IF YOU ARE WILLING TO USE IT. . . .
“The Congress shall have Power To lay and collect Taxes . . .”
Constitution for the United States of America
Article I, Section 8, cl 1.
It is very easy for myths to become traditions
and for traditions eventually to
become accepted as facts.
Understanding just what it means for Congress to have the “power to lay and collect taxes” requires an understanding of the fundamental principles of our Constitution.
“Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.”
Constitution for the State of Utah, Article I, Section 27
This one directive is found in a number of the State Constitutions . . . Its source is found in history.
“A frequent recurrence to fundamental principles is absolutely necessary to the preserve the blessings of liberty.”
Constitution of North Carolina, Article I, Sec. 35 (1776)
“The principles of this constitution to be thoroughly understood should be frequently contemplated.”
William Rawle (1759 – 1836)
“No free government, or the blessings of liberty can be preserved to any people, but by frequent recurrence to fundamental principles.”
George Mason (1725 – 1792)
As essential as this is to the preservation of our freedoms, it is interesting to note that when Utah’s Senate President Wayne Niederhauser delivered his address to the opening of the 2014 Senate, he referred to Article I, Section 27 of the State Constitution. The question was presented to him if he could identify some of the “fundamentals” that are essential to our freedom. Senator Niederhauser, along with several other of the Utah legislator have been unable to identify not even ONE fundamental. It demonstrates their lack of knowledge as the basics that would make any of them untrustworthy in passing legislation with the object of carrying on the State business and at the same time protecting the rights of the People.
The legislation that has the most direct effect on the liberties of the People has to do with taxation. The fundamentals associated with taxation in a Republic have over the past two centuries been forgotten. They are not taught in the school system, neither in the elementary nor in the higher schools of learning. Most assuredly, they are not taught in the law schools. This is on the list of things the government does not want you to know.
Benjamin Franklin’s prophecy of our current condition in Washington has come true as we observe the attacks on the sitting President Donald Trump.
“Sir, there are two passions which have a powerful influence on the affairs of men. They are … the love of power and the love of money. Separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent affects. Place before the eyes of such men, a post of honor that shall be at the same time a place of profit, and they will move heaven and earth to obtain it. . . .” Speech before the Constitutional Convention
By the lack of our own attention, we have sowed the seeds of contention into our political system. By not attending to fundamentals we have let the communism stimulated by personal ambition, enslave this Nation and plunder it at will disposing of this fundamental:
“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.” Supreme Court Justice Samuel Miller, Loan Associates v. Topeka, 20 Wallace 655 
There are several elements of fundamental value that make up the foundation of the power of taxation. To begin with it is essential to understand the legal language of the Constitution in the era in which it was written. One of the discarded fundamentals is the importance of the Common Law in understanding the meaning of the “silence” in the Constitution. When the English migrated to the colonies they brought with them the English Common Law. This was the law they were readily familiar with. The English Common law was developed from the Magna Carta, is a charter agreed by King John of England at Runnymede, near Windsor, on 15 June 1215. The Constitution of the United States was founded upon the Common Law.
“The only principles of law, then, that can be regarded, are those common to all the States. I know of none such, which can affect this case, but those that are derived from what is properly termed ‘the common law,’ a law which I presume is the ground-work of the laws in every State in the Union, . . .” Justice Iredell, Chisholm v. Georgia (1793)
“The symmetry and efficiency of our common law in producing justice has been a direct result of the fact that the common law is based upon the fundamental principles of right, from which fundamental principles the course of reasoning always begins, in preparing the way for the correct decision of the case in hand.” Circuit Judge A.H. Reid, Marquette Law Review (1917)
“The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Justice Matthews, Smith v. Alabama (1888)
“In our opinion, it must be governed by law, and we know of no system of law by which it should be governed other than the common law. That is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.” Justice Bradley, Moore v. United States, 91 U.S. 270 (1875)
“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.” Chief Justice Waite, Minor v. Happersett, 88 U.S. 21 (1874)
“In ascertaining the meaning of the phrase taken from the Bill of Rights, it must be construed with reference to the common law from which it was taken. 1 Kent, Com. 336. United States v. Wong Kim Ark, in which this court said: “In this, as in other respects, it [a constitutional provision] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. . . . The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent’s Com. 336; Bradley, J., in Moore v. United States,” Justice Day, Kepner v. United States, 195 U.S. 100
“The Constitution is a legal document and many terms are legal terms of art whose meaning was refined over preceding generations of the common law. Â To ignore the common law background of these terms is to discard valuable information that can give a more precise and definite meaning to language that may otherwise might seem vague or confusing.” John O. McGinnis is the George C. Dix, Professor in Constitutional Law at Northwestern University.
