HPRgument Blog — December 31, 2010 6:48 pm

Beck and Napolitano Conveniently Overlook the Sixteenth Amendment

By Sam Barr

I realize it might be perilous to take seriously the extreme constitutional vision put forward on Glenn Beck’s program, but I’m watching his special on the Constitution, and one little thing jumped out me.

Beck wanted to know, from his guest Andrew Napolitano, what we could do to reverse Barack Obama’s incursions on the true Constitution. How can we return to the limited federal government that the Constitution enshrines?

Napolitano, a former New Jersey Superior Court Judge, responded that we could begin by abolishing the federal income tax—because the federal government needs “cash” in order to tell people and states what to do.

Whoops. It seems the Judge momentarily forgot the Sixteenth Amendment. It goes like this:

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.

Of course, the Sixteenth Amendment just says Congress may impose an income tax. It doesn’t say Congress must do so. So perhaps Napolitano just meant that Congress should agree not to use its power under the Sixteenth Amendment, and abolish the income tax.

Nevertheless, the Sixteenth Amendment is a pretty severe rebuke to the extreme-libertarian view of the Constitution promulgated with regularity on Beck’s program, where the Constitution always stands in opposition to federal power. The amendment presents a serious challenge to the idea that the Constitution is a “libertarian document,” a statement for which Christopher Beam has gotten in a lot of trouble.

I wonder what’s going to happen when the Republicans who are so eager to read the Constitution aloud in Congress encounter constitutional provisions that don’t comport with their ideology.

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Author: Sam Barr '11, a government concentrator, was the Editor-in-Chief of the Harvard Political Review in 2010.
  • american

    Way to create a straw man to attack here Sam.

    Beck obviously was referring to the original Constitution, in which the federal government did not have the power to collect a tax on income. I think the founders and the American people of 1787 would be shocked to discover that the federal government would be confiscating a third of some people’s income today, a low marginal rate by 20th century standards.

    Beck believes the 16th amendment gave the federal government far more power than it should ever have had. That’s a legitimate position to hold. Stop pretending like everyone who believes in limited federal government and separation of powers is “extremist” or doesn’t know what they’re talking about.

    There’s a difference between believing that the original constitution specifically enumerated the ONLY powers the federal government was to have, and believing that it was a libertarian document, in which the federal government would basically only provide a military. Beck doesn’t believe that the Constitution “always stands in opposition to federal power.” He believes it stands in opposition to all federal power not authorized by the people in the Constitution. Yes, the 16th Amendment gives the federal government the power to collect income tax, but Beck here is discussing the original constitution.

    You know better but you couldn’t resist the chance to play up cheap stereotypes and make conservatives look dumb. It’s always easy to try to discredit your opponents rather than respond to their legitimate arguments.

  • Sam Barr

    Dear “american,”

    First, I don’t think someone who won’t even comment using his or her real name is in a position to lecture about deliberative decorum. I take it from your articulateness that you’re probably a Harvard student (we might have even met!). Making whiny or snarky anonymous comments on HarvardFML is one thing, but if you want to engage in a serious conversation with a fellow student, you should use your real name.

    As for the substance of your comment, I don’t think Beck or Napolitano was “obviously” referring to the original Constitution. More importantly, there’s no meaningful distinction to be drawn between the original Constitution and the amendments. The amendments are just as much a part of the Constitution as the original articles (see Article V). There were three major periods of constitutional revision: the original Bill of Rights, the Reconstruction Amendments, and the Progressive-era Amendments. The authors and ratifiers of all these amendments have as legitimate a claim to the title of “framers” as do Madison and Hamilton.

    Moreover, I simply don’t buy your assertion that the framers would be “shocked” at the income tax. They may not have believed an income tax necessary or appropriate in their time, but constitutions are written to endure, and the framers knew that they could not bind future generations, centuries hence, to the felt necessities of their particular era. That’s why the language of the Bill of Rights and all the other amendments is so broad and vague (at least the provisions not dealing with governmental structure and procedure, e.g. the 17th Amendment). The case of the 18th and 21st Amendments shows what happens when you try to embody particular policies in a constitution.

    It’s also far from clear that the Constitution forbade collection of a federal income tax before the passage of the 16th Amendment. Article 1, Section 8 provides that Congress “shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.” The limitation you may be thinking of is that Article 1, Section 9 says that “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”

    So the question became whether the federal income tax was a “direct” tax or capitation. In Springer v. United States (1881), the Court said no, it wasn’t. It revised that view in Pollock v. Farmers Loan & Trust (1895). So then the Progressives had to clarify that Congress did have the power to collect income taxes “from whatever source derived” and “without regard to any census or enumeration.” In Bowers v. Kerbaugh-Empire (1926), the Court wrote, in a decision joined by all the conservatives, that “Congress already had power to tax all incomes” before the 16th Amendment. In any case, the question all along was not whether Congress could collect an income tax, but how the tax had to be apportioned and what counted as income.

    Beck may well believe that the 16th Amendment (and perhaps even the original Constitution) gave the federal government too much power. My point is that you can’t worship the Constitution as a quasi-religious text, as Beck does, but pick and choose which provisions are divinely inspired and which are garbage. It’s all the Constitution. If he doesn’t like what it says, that’s a legitimate position, as you say. But then he’s not the Constitution-worshiper he pretends to be. He’s participating in the great American tradition of trying to update the Constitution for a new era. And that’s fine—but he should be honest about what he’s doing.

    Sam

  • Sam Barr

    For more picking and choosing, see Rep. Scott Garrett’s proposal that the General Welfare and Necessary and Proper Clauses not count as valid justifications for congressional action.

    (http://www.washingtonmonthly.com/archives/individual/2011_01/027375.php)

  • Sam Barr

    Or see Steve King’s blatantly unconstitutional bill to do away with birthright citizenship.

    http://www.lawyersgunsmoneyblog.com/2011/01/constitution-revering-republicans-propose-unconstitutional-law

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  • Cornhuskerhater

    This author is failing to realize that Judge Napolitano is referring to the original constitution not the 16th ammendment when he says “that we could begin by abolishing the federal income tax—because the federal government needs “cash” in order to tell people and states what to do.”  Whoops author maybe you should go back and read the original constitution.  The 16th ammendment wasn’t added until 1913 which was added over 100 years after the original constitution.  The whole point of Naplitano and Becks argument is that the 16th ammendment is unconstitutional and if you go back and actually read the constitution you will understand what they are saying.  You see an ammendment means a change, so the 16th ammendment is a change to the constitution, not the constitution.  Are there any other misguided reliberalous ideaologies you have that I can clear up for you?

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