[Bob Schulz introduction} Dr. Edwin Vieira is a graduate of Harvard College, the Harvard Graduate School of Arts & Sciences and Harvard Law School. He is an attorney specializing in constitutional law; he is the author of "Pieces of Eight, the Monetary Powers and Disabilities of the United States Constitution," published in 1983, and a revised version of "Pieces of Eight" is scheduled for publication later this year. Let's welcomed Dr. Edwin Vieira.
(Dr. Vieira) Thank you, Bob, ladies and gentlemen. My pleasure to be here. I'm billed, on your program, with talking about the money issue. But I've been talking about the money issue and writing about the money issue for so long that I'm thoroughly bored with it. And when this book, this revised book comes out, if you pick that up at the library, if I can somehow wangle libraries into putting it on their shelves, and you read it, you'll be mightily bored with the issue too.
So, I'm not going to talk about that, I'm going to talk, in general, about some of the problems that I see from a constitutionalist' perspective with the 16th Amendment and the wonderful work that Bill Benson has done, and that Larry Becraft and others have followed up on.
Now, one of the things, though, that I would like to raise as an issue, for your consideration, is a peculiarity that I see between the two subject matters; one, the money issue, the Federal Reserve, if you will, on the one hand, and the income tax on the other hand. I've studied the money issue, case law, statutory law, historical descriptions of what went on, from, I don't know, the Middle 1600's in England up until now. And one of the things you discover, or at least I have discovered, going through all of that, is that the powers that be, very systematically changed the laws as they went along, or they wrote the court opinions in such a way as to rationalize, perhaps not justify, but at least to rationalize, what they were doing.
So you can see a kind of logical progression or degeneration in the statutory and case law from the early days, from the Constitution, from 1789, up until the present time. And they really didn't hide any of this. It's there if you're willing to look. Fascinating thing is, most people aren't willing to look. But, it's not a deep, dark secret.
Whereas, in the area of the income tax, there seems to be, at least to my mind, anomaly. That is, if I were in charge, politically, of this system, and I had a vast mass of people out there believing that they had to pay these taxes and they had to file these forms and keep these records and perform all of these various functions, even if I knew that the 16th Amendment hadn't been ratified or that there was some other basic constitutional flaws in what I was doing, it really wouldn't bother me too much, to write the tax statutes and regulations consistently with what the masses of people thought those statutes and regulations said. Why would I care? It's all a con game anyway, right? I'm lying left and right, I can lie in this statute as well I lie in this statute, what difference does it make? Why would I not write the tax code and the tax regulations in the way everybody believes the tax code and the tax regulations are already written?
And I leave that with you, because I think that's a fascinating psychological problem.
The more interesting psychological problem, and I think it's a problem also of political philosophy, that I want to talk about today, is why we are even bothering to be here. Why Bill Benson had to bother, trudging all over the country, to collect those, what, 17,000, plus or minus, probably plus, probably a low estimate, 17,000 certified pages of public records. It seems to me that, if we're all not embarked on kind of fools errand, that, certainly, this group has undertaken a task that, in any kind of free and rationale society, it should never have been called upon to start, and certainly shouldn't have to complete.
None of the business that the various speakers this morning have laid on the table before you folks, would be necessary, if all of those foxes in charge of the henhouse in Washington and the state capitols, all of those years since 1913, had been acting according to their legal duties, instead of behaving according to their political natures. Now, I know, just as everyone else here, that I really swoon with patriotic ardor, and swell with party pride, when I hear the revered names of our leaders, past and present.
Nevertheless, it seems to me, that the conclusion to which I come, from history, at least, is that all of them, to the last man and woman, minus one or two exceptions, haven't done their duty, they're not doing their duty, they have no intention of doing their duty, and no really, no piling up of petitions or pleas or kowtowing or begging, will ever cause them to do their duty, or to accomplish anything other than aiding their critics to establish a record of their willful and persistent derelictions of duty. Now, some of you may blanch at that, the severity and the sweep of this indictment, for lawyers are good at making indictments. But, I'll let you be the judges.
Now, I just should backtrack once, because I always tell some kind of a story about lawyers, being one, for my sins.
