No Taxation Without Representation in Court!

The July 4th holiday readily brings to mind the phrase “no taxation without representation.” A major reason for the Americans’ wish to be independent from the British empire was their belief that people should have a say in the tax policies imposed on them.

Well, we got representation — and a whole lot more taxes too. Is representation the taxpayers’ only recourse? Perhaps the courts could provide another form of recourse. If the government is supposed to be bound by the Constitution, then shouldn’t taxpayers be able to sue the government when their money is used improperly?

Alas, that’s not how the courts see it.

The rest of my op-ed, "No Taxation Without Representation in Court!" is at The Future of Freedom website.

"Monster"

The 4th of July is the appropriate time to contemplate what has happened to America. I've always thought this song by the band Steppenwolf did a great job of laying out the case. The song is really worth listening to.

"Monster/Suicide/America"

Words and music by John Kay, Jerry Edmonton,
Nick St. Nicholas and Larry Byrom

(Monster)
Once the religious, the hunted and weary
Chasing the promise of freedom and hope
Came to this country to build a new vision
Far from the reaches of kingdom and pope
Like good Christians, some would burn the witches
Later some got slaves to gather riches

But still from near and far to seek America
They came by thousands to court the wild
And she just patiently smiled and bore a child
To be their spirit and guiding light

And once the ties with the crown had been broken
Westward in saddle and wagon it went
And 'til the railroad linked ocean to ocean
Many the lives which had come to an end
While we bullied, stole and bought our a homeland
We began the slaughter of the red man

But still from near and far to seek America
They came by thousands to court the wild
And she just patiently smiled and bore a child
To be their spirit and guiding light

The blue and grey they stomped it
They kicked it just like a dog
And when the war over
They stuffed it just like a hog

And though the past has it's share of injustice
Kind was the spirit in many a way
But it's protectors and friends have been sleeping
Now it's a monster and will not obey

(Suicide)
The spirit was freedom and justice
And it's keepers seem generous and kind
It's leaders were supposed to serve the country
But now they won't pay it no mind
'Cause the people grew fat and got lazy
And now their vote is a meaningless joke
They babble about law and order
But it's all just an echo of what they've been told
Yeah, there's a monster on the loose
It's got our heads into a noose
And it just sits there watchin'

Our cities have turned into jungles
And corruption is stranglin' the land
The police force is watching the people
And the people just can't understand
We don't know how to mind our own business
'Cause the whole worlds got to be just like us
Now we are fighting a war over there
No matter who's the winner
We can't pay the cost
'Cause there's a monster on the loose
It's got our heads into a noose
And it just sits there watching

(America)
America where are you now?
Don't you care about your sons and daughters?
Don't you know we need you now
We can't fight alone against the monster

© Copyright MCA Music (BMI)

Another Blow to the Tax Deniers

As expected, the U.S. Court of Appeals for the District of Columbia has reversed itself in Murphy v. IRS. The background is in my posts here and here. When the court first stunned the government by declaring part of the federal tax code unconstitutional, the frantic Bush Justice Department won a rehearing by the same three judges. Surprise, surprise! The judges reversed themselves, holding that Murphy's compensatory damages for mental distress and loss of reputation are indeed taxable income, and even if they are not income, they are still taxable. Taxing her, the court said, is not unconstitutional.

In essence, the court said that compensatory damages are in fact payment in a forced sale. Weird, but that's what it said. If someone damages your reputation, it's as though he deprived you of something that belongs to you. So when he compensates you, he is completing the forced transaction. Read on.

Some choice quotes from the opinion today:

The Government petitioned for rehearing en banc, arguing for the first time that, even if Murphy’s award is not income, there is no constitutional impediment to taxing it because a tax on the award is not a direct tax and is imposed uniformly. In view of the importance of the issue thus belatedly raised, the panel sua sponte vacated its judgment and reheard the case. . . . In the present opinion, we affirm the judgment of the district court based upon the newly argued ground that Murphy’s award, even if it is not income within the meaning of the Sixteenth Amendment, is within the reach of the congressional power to tax under Article I, Section 8 of the Constitution....

