On Becoming a Right Wing Whacko

The story of a Mr. Ed Brown and his wife Elaine in New Hampshire (the “Live Free or Die” state) brings to mind once again the tortuous web of the Internal Revenue Code. Mr. Brown declined to attend the last day of his tax evasion trial, choosing instead to go home and forgo the puppet show of justice that was unfolding in district court.

This writer has followed the Truth in Taxation movement for some time, and has attended and read transcripts of federal tax trials. Anyone who has can understand how Mr. Brown might think he was being railroaded. Of the 42 motions he filed in his trial, not a single one was granted. When Brown received a copy of the judge’s planned jury instructions, he knew further resistance was useless. He just went home.

Judges and prosecutors in tax trials carefully control the information juries get to see. Judges often coach prosecutors to help them along. Judges routinely lie to juries, telling them, in defiance of hundreds of years of common law tradition, that they can judge only the facts and not the law. The law is never debated in any meaningful way. The judge tells the jury what the law is, no other source of legal information or opinion is allowed. 

At the trial that put income tax author Irwin Schiff in jail recently, probably for the rest of his life, the judge remarked “I will not allow the law in my courtroom!”  It’s hard to be clearer than that.

An ill informed jury convicted Mr. Brown in absentia of tax evasion. He is at home awaiting arrest. He probably would have been arrested already had he not sworn to shoot any federal agent who sets foot on his property. The feds are not eager for a repeat of the debacles at Ruby Ridge or Waco. They’ve decided to wait a while and see what shakes out before going after Mr. Brown ─ a commendable, if self-serving, decision.

Mr. Brown’s behavior at this point surely puts him in the forefront of right-wing whackoism. By the standards of common knowledge, that is just where he belongs.

What I want to examine, however, is how people like Mr. Brown get to thinking what they do. Could he really be crazy? He’s a pest exterminator, for crying out loud, not a group known for its proclivities to violent rebellion or raving lunacy.

And what is it about the income tax that spawns so much controversy? You never see anyone protesting other tax laws. Nobody ever goes to jail for objections to taxes on phone calls, or plane tickets or gasoline, or tobacco, or liquor or any of the dozens of other federal taxes. Do your have to be nuts to think like Mr. Brown?

There is something about the income tax that’s not quite right. There is also something that those who are most suspicious of the tax have in common, and it is not a tendency to rebellion or a wish to ruin their own lives.

What the questioners have in common is a better than average knowledge of American civics and a desire to live under the rule of law. To question the income tax requires a basic understanding of the U.S. Constitution and the limits it places on the federal government. This is an understanding that most Americans do not bother to acquire and that no one receives in a government school.

By knowing a few simple definitions and key parts of the Constitution, however, you too could begin to think there's something fishy about the income tax. I will now condense years of study for you into a few hundred words that I hope will give you a leg up to hopping aboard the right wing whacko freedom train.

Here’s what you do, please excuse the less than lively prose styles of founders, scholars and judges.

You read Article 1, Section 9 of the United States Constitution:

"No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

You find out what a “capitation” or “direct tax” is in Black’s Law Dictionary:

“Direct Tax: One which is demanded from the very persons who it is intended or desired should pay it."

Then double check with economist, Adam Smith, who wrote this in “The Wealth of Nations” right around the time of the writing of the Constitution:

"The taxes which, it is intended, should fall indifferently upon every different species of revenue, are capitation taxes,..."  "[As applied to the working class,] Capitation taxes... ...are direct taxes upon the [earnings] of labour,..." 

That sounds like our income tax, all right.

You make sure the 16th Amendment didn’t change the Constitution’s rules about taxes by looking to the Supreme Court’s famous Brushaber decision that says:

“… confusion… arises from the conclusion that the 16th 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. And the far-reaching effect of this erroneous assumption will be made clear…”[in the decision that they then wrote, although no one would call their writing style “clear”]

So, direct taxes must still be apportioned. Thus, the income tax must be, and the courts have said it is an “indirect” or “excise” tax.

This time you find the definition of “excise tax”, in the Thompson Gale Legal Encyclopedia:

A tax imposed on the performance of an act, the engaging in an occupation, or the enjoyment of a privilege.

You understand now that if the income tax is a non-apportioned direct tax it is clearly illegal. But you also realize that it is unlikely that an illegal tax could have survived so long on the books.  There must be something about it you don’t know. Something fishy.

You might also decide that those subject to the income tax must be involved in some “privileged” activity. But what?

Unfortunately, I’ve run out of space to tell you. But I hope I’ve demonstrated that you needn’t be crazy to think there is something amiss with the income tax. All you have to do is know more than is good for you.

I’ll be back with still more information next week that you can use to join the ranks of what the political class would like you to believe are doomed tax scoff-laws.

I’ll also let you know if Mr. and Mrs. Brown continue to live free or if they die.