The Decline of the States

Now that we have looked briefly at how the Founders got to America and how they settled the colonies and the frontier, we should look more closely at who they were as a people who, once freedom was won, became the People.

They were predominantly from Western and Northern Europe – products of Western Civilization, the Renaissance, the Reformation and the Enlightenment. They were primarily from the British Isles – England, Scotland and Ireland with some Dutch from New Amsterdam mixed in. But, who were they culturally?

The British Isles had been occupied by Celtic speaking peoples well before the Romans arrived in the 1st Century BC. According to one theory, the common root of the Celtic languages, the Proto-Celtic language, arose in the Late Bronze Age Urnfield culture of Central Europe, which flourished from around 1200 BC along the Upper Rhine and Danube rivers. 

In addition, according to a theory proposed in the 19th Century, the first people to adopt cultural characteristics regarded as Celtic were the people of the Iron Age Hallstatt culture in central Europe (c. 800–450 BC), named for the rich grave finds in Hallstatt, Austria. Thus, this area is sometimes called the ‘Celtic homeland’, which separated the Germanic tribes to the North from the Romans to the South.

By or during the later La Tene period (c. 450 BC up to the Roman conquest), this Celtic culture was supposed to have expanded by trans-cultural diffusion [inter-marrying or migration to the British Isles (Insular Celts). 

 As the Roman Empire decayed and then collapsed between 100-450 AD, tribes from Northern and Western Europe – the Northern frontier of the Roman Empire – invaded the British Isles. They included the Celtic Angles and Saxons and the Germanic Jutes from what are now called the “Low Countries” of The Netherlands, Belgium and Denmark, respectively. Another group came several centuries later – the Norse – the Vikings.

The history of the Nordic people begins in Central Asia and the Russian steppe when the Indo-Europeans [IE] started migrating west into modern-day Europe. During the great migration, a branch of the IE split off and moved into present day Scandinavia and became isolated most likely due to climate disruptions.

 Human beings have occupied Scandinavia for at least 7000 years. It is in the forest and frozen mountains that the Nordic people get the distinct cultural/linguistic identity known as Germanic. After developing a unique culture the Germanic people began moving south for less turbulent weather and cross the Baltic and North seas into modern-day Germany, Poland and Denmark. The migration-age tribes founded the modern Nordic countries we know today as Scandinavia (Norway-Sweden-Denmark-Finland).

 The culture of the Norse was already over 1000 years old when the Viking age began and a new wave of Germanic people again started crossing into Europe and Britain carrying largely the same migration age culture, legal systems, Runic codex (language) and religious beliefs as the previous migrating tribes.

 Some of the identifying markers of Nordic culture is complicated knot work, exceptional metal/wood work, seafaring/boat building and design, metaphoric poetry and spoken word, grand feasting halls, ancestral worship and equal rights for women.

 We use the term Norse as a general description of the larger Germanic culture from its Dutch origin “Noors” “People from the north” because Germanic culture originated in Scandinavia/Denmark.

 But, by the end of the 1st Millennium, Britain began to take form as a united and sovereign nation.

 ‘The King went into Cumberland and ravaged very nearly all of it; and his ships went out round Chester and should have come to meet him, but they could not. Then they ravaged the Isle of Man. And the enemy fleet had gone to Richard’s kingdom that summer.’

 “This entry in the Anglo-Saxon Chronicle for the year 1000 is an epitome of the political history of Britain at the time. The king in question was Æthelred II, misnamed ‘the Unready’ (r. 978-1016), and seen here in a decidedly ‘ready’ mood. He was not indulging in mindless destruction for the sake of it, but furthering a process begun by his forebears: forging of a united kingdom of the English.

 A century earlier, his great-great-grandfather, Alfred, had defended the kingdom of Wessex from Viking assault and won the loyalty of all the English people ‘except those who were under the power of the Danes’. Alfred’s heirs, his son Edward, king of the West Saxons, and his daughter Æthelflæd, Lady of the Mercians, overran the southern Danish settlements and absorbed them into a ‘greater Wessex’. Edward’s son, Æthelstan, conquered the Viking kingdom of York, and became the first ‘king of the English’ and Æthestan’s brothers, Edmund and Eadred, consolidated his work.

