The Sixteenth Amendment and the FairTax Proposed By Huckabee
Your Business Blogger did a short tour of duty in government where two little words dominated my life:
We The People Amendment XVI says,
“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.”
Shall or May. In crafting legislation, policy and procedure my two little buddies could dictate or suggest.
Directive or suggestive.
“Shall” was not the first word in a question. ‘Shall’ did not ask a question, did not seek permission, did not offer options. ‘Shall’ is not squeeshy legalese.
Shall would appear as an ordinary word. But it is not. It is SHALL. It is the Scriptural equivalent of the GREAT I AM.
‘SHALL’ shall not be disobeyed. It meant that the text which follows ‘Shall’ directs that ITS WILL WILL BE DONE.
“Shall” indicated that an action was to be followed. Concrete Action.
‘May’ was a sandy suggestion. An option. An idea whose time may or may not have come.
Whole government departments and the livelihoods of thousands of bureaucrats hinged on ‘shall’ and ‘may.’
Lotsa power in SHALL. That’s why “Congress shall make no law…” is so popular.
Lotsa liberty lost in SHALL.
There has been much criticism of presidential candidate Mike Huckabee’s FairTax proposal. One concern is that the 16th Amendment would have to be repealed.
This is not true.
The Amendment only says, “The Congress shall have power to…collect taxes on incomes…” The amendment is silent on whether or not the Congress shall (re: must) collect taxes — only that Congress now has the power.
If it desires.
There is no imperative that taxes be collected on income.
The 16th Amendment does not have to be repealed to implement the FairTax; a tax on consumption — not income.
The critics’ concern is that we could end up with both: an income tax and a national sales tax. And the American public does not trust the Congress with the public (or private) purse.
The only strategy workable is to ensure that we elect the next president, the next leader, like Mike Huckabee who can be trusted to do what he says he will do. And rid the nation of the federal income tax. Rid the nation of the IRS.
Could we end up with both the FairTax and an income tax? Possible. But,
… concurrent with the repeal of the income tax, a constitutional amendment repealing the 16th Amendment and prohibiting an income tax will be pushed through Congress for ratification by the states (filed as HJR 16 in the 110th Congress).
This will be a noble goal and will require some heavy lifting. But it is not impossible. It is time for real change.
Huckabee will lead the change.
Thank you (foot)notes:
Mike Huckabee is often labeled as a “populist” (who favors abolition of the IRS?). This is in contrast to the genuine populists of the late 1800’s who pushed for the income tax. Populist presidential contender William Jennings Bryan supported an income tax in his famous “Cross of Gold” speech on July 9, 1896, at the Democratic National Convention in Chicago,
The income tax is a just law. It simply intends to put the burdens of government justly upon the backs of the people. I am in favor of an income tax.
Populists/Democrats favor the income tax. Conservative/Republican Huckabee wants to abolish the income tax.
Voting on the 16th Amendment was 1909 to 1913 and was ratified by 42 of the then 48 states. But not Virginia. My beloved Commonwealth of Virginia didn’t even bother to present the Amendment. Sic Semper Tyrannis.
The Washington Post doesn’t seem to care for the FairTax. See Criticism Aside, ‘FairTax’ Boosts Huckabee Campaign, byline Jonathan Weisman.
Having shall and may in one sentence tends to confuse a lot of people. At the same time, it implies some sort of loophole for both sides of the party. Although I’m not really into serious politics, this post does strike a chord.
Jay, you are correct that the text can be confusing, and seems to contain a loophole, as you suggest — but ‘may’ and ‘shall’ are not normally seen in the same preamble.
The 16th Amendment is confusing in that Congress SHALL have the power to tax. But.
But, it is merely implied that Congress MAY actually use this power. Or not.
Because Congress has the power to tax does not obligate the legislature to use the power.
Clever wordsmithing, eh?