Senate President Wayne Niederhauser, addressing the Senate at the beginning of the 2014 legislature session, brought out the Utah constitutional principle of “fundamental principals” (Article I, Sec. 27) in the administration of government for the State. Unfortunately, when asked, neither the senator nor any of the other legislators asked were able to identify even one fundamental principle essential to administration of government. I am sure they know about natural rights of the citizens. Some of which are: (1) Natural rights, “There is no such thing in the theory of our national government as unlimited power of taxation in Congress. There are limitations of its powers arising out of the essential nature of all free government; there are reservations of individual rights, without which society could not exist, and which are respected by every government. The right of taxation is subject to these limitations.” (Loan Associates v. Topeka, 20 Wallace 655); (2) the source of their authority founded in the sovereignty of the people; (3) the purpose of a republican form of government for the State; “The United States is a republic rather than a democracy.” Corpus Juris Secundum, United States I, A, Section 2, Nature and Status; “. . . and to the republic for which it stands, . . .”, pledge of alliance.
“Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” (James Madison, Federalist Papers, #10) “In democracy . . . there are commonly tumults and disorders. . . . Therefore a pure democracy is generally a very bad government. It is often the most tyrannical government on earth.” (Noah Webster) And again as noted by James Madison in his Notes of Debates in the Federal Convention, that Mr. Rand; “observed that the general object was to provide a cure for the evils under which the U.S. labored; that in tracing these evils to their origin every man had found it in the turbulence and follies of democracy: . . .”
Yet the actions of present-day legislators evidence only a “lip service” to these and other ideals of the Founders while promoting a dictatorship of the majority, or democracy ignoring that: “One’s rights to life, liberty, and property … and other fundamental rights may not be admitted to vote; they depend on the outcome of no election. A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” (Lucas vs. Forty-forth General Assembly, 377 U.S. 713 1964)
As the legislature again meddles in the area of taxation it is evident that the “fundamental principles” take the back seat, or no seat at all! First of all there is a legal and a commonly understood definition of “theft”. Checking the on line legal dictionaries, one finds that they all agree:
Generally, a person commits the crime of theft of property if he or she:
- Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property;
- Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property; or
Without proof of intent to deprive, no criminal act has occurred. There must be an element of dishonesty which may be revealed from the words or actions of the perpetrator.
In common usage, theft is the taking of another person’s property without that person’s permission or consent with the intent to deprive the rightful owner of it
A criminal act in which property belonging to another is taken without that person’s consent.
theft: n. the generic term for all crimes in which a person intentionally and fraudulently takes personal property of another without permission or consent and with the intent to convert it to the taker’s use (including potential sale).
What is Theft?
The term theft is used widely to refer to crimes involving the taking of a person’s property without their permission. But theft has a very broad legal meaning which may encompass more than one category, and multiple degrees, of crimes. Theft is often defined as the unauthorized taking of property from another with the intent to permanently deprive them of it. Within this definition lie two key elements:
1) a taking of someone else’s property; and
2) the requisite intent to deprive the victim of the property permanently.
Theft: The act of stealing. The taking of property without the owner’s consent. Black’s Law Dictionary
Theft: is the general term and larceny the legal term for the unlawful or felonious taking away of another’s property without his or her consent and the intention of depriving the person of it. Webster’s
Nothing in the definitions cited imply that the legislature can change the meaning of Theft by legislation. The government has a strange meaning for the “voluntary” filing and paying of taxes in order to justify its position. The government fails to meet the common and legal definition of theft. Listening to Senator Harry Reid explain the position of the government shows the lack of education and why he and others with like understanding do not deserve the confidence of the people. (Interview with Jan Helfeld, youtube.com)
An essay found at patheos.com, makes an interesting defense of taxation: “Libertarians say that taxation is like theft because it takes property from the unwilling. What they ignore, time and time again, is the crucial role of democratic consent.” The author (unknown) is correct for a democratic society, what the author doesn’t understand that this is a Republic and natural rights are not subject to a majority consent. (As cited)
The “Takings” Doctrine and Eminent Domain and Just Compensation
When ever talking about government powers it is crucial to remember that we live within the framework of a Republican form of government. All political power remains with the people and only the essential powers necessary for the operation of government’s delegated authority are given to those representing the people. “Government” is not “sovereign.” Government is the machinery for expressing the will of the sovereign power (people) over objects entrusted to them collectively. City of Bisbee v. Cochise County, (78 P. 2d 982, 986, 52 Ariz. 1). “This means that the power of the majority is limited by those commonly held principles and that there is no legitimate power beyond them.” (Friedrich A. Hayek, The Constitution of Liberty)
“The term “sovereign power” of a state is often used without any definite idea of its meaning, and it is often misapplied. Prior to the formation of the federal Constitution, the states were sovereign in the absolute sense of the term. . . . The people of the states, by the adoption of the federal Constitution, imposed certain limitations in the exercise of their powers which appertain to sovereignty. . . . The sovereignty of a state does not reside in the persons who fill the different departments of its government, but in the people, from whom the government emanated; . . . . Sovereignty, then, in this country, abides with the constituency, and not with the agent; and this remark is true, both in reference to the federal and state governments.” Spooner v. McConnell, (22 Fed. Cas. 939, 943). Of these “powers” two are under attack by the legal profession under the color of law that of sovereignty and delegation of authority.
