In response to my article “Birth Certificates for Slaves?,” one of my readers posted a lengthy comment about the 16th Amendment and income taxes. I started to write a brief reply but, as usual, the more you look the more you see, so my “brief reply grew into the following article:
Article 1.2.3 of The Constitution of the United States declares in part,
“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; . . . .”
First, note that in the phrase “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers,” the word “States” clearly refers only those member-States of the “Union” (“The United States of America”).
Second, in that same phrase, note the relationship of “States” to “their respective Numbers”.
What “Numbers” are they talking about?
Clearly, not the “Numbers” of “States” (thirteen or forty-eight or fifty, etc.) but rather the “Numbers” of the People who comprise each of the States of the Union. Article 1.2.3 tells us absolutely that the States of the Union are first and foremost composed of People. States of the Union may have certain limited territories and they may have a State government,” but the essential feature of every State of the Union is the People. These People don’t merely “inhabit” the State as if it were as if it were house, or a territory or some entity other than the People. Instead, the People comprise and are the State of the Union.
This insight isn’t “news”. It’s been fairly common knowledge that the People comprise the States for some time. But finding an apparent “authority”–right there in the Constitution–to support that common knowledge is important.
We can infer from the fact that the People comprise each individual State of the Union, that the Union (“The United States of America”) is also composed of People rather than territory. That “Union” of People may have or own territory, but that Union is not comprised by territory. It’s comprised by People.
Third, under Article 1.2.3. of the federal Constitution, “Enumeration” of “their respective Numbers” was clearly intended to count the number of People who comprise each of the States of the Union.
Fourth, note that Article 1.2.3 makes no express reference to territories in the requirement for “apportionment”. This makes perfect sense since a “territory” is, by definition, a fixed geographic area that may or may not be inhabited. You can have a “territory” without any people, but you can’t have a State of the Union without any People. Therefore, while an “Enumeration” of the People comprising each State of the Union makes perfect sense, what would be the point of conducting an “Enumeration” (under Article 1.2.3) of a territory if 1) the territory could be uninhabited; and 2) even if the territory were inhabited, the people therein were not members of a State of the Union. If the purpose of an “Enumeration” is to count up the total number of People who comprise the Union, and the people of the territories are not members of that Union, there’s no requirement for “apportionment” among the territories and therefore no requirement for a territorial “Enumeration”.
Thus, it appears that an “Enumeration” of the sort described and defined at Article 1.2.3 should only apply to the States (people) of the Union—not to any “territory” or territorial inhabitants.
• Any doubt as to whether “Enumeration” also applies to the territories should be ended by noting that the fundamental purposes of an “Enumeration” under Article 1.2.3 are to determine:
1) the amount direct taxes to be apportioned; and
2) number of “Representatives” that might be elected by each State and sent to Congress.
Insofar as the Constitution makes no proviso for electing “Representatives” to Congress for Territories and Washington DC, the purposes for “Enumeration” as condition precedent for electing “Representatives” must only apply to the States of the Union. We can infer from the fact that the territories have no elected Representatives to Congress, that the territories are not subject to an “enumeration”. More, given that under Article 4.3.2, Congress has exclusive legislative jurisdiction over the territories, Congress has absolute power to impose any tax it wants, any time it wants, on the territories or their inhabitants without regard to any “enumeration”.
More, the idea of “apportioning” both taxes and Representatives in Congress means that the number of Representatives and the amount of federal taxes imposed on each State of the Union would be determined according to the number of people who comprise each State. If an “Enumeration” of the “respective Numbers” of people comprising The State of Virginia and The State of New York determined that The State of Virginia was comprised of twice as many people as The State of New York, then The State of Virginia would be entitled to twice as many Representatives in Congress as The State of New York, and, broadly speaking, the people comprising The State of Virginia would also be subject to twice as much federal tax as the people comprising The State of New York.
• Once the federal “Enumeration” determined the “respective Numbers” of People comprising each State, the number of Representatives and the amount of taxes for each State would also be determined. But once the number of Representatives and the amount of taxes to be apportioned (according to population) to each State was decided by the federal “Enumeration,” it was up to each State to decide how to allocate its total number of Representatives and federally imposed taxes among the People of that State.