Principles of statutory interpretation could show § 61(a) [of the Internal Revenue Code] includes Murphy’s award in her gross income regardless whether it was an “accession to wealth,” as Glenshaw Glass requires. For example, if § 61(a) were amended specifically to include in gross income “$100,000 in addition to all other gross income,” then that additional sum would be a part of gross income under § 61 even though no actual gain was associated with it. In other words, although the “Congress cannot make a thing income which is not so in fact,” ... it can label a thing income and tax it, so long as it acts within its constitutional authority, which includes not only the Sixteenth Amendment but also Article I, Sections 8 and 9. ... (“Congress has the power to impose taxes generally, and if the particular imposition does not run afoul of any constitutional restrictions then the tax is lawful, call it what you will” [Penn Mut. Indem. Co. v. Comm’r, 3d Cir. 1960])... Accordingly, rather than ask whether Murphy’s award was an accession to her wealth, we go to the heart of the matter, which is whether her award is properly included within the definition of gross income in § 61(a), to wit, “all income from whatever source derived.”...

Even if we assume one’s human capital should be treated as personal property, it does not appear that this tax is upon ownership; rather, as the Government points out, Murphy is taxed only after she receives a compensatory award, which makes the tax seem to be laid upon a transaction.... Murphy’s situation seems akin to an involuntary conversion of assets; she was forced to surrender some part of her mental health and reputation in return for monetary damages....

Therefore, even if we were to accept Murphy’s argument that the human capital concept is reflected in the Sixteenth Amendment, a tax upon the involuntary conversion of that capital would still be an excise and not subject to the requirement of apportionment....

[W]e conclude (1) Murphy’s compensatory award was not received on account of personal physical injuries, and therefore is not exempt from taxation pursuant to § 104(a)(2) of the IRC; (2) the award is part of her “gross income,” as defined by § 61 of the IRC; and (3) the tax upon the award is an excise and not a direct tax subject to the apportionment requirement of Article I, Section 9 of the Constitution. The tax is uniform throughout the United States and therefore passes constitutional muster.

This is a dreadful ruling, but one entirely consistent with the law, the Constitution, and how governments typically behave. Indeed, that's the problem! Reading the opinion gave me a sense that the judges were engaged in a purely expedient exercise, without a principle in their heads. It was as though they were determined to find any case that supported their preconceived notion that the state may tax anything. Unfortunately, that is how states have been viewed historically. And the American state is no exception, however much the tax deniers think it is.

The Flimflam of Income-Tax Denial

My latest blast at the tax-denial movement is now posted at The Future of Freedom Foundation website. It's called "The Flimflam of Income-Tax Denial," and it's already getting me angry e-mail.

I hope no one will take me to be saying the income tax is moral and proper. On the contrary, I'm saying something very different: that it is legal (i.e., the government followed its regular procedures) and constitutional.

The tax-deniers often say things like: There is no law that obligates wage earners in the 50 states to pay income taxes. This is plain nonsense because it misconstrues what it means for a (positive) law to exist. For many years there has been a duly enacted section of the federal legal code that Congress, the executive branch, and the courts all interpret as requiring wage earners to pay taxes.

Now I doubt anyone will deny that. If it weren't true, no one would be penalized for not filing and paying taxes, and there'd be no tax-denial movement. You may disagree with that interpretation, but unfortunately those with constitutional power say you're wrong.

But that is what it means for there to be such a law. Thus the statement that there is "no law" is patently wrong. Law, in the positive (not natural) sense, is what Congress and the Executive, ratified by the courts, say it is. What else could it possibly be?

"Mirror Image of Hitler"

"The Law of Return is an apologetic law. It is the mirror image of Hitler. I don't want Hitler to define my identity."

--Avrum Burg, former Speaker of the Israeli Knesset, interviewed in Haaretz, June 24

The entire interview is worth reading.

Hat tip: Ralph Raico and Mondoweiss

Why They Hate Us

What’s more obnoxious than a person who constantly whines about the injustices committed against him while ignoring his own injustices against others?

A country that does the same thing.

The rest of this week's op-ed, "Why They Hate Us," is at The Future of Freedom Foundation website.

Last Taxpayer Standing

The popular American folklore that taxpaying citizens are the masters and government the servant might lead one to expect that taxpayers can sue the government when they think it has spent their money in a way that violates their rights. But that's not how the courts see the matter. By and large, taxpayers as such have no standing whatever to sue the government. Maybe the master is the servant and the servant the master.

