...- The 16th Amendment to the U.S. Constitution was never legally ratified.
The 16th Amendment was not properly ratified.
Although the Constitution describes how to ratify amendments, it doesn’t say who is supposed to keep track of the ratification process and let us know when the required three-fourths of the states have ratified an amendment. After some confusion about the status of some amendments (including the infamous “Titles of Nobility” amendment that fell at least one state short of ratification, but appeared in numerous copies of the Constitution in the early and middle 1800s), Congress decided that the Secretary of State should certify what amendments have been ratified. Congress proposed the 16th Amendment on July 12, 1909, and, on February 3, 1913, Secretary of State Philander Knox certified that it had been ratified.
The argument that the 16th Amendment was not ratified is best explained (and refuted) by this quotation from U.S. v. Thomas, 788 F.2d 1250 (7th Cir. 1986), cert. den. 107 S.Ct. 187 (1986):
“Thomas is a tax protester, and one of his arguments is that he did not need to file tax returns because the sixteenth amendment is not part of the constitution. It was not properly ratified, Thomas insists, repeating the argument of W. Benson & M. Beckman, The Law That Never Was (1985). Benson and Beckman review the documents concerning the states’ ratification of the sixteenth amendment and conclude that only four states ratified the sixteenth amendment; they insist that the official promulgation of that amendment by Secretary of State Knox in 1913 is therefore void.
“Benson and Beckman did not discover anything; they rediscovered something that Secretary Knox considered in 1913. Thirty-eight states ratified the sixteenth amendment, and thirty-seven sent formal instruments of ratification to the Secretary of State. (Minnesota notified the Secretary orally, and additional states ratified later; we consider only those Secretary Knox considered.) Only four instruments repeat the language of the sixteenth amendment exactly as Congress approved it. The others contain errors of diction, capitalization, punctuation, and spelling. The text Congress transmitted to the states was: “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.” Many of the instruments neglected to capitalize “States,” and some capitalized other words instead. The instrument from Illinois had “remuneration” in place of “enumeration”; the instrument from Missouri substituted “levy” for “lay”; the instrument from Washington had “income” not “incomes”; others made similar blunders.
“Thomas insists that because the states did not approve exactly the same text, the amendment did not go into effect. Secretary Knox considered this argument. The Solicitor of the Department of State drew up a list of the errors in the instruments and--taking into account both the triviality of the deviations and the treatment of earlier amendments that had experienced more substantial problems--advised the Secretary that he was authorized to declare the amendment adopted. The Secretary did so.
“Although Thomas urges us to take the view of several state courts that only agreement on the literal text may make a legal document effective, the Supreme Court follows the “enrolled bill rule.” If a legislative document is authenticated in regular form by the appropriate officials, the court treats that document as properly adopted. Field v. Clark, 143 U.S. 649, 36 L.Ed. 294, 12 S.Ct. 495 (1892). The principle is equally applicable to constitutional amendments. See Leser v. Garnett, 258 U.S. 130, 66 L.Ed. 505, 42 S.Ct. 217 (1922), which treats as conclusive the declaration of the Secretary of State that the nineteenth amendment had been adopted. In United States v. Foster, 789 F.2d. 457, 462-463, n.6 (7th Cir. 1986), we relied on Leser, as well as the inconsequential nature of the objections in the face of the 73-year acceptance of the effectiveness of the sixteenth amendment, to reject a claim similar to Thomas’. See also Coleman v. Miller, 307 U.S. 433, 83 L. Ed. 1385, 59 S. Ct. 972 (1939) (questions about ratification of amendments may be nonjusticiable). Secretary Knox declared that enough states had ratified the sixteenth amendment. The Secretary’ decision is not transparently defective. We need not decide when, if ever, such a decision may be reviewed in order to know that Secretary Knox’ decision is now beyond review.”
U.S. v. Thomas, 788 F.2d 1250 (7th Cir. 1986), cert. den. 107 S.Ct. 187 (1986).