The State of New York might be entitled to ten Representatives in Congress. Based on State-wide population distribution, three of those ten Representatives might be allocated to New York City. But within New York City, how should you divide up that community so one part of the City could only vote for one Representative, another part of the City could only vote for the second, and another part would vote only for the third? That was up to the State government to determine. The feds determined how many representatives each State might have. It was up to each State to fairly allocate those representatives among their State’s population.
• Same thing with federal taxes.
Based on the federal “Enumeration” of the population comprising each State, New York’s “fair share” of federal taxes might be $100 million. Nebraska’s “fair share” might be $10 million. Once that the total tax was imposed on New York and Nebraska, it would be up to each State’s government to determine who or whose conduct among the people of that particular State would bear the new tax. Within The State of New York, they might choose to raise the $100 million due to the federal government by imposing a tax on the manufacture of clothing. Within The State of Nebraska, the legislature might decide to raise the $10 million due to the feds by imposing an new tax on the sale of corn. Another State might impose a general sales tax among its People.
As I understand it, while the federal tax imposed on each State of the Union was based on the number of People comprising that State, the federal tax could not be directly imposed by the federal government on each of the People of the States of the Union.
• Article 1.9.4 declares:
“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”
In the phrase “Census or Enumeration,” I see ambiguity.
When the Founders wrote “Census or Enumeration herein before directed to be taken” at Article 1.9.4, the phrase “Enumeration herein before directed to be taken” they clearly referred to the “Enumeration” required at the previous Article 1.2.3. That “Enumeration” in Article 1.2.3 seems certain to apply only to the States of the Union. Therefore, the “Enumeration” referred in Article 1.9.4 must also apply only to the States of the Union.
But, oddly, Article 1.9.4 includes the phrase “Census or Enumeration”. OK—insofar as the word “Enumeration” in both Article 1.2.3 and 1.9.4 refers only to States of the Union—what does the word “Census” mean?
Are we to believe that “Census” is simply a synonym for “Enumeration”? Was the word “Census” added gratuitously, but without conveying any additional meaning? Was the word “Census” superfluous or redundant?
I can’t point to the case, but as I recall, the Supreme Court has ruled that every word in the Constitution is to be treated as having meaning and relevance. No words are to be deemed superfluous or gratuitous.
If so, “Census” should not be synonymous with “Enumeration”.
If “Census” and “Enumeration” are not synonymous, how do they differ?
Given that both terms refer to the counting of people, is it possible that “Enumeration” clearly applies to counting the People of the States of the Union while “Census” is intended to count to the people of the territories?
If so, when you submit to a “census” are you presumed to be one of the People of a State of the Union? Or, by submitting to the “Census,” have you voluntary declared yourself to be a person who inhabits a territory?
• The plot thickened a bit (or curdled, depending your perspective) with the enactment of the 14th Amendment (A.D. 1868).
Section 2 of the 14th affected the “Enumeration” requirement of Article 1.2.3 , by declaring in part, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
This phrase eliminated the previous “Enumeration” of “those bound to Service for a Term of Years, and . . . three fifths of all other Persons.” This elimination in the 14th Amendment was probably based on the 13th Amendment which prohibited both slavery and involuntary servitude within the States of the Union.
The “three fifths of all other Persons” referred to slaves. Prior to the 13th and 14th Amendments, each slave within a State of the Union was “enumerated” as 3/5ths of a man. Under Article 2 of the 14th Amendment, if a State dared to designate any of its people as “slaves,” it’s representation in Congress would be proportionally reduced. I.e., if a particular State of the Union was entitled to 10 Representatives in Congress, but regarded 10% of its population to be slaves, that States would lose 10% of its Representatives and be allowed to elect only 9 Representatives to Congress.
• In Article 1.2.3, the phrase, “those bound to service for a Term of Years” included those who were not slaves, but had voluntarily entered into a trust indenture whereby, in return for passage to the United States, or a piece of land, or a sum of money, an individual man had agreed to enter in a “service” or “servitude” as indentured servant (fiduciary) working for a “term of years” for his creditor (beneficiary).
Under Article 1.2.3, those who had voluntarily entered into a servitude (fiduciary relationship) “for a term of years” would be counted in the “Enumeration” that would determine the number of Representative and federal taxes to be apportioned to each State of the Union. But, under section 2 of the 14th Amendment, it’s unclear whether the “counting of persons in each State” would, or would not, count those who had entered into a voluntary servitude “for a term of years”.