The rest of this week's TGIF column, "Last Taxpayer Standing," is at the Foundation for Economic Education website.

Mind Your Brain

Of these two statements:

• The mind is the product of the brain; and
• The brain is the product of the mind

I should think that the second is closer to the truth.

America's Engineer

No president is more despised by opponents of big government than Franklin Delano Roosevelt. His New Deal is singularly blamed for introducing large-scale national economic intervention to the United States. But FDR did not drop from the sky. He emerged in a particular context that was shaped by his predecessors, without whom we might have never heard his name. His immediate predecessor of course was Herbert Hoover, the one-term Republican elected in 1928 who had the misfortune to be in office only several months when the stock market crashed. History has treated Hoover curiously. His enemies see him as the heartless leader who stood by as the population was ravaged by the Great Depression. His admirers see him as the last lion of laissez-faire individualism, valiantly resisting the tide of statism that washed over America in the 1930s.

Both pictures are grotesque distortions of reality driven by political interest.

The rest of last week's TGIF column, "America's Engineer," is at the Foundation for Economic Education website.

Bush's Tyranny Thwarted--For Now

The news media seemed too preoccupied with Paris Hilton’s detention to notice, but a U.S. appeals court last week struck a major blow for liberty. A three-judge panel of the U.S. Fourth Circuit Court of Appeals ruled that the Bush administration may not declare a U.S. resident, whether a citizen or not, an “enemy combatant,” throw him in a military prison, and hold him without charge indefinitely — all without judicial review. Try him in the civilian courts or let him go, the judges said.

This double affirmation of habeas corpus and defendants’ rights is a stunning setback for President Bush’s attempt to assert autocratic powers under cover of his "war on terror."

The rest of my op-ed "Bush's Tyranny Thwarted--For Now" is at the website of The Future of Freedom Foundation.

Free Trade Imperialism

Here's something left-libertarians need to attend to: Deepak Lal of UCLA is touting a program of unilateral free trade and unabashed U.S. worldwide empire. His book In Praise of Empires: Globalization and Order seems to be his most complete statement on this.

Here are some quotes from his article "Empire and Order" in the March/April issue of Historically Speaking (apparently not online):

[T]oday there is again an imperial power that has an economic and military predominance unseen since the fall of Rome. The United States is indubitably an empire. It is more than a hegemon, as it seeks control over not only foreign but also aspects of domestic policy in other countries. But it an informal and indirect empire.... It is an empire that has taken over from the British the burden of maintaining a Pax to allow free trade and commerce to flourish. This Pax brings mutual gains. The U.S., like the British in the 19th century, has borne much of the costs of providing this global public good, not because of altruism but because the mutual gains from a global, liberal economic order benefit America and foster its economic well being....

But the American imperium faces disorder in two broad regions of the world: first, the vast region spanning the Islamic world in the Middle East and Central Asia, and second, the continent of Africa. September 11 showed how failed states can provide a safe haven for terrorists who can directly threaten life and property in the American homeland. The maintenance of international order thus means ensuring that there is also domestic order in states that, if they fail, could become terrorist havens....

The United States has created the military structures to project its power, but it has failed to build the complementary imperial administrative structure required to run an empire....

Equally disturbing is the desire of all the participants in U.S. foreign policy to wrap themselves in the Wilsonian mantle. It seems that Americans find it difficult to give up their moral self-image of the shining city on the hill....

The major problem for the U.S. imperium is to keep its moralists at home.... But for the near future, despite its faults, the American imperium is here to stay. And it remains our best hope to maintain global order, as the British did in the 19th century.

In other words, if we want order, it's time America took off the gloves. No more Mr. Nice Guy, world.

Cross-posted at Liberty & Power.

Good Sense on Immigration

Immigration wisdom from Jeff Jacoby:

For most illegal immigrants, a legal option simply doesn't exist. Under current law, a young Mexican or Salvadoran who wants to improve his life by moving to America and working hard at a useful job generally has just two options: (a) Enter illegally, or (b) stay out forever. Several hundred thousand a year choose option (a).

To Representative [Steve] King and those who think the way he does -- the Pat Buchanans, the Lou Dobbses, the conservative talk-show hosts and their riled listeners -- the illegal entry is all that matters. They don't ask whether it makes sense to bar industrious and productive go-getters who value America as a land of opportunity and who supply labor for which there is a yawning demand. As far as they're concerned, illegal aliens are "immigration criminals," and the only issue on the agenda is how to keep them out....

