libertarians: should us senators be elected by the people?

[David S]

Well if we used the old system I'd have two Republican senators instead of two Dems. But for other states it might be the other way around, so how it would affect the makeup of the senate is hard to tell. But the worst constitutional amendment on the books is the 16th which created the income tax. That passed when the senate was elected the old way.

I guess I can't say that things would be better one way or the other.

[David S]

But the worst constitutional amendment on the books is the 16th which created the income tax.

The Sixteenth Amendment had no effect whatsoever, except to clarify what was already implicitly provided in the original Constitution: income taxes are permissible.

Prior to the 16th amendment there was no income tax except for a brief period during the civil war. After the 16th amendment income taxes became the primary source of revenue. So it very definitely had a profound effect.

Constitutional amendments are difficult to pass. Why would government do something so difficult if it was not necessary?

[David S]

Constitutional amendments are difficult to pass. Why would government do something so difficult if it was not necessary?

The establishment clause of the First Amendment does not add anything to the Constitution, for the federal government never had the power to establish a religion in the first place. To an even greater extent, the Ninth and Tenth Amendments were utterly redundant, yet they were adopted. Nor is there any new content in the citizenship clause of the Fourteenth Amendment. Nevertheless, in all of these cases, amendments were added to make explicit what was previously merely implied.

The Sixteenth Amendment was adopted because the Supreme Court (wrongly) determined that the income tax was a "direct tax," and therefore subject to the apportionment requirement contained in Article I, in Pollock v. Farmer's Loan and Trust Co. (1895). To overrule this incorrect determination, Congress passed the Sixteenth Amendment. The Court itself later admitted its error:

"[T]he Sixteenth Amendment conferred no new power of taxation but simply prohibited ... income taxation ... from being taken out of the category of indirect taxation to which it inherently belonged." Stanton v. Baltic Mining Co. (1916).

The term "indirect taxation" is not found anywhere in the constitution. In my opinion it was a fiction created by 19th century statists who weren't satisfied with the amount of revenue they were able to get through constitutional means.

[David S]

This isn't really a question for Libertarians, it's a question for Federalists.  As far as Libertarianism is concerned, how Senators are elected is unimportant.  However, as an ardent Federalist, I want to see the 17th amendment repealed.

Ernest I would be interested in hearing your reason for that. As I mentioned I don't have a strong feeling one way or the other, but I might be convinced by a good argument.

[David S]

The term "indirect taxation" is not found anywhere in the constitution. In my opinion it was a fiction created by 19th century statists who weren't satisfied with the amount of revenue they were able to get through constitutional means.

The term "direct tax" appears twice in the original document: once in Art. I, Sec. 2, and once in Art. I, Sec. 9. Both of these clauses impose a special rule on direct taxation: the amount paid by each state should be proportional to its population. No such rule, however, was imposed on other taxes, which we call "indirect taxes" for convenience.

There is more than one reference to the distinction between direct and indirect taxes in the Federalist Papers. In Federalist No. 36, for example, Hamilton writes: "The taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the DIRECT and those of the INDIRECT kind" (emphasis in original).

There was also a Supreme Court case about whether a particular tax (a tax on carriages, to be precise) was direct, and therefore subject to the appropriation rule, or indirect, and therefore not subject to any such requirement. (Hylton v. United States.)

The income tax was perfectly constitutional: the first century of constitutional jurisprudence provides numerous precedents in support of the idea. In Pollock, however, the Supreme Court vainly dismissed all of these precedents as a "century of error." The decision, however, was very plainly an activist one. Let us not forget that "conservative" judges are just as capable as "liberal" ones (if not more so) of making activist judgments.

The constitution provides for Direct taxes ( taxes paid to the federal govt by the states in proportion to their population). It also provides for duties, imposts and excises.  Duties and imposts are tariffs. Excise taxes according to the Law.com dictionary are defined as follows:
excise
n. a tax upon manufacture, sale or for a business license or charter, as distinguished from a tax on real property, income or estates. Sometimes it is redundantly called an excise tax.

As you can see they are not income taxes and are specifically distinguished from income taxes.

The term "indirect tax" does not come from the constitution. It has been used by statists to create something which the constitution does not provide for.
 

[David S]

The constitution provides for Direct taxes ( taxes paid to the federal govt by the states in proportion to their population). It also provides for duties, imposts and excises.  Duties and imposts are tariffs.
 Excise taxes according to the Law.com dictionary are defined as follows:
excise
n. a tax upon manufacture, sale or for a business license or charter, as distinguished from a tax on real property, income or estates. Sometimes it is redundantly called an excise tax.

As you can see they are not income taxes and are specifically distinguished from income taxes.

Two points:

Firstly, the Constitution (Art. I, Sec. 8, Cl. 1) authorizes Congress to, as Ernest pointed out, "lay and collect Taxes, Duties, Imposts and Excises." In this instance, the word "taxes" is not qualified by "direct"; therefore, income taxes are authorized.

Secondly, even if you disagree with the previous point, income taxes were considered "duties" at the time. In Great Britain during the eighteenth century, there existed a "duty ... consisting in a payment of 1 s. in the pound ... out of all salaries, fees, and perquisites, of offices and pensions." (Blackstone, Commentaries on the Laws of England, Bk. 1 Ch. .

