You have to admit, it is a good question. When Congress, or a state legislature, enacts a law, the two governing chambers must always approve the same text. If not, then there is no law. Instead, there are two separate votes on two separate versions of that law. Similarly, if the states did not all vote on the same language, one could argue that they did not all ratify the same 16th Amendment.
There is a certain logic to this conclusion, but the courts have consistently held that minor textual variations in the versions the states voted upon are unimportant. Those same courts assert that every state legislature that acted on the amendment intended to either ratify or reject it, exactly as proposed by Congress. When they voted, they understood themselves to be voting to approve or reject the 16th Amendment, as proposed by Congress. Judges who have considered the issue have all held that “the text of that amendment, as set forth in the various state instruments of ratification, was there for recitation purposes only. Any errors in that text were not proposals to change the amendment being ratified, they were just inadvertent errors that do not detract from the overall intent of the state legislature to ratify the amendment, as proposed.”
Another ruling courts have used to defeat tax protesters is that the official declaration (by the appropriate government official) of the effective date on a constitutional amendment is definitive. In 1913 the Secretary of State was the government official charged with determining whether an amendment to the Constitution had been properly ratified (today, that task is performed by the Archivist of the United States). Courts, although regarding themselves as empowered to determine the meaning of the Constitution and the laws, regard themselves as not competent to say when the definitive text of the Constitution and its amendments starts to be applied. In 1922, the Supreme Court held in Leser v. Garnett, 258 U.S. 130 (1922), that when the Secretary of State certifies that an amendment to the Constitution has been ratified, no court is empowered to look behind that claim to determine whether or not it really was. Of course, that ruling came nine years after Philander Knox certified the 16th Amendment. But the same principle was applied in 1913. So what would happen today if an amendment was proposed and three-fourths of the states do not ratify it, but the Archivist of the United States ignores that reality and declares it ratified? The Supreme Court says courts cannot question that patently wrong action. Common sense would say that of course the courts would question that. Which in and of itself begs a question.
A final bit of reasoning courts offer to defeat tax protesters is that the 16th Amendment has been around for over 100 years, it has been considered and applied by courts, including the Supreme Court in innumerable cases, therefore it’s valid. As one judge wrote, “While this alone is not sufficient to bar judicial inquiry, it is persuasive on the question of validity.” Let’s stretch this to its logical conclusion. If a law was illegal from the start, yet was still adopted, would the simple fact that it’s been around a long time be enough to now make it legal?
Clearly not.
Here’s reality: Courts simply don’t want to hear that the 16th Amendment may be invalid. The implications from that conclusion are too horrific for them to even consider. So judges have fashioned their own form of twisted logic to shoot down any and all challenges. The problem is that their reasoning does not hold up to scrutiny. And when the day comes that someone can actually present concrete proof not only of the amendment’s non-ratification, but that the declaration of its effectiveness by the Secretary of State in 1913 was flawed from the start, the courts will have no choice but to consider it.
Here’s one final point. Some say that even if the 16th Amendment was not properly ratified, that does not mean Congress could not impose an income tax. That’s true. Congress could still impose an income tax, but it would have to be apportioned, as required by Article I, Section 2. Of course, that would never happen. The fears of the Founding Fathers relative to “direct taxes” have not abated. If anything, they are even stronger today. No Congress would approve an income tax that has radically differing rates depending upon where one lived.
And don’t forget about that “horrific part” the courts really fear. Imagine for a moment if the 16th Amendment is invalid, has been invalid from the start, and the Secretary of State in 1913 knew enough to at least be suspicious—yet still declared it “in effect.” By any definition that’s fraud. Not only would the current application of the 16th Amendment cease immediately, but the United States would be liable for trillions and trillions of dollars it illegally stole from its citizens. Considering that possibility, it’s easy to see why the courts work so hard to uphold its validity.
She stopped reading.
Everything Howell wrote made perfect sense. His arguments were sound, the implications clear, some of it echoing the fears Danny had expressed in the car. She could understand now why he was concerned. He’d obviously read the book. She also tried to recall something else the federal appellate court had written in Howell’s case, right after it stated that “for Howell to prevail, we would require, at this late hour, an exceptionally strong showing of unconstitutional ratification.” She tapped the keyboard on her laptop and found the trial court’s opinion online, locating the passage at the end.
Howell (through his appointed counsel) has made no such showing, only boldly concluding that the amendment was improperly ratified. No evidence has been presented to prove this assertion, nor has Howell cited any factual or legal authority binding on this court (or for that matter on Secretary of State Knox in 1913) for his contention that the 16th Amendment was improperly ratified. In short, Howell has not carried the burden of showing that this 100-year-old amendment was unconstitutionally ratified.
Was the proof Howell sought contained within a black satchel presently crossing the Adriatic Sea on its way to Croatia? China, North Korea, and Kim Yong Jin seemed to think something substantive was there.
She agreed with Danny.
This crisis was decidedly different.
And she, too, had a bad feeling.