Jorge Arbusto's fault... He's the one who downsized & outsourced our industrial infrastructury that is now produced more "efficiently" in Third World shitholes...
Trump is 20 years too late, we should've elected Ross Perot when we had the chance...
But I don't give a shit anymore.... I'm probably gonna croak sometime within the next 3~4 years anyway...
Fuck all them idiots that did this... They fuckin' ruined this whole goddam planet for everybody...
Too many goddam people, too much goddam garbage & trash... plastics, pesticides, fertilizer runnoff, flushed pharmaceuticals... Gonna all disrupt the global foodchain, drug-resistant diseases running rampant worldwide....
There's no avoiding it... I just hope I croak from old age before it hits
I see no reason to focus on Paul Singer, even though he may be the worst of his ilk...
But that's how they did it during Arbusto's reign.... Mitt Romney & Bain Capital were no different...
Fuck 'em all... And Fuck Tump too.... he can't bring any of that stuff back no matter what he does... He's just a fucking conartist & grifter who's taking advantage of poor gullible fools who think there's still hope.....
Ok, that explains a little. Thanks. I'm doing what I can for my progeny. Not sure what or if. I have this feeling for my country, but I'm not sure if it is any different than family, in both cases there's some dumbasses that I'd like to choke.
Mitt Romney & Bain Capital were no different.
Yep, same moral arrogance.
I'm not sure about Trump. We'll see. My understanding is that it's a nationalist (Trump, Netanyahoo) vs. globalist. The next 6 months will reveal a lot.
And yeah, there's no bringing the past back in terms or economic functions, but there may be a decent uprising (again) of the common man. Tulsi Gabbard is the only person on stage that I see with a glimmer of understanding.
Tulsi is a mass murderer. She supports killing American children. She wants to end oil production. She doesn't want us to fight back against terrorists. She is a piece of shit.
Endorsed Endorsed by EMILY's list for pro-choice Democratic women. (Aug 2012)
Yep, she's a politician running for office on the Democrat slate from an overwhelmingly Democrat part of the country.
Like it or not, abortion is the Establishment's policy and it was put in place by Republicans. It will be there until the population declines precipitously. Most young women support it because they don't want as many children as modern medicine allows to survive.
Although I understand the concerns of the pro-abort crowd, I continue to oppose abortion on a moral basis, as it is a crude and vicious form of birth control that corrodes the emotional well being of the people.
When I watch her I see a good hearted woman who is also intelligent and seeks the truth of matters. She may not always be right (re: agree with me), but she is not deliberately corrupt. That alone is worth support.
Finally, her adoption of the mono-theistic (and Christian-like) branch of the Hindu religion is far more acceptable than the anti-Christian Jewish swamp we live with now.
I also hate that Catholics are liars like you just did. Catholics hold the majority in the Supreme Court they can end it today. But you dumb Catholics are like Lucy and the football with Charlie Brown. Lukewarm is what you are. An excuse maker for satan's democrats.
Put in place by Republicans. Sorry for calling you a liar but that isn't really true.
Roe v. Wade, 410 U.S. 113 (1973)
Opinion of the Court 7-2; 5D, 2R
Blackmun (R) delivered the Opinion of the court joined by 6 more. Burger (R) Marshall (D) Powell (D) Douglas (D) filed a concurring opinion. Brennan (D) filed a concurring opinion. Stewart (R) filed a concurring opinion.
Dissenting justices: 1D, 1R
White (D) filed a dissenting opinion, in which Rehnquist joined. Rehnquist (R) filed a dissenting opinion.
The Court contained 6 nominees by Republican presidents Eisenhower, Nixon and Reagan.
It contained 3 nominees by Democrat presidents FDR, JFK, and LBJ.
Justice Powell was a Democrat nominated by Republican Nixon.
Justice Brennan was a Democrat nominated by Republican Eisenhower.
The Court contained 5 Democrat justices and 4 Republican justices.
So, we're going to count judges nominated by Republican Presidents as "Democrat" judges?
Well then, given that the Supreme Court has been continuously controlled by Republican nominees since Nixon, please tell us the date after which the Republican nominees were nominally Republican. I believe that occurred under Reagan.
O'Connor, Kennedy, Souter, Roberts - these are Republican nominees who are nominally Republican. And they've provided the bulwark to prevent the Republican majority Court from overturning Roe.