But something is not wrong -- intrinsically wrong, bad in and of itself -- merely because it is illegal. It is against the law to put anything without postage into someone's mailbox.

If your neighbor prints flyers advertising a yard sale and drops one into each letterbox on the street, he has broken the law, but would anyone say he has done something evil?

Someone who crosses the border without a visa in order to find work doesn't deserve to be branded a "criminal." Doing so only inflames and confuses an issue that is contentious enough as it is. And it cheapens a word that should be reserved for those who purposely harm others through genuinely wrongful behavior: embezzlers, rapists, arsonists, murderers.

The demonizing of illegal aliens keeps us from having a rational discussion about US immigration policy.

Why Did They Attack?

Comedian David Cross's take on Ron Paul, Rudolph Giuliani, and bin Laden's reason for the 9/11 attacks.



Hat tip: Ben Richman

Free the New Youth 4!

A new blog has been started with the objective of freeing four young Chinese imprisoned for exercising their natural rights to free speech and assembly. "Free the New Youth 4!" can be found here.

Here's the post explaining the blog:

On May 28, 2003, Jin Haike (靳海科), Xu Wei (徐伟), Yang Zili (杨子立) and Zhang Honghai (张宏海) were sentenced to between eight and ten years for the crime of “subverting state power.” Their charges stemmed from a small, informal discussion group they’d formed and dubbed the “New Youth Study Group” in order to debate ways in which China could further progress and prosper.

The New Youth 4 Coalition seeks to end their unjust imprisonment and return freedom to these four individuals who represent the best of Chinese progressivism and forward thinking.

We hope that through the power of dialogue and communication, the Chinese authorities will correct this grave injustice.

Cross-posted at Liberty & Power.

Cory Maye Update

The latest from Radley Balko:

Last word on the Cory Maye case came late last summer, when the trial judge threw out Maye's death sentence due to ineffective assistance of counsel, and ordered a new sentencing trial. I heard from Cory's defense team earlier tonight that the DA's office has now said it will no longer pursue the death penalty.

That means Cory will now start his appeals process with the death penalty off the table. That's good news. But he'll still likely be re-sentenced to life in prison. So it's not great news.

Dare We Call It Tyranny?

The American people’s response to President Bush’s “war on terror” should be … terror. The administration, sometimes with Congress’s complicity:

is preparing for a 50-year stay in Iraq, complete with 14 military bases and an embassy larger than the Vatican. (Can there be a better recruiting program for al Qaeda?)

has abolished habeas corpus, the principle that for centuries has protected people from arbitrary confinement, for noncitizens declared to be “enemy combatants.” (While the federal courts have upheld the abolition of habeas corpus for detainees at Guantanamo Bay and elsewhere overseas, fortunately an appellate court has just ruled against the administration in the case of a legal U.S. resident, Kahlah al-Marri, arrested in the United States, a ruling the administration is appealing.)

unilaterally claims the power to use “enhanced interrogation techniques” — torture — on suspected terrorists and to turn them over to foreign governments known to torture prisoners. This has been done to persons later cleared of wrongdoing.

runs secret CIA prisons in Europe and elsewhere. Thirty-nine persons seized abroad and believed to have been in U.S. custody have disappeared, according to Amnesty International and Human Rights Watch.

violates our privacy by secretly accessing foreign phone calls, e-mails, and financial and other records — approved, if at all, only by a rubber-stamp “court.”

conducts searches without notice or judicially issued warrants. The administration’s assurances that it does not engage in misconduct are worth little, considering what has already come to light.

To hold onto the support of the American people for this dictatorial power, the Bush administration has engaged in its own form of terrorism by exposing domestic “plots” involving small rag-tag groups allegedly bent on, among other things, attacking Fort Dix and blowing up fuel tanks and pipelines near JFK International Airport....

The rest of the op-ed "Dare We Call It Tyranny" is at The Future of Freedom Foundation website.

Habeas Corpus's Fork in the Road

"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land."

--Magna Carta, this day, 1215

May the government declare a U.S. resident an "enemy combatant," throw him in a military prison indefinitely, and never charge him with a crime -- all without judicial review?

