In February, one hundred years ago, the United States ratified the 16th Amendment establishing a federal income tax on individuals regardless of apportionment and census results. Like the 13th, 14th, and 15th Amendments, the 16th Amendment radically changed the relationship between the federal government and the states. Given the source of the current outcry against federal taxation and what the federal government does with money from individuals as an imposition on those individuals and presumably the states in which they live, this history of this Amendment - and some of its corresponding historical intrigue - bear mention on this hundredth anniversary of its birth.
William Howard Taft - perhaps the President best known for the buyer's remorse of his most ardent backer - acquiesced to a progressive agenda as Vice President but adopted a conservative "stand pat" platform once in office. In 1909, he proposed a 2% income tax on corporations for reasons that would make our current president proud: for the privilege of doing business in these United States. Shortly thereafter, Congress moved forward on a general income tax Amendment. The income tax was heavily favored by the Western and Southern states; Alabama was the first to ratify in August, 1909 while the great Commonwealth of Massachusetts and our northern neighbor New Hampshire only acquiesced after the required 3/4 of the remaining states had already agreed. Nearby Connecticut and Rhode Island rejected it outright. Places now called "red states" signed on enthusiastically while "blue states" were lukewarm at best. All three candidates for the 1912 election supported it: the unpopular incumbent, Mr. Taft, his former supporter turned Bull Moose Progressive Party opponent Theodore Roosevelt and the beneficiary of the party split, Woodrow Wilson.
Delaware's ratification officially added the 16th Amendment to the Constitution on February 3, 1913. Wilson had been elected on an uncertain Democratic-somewhat-Progressive platform and it was his Secretary of State who announced the tally that the Amendment would become part of the framework of the federal government. The Revenue Act of 1913 passed shortly thereafter. And, the federal tax code has been growing, changing and modifying itself ever since. Just over a decade after the Amendment became the law of the land, government sought to end the tyranny of the federal income tax by passing the Revenue Act of 1926 which modified provisions and provided certain criminal penalties for scofflaws.
It was under this law, authorized by that 1913 ratification that the federal government charged one Alfonse Capone with certain federal crimes. The other offenses, acts made criminal by the famed Volstead Act authorized by the now defunct 18th Amendment, were dismissed. Evasion from income taxes and failure to file and pay income taxes resulted in the imprisonment of the Chicago gangster who eventually would die of a heart attack after years of suffering from the effects of neurosyphilis, a stroke and pneumonia.
While his case never made it to the Supreme Court on appeal, the arguments Capone raised to the Court of Appeals for the Seventh Circuit strike into the heart of the popularity of the income tax and "black letter law" notions about criminal jurisprudence. He relied on "the principles laid down in United States v. Cruikshank" in that the indictment charging him with crimes failed to contain sufficient specificity to allege a criminal offense. The facts of the Capone case involved an individual who earned monies and chose not to pay his fair share to the government, a duty encumbered to all citizens, regardless, apparently of the source of that income. His argument failed and, as noted, he spent the next several years bouncing from one prison to another, allegedly bribing officials for privileges and perks until Congress and the citizenry again foiled his fortune by ending prohibition and thus the source of Capone's income and clout. He died shortly after serving his entire term.
A little background on the facts of Cruikshank and the legal reasoning, the thoughts of the Supreme Court of the United States in 1875 bear mention. In that case, the Court found indictments defective when certain citizens of Louisiana were accused and convicted by a jury of infringing upon the federal Constitutional rights of other citizens of Louisiana - possibly, but only possibly, according to the Court, due to their race. Charges included interfering with the right to bear arms for lawful purposes (a right, interestingly, the Court says is not actually bestowed upon the citizens by the Constitution, but rather one that merely cannot be infringed upon by Congress) and interfering with the right of peaceful assembly (again, a right not bestowed upon citizens by the Constitution but one so inherent in free government that it predated the Union of States and the protection of the right was a state, not federal power).
According to Chief Justice Waite of the Supreme Court, citizens "voluntarily" submit themselves to two sovereigns, the state and the federal government, owing allegiance to both and demanding protection from both in their individual spheres...which both give in abundance. This must have come as news to the victims of the abominations by certain citizens of Louisiana who, by virtue of their race and former condition of servitude (calling that whole voluntary concept into extreme question) were, hmm, how to put this...murdered for being African American citizens in good standing in the state of Louisiana during Reconstruction.
It seems that, for several elections in a row, some folks were a bit disturbed at unresolved close results in Louisiana. The gubernatorial race in Louisiana 1872 was, perhaps, one of the most tense moments of the Reconstructionist period. The sitting Republican governor did not care for the elected Republican governor and called the disputed race for the Democrat even though he lost. Both the Democrat and the Republican claimed victory. In short, William Pitt Kellogg won the election, but results were disputed in certain locales including Colfax, LA.
White and black Republicans, civilians and state militia, sought to secure the Colfax courthouse when a marauding band of white, heavily armed men descended, killing many of the African American Republicans, including many who surrendered to superior firepower. Almost 200 African American men and 3 white men were killed seeking to allow for the full electoral count to continue. When members of the murderous group were indicted and tried, a jury of their peers convicted them for various federal offenses (which, apparently, were not crimes suitable for prosecution under Louisiana law throwing yet another wrench into Justice Waite's idyllic view of the harmony between state and federal roles and the great enjoyment of liberty each provides). The Supreme Court tossed all of the indictments either as vague or not stating offenses or - incomprehensibly - because the Fourteenth Amendment applied only to "state action" (which predates but also remains as the continuing mantra from Cruikshank).