“But without understanding common law, you cannot understand either the original meaning of the Constitution or the way that meaning has been adapted to remain effective in our own time. Moreover, there is much about the common law that is alive today and plays no small part in supporting our lawful liberty. Finally, common law has been a means by which natural law or the law of reason has retained authority in American life.” Professor James R. Stoner, Jr. (Ph.D., Harvard University, 1987). He has taught at LSU since 1988 chaired the Department of Political Science since 2007.
Chapter XVI, §73. “There is, however, a difference between these two species of colonies in respect to the laws, by which they are governed, at least according to the jurisprudence of the common law.Â If an uninhabited country is discovered and planted by British subjects, the English laws are said to be immediately in force there; for the law is the birthright of every subject.Â So that wherever they go, they carry their laws with them; and the new found country is governed by them. . . .
“And so has been the uniform doctrine in America ever since the settlement of the colonies.Â The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation.Â The whole structure of our present jurisprudence stands upon the original foundations of the common law.” Joseph Story, (1833) General Review of the Colonies
“An important canon of construction is that constitutions must be construed with reference to common law, since, in most respects, the federal and state constitutions did not repudiate but cherished the established common law . . . It has been said that without reference to this common law the language of the federal constitution could not be understood.” 16 American Jurisprudence 2d, Â§113
“I agree with my dissenting brethren, that the constitution of the United States is an instrument and plan of government founded in the common law, and that to common law terms and principles we must refer for a true understanding of it, . . .” Justice John Catron concurring in Waring v. Clark, (1847)
The People can change the constitution, however, there are certain principles that cannot be altered, two being the “republican” form of government and the “common law.” As long as Article I, Declaration of Rights, remains in force in our State Constitutions, is in force the Common Law lives.
“I think it will be a great importance, when you come to the proper part, to portray at full length the consequences of this new doctrine, that the common law is the law of the U.S., & that their courts have, of course, jurisdiction co-extensive with that law. . . .” Thomas Jefferson, letter to Edmund Randolph, Aug. 18,1799, The Portable Thomas Jefferson.
When we begin to talk about the authority of the government to tax, it is essential to refer to the Common Law. This authority as laid out in Article I, Section 8, cl. 1, is not a blank check. This authority is defined by the Common Law, not the Civil law or Statutory Law. One of the Common Law fundamentals that should be understood is that the right to tax an object or the People and their property, is inherent in the “sovereign”. In our Republic, no other individual or group of individuals can arbitrarily assume the station of sovereign. The position of a sovereign has been defined by the Supreme Court and has never been invalidated.
In the opinion of the Supreme Court, M’Culloch v. State of Maryland (1819), Chief Justice John Marshall dealt into this fundamental definition quite extensively stating: “The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; . . .” (p. 429)
In our Republic, the Constitution deals with the relationship of Citizens and the government. Unless one choses, there are no “subjects” unless you live within the jurisdiction of congress. Justices Bradley and Harlan concurring with Chief Justice Waite in United States v. Erie Railroad Co. (1882), noted this important limitation on taxation.
“The power of the United States to tax is limited to persons, property, and business within their jurisdiction, as much as that of a state is limited to the same subjects within its jurisdiction.” Quoting from State Tax on Foreign-Held Bonds, 15 Wall. 300
Notice that those individuals who are “within its jurisdiction” are “subjects.” And just what land area did the sovereign people delegate to the United States government for which the government has “exclusive legislative jurisdiction?” Justices Bradley and Harlan go on to reaffirm Chief Justice Marshall’s stated fundamental from M’Culloch :
“In imposing a tax, says Chief Justice Marshall, the legislature acts upon its constituents. “All subjects,” he adds, “over which the power of a state extends are objects of taxation, but those over which it does not extend are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.”