It has also been claimed that the votes of Georgia legislature were recorded incorrectly and that Georgia actually rejected the amendment, contrary to Knox’ report. However, no Congressman or other official from Georgia has ever complained about the “error” and, even if there was an error and Georgia did not ratify the amendment, there would still have been thirty-seven ratifications, one more than the thirty-six required. (Article V of the Constitution requires that amendments to the Constitution be approved by the legislatures of three fourths of the states, and there were forty-eight states in 1913.)
Another claim is that the ratification of the 16th Amendment by several states was invalid because the constitutions of those states prohibited an income tax. A similar argument as to the 19th Amendment has been flatly rejected by the U.S. Supreme Court in connection with a different constitutional amendment:
“The second contention is that in the Constitutions of several of the 36 states named in the proclamation of the Secretary of State there are provisions which render inoperative the alleged ratifications by their Legislatures. The argument is that by reason of these specific provisions the Legislatures were without power to ratify. But the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a state.”
Leser v. Garnett, 258 U.S. 130, 136-137 (1922).
These technical arguments against the ratification of the 16th Amendment are troubling because they are so undemocratic (as are many other tax protester arguments). Except for a couple of claims about the votes of two states, there is really no doubt that Congress proposed an amendment that would give it the power to tax incomes, and that three fourths of the states approved the amendment. But tax protesters would like for the courts to nullify the amendment, and so nullify the power of Congress and the states to amend the Constitution, and so deny to the people the power to govern themselves, because of typographical errors.
But can courts even consider attacks on the validity of constitutional amendments? As noted by the 7th Circuit in Thomas, the argument that the 16th Amendment is invalid is not only legally and factually wrong, but it is an argument that federal courts are unable (or at least reluctant) to consider. The federal courts have always recognized limits upon their powers, and one of those limits is that the courts should not get involved in issues that the Constitution has entrusted to other branches of the government. The Constitution says that Congress may propose amendments, and the states may ratify them. Whether an amendment has been properly ratified is considered to be a “political question” to be resolved by Congress and the states, and not in court. In a challenge to the validity of the 19th Amendment, the Supreme Court ruled that official notices of the state legislatures to the Secretary of State were “binding upon him, and, being certified by his proclamation, is conclusive upon the courts.” Leser v. Garnett, 258 U.S. 130, 137 (1922).
Other decisions confirming (or refusing to consider) the validity of the 16th Amendment:
“Despite plaintiff’ and numerous other tax protesters’ contention that the Sixteenth Amendment was never ratified, courts have long recognized the Sixteenth Amendment’ ratification and validity.”
Betz v. United States, 40 Fed.Cl. 286, 295 (1998).
“As the cited cases, as well as many others, have made abundantly clear, the following arguments alluded to by the Lonsdales are completely lacking in legal merit and patently frivolous: .. .. (4) the Sixteenth Amendment to the Constitution is either invalid or applies only to corporations . . . .”
Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990).
See also, United States v. Foster, 789 F.2d 457 (7th Cir. 1986), cert. den. 107 S.Ct. 273; Pollard v. Commissioner, 816 F.2d 603 (11th Cir. 1987); United States v. Benson, 941 F.2d 598 (7th Cir. 1991); Sochia v. Commissioner, 23 F.3d 941 (5th Cir. 1994), reh. den. 1994 U.S. App. LEXIS 22014; United States v. Stahl, 792 F.2d 1438 (9th Cir. 1986), cert. den. 107 S.Ct. 888; United State v. Sitka, 845 F.2d 43 (2nd Cir. 1988); Miller v. United States, 868 F.2d 236, 239-41 (7th Cir. 1989); Biermann v. Commissioner, 769 F.2d 707 (11th Cir. 1985); United States v. Buckner, 830 F.2d 102 (1987); United States v. Dube, 820 F.2d 886, 891 (7th Cir. 1986); Coleman v. Commissioner, 791 F.2d 68, 70-71 (7th Cir. 1986); United States v. Moore, 627 F.2d 830, 833 (7th Cir. 1980); Knoblauch v. Commissioner, 749 F.2d 200, 201 (1984) (“Every court that has considered this argument has rejected it.”), cert. den. 474 U.S. 830 (1985); United States v. Matheson, (9th Cir. 1986); Lysiak v. Commissioner, 816 F.2d 311, 312 (7th Cir. 1987); Quijano v. United States, 93 F.3d 26, 30 (1st Cir. 1996); United States v. Mundt, 29 F.3d 233, 237 (6th Cir. 1994).