So, we're going to count judges nominated by Republican Presidents as "Democrat" judges?
No, I advocated for no such conclusion. I only reposted my years old recitation of the party of the justices and the presidents who nominated them.
I find the entire argument absurd. Lo these many years, I have never found the abortion clause of the Constitution. I do not find it to be a constitutional matter at all.
Whether a judge is a Catholic, Protestant, Jew or other, he or she should decide based on United States law, not some personal perception of God's law. Finding something morally repugnant or acceptable does nothing to determine it to be either constitutional or unconstitutional.
The first law citing murder was in 1790 and only applied to places under the sole and exclusive jurisdiction of the United States. Murder elsewhere was not a Federal matter. Even if abortion were considered infanticide, it would not have been a crime against the United States.
SEC. 3. And be it [further] enacted, That if any person or persons shall, within any fort, arsenal, dock-yard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons on being thereof convicted shall suffer death.
The argument over Roe proceeds from the false choice of Roe, or a reversal of Roe prohibiting all abortion. I believe it should be a matter of state jurisdiction. Roe should be overturned for lack of jurisdiction, and the matter returned to the States.
Whether a judge is Dem or GOP should not determine how he rules. Jonathan Turley just proved that it is possible for a Democrat attorney to interpret the law independent of the general political leanings of his party.
At the time of Roe, it was entirely possible for a conservative Southern Democrat to be much more conservative than what was then a moderate Northeastern moderate Republican. A party indicator from nearly 50 years ago provides no indicator of that justice's legal leanings. Even a current party indicator does not identify how one would interpret the Constitution.
The party indicator of the nominating official provides less than nothing.
Should states be allowed to make it legal to murder adults or just innocent never hurt anyone babies?
Where should the power lie?
Should the Supreme Court have the power to make it legal to murder adults or anyone's babies?
Should the Supreme Court have such power in the absence of any decision by the Federal political branch (the Legislature) in the form of a law? There was no Federal law at issue in Roe. No Federal law prevented a State from banning abortion. Roe relied on constitutional interpretation to strike down a Texas State law. In doing so, it made that interpretation applicable to all the States, striking down all conflicting State law.
Remember, vesting such power in the Supreme Court can, and did, result in Roe v. Wade, striking down all laws contrary to that vision of the Constitution.
Remember, vesting such power in the Supreme Court can, and did, result in Roe v. Wade, striking down all laws contrary to that vision of the Constitution.
No one vested such power in the Supreme court. They usurped it in Marbury vs Madison.
But you didn't answer the question.
You seem to be ok with allowing states to determine if you can murder a child.
So I will ask again. Should states be allowed to pass laws making it lawful to kill adults?
Remember, vesting such power in the Supreme Court can, and did, result in Roe v. Wade, striking down all laws contrary to that vision of the Constitution.
No one vested such power in the Supreme court. They usurped it in Marbury vs Madison.
But you didn't answer the question.
You seem to be ok with allowing states to determine if you can murder a child.
So I will ask again. Should states be allowed to pass laws making it lawful to kill adults?
Why ok for babies but not adults?
Yours is an inapplicable question and I will walk you through why that is so.
10th Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
ALL power resides in either:
The United States, or
The States, or
The people
Unless you strike down the Constitution, those are your three choices for who has the power to decide whether abortion is constitutional or unconstitutional, lawful or unlawful.
Either the Federal government or the States must be empowered to decide whether to prohibit abortion, or it is left to the people to decide. You must pick one, and only one.
If you choose the Federal government, then you choose to
permit the Congress to pass a law making abortion a crime, or prohibiting States from making abortion a crime, or
permit the Supreme Court to preempt Congress and all States by issuing an opinion based on an interpretation of the Constitution
do nothing, leaving it to the States
If you choose the States, then you choose to
empower the State government to pass a law making abortion a crime
do nothing, leaving it to the people
If you choose the People, then you choose to
render all abortion legal until the People exercise their sovereign power to amend the Constitution to state, for example, "Abortion is a felony punishable by death."
Nothing is murder, or any crime at all, until there is a law stating that it is murder or a crime. It is an absolute fact that abortion, at this time, is not murder.