Remember . . . there are no subjects except for those who subject themselves and forego the protection of the Constitution by living or work within the territories or lands governed by the exclusive legislation of Congress which includes the federal capitol, Washington D.C. These individuals have sold their liberties for government charities and are now legitimate subjects of Congress. They have a “foreign” relationship to the citizens of the various States of the Union just as the States are foreign to each other, and the States are foreign to the federal government because these have a unique jurisdiction of their own. The opinion proceeds:
“There are limitations upon the powers of all governments without any express designation of them in their organic law — limitations which inhere in their very nature and structure — and this is one of them . . .”
Justice Story said, speaking for the Court, In the case of The Appollon:
“The laws of no nation (and States) can justly extend beyond its own jurisdiction except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction. And however general and comprehensive the phraseology used in our municipal laws may be, they must always be restricted in construction to places and persons upon whom the legislatures have authority and jurisdiction.”
This is why the jurisdiction of the States does not extend beyond their borders, the same as with the jurisdiction of the federal government does not extend beyond its constitutional borders. Justice Thomas, writing a concurring opinion in United States v. Lopez, emphasizes the simple truth that;
“”[N]o one disputes the proposition that `[t]he Constitution created a Federal Government of limited powers’ . . . . (Quoting from New York v. United States)
“Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them”). Indeed, on this crucial point, the majority and Justice Breyer agree in principle: the Federal Government has nothing approaching a police power.”
In our Republic Marshall’s definition for State purposes also applies to all government authority whether it be Federal, State or local. “Sovereignty . . . extends to everything which exists by its own authority, or is introduced by its permission.” Sovereignty has different definitions in a monarchy, in a dictatorship or in a democracy. And this is where we as a Nation have lost sight of our Republic. We have incorporated the principles of a democracy into the functions of a Republic to the extent that the majority now has “sovereign” powers to do as they wish. This is the thinking of present-day legislatures.
To put this into its proper contents; whether an individual, group or agency, their capacity as a sovereign pertains to and is limited to objects which they create, exist by their authority, or are introduced by their permission.
“All legislative powers appertain to sovereignty.” (p.409)
“. . . the power of taxation . . . is an incident of sovereignty, and is co-extensive with that to which it is an incident.” (p. 429) 17 U.S. 316
The real question that our governments fail to ask or address is that in our Republic, who is the “sovereign”? relying on the definition of Chief Justice Marshall, the People are not the creation of the State, nor do we exist by its authority or permission. If there is a “sovereign” over the People it exists in their Creator. (Genesis 1:27)
Remembering the definition, when the two stand together, the government or the People; who is the “sovereign.” We look at the preamble to the contract: “We the People of the United States, . . ., do ordain and establish this Constitution for the United States of America.”
It is undeniable that the People are the “creators” and that this contract or Constitution allows the Union to exist and does so by their permission.Â Chief Justice Marshall, in the M’Culloch opinion rejected the State of Maryland’s defense that the Constitution was the act of sovereign and independent states. Saying: “From these conventions, the constitution derives its whole authority. The government proceeds directly from the people; is ‘ordained and established,’ in the name of the people; . . .” (p. 403)
In the structure of the Constitution, there is nowhere to be found the authority delegated to the government to tax the People directly, not withstanding the opinions of many.
“The Sixteenth Amendment to the Constitution authorizes Congress to impose an income tax.” Ms. ReNae Fielding, Disclosure Officer, IRS (1994)
“. . ., [A]t present, U.S. law requires individuals . . . to file and pay Federal income taxes.Â This power to collect tax on income arises primarily fro the 16th Amendment . . . .” Senator Orrin Hatch, Utah (2004)
With respect to the ‘learned’ legislators and attorneys, the Sixteenth Amendment does not give that authority to governments. To stand on this assumption flies in the face of Common law fundamentals already addressed previously, to wit: that the power to tax is a attribute found in the sovereign and the sovereign being to People.
