Talk:The Law that Never Was

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[edit] Current Litigation Regarding The Law That Never Was

The cases of United States v. Foster, 789 F.2d 457 (1986) and United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986) cannot, in my opinion, withstand scrutiny.

In Foster the Seventh Circuit concluded that the validity of an amendment’s ratification is a non-justiciable political question because courts are bound by the enrolled bill rule. [1] The enrolled bill rule, at the time of the 16th Amendment ratification process, was found at Section 205 of the Revised Statutes, and stated:

Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published n the newspapers authorized to promulgate the laws, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.

“[t]he provisions of the Constitution” referred to is Article V of the United States Constitution. It requires the legislatures of three-fourths of the several States to ratify a proposed constitutional amendment. The Foster Court ignored this requirement when it held: “official notice to the Secretary, duly authenticated, that they had done so [ratified the nineteenth amendment] was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts.” [2]

This so called “conclusive presumption” is anathema to the entire constitutional system of checks and balances. According to the Seventh Circuit, and other courts, [31] only notice of ratification is required, not actual ratification as required by Article V. The proof of whether or not a state actually ratified a proposed amendment is contained in the state’s legislative journals. The purpose behind a legislative journal is to record exactly what transpired so the people can keep abreast of what our elected officials are doing, and perhaps more importantly, how they are doing it.

The Thomas Court supposedly “specifically examined the arguments made in The Law That Never Was” [3] and concluded that Benson did not discover anything but only rediscovered something that Secretary Knox considered in 1913. [4] The legislative journals obtained by Benson belie this assertion. Benson discovered, among other things, that the States of Oklahoma [5], Missouri [6] and Washington [7] intentionally changed the wording of the 16th Amendment proposed by Congress.

When then Secretary of State Knox received the certified copies of certificates of ratification from the various states and noted the certificates contained language different from that proposed by Congress, Knox asked the Office of the Solicitor of the Department of State for a legal opinion as to whether or not a sufficient number of states has ratified the proposed 16th Amendment. The Solicitor’s memorandum, dated February 15th, 1913, is contained in The Law That Never Was. [8]

From the Solicitor’s Memorandum of February 15, 1913:

In no case has any legislature signified in any way its deliberate intention to change the wording of the proposed amendment. The errors appear in most cases to have been merely typographical and incident to an attempt to make an accurate quotation. Furthermore, under the provisions of the Constitution a legislature is not authorized to alter in any way the amendment proposed by Congress, the function of the legislature consisting merely in the right to approve or disapprove the proposed amendment. It, therefore, seems a necessary presumption, in the absence of an express stipulation to the contrary, that a legislature did not intend to do something that it had not the power to do, but rather that it intended to do something that it had the power to do, namely, where its action has been affirmative, to ratify the amendment proposed by Congress. Moreover, it could not be presumed that by a mere change of wording probably inadvertent, the legislature had intended to reject the amendment as proposed by Congress where all parts of the resolution either than those merely reciting the proposed amendment had set forth an affirmative action by the legislature. For these reasons it is believed that the Secretary of State should in the present instance include in his declaration announcing the adoption of the 16th amendment to the Constitution the States referred to notwithstanding it appears that errors exist in the certified copies of Resolutions passed by the Legislatures of those States ratifying such amendment. [9]

The Solicitor relied on a series of necessarily connected presumptions to reach his conclusion of ratification. Benson’s evidence raises two problems. First, the presumption that no state intended to alter the proposed amendment is patently false. Second, the ultimate conclusion drawn from the false presumption is also false. At least three of the notices of ratification does not contain only mere minor typographical errors incident to an attempt to make an accurate quotation.

Proof of these intentional changes by Oklahoma, Missouri and Washington are clearly contained in The Law That Never Was. Had the Thomas Court “specifically examined the arguments made in The Law That Never Was,” it would have known that the Knox relied upon false presumptions, and that several states did not, in fact, ratify the proposed 16th Amendment.

These issues are currently before a court in United States v. Benson, Case No. 1:04-cv-07403 (N.D.Ill.E.D. 2004). The details of the case, including copies of the pleadings on file, may be seen by visiting http://jeffdickstein.com.

Jdlaw47 17:04, 22 September 2007 (UTC)

[1] United States v. Foster, 789 F.2d 457, 462-63, n. 6 (1986).

[2] Id.

[3] United States v. Benson, 941 F.2d 598, 607 (7th Cir. 1991).

[4] United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986).

[5] W. Benson & M. Beckman, The Law That Never Was (1985), pp. 63-65.

[6] Id., p. 191.

[7] Id., p. 114.

[8] Id., pp. 5-20.

[9] Id., pp. 19-20.

—Preceding unsigned comment added by Jdlaw47 (talk • contribs) on 22 September 2007.

