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March 2017 Policy Study, Number 17-5


A Commentary on the American Constitution


Part 7



Article I, Section 9 is a list of restrictions (“Thou shall nots”) as concerns the national government.  We will not delve into all of them, only those that are of some concern or of which we need to be more aware, and one that we pay almost no attention to today but is quite intriguing.  According to Article I, Section 9, “The privilege of the writ of habeas corpus shall not be suspended . . . ”  The term "habeas corpus" is Latin and means “have the body.”  The writ is an order of a judge demanding whoever has taken someone into custody to deliver him for a hearing to determine if there is just cause for detention.  It is designed to help protect the individual from illegal imprisonment.  It is especially important in the area of political (politically incorrect) “crimes.”  In addition, “No bill of attainder or ex-post facto Law shall be passed.”  The bill of attainder is a law that makes crimes, especially treason and outlawry, punishable by the forfeiture of property and the loss of all civil rights.  (Before we continue . . . a disclaimer.  It is understood that the author does not sanction the abuse of any drugs, illegal or otherwise, nor unlawfulness of any sort.)  Today in this country, in our ardent desire to eliminate drugs at any cost, we have passed laws that not only impose legitimate penalties of imprisonment and fines on the perpetrator;  further, as a second penalty over and above the already imposed retribution and oftentimes before the accused is found guilty in a court trial, we also allow for the confiscation of property if it is merely alleged that it is used in the commission of a crime or alleged that it is obtained through the ill-gotten gain of crime.  This can be cars, boats, homes, tools, etc.  Sometimes the property doesn’t even belong to the person committing the crime.  It can be taken from a third party who has no knowledge the property was even being used for the purpose of crime.


You will notice the use of the phrase “at any cost” in the prior paragraph.  Drugs are a very serious problem, but what cost are we willing to bear?  Are we willing to ignore the spirit of the Constitution and the palladium to liberty it provides?  This procedure has already moved from the immediate area of drugs.  How far and to what other areas might this procedure become relevant?  The application of injustice aside, just how does this procedure pass constitutional muster?  Perhaps one of our better-informed elected officials who sanctions this sort of law would explain it to us.  As to the prohibition of an ex-post facto law, it simply means this:  no one can be charged with a crime for committing an act that was not already prohibited by law when the act was undertaken.  Also, no greater penalty can be exacted than was already in place in the civil statutes at the time of the act.  Thank goodness this is a tough one to get around.  What a scourge to liberty its absence would present.


Article I, Section 9 also states, “No capitation, or other direct, tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  The matter of the direct tax has been addressed twice in this Article.  This would lead one to suspect this was a thing of some concern to our Founders.  Although the income tax had yet to be invented, and even now our courts place it in the category of an indirect tax, I believe it is just those properties so evident in the income tax that our Founders feared and took pains to restrain.  An indirect tax is levied on an activity (i.e. a sale).  It is at least theoretically possible to avoid this kind of tax by avoiding the activity of purchase.  By contrast, a direct tax (capitation tax = head tax or poll tax) is levied directly on an individual by virtue of his existence. 


Though the court may be technically and legally correct in designating the income tax as indirect, it appears, at least to me, that even though it is the nature of an indirect tax to be levied on an activity, which in the instance of the personal income tax is the labor activity of the individual, it assumes the nature of a direct tax for this reason:  it is impossible for an individual to continue to exist without some effort (activity) being directed toward that end.  That is to say, we earn our keep by the sweat of our brow.  The attribute of existence and any effort to extend that existence, whether breathing or raising vegetables, are inseparable — one and the same.  Without the latter, the former is extinguished.  In other words, it is impossible to levy a tax on an activity that directly supports the existence of an individual without levying a tax on the actual existence of that same individual.  And a tax on an individual for the mere privilege of existing under government reduces that individual’s existence to the condition of a slave.


That a direct tax has an odious nature should be without question.  The restraint our Founders placed on it was that it was to be proportional.  Each man throughout the Union was to bear an equal share.  What in the heck got into them?  Didn’t they realize how regressive and unfair this would be?  They indubitably did.  Please allow me to speculate on their reasoning.  Because of that regressive nature, those at the lower end of the economic spectrum would feel the burden more keenly.  And because those at that the lower end of the spectrum are the most numerous, they are the majority of any vote.  Consequently, and politics being what they are, the rate of the levy would never become very great and government would never be able to use this method of taxation to threaten our liberty because a majority would never stand for it.  It works so well that I cannot think of a single instance of its legitimate application at this time.




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