The Supreme Court addressed this erroneous assumption early on. After the passage of the 16th amendment, the supreme court was given the opportunity to address some of the contentions being put forth by the various courts. This particular contention was addressed by Chief Justice White in Brushaber vs. Union Pac. Railroad (240 U.S. 1). In the Brushaber case  Justice White made it abundantly clear in his opinion that:
“We are of the opinion, . . ., that the confusion . . . arises from the conclusion that the Sixteenth Amendment provides for a hitherto unknown power of taxation, that is, a power to levy an income tax which although direct should not be subject to the regulation of apportionment applicable to all other direct taxes. . . .[T]he far-reaching effect of this erroneous assumption will be made clear . . . .(p. 11)
“It is clear on the face of this text (16th Amendment) that it does not purport to confer power to levy income taxes in a generic sense, an authority already possessed and never questioned, . . . .” (p. 17)
That same year the Court reaffirmed this principle in Stranton vs. Baltic Mine, (240 U.S. 189): “. . .(B)y the previous ruling (Brushaber) it was settled that the provisions of the Sixteenth Amendment conferred no new power of taxation . . .”
It is interesting to note that the Sixteenth Amendment does not delegate any authority to Congress to enforce this amendment as directed in amendments 13, 14, 15, 18, 19, 23, 24, or 26 where the amendments declares:
“The Congress shall have the power to enforce this article by appropriate legislation.”
This is because, as Justice White points out:
“[T]he whole purpose of the Amendment was to relieve all income taxes when imposed from apportionment from a consideration of the source whence the income was derived.” (p. 18)
The majority of Congress “persons” in Washington fail to equate this provision when talking about the sixteenth amendment. Senator Rand Paul points out this in an email letter as he calls our attention to the fourteenth amendment as Congress is delegated authority to enforce these amendments when called upon by the Constitution.
Another fundamental which limits Congress’s authority is found in the Common law principle of delegation. That principle simply put states that the sovereign can only delegate what the sovereign has. Put another way â€œoneâ€ cannot delegate what one does not have. Since no individual or group of individuals have any sovereign authority over the life, liberty or property of another, not as one or as many can that sovereignty be transferred.
What “sovereign” powers inherent in the individual can be delegated to the government? In the decisions of the Supreme Court and other “legal” scholars, are agreed that “sovereignty” resides in the people. The people in turn delegate to their creation (government) only those powers they hold in common. In taking a principle expressed by the Supreme Court, Ezra Taft Benson reminds us that; “The creature cannot exceed the creator.”
“As stated by this Court in West Virginia State Bd. of Educ. v. Barnette, 319 US 624, 638,Â ‘One’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’
“A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” Chief Justice Earl Warren, Lucas v. 44th Gen. Assembly of Col., (1964)
Several legal maxims lay this out:
“One cannot transfer to another a right which he has not.”
“He gives nothing who has nothing.”
“Nemo dat quod non habet”, literally meaning “no one gives what he doesn’t have” is a legal rule.
Limits of Government Authority
So there are the fundamentals of “sovereignty” and of “delegation” that should guide our legislatures. A third fundamental that is a limitation on the Federal government is explained in jurisdiction. More precisely, that of territory. This principle is found in the Constitution article I, section 8, clause 17:
“The Congress shall have Power . . .  To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; . . .”
In June of 1957, the government of the United States published a work entitled Jurisdiction Over Federal Areas Within the States; Therein the Committee stated: “The Constitution gives express recognition to but one means Federal acquisition of legislative jurisdiction–by State consent under Article 1, Section 8. Clause 17….” [T]he Constitution provided the sole mode for transfer of jurisdiction, and that if this model is not pursued. no transfer of jurisdiction can take place.”
Note also in Article IV, Section 3, cl. 2 of the Constitution: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; . . .”
Title 18, section 7 (3) of the United States Code defines the “Special maritime and territorial jurisdiction of the United States….” The language of this statute follows the language of Article I, section 8, clause 17.
The legislative authority of Congress has been delegated by the People to the area known as the District of Columbia and “over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” This is plain and simple. Search your State statutes and see what if any, the State has ceded legislative jurisdiction over your communities, places of worship or places of employment.