The leal profession should take special note of the clarification given by the court in the Bisbee case that “Government is the machinery for expressing the will of the sovereign power (people) over objects entrusted to them collectively.” No where in the constitutions of either the states or the Union have the sovereign people entrusted their personal property to the “collective” will of the people. That being stated, the respective governments cannot Take that property except by theft.
The doctrine of the “taking” clause comes from the Fifth Amendment of the Constitution and is fundamentally associated with the taking of property (land). “More accurately called the Eminent Domain Clause, the Taking Clause is part of the Fifth Amendment to the Constitution. . . .The Constitution does not expressly grant eminent domain power, which is regarded as an inherent power of government. Instead, the Taking Clause imposes limitations on the exercise of power, most importantly by the requirement that just compensation be paid the owner.” The Oxford Companion to the Supreme Court of the United States
Eminent domain has been held by some to be a “sovereign” power of the respective governments, State or Federal. The element of this proposition is understood by the title of “sovereign”. The Supreme Court has explained this constitutional concept time and again “Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, . . . And the law is the definition and limitation of power. (Yick Wo vs. Hopkins, 118 U.S. 356, 369-370) The legal profession is looking at constitutional law as an inherent power to do a thing, when it fact it is a limitation as explained by the Court.
From Constitutional Choices, Lawrence Tribe cites Justice Chase’s in Calder v. Bull (3 Dallas) 386, 388 (1798), Mr. Tribe stating: “Thus, in the memorable dictum in 1798, Justice Chase grandly announced the Supreme Court’s unequivocal condemnation of any law attempting to “take property from A and give it to B.” Mr. Tribe refers to the principle of “just compensation” in talking about the Takings doctrine. Legal counsel for the Utah State Tax Commission points out that the citizens owe a duty to the State for the protection and benefits that the State provides.
Looking at the “protection”, the State provides no protection to the people. It does provide protection for corporations as explained by the Supreme Court in the State Tax Commission vs. Aldrich (316 U.S. 174). That personal protection comes from the local law enforcement officers whose services are paid for by the property and city sales taxes. “Benefits”, I am not aware of any benefits that State provides. In fact the State income tax is ear-marked for public education only, of which I personally receive no benefit. This taking from “A” (citizens who do not attend a public school, or have children enrolled in a public school) and giving it to “B” (those who do make use of the public schools) is a prime example of is the Supreme Court’s unequivocal condemnation of such law. The State and Federal governments are shown to be good at theft and those citizens who are recipients of these entitlements support this taking.
“The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B. It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. . . . To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments. . . . With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment, and vindictive malice.” Calder v. Bull, supra. (Also cited by Justice O’Connor dissenting in Kelo v. City of New London, 545 U.S. 469)
It is not to say that the government operates without funds. Mr. Sherman, at the Constitutional Convention expressed that: “The object of the Union, . . . were few. 1. defense against foreign danger. 2. against internal disputes and a resort to force. 3. Treaties with foreign nations. 4. regulating foreign commerce, & drawing revenue from it.” (Madison’s notes on the debates)
My present case before the appeals court for the tax commission has yet to be answered. The only question that the appeals court can answer deals with the math and not the law as spelled out by the State of Utah. Utah code makes it clear at 59-10-502. “Persons required to file returns. (1) every resident individual, estate, or trust required to file a federal income tax return for the taxable year; . . .” Ms. Phan of the appeals court is restrained from ruling on this as it deals with a federal law respecting the liability of individuals to federal law in Title 26 of the United States Code. To do so would be an intrusion into the sovereignty of the federal government. This intrusion is forbidden by the Supreme Court as explained by then Chief Justice John Marshall in Mc’Culloch v. Maryland (17 U.S. 316): “In America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign, with respect to the objects committed to it, and neither sovereign, with respect to the objects committed to the other.” (at 410)
The appeals court has a formidable obligation to also how theft is not involved in any decision supporting the tax commission and the operation of the tax laws. L. Sherwood Glazier