Earlier last week saw the inappropriate and rather disgusting attack on our Constitution by two leaders in government. First of all, President Obama decried his inability to force his agenda on an unwilling Congress due to a system of constitutionally created checks and balances. It is disconcerting to hear his comments of this past week and recall how wistfully he pined for China’s top-down leadership structure. But far more egregiously, and telling, was Supreme Court Justice Ruth Bader Ginsburg’s criticism of our founding document on Egyptian television. For those of you who missed the news allow me to quickly recap. Addressing the newly forming Egyptian government, Justice Ginsburg advised them thusly, “I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa… It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution.” This is not the first time Justice Ginsburg has shared her affinity for foreign laws and decisions over those of the U.S. In fact, one of her complaints about the U.S. Supreme Court is that it is not cited more by courts internationally. The Canadian Supreme Court is “probably cited more widely abroad then the U.S. Supreme Court.” She further reasoned that, “You will not be listened to if you don’t listen to others.” It was neglected to mention that “listening to others” in this context means ignoring American jurisprudence, voters, laws, precedent and history. That is not the purpose of a Justice according to our Constitution.

Article VI of our founding document has something else to say on the matter.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Unless the previous excerpt contains a clause of exception for wanting to be cited by a court in Belgium I believe the phrase “supreme law of the land” should suffice any and all judges. Our Constitution is the law that governs this country; its changes reflect our own history, like rings on a tree. To ignore it or seek outside help when convenient stands contradictory to who we are as a people and the legal standing of the Constitution itself. In fact, our constitutional history is vital to our understanding of the need to pass the FairTax.

After the wartime income tax, Revenue Act of 1862, expired in 1866 Americans were free again from the income tax. While American citizens were free from this oppressive tax, politicians were obsessed with breathing new life into the recently abolished tax structure. Twenty-one years after its dissolution the Socialist Labor Party began to openly advocate for an income tax, five years later in 1892, the Populist Party demanded a graduated tax become a part of their platform. And in 1894, the Wilson-Gorman Tariff Act passed, instituting a five year 2% tax on “gains, profits, and incomes” in excess of $4,000. Aside from the eventual court ruling on this particular bill it is important to note that the debate in Congress at the time was heated and many voted for the bill that included an income tax because they refused to give up on tariff reform. As this New York Times article from January 30, 1894 shows, “They prefer to bear the odium of the income tax rather than to see the Wilson bill defeated.” How many times in our government’s history have we been faced with a decision between two evils and taken it? Why must we hold our nose and swallow the bad to get what we want? Luckily at this precise moment in history the Supreme Court looked to the supreme law of the land and declared the tax portion of the Tariff Act unconstitutional. We passed a direct income tax on those of certain wealth and it was, rightly, declared unconstitutional. The Pollock v. Farmers’ Loan and Trust Co .decision was handed down in 1895 and eighteen years later fixated politicians pushed a constitutional amendment to override the Supreme Court decision. The Sixteenth Amendment, passed in 1913, allowed the government to directly tax income from any source derived, read your wallet, without regard to apportionment to the States or any census or enumeration. Thus the monstrosity of the current tax code was born, taking great pains in the form of a constitutional amendment to defy a Supreme Court that said it did not belong before.

Enter the FairTax. The FairTax is not the creation of a Washington committee. It is not a cobbled together hodgepodge of political favor and pork tapered around a watered-down central idea. The FairTax is a private sector solution to a public sector problem. Created in the 1994, the FairTax was the idea of some businessmen in Houston who knew there existed a better way to tax the American public that did not involve working 102 days just to earn what the government will take in a given year. The idea of a consumption tax however has been around much longer than eighteen years. In 1783, James Madison voiced his support for a consumption tax, saying, “Taxes on consumption are always least burdensome, because they are least felt, and are borne too by those who are both willing and able to pay them…” That sounds much better than a confiscatory system that punishes success and investment. Another luminary from our American history, Alexander Hamilton, favored a consumption tax and espoused its virtues in the Federalist Paper (No. 21), “It is a signal advantage of taxes on articles of consumption that they contain in their own nature a security against excess.” These are the men that formed our government. James Madison, author of the Constitution and Fourth President of the United States, and Alexander Hamilton, First Secretary of the Treasury and the only New Yorker to sign the Constitution. As fellow authors of the Federalist papers these views hold considerable weight on the interpretations of the Constitution at that time, it was viewed as the supreme law of the land and forbade any direct taxes, which are not uniform or apportioned to the States, levied on the people by the Federal government. How does that view stand up to our current code? It doesn’t.

There are three clauses in the Constitution signed at the convention considered with taxes. One states that representatives and direct taxes should be apportioned among the several States. Another states that the Congress shall have power to lay and collect taxes, duties, Imposts and Excises…but all Duties, Imposts and Excises shall be uniform throughout the United States. And finally, no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken. Omitting the Sixteenth Amendment, that is all the Constitution says about how the government should levy taxes. It seems that the Sixteenth Amendment was passed to violate the first section, and subsequently used to ignore the other two sections. That one Amendment has been used to increase the size of the government’s ability to tax far beyond the intention of our forefathers. That is precisely why it should be repealed. When it is repealed America should be ready with a tax system that meets the requirements and restrictions in the original Constitution. The FairTax meets these strict standards. The FairTax, by removing this overburdening tax code and placing the American citizen in charge of the revenue stream, will be the second positive outcome of taxes in human experience. The first being the capitation tax that led both Mary and Joseph to Bethlehem at the very end of the BC era.

If the Constitution does track with our American history then it is supremely important to use that as the golden standard of national policy. This current system is the product of a change to that original document; I submit to you that it is high time that we return to our founding. The FairTax necessitates a repeal of the Sixteenth Amendment to ensure that it remains the FairTax and not the VAT and income system of Europe. Our laws should not be modeled on a European system that has sunk a region of the world to near economic ruin. Our courts should not use the rulings and laws to subvert or ignore what makes us uniquely American. Our founding is a political miracle in a long history of government oppression. The New York Times ran a story this past week that happens to coincide with Justice Ginsburg’s unfortunate Egyptian interview. It describes the waning international appeal of our United States Constitution. Fewer countries are looking to the leadership of our founding to move forward. It is not because of some listen and be listened to theory. It is because we have abandoned our own principles. If the United States chooses not to follow in the wisdom of our own founders than why would anyone else? The Sixteenth Amendment is such a departure from the carefully crafted government of 1787. Ever since the 1913 election our government has grown exponentially, it is directly tied to the extent of the government’s reach into your pocketbook. As of today that reach is infinite, confined only by the political realities of the time. It relies on foolishly shortsighted elected representatives. It relies on the inattention of the American public. It relies on the complexity of 70,000 pages of tax language. Gone are the days when we could rely on our judges to keep the government in check. As mentioned before, politicians have lost a respect for the checks and balances etched into our government, and judges are more concerned with their international standing than upholding the law. The only defense resides in the American public. Our voice must rise once again. We must assert our rightful role in the political hierarchy. Our leaders must act with our consent. Take control of the discourse, demand the FairTax from your legislators. We have in the United States of America the oldest working constitution on Earth. It “shall be the supreme law of the land”. This year is when to make our ultimatum. Return to the parameters allowed by our founders. Limit our government to its enumerated powers and free the people of the United States to create an economic engine that will engulf any and all competition this world has to offer. China is not standing in our way, neither is the Democratic or Republican party, it is an expansion of government brought on by politicians who tasted a new stream of revenue and forced it into our constitution in 1913. Repeal it. And let’s get back to work.


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