Plane goes down, in the Caribbean. Three survivors. Dr. Kildare, Lawyer Mouthpiece, and Father O'Flaherty. And they swim to this little island. Get there, they're completely dog tired. And there's nothing, just sand and rock. But, across a little lagoon, there's another island, and it has palm trees, and, apparently, fresh water. Well, they have to get to it. And they see that one of the rafts from the plane has washed up on that island. Now that,. . but they're too tired to swim, so they say one of us has got to go and get that raft. But the water is full of sharks. Well, Dr. Kildare, he's really the strongest of the three, says "I'll go." The other two say, "No, Doctor, no, you know if things come, bad comes to worse, we're going to need you." Father O'Flaherty says "Well, it's really my responsibility, my sons, I'll go." They say, "No, Father, if things really come worse to worse, we may need you even more than Dr. Kildare." So that leaves, of course, the lawyer. Nobody can figure out a reason why he shouldn't go. So, he goes off and plunges into the water, and all of a sudden, instead of devouring him, the tiger sharks line up and form a bridge and he can actually walk right across to the other side. And Father O'Flaherty looks at Dr. Kildare and says, "It's a miracle, a miracle." And Dr. Kildare turns back and says, "No, just professional courtesy." (Audience laughter and applause.)
Well, let me be a little shark-like in terms of analyzing this situation, historically. You know, with all deference to Bill, the question of the invalidity of the 16th Amendment wasn't broached yesterday, it wasn't even broached in 1985, really. Because all of the primary evidence has been a matter of public record since 1913. 1913, until the early 1980's, well before Bill Benson and Red Beckman ever started out on their trek, it was there. Now, Bill published that book, "The Law That Never Was," 1985, (Bill in background saying "April 4th") ok, April 4th, 1985, 15 years ago.
The evidence that was catalogued and reproduced in "The Law That Never Was" was filed and the argument against the 16th Amendment was presented in numerous Federal court income tax cases, or at least they tried to present it. I remember one of those was in Kalamazoo, Michigan, I was there testifying on another subject, on the money issue, Bill was there, Larry Becraft was there, and there was Judge Ensle, who was the ringmaster in that little circus. And what was interesting in that case, just as an aside, they were so afraid of having the money issue, forget the 16th Amendment, they were so afraid of having the money issue presented to the jury, that they had to have my testimony off the record, at night, in the court house, with no one present, other than the lawyers, and the court clerk and the judge, and the poor witness. That was Judge Ensle, fine example.
Bill Benson and Larry Becraft, as I understand, sent copies of "The Law That Never Was" to every member of Congress. (In the background, Bill said "I did.") You did, ok, and that was when, the middle 1980's? (Bill in background "'87, and their names were embossed on the bottom of the book in gold, just like the book is [couldn't understand Bill's last word here]") Ok, 1980, 1987. And subsequently, and even to this very day, the charge that the 16th Amendment is invalid has appeared in all sorts of publications, and you can find it spread in the global village on the Internet. People in Bangladesh know this. Alright. And of course, very recently, this group, Bob Schulz, presented the issue (to) the White House, right, with the results that you all know. But nothing has been done, in all these years, by all of these people in authority. And, there is the interesting question, "Why not?".
Well, to answer that question, I think you first have to investigate how these people have shirked their duties and failed their country, and, if Shakespeare' ghost will forgive me, I would ask the question, "How do I fault thee? Let me count the ways."
First, the judiciary. Ah, the judiciary. The inferior Federal courts, I'm not saying that to be derogatory, that's the constitutional term, right? The inferior courts . . . say that the invalidity of the 16th Amendment raises a political question which is not justiciable, but belongs exclusively to Congress. Well, that's rather a highly questionable, you know, or even question-begging conclusion. As many as you . . . as many of you probably know, the term "political question", or even any words or phrases that intimate that kind of a doctrine, do not appear in the Constitution. The doctrine of political questions is another of those rather imaginative patterns that the courts have cut from whole cloth in order to avoid being confronted with issues that they would rather not hear.
Now, in some very narrow context, that idea may serve a practical purpose. But in this particular context, it makes no sense at all. If you recall, the theory of judicial review, which is the basis for the Supreme Court and the other courts deciding on the constitutional questions of statutes that come before them, that was first excogitated in the case of Marbury v. Madison by John Marshall, long, long, ago [5 U.S. 137, 173, 176 (1803)], and it says that because of their oaths or affirmations of office to support this Constitution, in any case or controversy that comes before the judges, they must put the Constitution ahead of any mere statute or other action by public officials.