Whoever is empowered is empowered to decide abortion is a crime by passing a law so stating. Should they not pass such a law, then abortion is not a crime within that jurisdiction. Whoever is empowered is empowered to pass a law making interference with lawful abortion a crime, or to regulate abortion in the manner of its choosing.
As you seem to support Federal jurisdiction, where the power now resides, States cannot decide whether to make abortion a crime.
So I will ask again. Should states be allowed to pass laws making it lawful to kill adults?
Why ok for babies but not adults?
The inapplicability of your question is shown by the fact that States have no power to declare abortion lawful or unlawful. The Federal government has declared that it is empowered to decide the matter and it has decided it by declaring to all 50 States that abortion is not unlawful, much less murder, and that it is a constitutional right.
Everything is legal unless there is a law stating it is illegal. Whoever is empowered makes something legal by doing nothing. They make something lawful by not passing a law making it unlawful.
No one vested such power in the Supreme court. They usurped it in Marbury vs Madison.
As a matter of law, you are simply wrong about Marbury. However, assume arguendo that you are correct.
You appear perfectly happy to support an activist Supreme Court deciding the legality of abortion, just as long as the majority agrees with you in exercising jurisdiction you alternately appear to deny exists.
Marbury actually resolved whether the Federal courts could strike down a Federal law as repugnant to the Constitution. In Roe, there was no Federal law involved. Had there been an inconsistent Federal law, the Federal law would have prevailed pursuant to Article 6.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
It isn't in the constitution. The supreme court gave itself powers not given to it by the framers. That is indisputable truth. Abortion is also indisputable murder I
It isn't in the constitution. The supreme court gave itself powers not given to it by the framers. That is indisputable truth. Abortion is also indisputable murder I
You are welcome to live in your alternate reality. It is indisputable truth that people interfering with others entering or leaving abortion clinics are charged with a crime, while people receiving or performing abortions are not.
The only way to overturn Roe is by constitutional amendment or by another action of the Supreme Court itself. A blog entry declaring Roe null and void does not get it.
You appear to actively support the Court usurping power to impose their opinion upon the fifty states and the federal legislature. Your only disagreement is with the opinion they issued.
Just imagine the Framers' surprise when they learn that they created a constitutional right to gay marriage.
If you lived in Nazi Germany in stead of abortion murder America. You would be saying the Jew are being gassed and the Germans are gassing and not being arrested.
Abortion is murder in this world. The intentional taking of a human life is murder no matter what some douchebag you worship in a black robe says.
It is av violation of the 9th amendment. The right to life once conceived. It is a human being that is being murdered. A human being not a fuckiing zygote. That is idiot liberal talk.
Don't you respect the 9th amendment. I don't think you do. Just like the second amendment didn't give us the right to bear arms. We already had that right. Can you give us some of the rights the 9th gives us. I don't think you can.
Also the Declaration of Independence is superior the constitution. It suts higher in the pecking order. Also no good people give a shit what the Supreme Court says when they get it wrong. If you want to know when they get it wrong ask me and I will tell you.
The constitution means what it says not what the majority votes on a given day.
You can disagree but you would be wrong.
What you promote is color of law. I don't have tine to explain what color of law is go look it up.
The framers didn't make a right to faggots pretending to be married just like they didn't make a right to abortion. Most of the framers would kill, the abortionists with muskets or hanging.
If you lived in Nazi Germany in stead of abortion murder America. You would be saying the Jew are being gassed and the Germans are gassing and not being arrested.
If I were living in Nazi Germany and you asked me what the law was, I would try to respond with an accurate recitation of Nazi German law. I would not make believe that Nazi German law was an A K A Stone brainfart.
Abortion is murder in this world. The intentional taking of a human life is murder no matter what some douchebag you worship in a black robe says.
Abortion is not murder if the law says it is legal. Murder defines a criminal act punishable under the law. Try charging someone with criminal abortion.
It is av violation of the 9th amendment. The right to life once conceived.
9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
It does not say a mumbling word about abortion or the right to life of a fetus.
5th Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger....
Black's Law Dictionary, 6th Ed.
Capital case or crime. One in which death penalty may, but need not necessariy, be imposed.
Yea verily, under the Constitution, living people have been gassed, shot, hanged, and electrocuted until dead. And then there is lethal injection.