 Edmund’s sons, Eadwig and Edgar, ruled over an English kingdom which stretched northwards from the Channel to the Tweed in the north east and to Stainmore in the north-west. This kingdom was the inheritance of Æthelred, Edgar’s younger son, who received it after the murder of his half-brother Edward the Martyr at Corfe in Dorset in 978. The making of England was the achievement of the West Saxon kings.”

 Over the next half-millennium, the concepts of inalienable rights for citizens and constitutional law for governments were established in spite of the claimed “Divine Right” of monarchy and by the late 16th Century, Englishmen were bringing their concept of government by the people to the world.

 Those ideas and ideals would not be wasted by the North American colonists. These were not the cultural descendants of Latins (from the Mediterranean basin) or the Slavic peoples of Eastern Europe and the steppes or of Asian and South Asian peoples or the peoples of Africa or Arabia.

 These were Northern Europeans, the intellectual children of Christianity, the Northern Renaissance and the Enlightenment and they would establish their sovereign nation upon those principles.

 And they would set those principles rights and powers in proverbial stone and would call it the Constitution of the United States.

 The Constitution of the United States provides for three types of power to the national government:

 “DELEGATED (sometimes called enumerated or expressed) powers are specifically granted to the federal government in Article I, Section 8 of the Constitution. This includes the power to coin money, to regulate commerce, to declare war, to raise and maintain armed forces, and to establish a Post Office. In all, the Constitution delegates 27 powers specifically to the federal government.

INHERENT POWERS are not specifically listed in the Constitution, but they grow out of the very existence of the national government. For example, the United States has the power to acquire territory by exploration and/or occupancy, primarily because most governments in general claim that right.

 IMPLIED POWERS are not specifically stated in the Constitution, but may be inferred from the elastic (or “necessary and proper”) clause (Article I, Section 8). This provision gives Congress the right “to make all laws which shall be necessary and proper for carrying into execution the underlying powers, and other powers (delegated and inherent) vested in the government of the United States.” Since these powers are not explicit, the courts are often left to decide what constitutes an implied power

The Constitution also identifies RESERVED POWERS, which are set aside for the States. Unlike delegated powers, they are not listed specifically, but are guaranteed by the 10th Amendment: “The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people.” Some traditional reserved powers include regulating trade within a State, establishing local government, and conducting elections. The Supreme Court occasionally will “find” a reason to have the federal government acquire a long standing Reserved Power (see Roe v. Wade).

 Some powers of federal and state governments overlap. For example, both may — and do — levy taxes, make and enforce laws, and borrow money. These CONCURRENT POWERS are not granted exclusively to the national government, nor are they denied the states. But, if a power is not specifically identified as a delegated power, or granted under the inherent or implied concept, including the limitation on implied powers that constrains them to their association with a specific and identified delegated or inherent power, it is reserved to the States.

 For example; Roe v. Wade was decided upon the “discovery” of a federal right to privacy – a concept not found in any delegated, inherent or implied power. Any right to privacy must therefore be reserved to the States – where it had resided from the beginning.

TRADEMARKS are protected by the U.S. Patent and Trademark Office, established to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” as stated in Article I, Section 8 of the Constitution.

 PROHIBITED POWERS are denied either to the national government, State governments, or both (Article I, Section 9.) For example, the national government cannot constitutionally exercise its powers in such a way as to interfere with the States’ abilities to perform their responsibilities – even though it does so on a massive scale. States cannot tax imports or exports, nor can they coin money or issue bills of credit.

 States also have responsibilities to one another, as explained in Article IV of the Constitution. One provision is that each state must give “FULL FAITH AND CREDIT” to the public acts, records, and civil judicial proceedings of every other State. Business contracts, then, are recognized by all States, as are marriages. Extradition, the legal process in which an accused criminal is returned to the State were the crime was committed, is also required by Article IV.

