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Legitimacy and the Right of Revolution: the Role of Tax Protests and Anti-Tax Rhetoric in America

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Legitimacy and the Right of Revolution: the Role of Tax Protests and Anti-Tax Rhetoric in America Buffalo Law Review Volume 50 Number 3 Article 3 10-1-2002 Legitimacy and the Right of Revolution: The Role of Tax Protests and Anti-Tax Rhetoric in America Marjorie E. Kornhauser Tulane Law School Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Legal History Commons Recommended Citation Marjorie E. Kornhauser, Legitimacy and the Right of Revolution: The Role of Tax Protests and Anti-Tax Rhetoric in America, 50 Buff. L. Rev. 819 (2002). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol50/iss3/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. ARTICLES LEGITIMACY AND THE RIGHT OF REVOLUTION: THE ROLE OF TAX PROTESTS AND ANTI-TAX RHETORIC IN AMERICA MARJORIE E. KORNHAUSERt Do you know what it's called when someone else controls the fruits of your labor. It is tax slavery by the government.' [The current tax system] limits our freedoms... [and] breeds tyranny.... "' The income tax is unconstitutional .... [T]he Constitution has been so assaulted by the 16th amendment t Professor of Law Tulane Law School. © Marjorie Kornhauser 2002. I would like to thank Adeno Addis, Jeanne Carriere, and John Stick for their many helpful comments. 1. Keyes To Attend Alabama Straw Poll, BULLETIN'S FRONTRUNNER, Aug. 19, 1999, LEXIS, News Library, Wire Services Story File (quoting Alan Keyes, candidate for the 2000 Republican presidential nomination). 2. Fred Stokeld, Alexander Calls for 'Family Friendly' Tax Code, 98 Tax Notes Today 175-7 (1998), LEXIS 98 TNT 175-7 (quoting presidential candidate Lamar Alexander's address at the John F. Kennedy School of Government, Harvard University, September 10, 1998). Further, the current tax system "limits our freedom, stunts our growth, discriminates against women, breeds tyranny, and takes too much of what we earn." Id. 819 820 BUFFALO LAW REVIEW [Vol. 50 and other acts of Congress that it barely has a pulse. The last vestige between law and order and total tyranny is the Second Amendment. 3 Introduction .................................................... 820 I. Legitim acy ................................................... 830 A. Legitimacy and the Function of Rhetoric ....... 830 B. Legitimacy in America ................................ 840 1. Sovereignty, the Right of Revolution and Taxation ................................................. 840 2. Sovereignty and Distrust ........................... 864 3. Legitimacy as Process ............................... 870 4. Crisis in Legitimacy .................................. 873 5. Taxes and Legitimacy Revisited .................. 882 II. The Rhetoric of Taxation and the Production and Maintenance of Legitimacy ............................. 885 A . In G eneral .................................................. 885 B. Legitimacy, Rhetoric and Current Tax Revolts. 901 1. Electoral Groups: Proposition 13 and its Progeny ................................................... 909 2. Direct Action Groups: Individual Taxpayer's Refusal to Pay or Acknowledge Duty to Pay T axes ....................................................... 916 C onclusion ......................................................... 925 INTRODUCTION Legitimacy and a steady source of revenue provide the twin foundations of any enduring government. Although groups may gain control of government through illegal seizures of power, they seek legitimization by the populace in order to obtain a stability that mere coercion never can yield. Even legitimate governments, however, lack durability if they have no reliable flow of money to support their functioning.4 Governments most commonly obtain this 3. Jeff Lonigro, Letter to the Editor, Constitution All But Dead, CHI. DAILY HERALD, February 12, 2001 at 8, available at 2001 WL 13983171. He elaborates on the unconstitutionality of the income tax: "A bill to repeal the First Amendment would be unconstitutional because of the oath [taken by congressmen to uphold and defend the Constitution]. So was the 16th Amendment, which essentially repealed Article 1, Section 2, paragraph 3 of the Constitution." Id. 4. As Alexander Hamilton stated: Money is with propriety considered as the vital principle of the body 2002] ANTI- TAX RHETORIC IN AMERICA 821 steady source of revenue through a combination of three methods: ownership of the wealth itself, borrowing, and taxation. In the long