The right to life, liberty and the pursuit of happiness is in the Declaration of Independence which has never been the law of anyplace. Murder is punished as murder under a murder statute, not the Constitution.
A human being not a fuckiing zygote. That is idiot liberal talk.
Zygotes were brought up at #62 by Anthem, to whom I responded. Take it up with Anthem. I never claimed a zygote is a human being. A zygote is a fertilized egg.
Don't you respect the 9th amendment. I don't think you do.
It appears you either have not read it, or you find therein some imaginary provision that criminalizes abortion. But then, the District Court in Roe found therein the right to abortion, and the Supreme Court opined that, "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Then there is Section 1 of 14th Amendment where SCOTUS finds the imaginary right to abortion,
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
An abortion clinic is not a State.
Remember, you are the one supporting the power of SCOTUS to strike down all the state laws that prohibited abortion. My personal finding is that abortion is not addressed by the Constitution, Roe took up an argument based on a non-existent provision of the Constitution, and the case should have been dismissed for lack of jurisdiction. You, on the other hand, ignore the constitutional and jurisdiction issue and find the court should decide the lawfulness of abortion on constitutional grounds.
Note that at the time of Roe, there was no Federal law banning abortion to overturn. Note also that the final arbiter in interpreting a State law is the highest court of the State, not the U.S. Supreme Court. SCOTUS decided that abortion was a right under some vaguely identified provision emanating from a penumbra.
Just like the second amendment didn't give us the right to bear arms. We already had that right. Can you give us some of the rights the 9th gives us. I don't think you can.
Neither the 9th Amendment, nor the 2nd Amendment, created or gave any new right. Neither purports to do so. The right to keep and bear arms was cut and pasted from English common law, which was the law in the colonies before independence.
Also the Declaration of Independence is superior the constitution. It suts higher in the pecking order.
The DoI sits in equal status with a blog entry as far as being law. It is not law. In fact, it was crafted before there was a United States.
Also no good people give a shit what the Supreme Court says when they get it wrong. If you want to know when they get it wrong ask me and I will tell you.
When SCOTUS gets it wrong according to you or me, their interpretation of the law is still the law of the land.
Tell yourself whatever you want. Since SCOTUS said abortion is a constitutional right, abortion has been legal. Since they said gay marriage is a constitutional right, gay marriage is legal. Recognizing that something is legal is not the same as agreeing with it. Believing something is murder does not make it murder. An act may be murder in Texas and less than murder elsewhere. It simply depends on what the applicable statute says.
The constitution means what it says not what the majority votes on a given day.
SCOTUS is the final arbiter in interpreting the Constitution and what it says is the governing interpretation. Abortions and gay marriage are legal.
You can disagree but you would be wrong.
You can disagree with SCOTUS and it does not change the law. They are empowered as the final arbiter in interpreting Federal law, including the Constitution, and you and I are not. Our opinions are not binding on the courts, Their's are.
What you promote is color of law. I don't have tine to explain what color of law is go look it up.
I will take the time to clear up your evident confusion about color of law and Federal constitutional law.
Black's Law Dictionary, 6th Ed.
Color of law. The appearance or semblance, without the substance, of legal right. Misuse of power, possessed by virtue of state law and made possible only because wrongdoer is clother with authority of state, is action taken under "color of state law.” Atkins v. Lanning, D.C.Okl., 415 F.Supp. 186, 188.
When used in the context of federal civil rights statutes or criminal law, the term is synonymous with the concept of "state action" under the Fourteenth Amendment, Timson v. Weiner, D.C.Ohio, 395 F.Supp. 1344, 1347; and means pretense of law and includes actions of officers who undertake to perform their official duties, Thompson v. Baker, D.C.Ark., 133 F.Supp. 247; 42 U.S. C.A. § 1983. See Tort (Constitutional tort).
Action taken by private individuals may be "under color of state law” for purposes of 42 U.S.C.A. § 1983 governing deprivation of civil rights when significant state involvement attaches to action. Wagner v. Metropolitan Nashville Airport Authority, C.A.Tenn., 772 F.2d 227, 229.
