7. The CENSUS & the "Rule of Law".

[Publius/Huldah]

Article I, Sec. 2, clause 3, U.S. Constitution, provides that the census shall be taken every 10 years for the purposes of apportionment of (1) direct Taxes and (2) Representatives to the House.

 

It also says the census shall be taken in such manner as Congress may direct.  So, while the Constitution establishes the TWO purposes of the census; Congress decides the manner in which it shall be taken (e.g., by the U.S. marshals in the federal judicial districts, questionnaires mailed by the executive branch of the federal government).

 

In Federalist No. 54, last para, James Madison, Father of the Constitution, explains why it is a good idea to have a "common measure" [i.e., the number of people] for determining both the number of  Representatives for each State and the amount of the direct Taxes each State is to pay: As the accuracy of the census depends on the cooperation of the States, the "common measure" discourages the States from overstating or understating the numbers of their population.

 

The Constitution is clear, and Madison confirms it:  The purpose of the census is ONLY (1) to determine the number of Representatives each State is to get, and (2) to determine each State's share of the "direct Taxes".

 

So! The federal government has no constitutional authority to ask you anything but the number of persons living in your home (and probably whether any of them are "Indians"). When they act outside their enumerated powers,  they have abandoned the "rule of law" - i.e., The Constitution; and they have embraced the "rule of men".  And they are the "men".  

 

They have no constitutional authority to ask you how much you spend on heating, how much money you have, your disability status & how many toilets you have.  See Jerry Day's (Matrix News) excellent 5-minute video at   http://www.youtube.com/watch?v=RsDhkPym01k   & Dr. Edward L. Hudgins' (Cato Institute) testimony at: http://www.cato.org/testimony/ct-eh072000.html

 

Alexander Hamilton understood that the People [that's us] are the "natural guardians of the Constitution", and he expected us to be "enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority" (The Federalist No. 16, 10th para).  In Federalist No. 33, 6th para, he said:

 

...If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify...

 

Hamilton also said that acts of the federal government which are not pursuant to its constitutional powers are "merely acts of usurpation, and will deserve to be treated as such." (The Federalist No. 33, 7th para). This is what it means to stand up for "the Rule of Law"!   Shall we defend our Constitution?  Or will we cooperate with the lawless federal government in subverting it? 

[Paula Tyler]

I am not going to comply with this one bit. They will get the number of people that live in this house along with a note written in sharpie on the rest of the form, educating them on the constitution and what it says about the census and it's purpose. P/H, I may just take some of your words from this page to educate them. I will tell them that the number of stop lights and how many future welfare recipients is NOT within their authority and as a Citizen it is my job to appeal the standard and stand up for the Constitution! They will get nothing else from me!

[Kate]

Copied and pasted to my blog! :)

[deborah l pond]

Thank you for posting this. I have been telling my friends that the ONLY information you need to give to the govt is how many people reside at your address. I mentor a class of 12-13 yr olds and they understand enumerated powers and the census. Let's get this information out to EVERYONE. Thanks for all your work getting this information out to us.

[Publius/Huldah]

Deborah, you said, "mentor": are you teaching these 12-13 year olds? I'm thrilled that they understand "enumerated powers"! Are these children super smart or super hard working - or are you a really great teacher? The reason I ask is some adults say they can't understand my papers, and I am trying to find out how I can reach them. Also, I would love to have an on-line Constitution study course for young people - I just don't know how to write it up. Wow! Your account of these young people sure put a smile on my face! Thanks!

[Hank Van Gieson]

Publius,

While the emphasis on replies to your excellent post has focused on how to deal with the census, I wonder if you would define "direct taxes", one of only two reasons for conducting the census every ten years. I understand the use of the census to rearrange the number of representatives for each state, but am baffled by just what direct taxes get apportioned to each state based on the census? Did the 16th Amendment make this constitutional provision inapplicable? Help! (Never too old to learn!)

[Publius/Huldah]

Hank, I knew you would ask about "direct taxes" - just what are they, etc. Well, I'll have to look it up! I could not find in The Federalist Papers where Hamilton & Madison explain exactly what they are and how they work. Hamilton discussed "internal taxes" which consist of two classes: "direct taxes" and "indirect taxes" (the latter of which are duties & excises on certain articles of consumption), in Federalist No. 21 (last 3 paras) & No. 36 (most of the paper). While there is helpful discussion of the "indirect taxes" which is relevant to the so-called "fair tax" [which will most definitely NOT "starve the beast"], I did not find in The Federalist a good discussion of just what the "direct taxes" are.

So! We must look to James Madison's Journal of the Federal Convention. These notes are also authoritative in showing "original intent". If they don't discuss it, then we'd have to look to history to learn just what the "direct tax" is and how it worked. The Cato Institute is the most intelligent & reliable think tank on such topics that I know of. So, if its not in Madison's Journal, I'll ask Cato. Or, Dr. Walter E. Williams.