The Founders very carefully divided powers between federal and State governments. They were responding to both the colonial aversion to the tyranny of King George III as well as the failure of the Articles of Confederation. Their careful separating and blending of State and national powers guarded against tyranny, allowed for more citizen “good faith” participation in government and provided a mechanism for incorporating new policies and programs.

Unfortunately, the officials who work in the federal government have been deliberately eroding States’ powers for more than a century. The first, best example of this is the imposition of a federal income tax without the justification of a national emergency – as Lincoln had done during the Civil War. The Founders never envisioned the taxing of income and only excise taxes appear in the Constitution. Excise taxes are taxes paid when purchases are made on a specific good, such as gasoline. Excise taxes are often included in the price of the product. There are also excise taxes on activities, such as on wagering or on highway usage by trucks and in many other cases.

Did the Congress have the implied or inherent power to create an income tax? Of course. Could the Supreme Court uphold the constitutionality of the Amendment? Yes. Those are not germane questions. The essential question is – should they have imposed a permanent tax on the individual effort, creativity, determination, fortitude, commitment, perseverance, ingenuity, imagination and genius of the American People?

Based upon the unintended consequences of their actions – a bloated, wasteful, detached monstrosity of a federal bureaucracy, a politicized and petrifying lethal Internal Revenue Service, a 75,000 page tax code, a squandered $500 million/year expense on the economy just to comply with the code, the distrust and revulsion of two-thirds of the American people for their government’s ability to spend wisely – they should not have taken that road without more justification than “the rich are rich enough to pay”.

Rather than punish accomplishment, a better purpose would have been to discover how to enable every American to succeed economically. Instead, the government went to war in partnership with organized labor against those who knew how to create wealth, never learned their “mysteries” (little more than working hard and working smart) and thereby allowed the financial and fiscal excesses of the 1920s to lead to the Great Stock Market Crash of 1929. And so, the wealth redistribution movement was created and still thrives today.

“Until 1913, customs duties (tariffs) and excise taxes were the primary sources of federal revenue. The Congress did introduce an income tax to fund the Civil War through the Revenue Act of 1861 without much controversy. It levied a flat tax of three percent on annual income above $800. This act was replaced the following year with the Revenue Act of 1862, which levied a graduated tax of three to five percent on income above $600 and specified a termination of income taxation in 1866.

The Civil War income taxes, which expired in 1872, proved to be both highly lucrative – drawing mostly from the more industrialized states. During the two decades following the expiration of the Civil War income tax, the Greenback movement, the Labor Reform Party, the Populist Party, the Democratic Party and other progressives (what a surprise) called for a graduated income tax.

The Socialist-Labor Party advocated a graduated income tax in 1887. The Populist Party “demand[ed] a graduated income tax” in its 1892 platform. In 1896, the Democrat Party, led by William Jennings Bryan, advocated the income tax law passed in 1894, and proposed an income tax in its 1908 platform.

In 1894, an amendment was attached to the Wilson-Gorman Tariff Act that attempted to impose a federal tax of two percent on incomes over $4,000 (equal to $109,000 in 2014 dollars). The federal income tax was strongly favored in the South, and it was moderately supported in the eastern North Central states, but it was strongly opposed in the Far West and the Northeastern States (with the exception of New Jersey). The tax was derided as “un-democratic, inquisitorial [in that it required citizens of the States to disclose their income to the federal government], and wrong in principle.”

In Pollock v. Farmers’ Loan & Trust Co. (1895), the U.S. Supreme Court declared certain taxes on incomes — such as those on property under the 1894 Act — to be unconstitutionally unapportioned direct taxes. The Court reasoned that a tax on income from property should be treated as a tax on “property by reason of its ownership” and so should be required to be apportioned. The reasoning was that taxes on the rents from land, the dividends from stocks, and so forth, burdened the property generating the income in the same way that a tax on “property by reason of its ownership” burdened that property.