Acts "under color of any law” of a State include not only acts done by State officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of an official to be done "under color of any law”, the unlawful acts must be done while such official is purporting or pretending to act in the performance of his official duties; that is to say, the unlawful acts must consist in an abuse or misuse of power which is possessed by the official only because he is an official; and the unlawful acts must be of such a nature or character, and be committed under such circumstances, that they would not have occurred but for the fact that the person committing them was an official then and there exercising his official powers outside the bounds of lawful authority. 42 U.S.C.A. § 1983.
Color of law refers to an appearance of legal power to act that may operate in violation of law. For example, if a police officer acts with the "color of law" authority to arrest someone, the arrest, if it is made without probable cause, may actually be in violation of law. In other words, just because something is done with the "color of law" does not mean that the action was lawful. When police act outside their lawful authority and violate the civil rights of a citizen, the FBI is tasked with investigating.
The US Supreme Court has interpreted the US Constitution to construct laws regulating the actions of the law enforcement community. Under "color of law," it is a crime for one or more persons using power given by a governmental agency (local, state or federal), to deprive or conspire wilfully to deprive another person of any right protected by the Constitution or laws of the United States. Criminal acts under color of law include acts within and beyond the bounds or limits of lawful authority. Off-duty conduct may also be covered if official status is asserted in some manner. Color of law may include public officials and non-governmental employees who are not law enforcement officers such as judges, prosecutors, and private security guards.
"Color of law" is completely irrelevant to this discussion.
The framers didn't make a right to faggots pretending to be married just like they didn't make a right to abortion.
And yet, it is the law. Abortion and gay marriage are legal. Pete Buttigieg, a candidate for president, has a husband. We even have laws against using the wrong pronouns. And guys who identify as girls are transformed into record breaking "lady" track stars and "lady" weight lifters.
Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.
Obergefell at 4:
(3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way.
I didn't write it, but it is now the law. You can make believe otherwise.
If you do not know what it means, stop trying to use it.
Black's Law Dictionary, 6th Ed.
Color of law. The appearance or semblance, without the substance, of legal right. Misuse of power, possessed by virtue of state law and made possible only because wrongdoer is clother with authority of state, is action taken under "color of state law.” Atkins v. Lanning, D.C.Okl., 415 F.Supp. 186, 188.
When used in the context of federal civil rights statutes or criminal law, the term is synonymous with the concept of "state action" under the Fourteenth Amendment, Timson v. Weiner, D.C.Ohio, 395 F.Supp. 1344, 1347; and means pretense of law and includes actions of officers who undertake to perform their official duties, Thompson v. Baker, D.C.Ark., 133 F.Supp. 247; 42 U.S. C.A. § 1983. See Tort (Constitutional tort).
Action taken by private individuals may be "under color of state law” for purposes of 42 U.S.C.A. § 1983 governing deprivation of civil rights when significant state involvement attaches to action. Wagner v. Metropolitan Nashville Airport Authority, C.A.Tenn., 772 F.2d 227, 229.
Acts "under color of any law” of a State include not only acts done by State officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of an official to be done "under color of any law”, the unlawful acts must be done while such official is purporting or pretending to act in the performance of his official duties; that is to say, the unlawful acts must consist in an abuse or misuse of power which is possessed by the official only because he is an official; and the unlawful acts must be of such a nature or character, and be committed under such circumstances, that they would not have occurred but for the fact that the person committing them was an official then and there exercising his official powers outside the bounds of lawful authority. 42 U.S.C.A. § 1983.
Color of law refers to an appearance of legal power to act that may operate in violation of law. For example, if a police officer acts with the "color of law" authority to arrest someone, the arrest, if it is made without probable cause, may actually be in violation of law. In other words, just because something is done with the "color of law" does not mean that the action was lawful. When police act outside their lawful authority and violate the civil rights of a citizen, the FBI is tasked with investigating.
The US Supreme Court has interpreted the US Constitution to construct laws regulating the actions of the law enforcement community. Under "color of law," it is a crime for one or more persons using power given by a governmental agency (local, state or federal), to deprive or conspire wilfully to deprive another person of any right protected by the Constitution or laws of the United States. Criminal acts under color of law include acts within and beyond the bounds or limits of lawful authority. Off-duty conduct may also be covered if official status is asserted in some manner. Color of law may include public officials and non-governmental employees who are not law enforcement officers such as judges, prosecutors, and private security guards.
