In my previous post titled “Unconstitutional”, I gave several examples of Constitutional Amendments that I feel are actually unconstitutional.
Now of course that idea will seem a bit strange to many people. They will assume that if the amendment has been added to the constitution and was done according to the rules set forth by the constitution, that the amendments are therefore constitutional. But are they?
To understand the point I am making, we will need to understand how the Constitution was constructed.
Originally the Constitution was only to consist of the Articles as ratified in 1788. It was because of the insistence of Thomas Jefferson and others, that a Bill of Rights was added to the Constitution. Jefferson felt that the document lacked many of the explicit guarantees of personal liberties that state constitutions had.
This demonstrates that the original document was composed of the Articles. These contained the definitions of what the new government would consist of and how the government would be formulated. They laid out the requirements to hold office. The Articles put forth the manner in which the new government would support itself through tax collection and what type of taxes would be allowed, and how these taxes were to be collected and what they were to be based on.
The Articles stated the balance between the three branches of the new government. It clearly was intended that there would be a separation of powers, with no one branch at a disadvantage, nor with any advantage over either of the other two branches.
The Articles were the foundation on which the country would be built . They laid out when government would meet, they laid out how bills would be passed into law. The Articles in summary are the road map for the United States of America. They are not laws, they are a governing document.
So as we see, the Article were, the Constitution. The Constitution had been written, debated and passed. The government could have been formed and run under the Articles. But Thomas Jefferson felt the need to enumerate individual liberties to be guaranteed within the Constitution. He convinced James Madison to create a Bill of Rights, which he did. These were the first ten amendments to the Constitution.
The Bill of Rights spell out clearly what rights a citizen of these United States has. The Bill of Rights also limits government’s ability to infringe upon these rights. These first ten amendments are what make this the greatest nation, the freest nation in the world.
So now we can see the original intent of the Constitution. It was first and fore most a document to illustrate the role of government. Second the Bill of Rights is a contract with its citizens. Intended to plainly spell out our rights.
No where in the Articles are there any laws . No where in the Bill of Rights are there any laws. The Constitution is a governing document, not a document of laws.
Now this brings me to my point. Which amendments are unconstitutional and why?
The first thing we must remember is that the original Articles were put together by the Constitutional Convention. It was a process of compromise. This was the document ratified as the Constitution by the states, after being voted on by the Convention, which was made up of delegates selected by their home states. The Bill of Rights were then added as amendments almost a year later. It is important to note that none of the amendments contained within the Bill of Rights in any way contradict the Articles.
This bring me to why I feel that the content of several of the amendments make them unconstitutional.
I believe that any amendment that contradicts or attempts to set aside any portion of the Articles is unconstitutional. The Articles were put into place at a Constitutional Convention, the only way they could be changed would be to call another Constitutional Convention. The Articles are the Constitution. You can amend the document, but you cannot re-write it through the amendment process. This is why the Articles have never been removed. But how can the document have any legitimacy, when it contradicts itself?
My first example is the 16th amendment. The 16th Amendment states that;
” The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.”
This clearly contradicts Article 1, sec.2, 3rd paragraph that says; “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. ‘
Let me again make my point. The only way that Congress could have imposed an income tax was to have called another Constitutional Convention and re-written Article 1, sec.2, paragraph #3.
This was demonstrated by the Supreme court ruling in the case of Pollock v. Farmer’s Loan and Trust Company in 1895. The case was a challenge to the Income Tax Act of 1894. In the ruling the court found that the Tax Act failed to meet the requirement of apportionment.
Fourteen years later congress proposed the 16th Amendment, and four years later it was ratified. But I contend since Article 1,sec.2, paragraph #3 is still a part of the Constitution, and cannot be change, short of a Constitutional Convention, that it supersedes the 16th Amendment, and make the 16th Amendment unconstitutional.
Another example of this happening is the 17th Amendment which contradicts Article 1, sec.3, paragraph #1.
Now I know that there will be those out there that will say I am crazy. There are others who this idea would frighten. The idea that we have been living under a punitive tax code for over a hundred years, when we never should have been is enough to make you lose your mind.
But my friends I encourage you to look into this. The Constitution is the third greatest document ever created, behind the Bible and the Declaration of Independence.
Its simplicity is its genius. But when it is twisted and stretched to serve the government it is intended to rein in, then it can become a burden on the backs of the very people it is intended to protect.