After Pollock, while income taxes on wages (as indirect taxes) were still not required to be apportioned by population, taxes on interest, dividends, and rental income were required to be apportioned by population. The Pollock ruling made the source of the income (e.g., property versus labor, etc.) relevant in determining whether the tax imposed on that income was deemed to be “direct” (and thus required constitutionally to be apportioned among the states according to population) or, alternatively, “indirect” (and thus constitutionally required only to be imposed with geographical uniformity). Members of Congress responded to Pollock by expressing widespread concern that many of the wealthiest Americans had consolidated too much economic power. Sound familiar?

In his famous “Cross of Gold” speech at the 1896 Democrat presidential convention, Bryan declared:

 “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. When I find a man who is not willing to pay his share of the burden of the government which protects him, I find a man who is unworthy to enjoy the blessings of a government like ours.

There are two ideas of government. There are those who believe that if you just legislate to make the well-to-do prosperous, that their prosperity will leak through on those below. The Democrat [Party] idea has been that if you legislate to make the masses prosperous, their prosperity will find its way up and through every class that rests upon it.

What we oppose in that [Democrat Party Platform] plank is the life tenure that is being built up in Washington which establishes an office-holding class and excludes from participation in the benefits the humbler members of our society…”

“…we say not one word against those who live upon the Atlantic Coast; but those hardy pioneers who braved all the dangers of the wilderness, who have made the desert to blossom as the rose—those pioneers away out there, rearing their children near to nature’s heart, where they can mingle their voices with the voices of the birds—out there where they have erected schoolhouses for the education of their children and churches where they praise their Creator, and the cemeteries where sleep the ashes of their dead—are as deserving of the consideration of this party as any people in this country.”

How ironic that the Democrats now refer to those pioneers as living in “fly-over country” between the two coasts.

The “Cross of Gold” speech came amid the national debate about whether to endorse the free coinage of silver at a ratio of silver to gold of 16 to 1. (16 ounces of silver would be worth 1 ounce of gold). Because the actual value ratio was about 32 to 1 at the time, most economists warned that the cheaper silver would drive the more expensive gold out of circulation.

Everyone agreed that free silver would raise prices. This inflationary measure would have increased the amount of money in circulation and aided cash-poor and debt-burdened farmers. The question was whether or not this inflationary measure would be beneficial to the country. The issue peaked from 1893 to 1896, when the economy was in a severe depression—called the Panic of 1893—characterized by falling prices (deflation), high unemployment in industrial areas, and severe distress for farmers.

The debate pitted the pro-gold financial establishment of the Northeast, along with railroads, factories and businessmen, who were the job creators and creditors, against poor farmers who would benefit from higher prices for their crops resulting from the prospective expansion of the money supply by allowing silver to also circulate as money. More money chasing the same amount of goods results in higher prices.

Free silver was especially popular among farmers in the wheat belt (the western Midwest) and the cotton belts (the Deep South), as well as silver miners in the West. It had little support among farmers in the Northeast and the Corn Belt (the eastern Midwest). Free silver was the central issue for Democrats in the presidential election of 1896 and that of 1900. In major elections free silver was consistently defeated, and after 1896 the nation moved to the gold standard.

To rouse the Democrat faithful for the campaign, Bryan ended his famous speech with one of the greatest lines in American political history:

“If they dare to come out in the open field and defend the gold standard as a good thing, we shall fight them to the uttermost, having behind us the producing masses of the nation and the world. Having behind us the commercial interests and the laboring interests and all the toiling masses, we shall answer their demands for a gold standard by saying to them, you shall not press down upon the brow of labor this crown of thorns. You shall not crucify mankind upon a cross of gold.”

On June 16, 1909, Republican President Wiliam Howard Taft, in an address to the Sixty-first Congress, proposed a two percent federal income tax on corporations by way of an excise tax and a constitutional amendment to allow the previously enacted income tax “…upon the privilege of doing business as an artificial entity (the corporation and the trust) and of freedom from a general partnership liability enjoyed by those who own the stock.”