So, no matter what Congress or the President or the States may say some provision of the Constitution means to them, the judges must decide the matter for themselves. In fact, they have a saying, which is attributed usually to Chief Justice Charles Evans Hughes that encapsulates this sort of unbridled power that they have: "The Constitution is what the judges say it is." Well, of course, that's nonsense! But let's take them at their word, and see where that leads. If the judges' oaths or affirmations require them to decide for themselves what some provision of the Constitution means, why then do those same oaths or affirmations not equally compel them to decide the even more consequential matter of whether some alleged provision of the Constitution actually exists? Alright? Existence usually precedes meaning, one would hope. No matter what Congress or the Secretary of State or the President or the States may say, or not say.
Are we supposed to believe that this doctrine of judicial review is so inconsistent in its logic, and so porous in its coverage, that, on the one hand, the courts will not suffer Congress, the President or the States, to make the least little mistake about some provision or amendment of the Constitution, what those mean, let alone to lie about it? But, on the other hand, the courts will allow Congress, the Secretary of the State, the President, the States, whomever, to lie or to make glaring mistakes about whether a particular amendment actually exists is rather an implausible theory.
Are we further to believe that the courts will not allow Congress to lie or to make a glaring mistake about whether an Amendment actually exists, but then will also suffer themselves to be perverted as willing tools to convict, fine, or incarcerate people, who, if the Amendment doesn't exist, are innocent of any crime? That strikes me as even less likely.
Now, it's possible that judges with straight faces, and maybe quiet consciences, might refuse to hear the argument that the 16th Amendment was not validly ratified. If Congress, the Secretary of State, the President and the States that supposedly ratified the Amendment, had all affirmatively passed on that question in light of the evidence that has now been exposed through Bill Benson's work. But as every judge in this country knows, neither Congress, nor the Secretary of State, nor the President, nor any of the States that supposedly ratified that Amendment, have, in fact, passed on the deficiencies that Bill has cataloged. And these deficiencies quite glaringly show that the Secretary of State and the state legislatures that supposedly ratified the Amendment knew, or should have known, from the very beginning, that those ratifications were highly questionable. But they did nothing.
So, it strikes me that no judge can honestly say that this is a matter that Congress or other political branches of the government, national or state, have somehow put to rest. Neither can any judge say that this is a matter that only Congress can or should put to rest. Or at least no judge can say this, when a defendant stands before him charged with some criminal violation of a statute, the validity of which depends on the existence of the Amendment. Self-evidently, if Congress, the Secretary of State, the President, and the States, refuse to come to grips with the issue, the obligation to decide the invalidity of the 16th Amendment necessarily falls back on each individual judge, in each case that comes before him, perforce of Marbury v. Madison. Their own Supreme Court is telling them to do this.
Now, whether the ratification of the 16th Amendment arose out of a fraud perpetrated by Philander Knox, at least in my view, is not the controlling issue in this kind of analysis. Although, obviously, a charge of fraud renders the matter that much more serious. The Amendment would be unconstitutional even is Knox's certification of its supposed ratification, had resulted from his merely honest stupidity, insouciance, or blunders. Either the Amendment was ratified in the form required by law in 1913, or it was not. If it was not so ratified, it did not then become, and is not now, and cannot part of the Constitution, no matter how many mistakes office holders may have made in good faith in saying the opposite.
We the People's lives, liberty, and property, cannot be held hostage to our representatives negligence. And any judicial doctrine that holds otherwise, is itself such a [sound interrupted for approximately 7 seconds ]. But I don't believe an honest mistake explains why judges so readily employ their doctrine of political questions. [sound interrupted for thirteen seconds] alleged Amendment, and its invalidity would be a political question if it dealt, not with the income tax, which is a cornerstone of the modern administrative state, but with some other matter that threatened the establishment's power.
Imagine, or instance, that for... as they used to say in Camelot, a single shining moment occurred, and We the People actually gained control of Congress and the state Legislatures and pushed through a new amendment. A new patriotic amendment, that cut back on the, for instance, the judiciary's wild misinterpretations of the First Amendment. An amendment that allowed states and localities to ban pornographic writings, theatrical performances, movies, lewd displays, whatever. I don't have to specify anymore. All the elements of the sexually degenerate cutting edge of the cultural revolution that the Establishment is waging against this country. Would the courts interpose the doctrine of political questions to prevent the peddlers of smut from stripping that Amendment of its validity if they had the evidence that Bill Benson produced against the 16th Amendment?
Or imagine that this new Amendment allowed or even required the states to ban abortion, uh! God forbid! Would the courts energize the doctrine of political questions to suction the abortions out of the courtroom doors?