[Hank Van Gieson]

Publius,

Glad I asked, and will look forward to your reply.

When I consider the census as a means to apportion "direct taxes", it seems to me that they are talking about the plan to tote up the annual cost of the federal government and then apportion that cost to each state based on state population. Which raises the question of did our country ever fund the federal government in that way? As I understand it, the Articles of Confederation failed due to the inability of the federal government to extract state funding? So, what's different about the Constitution? If it doesn't address the process of direct taxation, why use the census for a tax plan that was never put into action? The census would seem to have only one function, not two?

I'm rambling, but I really wasn't asking the question as it might relate to the Fairtax. I just don't see any direct taxes today other than excise, etc.

Who is Dr Williams?

[Hank Van Gieson]

Publius,

An addendum to my last post. In 1997, a Calvin Johnson of the University of Texas Law School published a paper on "direct taxes". Here are some bits from the extract:

"Article I requires that "direct taxes" be apportioned among the states according to population, counting slaves at 3/5ths of a person. Apportionment arose under the Articles of Confederation, when the only way Congress would raise taxes was by requisitions telling each state to pay a quota. Apportionment was brought into the Constitution as a not very important part of the trading between the slave states and the non slave states over votes in the House of Representatives.

The original meaning of "direct tax" was very broad. Congress was to have the broad power to tax people and transactions "directly" that had been reached under the requisition system only ?indirectly.? Most usages contemporaneous with adoption define "direct taxes" to include every tax, except for the custom duties. Sometimes "excise taxes" were excluded from "direct taxes," but "excise tax" was meant very narrowly, referring most importantly to the "whiskey tax."

The difficulty with a broad definition of "direct tax" is that apportionment is an absurd requirement, in a way the Founders did not see. Apportionment of a consumption tax requires, for instance, the tax rates on Mississippi consumption be twice the tax rates on Connecticut consumption. Mississippi is poorer and has less tax base over which to apportion her quota, so the tax rates have to be higher. Article I also requires tax rates be uniform among states and apportionment is inconsistent with uniform rates, except for a tax that is the same amount per person. Commentators and Courts have tried to find narrower definitions for "direct tax" to avoid apportionment. This article recommends candor and a functional definition, defining "direct taxes" as only those that can be apportioned consistent with a uniform rate."

It would seem that our Framers weren't perfect?

[Publius/Huldah]

When construing any part of the Constitution, we must NEVER read in our own thoughts. What WE think it means is simply irrelevant. We don't do literary deconstruction here! To find the "original intent", we must find out what the Founders understood by it. Usually, a quick glance at The Federalist Papers explains all. But sometimes, we have to look elsewhere. So! Until we find out, keep your mind open.

Hamilton said "indirect taxes" were the duties & excises on certain articles of consumption! Read: Federalist No. 21, last 3 paras & No. 36, 6th para. That discussion is relevant to the "fair taxers'" claim that an across the board federal sales tax is consistent with "original intent" - It isn't!

Dr. Walter E. Williams is former chairman of the Economics Dept. at George Mason Univ. and sometime guest host on Rush Limbaugh.

[Publius/Huldah]

Re Hank's Question: What are the "direct Taxes" at Art. I, Sec. 2, clause 3, and how did they operate? I could find nothing in The Federalist Papers explaining just what these taxes were, how they operated, etc. So, I went to the next resource, Madison's Journal of the Federal Convention. I read all the entries on "direct Taxes", and found no discussion explaining what they were! The delegates spoke of them as if everyone knew how they were to work! So, I have written Cato Institute and asked if they can point me to original sources. Man! I'm pulling my hair over this. So I am very glad Hank asked because I have been wondering about this for a long time; he gave me the nudge to find out for sure.

Someone sent me an article which purported to explain "direct Taxes". But the article didn't cite any original sources to support its statements, so I dismissed it. Cato Institute is very meticulous and I trust their scholarship. If they have researched this, I expect they'll have some proof from original sources. Meanwhile, we can see if any of the other Founders wrote on this. Perhaps Alexander Hamilton, the "finance man", wrote of "direct Taxes" in places other than The Federalist.

It seems that the federal government was to come up with a sum of money which they needed and then "apportion" the tax bill to the various States based on their population. But that is only using Logic, I don't have any FACTS to support that theory.

In my paper on the "interstate commerce clause" I have links to an online edition of Madison's Journal of the Federal Convention. It's really cool to read our Founders talking about The Constitution!

[Paula Tyler]

I thought this was a good video for what is required to put on the Census forms and the constitutional issues about what the Census bureau is actually doing and asking.

[Publius/Huldah]

Yes! Jerry Day does a great job in illustrating the Basic Principle of our Constitutional Republic: The federal government must have constitutional authority before they may lawfully interact with you! They need to be able to point to the specific Article, Section & clause which gives them the specific authority to do anything to you or order you to do anything. Anything.