An income tax amendment to the Constitution was first proposed by Senator Norris Brown of Nebraska. The amendment proposal finally accepted was Senate Joint Resolution No. 40, introduced by Senator Nelson A. Aldrich of Rhode Island, the Senate majority leader and Finance CommitteeChairman. On July 12, 1909, the resolution proposing the Sixteenth Amendment was passed by the Congress

 From well before 1894, Democrats, Progressives, Populists and other left-oriented parties argued that tariffs disproportionately affected the poor, interfered with prices, were unpredictable, and were an intrinsically limited source of revenue. The South and the West tended to support income taxes because their residents were generally less prosperous, more agricultural and more sensitive to fluctuations in commodity prices.

A sharp rise in the cost of living (the economic boom resulting in rising income chasing a fairly constant increase in goods) between 1897 and 1913 greatly increased support for the idea of income taxes, including in the urban Northeast. A growing number of Republicans also began supporting the idea, notably Theodore Roosevelt and the “Insurgent” Republicans (who would go on to form the Progressive Party).

The Democrats won both houses and the Presidency (Woodrow Wilson) in 1912 and the country was generally in a left-leaning mood, with the Socialist Party winning a seat in the House in 1910 and polling six percent of the popular presidential vote in 1912.

Three advocates for a federal income tax ran in the presidential election of 1912 – William Howard Taft, Theodore Roosevelt and the winner, Woodrow Wilson. On February 25, 1913, Secretary of State Philander Knox proclaimed that the amendment had been ratified by three-fourths of the States and so had become part of the Constitution.  The Revenue Act of 1913 – implementing the amendment – was enacted shortly thereafter.

From Professor Boris Bittker, who was a tax law professor at Yale Law School:

“As construed by the Supreme Court in the Brushaber case, the power of Congress to tax income derives from Article I, Section 8, Clause 1, of the original Constitution rather than from the Sixteenth Amendment; the latter simply eliminated the requirement that an income tax, to the extent that it is a direct tax, must be apportioned among the states. A corollary of this conclusion is that any direct tax that is not imposed on “income” remains subject to the rule of apportionment. Because the Sixteenth Amendment does not purport to define the term “direct tax,” the scope of that constitutional phrase remains as debatable as it was before 1913; but the practical significance of the issue was greatly reduced once income taxes, even if direct, were relieved from the requirement of apportionment.”

 With this explanation in mind, Article I, Section 8, Clause 1, of the original Constitution reads: “The Congress shall have the power to lay and collect Taxes, Duties, Imposts and Excises,” Notice the absence of the word “income”. The 10th Amendment reads: “The powers not delegated [specifically] to the United States [federal government] by the Constitution, not prohibited by it [the Constitution] to the States, are reserved to the States respectively, or to the people.”

 The federal income tax is progressive and the discriminations and inequalities created by the tax code should render the tax unconstitutional under the 14th Amendment which guarantees equal protection under the law. Such arguments have been ruled without merit under contemporary jurisprudence even though, in Redfield v. Fisher (1930), the Supreme Court wrote that “…the individual, unlike the corporation, cannot be taxed for the mere privilege of existing. The corporation is an artificial entity which owes its existence and charter powers to the state; but the individual’s rights to live and own property are natural rights for the enjoyment of which an excise cannot be imposed.” Go figure.

 As we have seen, Democrat Franklin Roosevelt’s New Deal accelerated the usurpation of federal power at the expense of the States which was continued under his successor, Democrat Harry Truman. By the end of the Obama presidency, the States had been relegated to mere bystander status as the federal government selectively chose which laws to enforce, which to ignore or when to choose to thwart State efforts to enforce federal law in their respective States – as well as to literally steal (a “taking” in Constitutional terms) State lands for new national parks and monuments. The final nail in the coffin of State sovereignty came from the United States Supreme Court who chose, on numerous occasions, to redefine common and ordinary words in the English language in order to create new found rights not vested in the original text of the Constitution.

 The entire flow of power incorporated into the Constitution has been reversed, the States have become irrelevant (except during presidential campaigns) and the People now are compelled to prostrate themselves at the pleasure of the federal government. Where once the States were sovereign, they now lie, supine before an all-powerful federal government. Next time: Confederation to Coup d’etat.

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