Or imagine this new Amendment prohibited the national government from owning any wilderness areas, parks, or other lands or facilities, other than those specified in Article I, Section 8, Clause 17, of the Constitution, and required the government to sell what it holds to the private sector. Would the courts snarl at the radical environmentalists to stop badgering the judges and instead hunt for relief from Congress?
Or imagine that this Amendment reaffirms, in utterly clear terms, that the Second Amendment absolutely guarantees and protects the private ownership of all types of firearms suitable for people's militia, from handguns to fully automatic rifles and submachine guns. Would the courts unholster the doctrine of political questions to shoot down the lawsuits of the gun control fanatics? Would Rosie O'Donnell be told to go to Congress, or some other place where she ought to go? [Audience laughter and applause]
Could anyone here believe for one minute, for one second, that in each of these situations, the Establishment's courts would not leap into the legal fray and declare any of these supposed Amendments invalid, notwithstanding all the arguments about political questions that the proponents of the Amendments might make? Well, I leave that you, that's rather self-evident.
Now, let's look at the Department of Justice, so-called. If judges are responsible for whatever injustices are being perpetrated under the 16th Amendment because the courts serve as the venues for prosecutions, certain people of the Department of Justice, perhaps even more culpable, because they bring those persecutions in the first instance. Now, doubtlessly, the government attorneys involved in the initial cases in which was introduced evidence from "The Law That Never Was," reported all of this back to their superiors. Then what did they, their colleagues, and their superiors do? Well, there's a division in the Department of Justice that decides whether or not to pursue each and every income tax prosecution, at least that used to be the law. In making those decisions in the cases that followed publication of "The Law That Never Was," did the responsible officials or the prosecuting attorneys or anyone else in that bureaucratic rabbit warren investigate the invalidity of the 16th Amendment? Did the Attorney General, who is ultimately responsible for everything that transpires in the Department of Justice, do anything?
If they did, what did they do? What did they discover? What did they determine? If it was that the 16th Amendment was validly ratified, why has someone at the Department of Justice not communicated this conclusion in eighteen point type to the American people, so the matter could finally be closed? What would cause the people in that department to keep such a congenial conclusion secret? Surely not their personal self-interests, or the self-interests of the political machinery in they are the cogs.
On the other hand, if they did not investigate, why not? Did they act then? Are they acting now, in reckless disregard of what an investigation would prove? Well now, you know most of these machinskies are attorneys. They're members of the bar, and officers of the courts. As such, they have certain ethical, believe it or not, they have certain ethical obligations, in addition to the legal responsibilities that their bureaucratic positions impose on them.
Now, those of you who are attorneys or might have had the misfortune to deal with attorneys, should ponder the following little scenario that I've drawn up, and the questions that might be used at what we lawyers call "a continuing legal education seminar on lawyers' ethics." And here's the scenario. Attorney Shyster represents a major corporation that has a number of lawsuits being threatened and prosecuted against it. During the first of these cases that goes to trial, the CEO of Shyster's client provides him with a document that, the CEO says, will win the case. Well, dutifully Shyster introduces the document as evidence. Over the opposing party's objection, Judge Goofball accepts it. On the basis of this evidence, Shyster's client prevails. Later, information comes to Shyster showing that the supposed evidence is, or very well may be, in fact, false, and perhaps even fraudulent.
Question. Does Shyster have an ethical obligation to investigate the matter?
Question. Until that investigation is completed, has been completed, may Shyster ethically introduce the document in other trials, simply because Judge Goofball was possibly deceived in the first trial by Shyster himself?
Question. What if the CEO of Shyster's client orders Shyster not to investigate, but to cover up the whole matter, and to continue to use the phony evidence in other trials? Should Shyster refuse or merely raise his fee? [Audience laughter]
Question. Would your answer to the preceding question be different if the CEO also promises to use his political influence to see that Shyster is appointed to a Federal judgeship?
Well, one need not be an expert in legal ethics or even a lawyer to know how to answer these questions, especially the last one. But the question is really, which way should they be answered?
Well now, let's take a look at Congress. Congress's responsibility for this state of affairs is multi-fold.
Number one. Congress originally accepted Philander Knox's certification that the 16th Amendment had been validly ratified, without, as far as we know, any legislative investigation of the accuracy or good-faith of his certification. Correct? Didn't even look at it! Well if this was culpable negligence at that time, is open to debate. No longer arguable is that such uncritical acceptance today sinks to a level far below mere negligence.