Notice that Article I, Section 8, clause 17; Article IV, Section 3, clause 2 and Title 18, section 7(3) limits the legislative jurisdiction of Congress. Article IV, Section 3, clause 2 of the Constitution confines the legislative and regulatory authority of Congress only to territory and property “belonging to the United States”. Title 18 and clause 17 of section 8 in Article I also limits that authority to the District of Columbia and “Places purchased by THE CONSENT of the . . . State” (emphasis added) for government purposes. Legislation being an attribute of a sovereign; and the government of the Nation has NO inherent sovereign powers, only those powers delegated to it by the sovereign people and over “everything which exists by its own authority, or is introduced by its permission.” Enforcing constitutional legislation is a “police power” that accompanies that legislative authority. This limitation of authority is defined also by the “police power” inherent the sovereign and Justice Thomas has spoken correctly that the federal government has NO police powers within the States. The federal government has no sovereign authority over the People or land areas within the States. The exception over land areas would have to come from cession by the State, and over People by contract or voluntary submission to government authority. (This is where one’s signature on the IRS 1040 form is evident of a voluntary act by the person.)
In June of 1957, the government of the United States published a work entitled Jurisdiction Over Federal Areas Within the States; Therein the Committee stated: “The Constitution gives express recognition to but one means Federal acquisition of legislative jurisdiction–by State consent under Article 1, Section 8. Clause 17….” [T]he Constitution provided the sole mode for transfer of jurisdiction, and that if this model is not pursued. no transfer of jurisdiction can take place. . . .
“It scarcely needs to be said that unless there has been a transfer of jurisdiction (1)pursuant to clause 17 by a Federal acquisition of land with State consent. or (2) unless the Federal government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being exercise by the State, subject to non-interference by the State with Federal function. . . . The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State.”
In a case before the Supreme Court in 1836, Justice McLean made it known that: “Special provision is made in the Constitution for the cession of jurisdiction from the States over places where the federal government shall establish forts or other military’ works. And it is only in these places, or in the territories of the United States, where it can exercise a general jurisdiction.” New Orleans v United States, 35 US 662
In his concurring opinion, Supreme Court Justice Clarence Thomas clearly stated: “There are other powers granted to Congress outside of Art. I, 8 that may become wholly superfluous as well due to our distortion of the Commerce Clause. For instance, Congress has plenary power over the District of Columbia and the territories. See U.S. Const., Art. I, 8, cl. 15 and Art. IV, 3, cl. 2. The grant of comprehensive legislative power over certain areas of the Nation, when read in conjunction with the rest of the Constitution, further confirms that Congress was not ceded plenary authority over the whole Nation.” United States v. Lopez, 514 US 549
Search as you might, there is no other language that can one can even spin that will say any differently than what has been spoken. When a State enters the Union, it does so on an equal footing with the original thirteen States. After the Revolution, the thirteen colonies became thirteen “nations”. There was no federal government; each nation was sovereign over the lands and people within its boarders. In constructing the Constitution, the People declared the limits of Federal legislative jurisdiction. That is every law passed by the Federal Congress was limited to the areas designated by clause 17, Section 8 of Article I of the contract and to areas ceded to the Federal government. In short, pass what laws and regulations they might, they have no force and effect upon the People outside of their jurisdiction. Title 26 of the United States Code, dealing with taxes has no effect on the sovereign States or People.
The bottom line is; Congress deficient in its authority to control the lives of the people or the activities of the States. Congress is not sovereign; it has no sovereign powers regarding taxation of the People delegated to it by the People; it has no territorial jurisdiction, such as, legislative authority within the States. What does this say about the income tax, or for that; Obamascare!
It is up to each individual to do the research and come to their own conclusion. Then take a stand against the tranny coming out of Washington because of the ignorance of the power structure. President Donald Trump is doing his best to ‘drain the swamp’, however, the swamp is bigger than he realizes. The powers are deeply entrenched or rooted and it will take more than President Trump to pull out the weeds. As observed the opposition is coming from all sides. The education of the rights and duties of the People is the only thing that will save our Nation.
“Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” James Madison
L. Sherwood Glazier