"Color of law" is completely irrelevant to this discussion.
cts "under color of any law” of a State include not only acts done by State officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of an official to be done "under color of any law”,
You can beat me and shut me up. If you could only prove that the Supreme court is the final arbitrator using the Constitution. You can't do that though. You just ignore that point. You can't do it because those words aren't in there. They aren't Chan and you know it.
If you could only prove that the Supreme court is the final arbitrator using the Constitution. You can't do that though. You just ignore that point. You can't do it because those words aren't in there. They aren't Chan and you know it.
U.S. Constitution, Article III.
Article III
Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;—to all cases affecting ambassadors, other public ministers and consuls;—to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;—to controversies between two or more states;—between a state and citizens of another state;—between citizens of different states;—between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
[...]
Who do you think is the final arbiter when interpreting the Constitution? Liberty's Flame? Free Republic? Democratic Underground? dKos?
Cite the authority which empowers anyone but the U.S. Supreme Court. SCOTUS is the only court created by the Constitution.
[nc #91] Appeal Roe and Obergefell to the imaginary court of natural law.
[Judas Goat #91] The CDC provides a plethora of documentation establishing how UN-imaginary the court of Natural Law is.
By all means, take your case to the Centers for Disease Control (CDC) and argue God's law in the imaginary CDC Ecclesiastical Court. Good luck and may ooga booga be with you.
Black's Law Dictionary, 6th Ed.
Natural law. This expression, "natural law,” or jus naturale, was largely used in the philosophical speculations of the Roman jurists of the Antonine age, and was intended to denote a system of rules and principles for the guidance of human conduct which, independently of enacted law or of the systems peculiar to any one people, might be discovered by the rational intelligence of man, and would be found to grow out of and conform to his nature, meaning by that word his whole mental, moral, and physical constitution. The point of departure for this conception was the Stoic doctrine of a life ordered "according to nature,” which in its turn rested upon the purely supposititious existence, in primitive times, of a "state of nature;” that is, a condition of society in which men universally were governed solely by a rational and consistent obedience to the needs, impulses, and promptings of their true nature, such nature being as yet undefaced by dishonesty, falsehood, or indulgence of the baser passions. In ethics, it consists in practical universal judgments which man himself elicits. These express necessary and obligatory rules of human conduct which have been established by the author of human nature as essential to the divine purposes in the universe and have been promulgated by God solely through human reason.
Constitutional Law, 6th Ed., Jerome A. Barron and C. Thomas Dienes, Black Letter Series, West Group, 2003, p. 165.
A. THE ORIGINAL CONSTITUTION
1. NATURAL RIGHTS
Despite some contrary judicial opinion in the early years of the Republic, the claim that there are extra-constitutional "natural rights" limiting governmental power has generally not been accepted by the courts. If the federal government exercises one of its delegated powers or the states exercise their reserved powers, some express or implied constitutional, statutory, or common law limitation must be found if the government action is to be successfully challenged.
Despite some contrary judicial opinion in the early years of the Republic, the claim that there are extra-constitutional "natural rights" limiting governmental power has generally not been accepted by the courts.
That is because the courts have gone rouge.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Your post shows that originally they knew the truth before asshole liars came to power. Deceivers. Fakers. Murderers.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Your post shows that originally they knew the truth before asshole liars came to power.
Ah, yes. They knew the troof before asshole liars came to power, and they inserted a clause, (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people) ensuring that Natural Law, God's Law, philosophical speculations of the Roman jurists of the Antonine age, was retained by the people.
Not to be mistaken, slaves were considered persons. Before the assholes and liars took over, the Framers found a unique way to refer to slaves while bestowing to representation in Congress based on an enumeration of persons (census) and "adding to the whole number of free persons, including those bound to service for a term of years, and excluding indians not taxed, three fifths of all other persons." Slaves were that "three fifths of all other persons."
And before the asshole liars came to power, the Framers enshrined slaves with the rights of livestock and other property. All men were created equal, but only white people were accorded the right to naturalization. All men and women were equal, but only white, male landowners could vote. In adopting the Law of God into the American legal system, so said the Founders and Framers before the assholes took over.
About seventy-five years later, President Abe Lincoln went on a three-day drunk and passed out in his bed, his bed perhaps being the bed at the Soldier's Home cottage where President Lincoln frequently went to stay, to be joined in his bed by Captain David Derickson, but I digress. A cabinet member awakened Abe from his slumber and gave him the news. Lincoln jumped from his bed startled, and exclaimed, "I freed the who?"
