From the October 2002 Idaho Observer:

Constitutional Income: Do You Have Any?

Part 4 of 4

There is no Exemption to the Apportionment Rule

Part Four of Phil Hart's four-part series of articles regarding the substance of his Writ of Certiorari currently before the U.S. Supreme Court hits upon the most critical aspect relating to the constitutionality of the income tax: Does the 16th Amendment give Congress an exception to the apportionment clause in the Constitution with regard to direct taxation? After reviewing thousands of pages of source documents, an objective person would have no choice but to answer that question in the negative. Curiously, the U.S. Supreme Court has already determined that as well, but because the American people are too busy to pay attention to their own freedom, they are losing it. Published this month is the philosophical background of Part 4. The rest of the article is pages 18-27 of his Writ of Certiorari and can be found at

By Phil Hart

The rulings of the lower courts of this country on the income tax issue are an embarrassment to our American system of self-government. As was noted earlier, in part 2 of this series of 4 articles, on the direct tax vs. indirect tax issue, the lower courts have said that the income tax is a direct tax, that it is an indirect tax, that it is neither, both and that the question is irrelevant.

We are fortunate, however, that the Supreme Court's rulings on this question are both consistent and correct. That the income tax system got so far off course is really not entirely the fault of the court system. The blame rightfully falls at our own feet. We did not do our homework.

We were lured into an unrealistic state of security. This occurred when we were taught in our high school civics class that we had this three-branch system of government with checks and balances. We were taught that each of these three branches of government were all jealous for the Constitution and would defend the Constitution against encroachment by either of the other two branches. That being the case, all We the People had to do was show up at the polls every two years and the rest of the time we were free to pursue happiness.

Well, I am here to say that this is propaganda promoted by the bureaucracy. This hands-off mentality is far from reality. In America, We the People are the Sovereign. In a conflict-filled world, the sovereign needs to be jealous of his domain. Neglectful sovereigns are likely to be overthrown. Any good manager knows that where there is authority there must also be responsibility. Scripture tells us that the shepherd must know the condition of his flock. An ignorant sovereign cannot expect to be sovereign for long.

How many of us know what the framers of the Constitution meant by the terms “direct tax” and “indirect tax?” How many of us know what the constitutional rule is in levying either a direct tax or an indirect tax? Do you even know where these terms appear in the document? How are you going to keep the government within its constitutional limitations if you don't know what those limitations are? Up until the time that I immersed myself into the study of this subject matter, I couldn't answer these questions, either.

The IRS claims on page 17 of its publication entitled The Truth About Frivolous Tax Arguments that, “The courts have both implicitly and explicitly recognized that the Sixteenth Amendment authorizes a non-apportioned direct income tax on United States citizens and that the federal tax laws as applied are valid.”

To be accurate, the taxation clauses of the Constitution do not apply in the territories and possessions of the United States. Those who live in these areas are known as “United States citizens.” Congress may impose any kind of tax it wishes on these United States citizens who live and work in the territories and possessions of the U.S. So, the IRS statement quoted above is true at least some of the time.

But the situation is entirely different within the several States. In the several States, Congress must obey the Constitution. And when it comes to direct taxes, the framers of the Constitution made it more difficult for such a tax to be imposed by requiring the tax be apportioned. The question of whether the Sixteenth Amendment relieved Congress of the requirement to apportion an income tax, should that income tax be in the form of a direct tax, was presented to the Supreme Court in at least five early income tax cases. To the Court's credit, it ruled correctly on this question. But this fact is buried deep in the Transcript of Record of each of these cases. The issue is only alluded to in the Court's opinions, which are widely published.

Just as Nehamiah discovered the law when he was rebuilding the walls of Jerusalem and taught it to the people, now we must rediscover our own law and teach it to each other. For it is only We the People that will jealously guard the Constitution.


The rest of the article is pages 18-27 of Hart's Writ of Certiorari and can be found at

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