In Rev. Rul. 2005-19, 2005-14 I.R.B. 819, the IRS confirmed that the argument that the 16th Amendment was never properly ratified is “frivolous” and reliance on it can result in civil and criminal penalties.
The claim that “[t]he Sixteenth Amendment was not ratified, has no effect, contradicts the Constitution as originally ratified, lacks an enabling clause, or does not authorize a non-apportioned, direct income tax” has been identified by the IRS as a “frivolous position” that can result in a penalty of $5,000 when asserted in a tax return or included in certain collection-related submissions. Notice 2007-30, 2007-14 I.R.B. ___.
Tax Protester “Evidence”
A related (and even sillier) claim made by tax protesters is that the ratification of the 16th Amendment by Ohio was invalid because Ohio did not become a state until 1953(!). This strange claim is based on a strange action that Congress took in 1953 to confirm that Ohio was indeed a state. Briefly:
By an act of April 30, 1802 (2 Stat. 173), section 1, Congress provided that “the inhabitants of the eastern division of the territory northwest of the river Ohio, be, and they are hereby authorized to form for themselves a constitution and state government, and to assume such name as they shall deem proper, and the said state, when formed, shall be admitted into the Union, upon the same footing with the original states, in all respects whatsoever.” (This was consistent with the Northwest Territory Ordinance of 1787, which provided that there should be formed from the territory at least three but not more than five states.)
A convention met in Ohio on November 1, 1802, and adopted a constitution on November 29, 1802.
On January 19, 1803, a special committee of Congress reported that “the said Constitution and government so formed is republican, and in conformity to the principles contained in the articles of the ordinance made on the 13th day of July 1787, for the Government of the said Territory: and that it is now necessary to establish a district court within the said State, to carry into complete effect the laws of the United States within the same.” Annals of Congress, 7th Cong., 2d sess., p. 21.
Congress then enacted legislation to declare that all of the laws of the United States shall be in force within the state of Ohio and to establish a federal district court in Ohio, stating in the preamble that “the said state has become one of the United States of America.” Act of February 19, 1803 (2 Stat. 201).
Ohio began sending Representatives and Senators to Congress, began voting in Presidential elections, and has been considered to be a state ever since.
So what’ the problem? When Ohio was preparing for the 150th anniversary of its statehood, researchers discovered that they couldn’t establish the exact date that Ohio became a state, and that there was some confusion on the issue. For example, the Senate Manual (S. Doc. 5, 82d Cong., p. 570) gave the date as March 3, 1803, while the Congressional Biographical Directory (H. Doc. 607, 81st Cong., p. 76, note 9) gave the date as November 29, 1802. Further research showed that Ohio was unique because Congress declared that Ohio would become a state upon fulfilling certain conditions but had never formally declared that the conditions had been met. In admitting other states, Congress either declared that the state would be admitted as of a certain date, or passed an enabling act and then later declared that the state was admitted. In the case of Ohio, Congress passed an enabling act but never formally declared that the conditions of the enabling act had been met, either due to an oversight or due to a belief that a formal declaration was not intended and not needed.
In a 1953 report to Congress, the Legislative Reference Service of the Library of Congress stated that the lack of a formal resolution “may be considered unessential.” (1953 U.S.C.C.A.N. 2126, 2128.) However, Ohio asked for a formal declaration, sending a new petition for statehood to Washington by horseback (yes, in 1953), and Congress complied (with a certain number of snide jokes), passing a joint resolution that declared Ohio to be one of the United States of America as of March 1, 1803. P.L. 82-204, 67 Stat. 407. The Senate Report to the resolution states that the purpose was “to make formal, legal declaration of the de facto situation with respect to the admission of Ohio as a State of the United States.” Senate Report No. 720, 1953 U.S.C.C.A.N. 2124.
So the fact of the matter was that Ohio was accepted as a state of the United States sometime in 1802 or 1803 and Congress declared the admission to be as of a certain date in 1803, but the declaration was not made until 1953.