run, taxation is the most successful method,' but only if the government collects the tax efficiently, that is, with a minimum of effort and expense. A necessary condition of efficiency is that people pay their taxes voluntarily. Thus, the growing unwillingness to pay taxes that occurs in any serious tax revolt, including the current American tax revolt triggered in 1978 by California's Proposition 13, potentially threatens a govern- ment's viability by jeopardizing both the legitimacy of its laws and its source of income. Most people never pay their taxes voluntarily, in the ordinary sense of the word. Rather, they are generally anti- politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power therefore to procure a regular and adequate supply of it ....may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and in a short course of time perish. THE FEDERALIST No. 30 (Alexander Hamilton) (citing Turkey as an example of the former situation and the United States under the Articles of Confederation as an example of the latter.) 5. Borrowing must always be repaid. Theoretically, the state could continuously borrow to pay off prior debt, but there are great economic costs to such a deficit budget. Ownership of wealth also has problems, as communism has shown. Eighteenth century Americans recognized the essential nature of taxation when it replaced the Articles of Confederation, which contained no taxing powers, with the Constitution which granted the federal government considerable taxing powers. Article I grants Congress the "power to lay and collect taxes, duties, imposts and excises." U.S. CONST. art. I, § 8, cl. 1. The only limitations on this power were that direct taxes had to be apportioned among the states according to population and that taxes must be uniform. U.S. CONST. art. I, § 2, cl. 3, § 9, cl. 4, § 8, cl. 1. The 16th amendment authorizing taxing incomes "from whatever source derived" was enacted after the Supreme Court in Pollock v. Farmers'Loan & Trust invalidated the 1894 income tax as a violation of the direct tax clause. 158 U.S. 601 (1895). Pollock was an exception to the Court's general deference to Congress' taxing powers. See, e.g., Nichols v. Ames, 173 U.S. 509 (1898); Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533, 540 (1869) (tax on state banks upheld as an indirect tax because in light of the weakness of the Articles of Confederation, the framers of the Constitution intended to give Congress the power to tax to "its fullest extent."); United States v. Lee, 455 U.S. 252, 260 (1982) ("[Ilnfringement of religious freedom by tax system is not unconstitutional because it is necessary to accomplish an essential government interest-maintenance of a sound tax system...."). 822 BUFFALO LAW REVIEW [Vol. 50 tax, in that they usually would prefer to keep any income they receive than pay it to the government in taxes. 6. Some people, of course, do not mind paying taxes because, like Oliver Wendell Holmes, they know that taxes are the price of civilization. See Compania General De Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100 (1927)("Taxes are what we pay for civilized society .... ). Although this article is about American tax revolts and the nation's special relation to these revolts, other countries and civilizations are not immune to them either. Perhaps we inherited the tendency from the Mother Country. For example, the 1381 peasant rebellion in England known as Wat Tyler's Rebellion was triggered by a capital tax. See, e.g., David B. Kopel, Courts and Constitutions: It isn't about Duck Hunting: The British Origins of the Right to Arms, 93 MICH. L. REV. 1333, 1340 (1995). More recently, in the United Kingdom, the poll tax led to much resistance, including a peaceful march that turned into a riot with burning cars, smashed windows, thrown bricks and tear gas. See, e.g., Mobs Riot in West End, INDEP. (London) April 1, 1990, at 1; George Guttman, Taxing Chinese Peasants Presents Special Problems, 23 TAX NOTES INT'L 631 (July 30, 2001)(tax protests in Jiangxi province of People's Republic of China led to deaths of some peasants); Tax Hike Protests Turn Violent in Guatemala, 2001 WORLDWIDE TAX DAILY 152-13 (2001), LEXIS 2001 WTD 152-13 (violent protests about tax increases in Guatemala). Examples abound in history, as well. Charles Adams describes a series of tax revolts throughout history, including ones in ancient Egypt, Israel, and Rome. CHARLES ADAMS, FOR GOOD AND EVIL: THE IMPACT OF TAXES ON THE COURSE OF CIVILIZATION (1993). A more scholarly source is CAROLYN WEBBER
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