asset with which each and every one of us is endowed and with which each and every one of us is rightly entitled to exploit to the ends of our life, liberty, and pursuit of happiness.  If anyone other than yourself, and that would include any governmental body, has an undisputed claim to the fruit of your labor or your property, and you have no plausible recourse but to accede to their demand, then you have been reduced to the condition of serfdom.  You have become a slave to whomever benefits from the fruit of your labor without your freely given consent.


And what about the requirement of uniformity?  Each of us pays our own personal amount that is probably quite different from our next-door neighbors’.  The rate of levy is not even consistent.  There are several categories of taxpayers, i.e. married, single, etc.  In any given category, the rate varies according to income level.  How in the world can this hodgepodge begin to meet the requirement for uniformity?  I would like to see the President of this country take a few minutes on television some evening and give us a simple explanation.  For my part, I have a terribly uneasy feeling that not everything is absolutely kosher.  How about you?  And we would do well to heed this message:  “The power to tax is the power to destroy…” (Supreme Court Justice John Marshall, McCullock v. Maryland, 1819).




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