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Obviously, it is shorthand for "tax that is not subject to the apportion requirement of Art. I, Sec. 2, Cl. 3."

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So James Madison and Alexander Hamilton are statists now?

Hamilton was a statist  and Madison argued against the carriage tax that was mentioned earlier. Individual income taxes were never collected prior to the civil war when war spending drove the politicians to collect money in whatever way possible. And it was a very contentious issue when they did it.

BTW this is somewhat off topic but is an interesting sidenote: The last time the government was debt free was in 1835, long before income taxes were collected. Now, while the government takes in nearly a trillion dollars a year in income taxes, we are in debt up to the eyeballs. Another result of the statists policies.

[David S]

The constitution provides for Direct taxes ( taxes paid to the federal govt by the states in proportion to their population). It also provides for duties, imposts and excises.  Duties and imposts are tariffs. Excise taxes according to the Law.com dictionary are defined as follows:
excise
n. a tax upon manufacture, sale or for a business license or charter, as distinguished from a tax on real property, income or estates. Sometimes it is redundantly called an excise tax.

As you can see they are not income taxes and are specifically distinguished from income taxes.

The term "indirect tax" does not come from the constitution. It has been used by statists to create something which the constitution does not provide for.
 

When did Article I Section 8 Clause 1 get amended?

What did I say that conflicts with the constitution?

[David S]

Hamilton was a statist  and Madison argued against the carriage tax that was mentioned earlier.

The point is not whether the carriage tax specifically was or was not constitutional. The point is that the distinction between direct and indirect taxes was recognized even by James Madison. It was also recognized by a unanimous Supreme Court in Hylton v. United States; three of the judges who wrote opinions (Paterson, Iredell, Wilson) were at the Constitutional Convention. It was also recognized by Justice Joseph Story in his Commentaries on the Constitution of the United States ("[Taxes] are usually divided into two great classes, those, which are direct, and those, which are indirect." Vol. II Sec. 947).

Therefore, with all due respect, your claim that the distinction between direct and indirect taxes was invented by "19th century statists" is utterly absurd.

In fact, if there is no distinction, then why does the Constitution specifically use the words "direct tax" in the first place? Why not simply say that all taxes shall be subject to the appropriation rule? No, the fact that the Constitution makes a specific reference to the category of direct taxes clearly indicates that there also exists a category of indirect taxes. The only question is, is the income tax a direct tax or an indirect tax? There are certainly some arguments to suggest that the income tax is the former, but since none have actually been made in this thread, I don't see how I can respond to them.

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Just because X did not happen before the Civil War, it does not follow that X is unconstitutional. Perhaps you hold that spending money on an Air Force is unconstitutional as well?

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So what? I oppose the income tax quite strongly, but I certainly don't hold the highly suspect and entirely unsupported view that the income tax is or was ever unconstitutional.

I don't have a problem with distinguishing duties, imposts and excises from direct taxes. If you call them indirect as a way to distinguish them that's Ok. Its when you use that term to cover income taxes as well that you  are stretching the constitution.

[David S]

I don't have a problem with distinguishing duties, imposts and excises from direct taxes. If you call them indirect as a way to distinguish them that's Ok. Its when you use that term to cover income taxes as well that you  are stretching the constitution.

Firstly, Art. I, Sec. 8, Cl. 1 does not distinguish duties, imposts, and excises from direct taxes. The clause reads, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises."

Secondly, I have already made an argument that the income tax is a "duty." As I said before, an income tax imposed in England prior to the American Revolution was called a "duty" in Blackstone's Commentaries, with which the Framers were indubitably familiar.

But, the entire point of the Senate was to represent state's interests in Washington; the people already had representatives in the House.

I will ask again what I asked before: What is a state, if it is not the group of people living in a particular area? Why is it the case that the Senate represents a state's interests if it is chosen by the people of that state indirectly, but not if it is chosen by the people of that state directly?

Okay, replace "state" with "state government".

If the Senate were a body responsible for coordinating or regulating the state governments themselves, then your argument would make sense. But why should the Senate represent state governments, when the chief purpose of the Senate is to participate in making laws that directly regulate the people?

Emsworth I am quite sure that you and I will not agree on this point. I've made my points and you've made yours. However the argument is pointless since the 16th amendment definitely authorizes an income tax. Both of us would like to eliminate the tax. My means of doing so would be the 28th amendment which would say "The 16th amendment is hereby repealed." In view of your opinions I would add to that; " ...and the federal government is hereby prohibited from collecting taxes on income."

My contention is that your position is supported by a gradual distorting of the intents of the founders over the years until  a different meaning was created. I suspect you would agree that the term "general welfare" has been distorted from the narrow meaning the founders created to something very different which authorizes the government to do anything it deems to be good. That being the case I might also suggest that a severe punishment be added to discourage politicians from twisting the meaning of terms, maybe something like this: "Any member of government who attempts to create an income tax shall be shot, hanged, dragged through the streets and then shot again." That at least might give them pause for thought.