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Historical Perspectives on the Federal Income Tax

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A. Did the President sign the resolution which became the Sixteenth Amendment?

President Taft did not sign the resolution which became the Sixteenth Amendment to the Constitution of the United States.


The Supreme Court ruled in 1798 that resolutions of Congress proposing amendments to the Constitution need not be submitted to the President.16 Therefore, the failure of President Taft to sign the proposed amendment has no effect upon the constitutionality or legality of the Sixteenth Amendment.

B. Do clerical errors in the ratifying resolutions of the various state legislatures negate the ratification of the Sixteenth Amendment?

The Sixteenth Amendment became part of the Constitution of the United States in 1913 when certified by the Secretary of State, Philander C. Knox.17 Recently it has been alleged by several defendants in tax litigation that the Sixteenth Amendment is not properly part of the Constitution because it was improperly ratified by a number of states, in that the ratification resolutions of these states contained variations from the resolution enacted by Congress in punctuation, capitalization, and/or spelling.

Secretary Knox certified adoption of the amendment pursuant to Section 206 of the Revised Statutes of the United States which provided:

Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the Unites States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published in the newspapers authorized to promulgate the laws, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to intents and purposes, as part of the Constitution of the United States.18

The Supreme Court has held that certification under this statute is conclusive upon the courts.19  Leser v. Garnett involved a challenge to the ratification of the Nineteenth Amendment. The Secretary of State had certified its adoption. It was contended, however, that the ratifying resolutions of Tennessee and West Virginia were inoperative because the resolutions of those states had been adopted in violation of their rules of legislative procedure. In answer to this contention the Court held:


The proclamation by the Secretary certified that from official documents on file in the Department of State it appeared that the proposed Amendment was ratified by the legislatures of thirty-six States, and that it “has become valid to all intents and purposes as a part of the Constitution of the United States.” As the legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so was conclusive upon him, and, being certified by his proclamation, is conclusive upon the courts.20

In support of this conclusion the Court relied upon the reasoning of Field v. Clark.21  In that case the Court held that an enrolled bill was conclusive evidence of statutory enactment. The Court noted that such a bill is signed by the Speaker and the President of the Senate, an attestation that it passed Congress as signed, and when the President signs, it also indicates his attestation that the measure was properly passed by Congress. "The respect due to coequal and independent departments requires the judicial department to act upon the assurance, to accept, as having passed Congress, all bills authenticated in the stated manner. "22  The Court, in Leser, felt the same respect must be given the certification by the Secretary of State.23

More recently, in Baker v. Carr24 the Supreme Court set out a list of formulations which may identify the existence of a political question in a given case:

It is apparent that several formulations which vary slightly according to the setting in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent


resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.25

Courts of Appeals in several circuits have, within the last few years, considered the question of the ratification of the Sixteenth Amendment and its certification by Secretary Knox. Applying the precedent, discussed above, these Courts have uniformly rejected these challenges, holding that correctness of the Secretary's certification is a political question and therefore his certification is conclusive upon the courts.26

14         Id. at 16-17.

15         Id. at 18.

16        Hollingsuworth v. Virginia, 3 US. 378 (1798). This case involved the Bill of Rights, which had been referred to the States without having been presented to President Washington.

17 38 Stat. 785 (1913).

18        Act of April 20, 1818, ch. 80, § 2, Rev. Stat. § 205 (2d ed. 1878)(amended version codified at 5 U.S.C. § 160 (1940))(repealed Oct. 31,1951); current version, as amended, at 1 U.S.C. § 106b.

19 Leser v. Garnett, 258 U.S. 130 (1922).

20 Id. at 137.

21 148 U.S. 649 (1892).

22 Id. at 672.

23 Leser v. Gannett, 268 US.130,137 (1922).

24 369 U.S. 186 (1962).

25 Id at 217.

26        See, Untied States v. Stahl, 792 F.2d 1438 (9th Cir.), cert. den., 107 S.Ct. 888 (1986), United States, v. Ferguson, 793 F.2d 828 (7th Cir.), cert. den., 107 S.Ct. 406 (1986), United States v. Foster, 789 F.2d 457 (7th Cir.), cert. den., 107 S.Ct. 273 (1986), Stubbs v. Commr., 797 F.2d 936 (11th Cir.1986), and Sisk v. Commr., 791 F.2d 58 (6th Cir.1986).

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