The Grassroots Corner November 1, 2021

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  • Source: FAIRtax
  • 11/01/2021

It does not happen often, but sometimes a person is drawn to our group who believes the federal income tax, which we have had for over 100 years, was never validly enacted. This person presents a challenge for us because we recognize that the income tax is the legitimate law of the land today.

The FAIRtax movement’s goal is indeed to get rid of the income tax, but not by questioning its legitimacy.  In a nutshell, our goal is to highlight the differences between the income tax and the FAIRtax and convince people that the FAIRtax is the much better way to fund the government.  When people understand the stark differences between the two tax systems, the FAIRtax wins every time.

Recently a gentleman came to us who believes that the income tax violates the Fifth Amendment’s prohibition against deprivation of property without due process of law. Here is how we responded.

Thank you for reaching out to us with your article. We agree with your objective of replacing the income and estate taxes with a federal sales tax. However, our legal conclusion is different from yours.

Our brief analysis indicates that the income tax and the estate tax do not violate the Fifth Amendment’s proscription of a taking property without due process. Here are our reasons.
One maxim of statutory – and constitutional – construction is that the Sixteenth Amendment to the Constitution, providing for taxation of income without apportionment, should be read together with the Fifth Amendment, giving every word meaning and avoiding conflict.
But even if there is a conflict between the Fifth and the Sixteenth Amendment, the Sixteenth Amendment is specific to income taxes, while the Fifth Amendment sets forth only a general prohibition against deprivation of property without due process of law. Rules of construction call for specific language of the Sixteenth Amendment to control the general language of the Fifth Amendment.
It should also be noted that the drafters of the Sixteenth Amendment had the Fifth Amendment in front of them when they set about their work. One must presume that the drafters intended for their work to have meaning. If the preexisting Fifth Amendment were to trump the Sixteenth Amendment into oblivion, the drafters would have wasted their time submitting the Sixteenth Amendment to the state legislatures for ratification.
But let’s say for the sake of argument, that you are absolutely right in your analysis, and the Sixteenth Amendment is not enough to render income and estate taxes constitutionally valid. We would still prefer for policy reasons to stay clear of that argument. Here’s why.
The income tax has been in effect for over 100 years.  It has withstood other challenges in U.S. District Courts. With very few exceptions, the income tax is accepted by our fellow Americans as the law of the land.
The FAIRtax asks our fellow Americans to take a sizeable leap and think outside the box. We need first, therefore, to meet our fellow Americans where they are today. For that reason, we start with the premise that the income tax and the estate tax are the law of the land. If we start there, Americans will come to understand that we are not tax protestors but serious tax reformers.
Imagine if we were to start on the other foot and lead with the argument that the income tax is invalid.  If we did that, most Americans would view us as a fringe group that’s out of touch with reality and shut us off from any further discourse. Our first goal must be to get past the initial resistance that all human beings have to something new like the FAIRtax.

The better approach is to acknowledge the validity of income and estate taxes, but then show people just how unstable, unfair, inefficient, invasive, abusive, fraud prone, error prone, politically weaponized, and incomprehensivle the income tax has become over the years.  Compare all the shortcomings of the income tax with the elegant simplicity of the FAIRtax, and it’s crystal clear which is the better system.

We believe that most Americans can be brought around to understand those points and become receptive to the FAIRtax message, but not if we turn them off to our message at the outset. We say about the FAIRtax, “Once you understand it, you’ll demand it!” 

Thanks again for your submission. We hope after reading this response, you will get on board with us.

Have you been approached by someone like this gentleman? If so, I would love to hear how you handled it.
Yours In the FAIRtax Movement!

Jim Bennett
AFFT Grassroots Coordinator & Secretary


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