To understand in part why this is incomprehensible, Section One of the 14th Amendment prohibits states from depriving life, liberty and property without due process and from denying equal protection of the laws to anyone. By failing to ensure the protection of those defending the courthouse - either in advance or after the fact by prosecution - the state of Louisiana, at a minimum, denied its African American citizens murdered by a band of killers protection by law...not to be killed by racist thugs...which seems like it should be something we should all be equally protected from experiencing. The "state action" aspect now seems set in stone but the Cruikshank interpretation appears to run afoul of the purpose of the Amendment.
Aside from the "state action" issue, the Court essentially disregarded Section 5, the enforcement paragraph of the Fourteenth Amendment that says, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Because, as it turns out, The Congress had, in fact, established appropriate legislation called, remarkably enough, The Enforcement Act, under which the defendants in Cruikshank were indicted, tried and convicted. Until they weren't anymore, party because the Act itself was so broad and the language of the indictments mirrored it.
In the 3 years between the horrendous violence and the reversal of the convictions, President Grant had affirmed the election of Republican William Pitt Kellogg and his African American Lieutenant Governor, Caesar Carpetier Antione. And, the former sitting governor who staged the Democratic win was impeached. The Democrat who claimed victory despite his loss took up arms with essentially his own private army which successfully battled the state militia again until President Grant sent in federal troops to bestow the rule of law and support the elected officials of Louisiana at which point he, and his guns, backed down.
The portion of the Cruikshank ruling relied upon by Al Capone rested on the flawed and faulty indictments that gave inadequate notice of the actual offense due to their breadth mirrorring the expanse of the Act. In Capone's case, the Seventh Circuit explained that the indictments satisfied the language of the statute, even if just barely (a point not even really touched upon in Cruikshank) but that if Capone had been unsure about the offense, he should have asked for a Bill of Particulars which he failed to do (as did the defendants in Cruikshank). Essentially the defense that worked for racist, gun-toting vigilantes who clearly infringed upon individual liberties of fellow citizens would not succeed for a jazz-loving, gun-toting anti-prohibitionist who stiffed the feds on taxes.
That whole stare decisis thing can get tricky. The only portion of Cruikshank worth saving is the portion relied upon by Capone - that people need adequate notice in order for the government to have any authority to restrict liberty...and that's the part that has been shunted aside. The remainder of the case is ludicrous. Authored by Chief Justice Waite (an insignificant and intellectually vapid 20th round draft pick for the job and one of Grant's truly horrible appointments to any position of authority), it is internally inconsistent, devoid of thought, logic, insight and, notably, law. And, yet, much of it really forms the backbone of some of today's arguments on the conflicting powers of the states and the federal government.
Perhaps the only human beings alive in 1875 who believed that states which had taken up arms against the Union in defense of slavery had every intention of protecting the rights, privileges and immunities of all of their citizens were on the Court. Because there sure were a lot of citizens and federal troops still occupying the states formerly in rebellion who had their doubts. The entire point of the 14th Amendment was to ensure the safety and protection of folks the states proved they would not keep safe and protect. Indeed, the fact that the state had fought to maintain an institution designed to deny to a distinct portion of the population any rights, privileges or immunities granted to citizens proved a very big hint that these states were not really, truly committed to the ideas of the 14th Amendment or Chief Justice Waite's Utopian vision. Even a jury so found ...in Louisiana ...in 1875.
Just over 50 years later, a jury convicted Capone, too. But that conviction stuck. The 16th Amendment confers upon Congress the power to levy income taxes. It does not confer upon Congress any limitation or boundary for enabling the Amendment. It is an unusual Amendment in that it grants, rather than restricts, federal power. And yet it has been quite popular; enabling acts seeking to enforce the ability of Congress not only to levy taxes but also to enforce penalties against those who fail to pay enjoy great judicial support.
Yet, the 14th Amendment, which radically altered the relationship between the states and the federal government by design, specifically included language empowering Congress to enforce it as needs be. The intentional breadth of the Amendment's scope and Congressional enforcement was intentional, driven in large part by the ghosts of 700,000 Americans who died in one of the bloodiest Civil Wars ever known and the hundreds of thousands of men, women and children enslaved for centuries due the color of their skin. Shockingly, the Court ultimately struck down the Enforcement Act - legislation which had direct authority from the Constitution itself. Curiously, it is more often the Court than other elected federal officials who ignore the intent, purpose and grandeur of the 14th Amendment. Its purpose was to hold federalism in check: to promote the states when they extend and enlarge individual liberties and ideals of freedom but to stop them when they seek to curtail those very same foundational principles of free government.
One of the greatest pieces of legislation ever to grace this nation has become - and continues to be - a source of extraordinary conflict, undergoing nearly constant review under the guise of federalism. Federalism, especially in the modern era, only makes sense when states ensure greater rights, privileges and immunities upon all citizens regardless of race, creed, religion, ethnicity, place of birth, gender, gender identification, or sexual orientation. It is remarkable that its protections saved the defendants in Cruikshank from prosecution when hey interfered with an election and killed people due to their race and political affiliation when it should have protected the victims- and at the same time could not save Capone whose hard to trace and sketchy earnings from years before the enabling statutes under which he was prosecuted were enacted. Granted, Capone's argument under Cruikshank had nothing to do with its facts or the 14th Amendment at all, merely with the idea that indictments must be specific enough to hale one into court. His big beef was with the 16th Amendment afterall. But, he did invoke the case and the juxtaposition of the factual history is striking.
Perhaps one lesson is this: despite the musings of one Supreme Court Justice, the Constitution that binds us together is not dead. It is alive in we, the people - so long as we pay our taxes.
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