Dear fellow editors: Regarding the above commentary by Jdlaw47, Jeff Dickstein is Benson's attorney. The District Court rejected Benson's arguments and issued a permanent injunction against Benson. The article has been updated to reflect these developments. Yours, Famspear (talk) 19:39, 11 January 2008 (UTC)

If a state voted against ratification of the Amendment, but was counted as having voted in favor of it, it is absolutely unbelievable that there would be no subsequent comment on the subject by the erroneously counted state, nor by any of that state's opponents of the amendment, or indeed opponents of the amendment in general. It can hardly be supposed that this, the first effort to amend the constitution since the Civil War, would have passed without public notice. bd2412 T 22:50, 11 January 2008 (UTC)

Yes. Here's an excerpt from some commentary by me in an archive on the talk page for the Sixteenth Amendment article:

On the question of alleged fraud by Secretary Knox, "proving" fraud would presumably entail proving that a certain number of states really did not ratify the amendment, and that Knox knew that. This would be like trying to prove that any other amendment was not really ratified, or that the original constitution itself was not really ratified. This is a practical impossibility -- for what should be an obvious reason. If a particular state legislature really did not ratify a particular amendment, how would things go forward without the members of that legislature raising the political furor mentioned by editor Robert A. West in the Secretary Rice example?

On this point, the basic idea seems to be (1) that some states that were listed as having ratified the Amendment really did not ratify it, and (2) that Secretary Knox committed "fraud" by listing those states as having ratified it, and (3) that none of the members of the legislatures of those states noticed even though the Amendment was published as having been ratified by those same states or, if they did notice, they did not publicly object, and (4) that nobody else noticed the "fraud" from the year 1913 to the 1970s or 1980s or whenever the first court cases on this issue were brought, and (5) that Mr. Benson somehow did all this research and figured all this out, and (6) that Mr. Benson, when charged with criminal tax violations, was unable to prevail in court despite having done all this "research" on the Sixteenth Amendment, and (7) that no one else who has read his book and looked at Benson's "research" has ever been able to prevail in court on Benson's Sixteenth Amendment arguments, either. Is this about it? How easy or difficult would it be to "prove" that any state listed as having ratified the amendment did not "really" ratify it? I personally suspect that the answer is that it would be almost impossible to "prove" that any such state did not ratify it.

As a footnote, the officer responsible for certifying ratification of constitutional amendments is now the Archivist of the United States rather than the Secretary of State.

As in the time of Secretary Knox, the certification is nothing more than a ministerial act. The ratification itself is done by the states (by state legislatures or conventions), not by the Archivist or Secretary of State. I submit to you that it would be virtually impossible for the Secretary of State (or, now, the Archivist) to fraudulently certify the ratification of a constitutional amendment without the affected state legislatures screaming bloody murder. Even the CIA can't keep some of its most important secrets. The idea that Secretary of State Knox openly, deliberately, falsely listed one or more state legislatures as having ratified a constitutional amendment paving the way for the modern Federal income tax and that this supposed fraud did not provoke a political firestorm in the year 1913 is, in my opinion, laughable.

[end of quote]

What is interesting to me is that so many tax protesters are so gullible; they eagerly swallow the Benson story -- a story from a guy who has been officially named in at least one court decision as having committed fraud on this non-ratification argument, and who has already spent time in prison after unsuccessfully using the same argument. Famspear (talk) 01:54, 12 January 2008 (UTC)

Yep - tax protester theory tends to approach Invisible Green Dragon territory - where each piece of evidence presented against the theory is read by the protester as further evidence that a conspiracy exists to "squelch the truth". bd2412 T 02:18, 12 January 2008 (UTC)

For the average tax protester it must be grating on the nerves to hear the truth -- which is that the Congressional power to impose the income tax on compensation for services (for both individuals and corporations) has always been authorized under Article I, and has never been deemed to be a direct tax, and has never been required to be apportioned. Tax protesters cannot bear to hear that even in Pollock, the Supreme Court indicated that an income tax on compensation for services, was in essence perfectly valid if Congress chose to enact such a tax without also taxing interest, dividends and rents.

The genesis for the "Sixteenth Amendment" attacks by tax protesters (whether they were Benson's fraudulent "non-ratification" argument, or the silly "Ohio was not a state" argument, or other arguments) was the futile, dysfunctional, dishonest search for various rationales to justify the attempted evasion of Federal income taxes. By taking only a portion of the language of the Amendment out of context (the "shall have power to tax incomes" wording) and simply ignoring the rest, as well as ignoring the Pollock case (which of course was the whole reason for the Amendment) -- what I believe you yourself once called a process of verbal "gematria" -- tax protesters deluded themselves. They developed the erroneous "belief" that if only the Amendment were just somehow not a valid part of the Constitution, then Congress could not validly impose an income tax.

The "Sixteenth Amendment is somehow not really valid" arguments are based on a lie, or often a series of lies: an elaborate series of "house of cards" arguments. Famspear (talk) 03:11, 12 January 2008 (UTC)

[edit] Duplication of "changes in punctuation" comment

The article states:

Thirty-one states approved the amendment, but with changes in punctuation, and the inexact version was accepted as a ratification of original version.

Twenty-six states approved the amendment, but with changes in punctuation, and the inexact version was accepted as a ratification of original version.

Obviously one of these is incorrect, and probable intended to refer to something else - but which one, and how? bd2412 T 19:25, 11 January 2008 (UTC)

Hmmm. I'll try to find something on this on Benson's website -- but I think I'll have to do it quickly, considering the injunction against him. I'll try to get to this tonight. Famspear (talk) 19:35, 11 January 2008 (UTC)

OK, I found nothing on Benson's web site. I do not have access to the book itself, so I have modified the language to reflect what I assume the editor who inserted it was trying to say. Famspear (talk) 16:59, 12 January 2008 (UTC)

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BetacommandBot (talk) 02:34, 12 February 2008 (UTC)