The Bush administration says yes. But in a key ruling (pdf) the other day, a three-judge panel of the U.S. Fourth Circuit Court of Appeals resoundingly said no. If it withstands further appeal, the decision will be a timely affirmation of the limits of executive power and the constitutional priority of civilian over military rule. Thanks, judges, we needed that.

The rest of this week's TGIF column, "Habeas Corpus's Fork in the Road," is at the Foundation for Economic Education website.

George II Thwarted (So Far) on Habeas Corpus

George II may not arrest a U.S. resident on U.S. soil -- citizen or not -- and hold him in a military brig without charge indefinitely. So says the Fourth U.S. Circuit Court of Appeals in an important 2-1 ruling yesterday. We can only hope it will be sustained on further appeal.

Contrary to the Bush administration's obnoxious autocratic position, Kahlah al-Marri (a married Bradley University student and father in the U.S. but a citizen of Qatar) has the right to file a habeas-corpus petition and the right to have any case against him handled by the civilian criminal justice system. This holds even if, as the administration charges, al-Marri is an al Qaeda "sleeper agent" who has volunteered for a "martyr mission" in the United States.

Money quote:

[T]he Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely. . . . To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them "enemy combatants," would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension [habeas corpus] Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. . . . We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

The opinion his here (pdf).

If you're watching cable TV news, you may not know about this case. The channels are too busy covering Paris Hilton's detention. I await the filing of her habeas corpus petition.

The U.S.S. Liberty

My excerpt below on the Six-Day War does not discuss the curious Israeli attack on the U.S.S. Liberty, an intelligence ship, on June 8, 1967, about which the U.S. government has been far from forthcoming -- to put it mildly. Yes, the Israeli Defense Force attacked an unarmed U.S. ship while engaged in a preventive war against its Arab neighbors. Thirty-four sailors were killed, 174 injured in the attack. For full details, see Jeffrey St. Clair's article about attack in Counterpunch.

Here's a taste:

In early June of 1967, at the onset of the Six Day War, the Pentagon sent the USS Liberty from Spain into international waters off the coast of Gaza to monitor the progress of Israel's attack on the Arab states. The Liberty was a lightly armed surveillance ship.

Only hours after the Liberty arrived it was spotted by the Israeli military. The IDF sent out reconnaissance planes to identify the ship. They made eight trips over a period of three hours. The Liberty was flying a large US flag and was easily recognizable as an American vessel.

A few hours later more planes came. These were Israeli Mirage III fighters, armed with rockets and machine guns. As off-duty officers sunbathed on the deck, the fighters opened fire on the defenseless ship with rockets and machine guns.

A few minutes later a second wave of planes streaked overhead, French-built Mystere jets, which not only pelted the ship with gunfire but also with napalm bomblets, coating the deck with the flaming jelly. By now, the Liberty was on fire and dozens were wounded and killed, excluding several of the ship's top officers.

...After the Israeli fighter jets had emptied their arsenal of rockets, three Israeli attack boats approached the Liberty. Two torpedoes were launched at the crippled ship, one tore a 40-foot wide hole in the hull, flooding the lower compartments, and killing more than a dozen American sailors.

...Within three weeks, the Navy put out a 700-page report, exonerating the Israelis, claiming the attack had been accidental and that the Israelis had pulled back as soon as they realized their mistake. Defense Secretary Robert McNamara suggested the whole affair should be forgotten. "These errors do occur," McNamara concluded.

...The Pentagon lied to the public about the attack on the Liberty from the very beginning. In a decision personally approved by the loathsome McNamara, the Pentagon denied to the press that the Liberty was an intelligence ship, referring to it instead as a Technical Research ship, as if it were little more than a military version of Jacques Cousteau's Calypso.

Tip hat: Mark Brady.

Illiberal Means, Illiberal Ends

The years 1914-1918 must have been lonely for Randolph Bourne. Bourne was a popular writer in Progressive circles, prolifically turning out articles for The New Republic and Seven Arts magazines. But soon the former, along with other publications, lost interest in his writing and the latter ceased operations, leaving Bourne out in the cold. What happened? Bourne bucked his fellow intellectuals, including his mentor John Dewey, and opposed U.S. entry into World War I.

The rest of this week's TGIF column, "Illiberal Means, Illiberal Ends," is at the Foundation for Economic Education website.