This makes for a fascinating rabbit trail.
Let’s suppose that by using a So-So Security Number, it was presumed that I’d voluntarily entered into some fiduciary relationship with the federal gov-co wherein I agreed to act as fiduciary for the benefit of the gov-co beneficiary. Or, perhaps by virtue of using Federal Reserve Notes, could it be presumed that I had entered into some other fiduciary relationship? Admittedly, these supposed fiduciary relationships might not have an express “term of years” referenced in Article 1.2.3.
But if I were deemed to have entered into any voluntary servitude, under Section 2 of the 14th Amendment, could I still be “counted” as one of the “persons in each State” of the Union?
If not, what (under Section 2 of the 14th) would the consequences be if virtually everyone within that State of the Union was deemed to have voluntarily entered into a fiduciary relationship by means of Social Security Numbers, using FRNs, applying for a drivers license or a voters registration, etc.? Would the State be presumed to be “depopulated”? Given that a State of the Union I comprised of People, is a State without People necessarily reduced to the status of a mere “territory”?
In fact, if you’re in a mood to speculate, we might even suppose that if I were not counted as one of the “persons” in my State of the Union, and I were nevertheless taxed, would I have a ground for complaining about taxation without representation?
• Here’s the balance of Section 2 of the 14th Amendment:
“But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
That text is confusing. I don’t like the requirement that the injured parties be “citizens of the United States” (undoubtedly, these are the “citizens” declared in the first sentence of the 14th Amendment).
But, in broad strokes, the text might be interpreted to imply that if the rights of some of the People comprising a State of the Union to vote for any of the Executive, Judicial, or Legislative officers or representatives of that State of the Union were “denied” or “in any way abridged,” that the State’s number of Representatives in Congress would be proportionally diminished.
Let’s suppose that my notions concerning the difference between The States of the Union and the territories were roughly correct. (See, https://adask.wordpress.com/2011/06/14/the-states-of-the-union-vs-the-territory/)
If so, the States of the Union may have been supplanted by “territorial states” (actually, administrative districts of a single national “territory” under the exclusive legislative jurisdiction of Congress). But the governments of the States of the Union would no longer be operable.
If so, wouldn’t you and I be voting for territorial officers whenever we voted in a “state” (actually, territorial) election?
If so, would your and my rights (declared at Section 2 of the 14th Amendment) to vote for legislative, executive and judicial officers of our State of the Union be denied or “in any way abridged”? I.e., if we were deceived into voting for officers and officials of some territory rather than those of a State of the Union, wouldn’t our right to vote for officers and officials of our State of the Union be “denied” or somehow “abridged”?
If we could prove (under Section 2 of the 14th Amendment) that virtually every voter was being denied his right to vote for officers of The State of the Union, could we attack “this state’s” ability to send Representatives to Congress?
If we could, would we want to?
I’m not sure. But the speculation is intriguing.
• The phrase “census or enumeration” appears again in the 16th Amendment (ratified in A.D. 1913). This Amendment is widely believed to have provided the constitutional foundation for the income tax.
The 16th declared:
“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.”
Again, we see the phrase “census or enumeration” (just like Article 1.9.4).
Again, we’re left to wonder if use of the word “census” is superfluous or redundant.
Again, we’re left to wonder if “census” and “enumeration” are synonymous, or if the “enumeration” applies only to States of the Union while “census” applies only to the territories.
If “census” is synonymous with “enumeration,” why didn’t they write “thingamabob” or “whatchamacallit” instead of “census”?
The word “census” must mean something other than the word “enumeration”—which apparently applies only to the States of the Union.
I can’t prove it, but I suspect that the “census” is intended to refer to counting the number of persons in a territory.
Alternatively, perhaps a “census” covers both States of the Union and Territories while an “enumeration” only covers States of the Union.
• Thus, judging from Articles 1.2.3 and 1.9.4 and the 16th Amendment, it might be possible to argue that by means of a “census” the income tax might be imposed only in the territories, but that same income tax might not be applied within the State of the Union without an “enumeration”. Conversely, if you submit to a “census,” you might thereby be presumed to have voluntarily submitted to the federal income tax.