Second. Based on its original uncritical acceptance of the 16th Amendment, since 1913 Congress has enacted numerous income tax statutes and licensed the IRS to promulgate countless regulations under color of which trillions of dollars of wealth have been extracted from the American people, and who can say how many individuals have been fine, imprisoned, or otherwise penalized and punished for violating various code provisions or regulations. This looting and persecution continues unabated, not only within Congress's view, and not only to its financial benefit, but also with its acquiescence, approval, and no less than aid and comfort.
For point three, Congress has always enjoined the constitutional power, and faced with the documentation that the 16th Amendment was not lawfully ratified, has the constitutional duty to initiate an inquiry into the legal basis for the present income tax statutes and regulations,.it doesn't need Bill Benson to petition it. Doesn't need this group of people to meet here. It's always had that responsibility and that power. And not in some vaguely theoretical way either. Because court after court, in the last few years, has actually held, not merely suggested, that whether the 16th Amendment was validly ratified, is a political question for Congress alone to decide. So the Judiciary has officially dumped this issue in the Legislature's lap. And every American knows how punctilious and scrupulous Congress is in following Judicial decisions.
Which brings me to point four. If Congress would've determined that officials in the Judicial and Executive branches of the government have convicted and imprisoned innocent individuals under color of tax statutes, notwithstanding that those officials were on notice, and knew, or should have known, of the invalidity of the 16th Amendment, then it seems that Congress would be at least morally required to impeach and remove from office each and everyone of those officials, preliminary to the imposition of more drastic punishments.
Well, Congress has done none of those things either. That brings us to the Secretary of State. Now the present Secretary of State, and I should backtrack one step. The law has changed. The Secretary of State no longer certifies the ratification of constitutional amendments. But, in this particular case, I believe the present Secretary of State, the sitting Secretary of State, retains responsibility because her predecessor, Philander Knox, certified the 16th Amendment had been validly ratified. And if Knox's act under color of his position of Secretary was erroneous, or worse yet, fraudulent, it would appear legally incumbent, as well as morally compulsive, upon Knox's successor in office, to correct the error or expose the fraud, because that really was an error of the Department of State. Of course, nothing being there. . . being done there now, the present Secretary of State is more interested in bombing wogs and fuzzy wuzzys in foreign countries than in dealing with issues of freedom of the American people.
Well, that brings us to the President, (Bill Clinton) or as they like to say, this President [audience laughter], to distinguish him from all the other Presidents [more laughter], for whatever reason may strike your fancy, this President.
On entering his office, even this President swore or affirmed that he, quote "will, to the best of his ability, preserve, protect, and defend the Constitution of the United States," and it may be true that he's doing it to the best of his ability [audience laughter and applause]. Because if Congress won't call him a perjurer, I certainly don't want to. And among this President's duties is the requirement that, quote, "he shall take care that the laws be faithfully executed." No doubt depending on what he thinks "faithfully" means [audience laughter], because we know how he interprets that word in other contexts [more laughter].
How can anyone fulfill these mandates who does not know, or worse yet, does not care what the Constitution actually prescribes? So, now that the President does know, along with everyone else in the global village, for which we can thank Al Gore, right? [audience laughter]. As long as he knows that the ratification of the 16th Amendment may have been false or fraudulent, his duties should be diligently to inquire into the matter so that he could be sure of what the laws are, that he must take care to faithfully execute. And while the investigation proceeds, he could also order the Department of Justice not to prosecute any more criminal income tax cases, let them be put on hold, for heaven's sakes. And he could even pardon those people who were convicted while the courts and everyone else in positions of authority in the Federal apparatus refused to address this issue. He could, be he isn't, and he hasn't, and he won't.
Well, that brings us to the states. Glory be, the 10th Amendment, the states. The states that claimed to Secretary of State Knox that they had ratified the 16th Amendment obviously share an especially weighty responsibility for everything that has transpired since 1913. Partly because they, perhaps more than anyone else, are, or should be aware of the many manifest and arguably fatal deficiencies of their supposed ratifications. So now that this question has been squarely presented, the Legislatures of those states should conduct their own investigations into the sufficiency of their ratifications. And perhaps their courts should entertain lawsuits to test that sufficiency. Moreover, what about those three solitary states, the three musketeers of constitutionalism, that refused to ratify the 16th Amendment? Connecticut, the Constitution state. Rhode Island, where they had the first incendiary tax protest, they burned the Gasby, British tax schooner.