Ah, yes. They knew the troof before asshole liars came to power, and they inserted a clause, (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people) ensuring that Natural Law, God's Law, philosophical speculations of the Roman jurists of the Antonine age, was retained by the people.
Not to be mistaken, slaves were considered persons. Before the assholes and liars took over, the Framers found a unique way to refer to slaves while bestowing to representation in Congress based on an enumeration of persons (census) and "adding to the whole number of free persons, including those bound to service for a term of years, and excluding indians not taxed, three fifths of all other persons." Slaves were that "three fifths of all other persons."
And before the asshole liars came to power, the Framers enshrined slaves with the rights of livestock and other property. All men were created equal, but only white people were accorded the right to naturalization. All men and women were equal, but only white, male landowners could vote. In adopting the Law of God into the American legal system, so said the Founders and Framers before the assholes took over.
About seventy-five years later, President Abe Lincoln went on a three-day drunk and passed out in his bed, his bed perhaps being the bed at the Soldier's Home cottage where President Lincoln frequently went to stay, to be joined in his bed by Captain David Derickson, but I digress. A cabinet member awakened Abe from his slumber and gave him the news. Lincoln jumped from his bed startled, and exclaimed, "I freed the who?"
blah blah blah
The 9th amendment is real. It was voted on. It is part of the constitution.
Can you name some of the rights it protects? Or are you going to go off on a strange tangent again?
The 9th amendment is real. It was voted on. It is part of the constitution.
Can you name some of the rights it protects?
No. The 9th Amendment states a rule of constitutional construction and does not, in itself, contain a guarantee of any right, or proscription of any infringement.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Can you name the rights protected by the 9th Amendment? Which ones does the 9th Amendment name?
It only protects against construing the constitution’s enumeration of some rights to attack or deny or disparage others because they are not enumerated. As the right to keep and bear arms is enumerated in the 2nd Amendment, the 9th Amendment has no application to it whatever. However, assuming arguendo the the RKBA were not enumerated, the 9th Amendment would not prohibit restrictions or regulations upon the RKBA.
If the RKBA were not enumerated, the 9th Amendment would prevent denying that right on the sole and exclusive basis that it was not enumerated. That is all.
As an historical note, I would observe that James Madison did NOT write the 2nd Amendment. Madison proposed a set of amendments on 8 June 1789. The introduction of the proposed amendments and the associated colloquy on that occasion are in The Annals of Congress I, at pp. 439-68.
Madison’s draft of what led to the 9th Amendment reads:
The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
The assholes of 1789 put Madison’s wording through the congressional committee sausage making process to create the wording that was ultimately offered and ratified, as quoted above.
The purpose of the 9th Amendment was to gain approval for the Constitution as a whole, and the inclusion of a Bill of Rights in particular. Several of the eleven (11) states in the Union at that time were opposed to the enumeration of any rights, lest the enumerated rights be construed as a denial of those rights not so enumerated. Two states were opposed to the Constitution as it was framed and adopted, and had not joined the new Union.
As an historical note I reference the comments of James Madison and Roger Sherman upon the introduction of the proposed amendments.
[Madison, 8 Jun 1789] It cannot be a secret to the gentlemen in this House, that, notwithstanding the unification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism, if they were satisfied on this one point. We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow-citizens show under the Government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject. It is to provide those securities for liberty which are required by a part of the community; I allude in a particular manner to those two States that have not thought fit to throw themselves into the bosom of the Confederacy. It is a desirable thing, on our part as well as theirs that a re-union should take place as soon as possible. I have no doubt it we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those States which have not come in, that we have seen prevailing in those States which have embraced the constitution.
[...]
[Roger Sherman, 8 June 1789] I do not suppose the constitution to be perfect, nor do I imagine if Congress and all the Legislatures on the continent were to revise it, that their united labors would make it perfect. I do not expect any perfection on this side the grave in the works of man; but my opinion is, that we are not at present in circumstances to make it better. It is a wonder that there has been such unanimity in adopting it, considering the ordeal it had to undergo; and the unanimity which prevailed at its formation is equally astonishing; amidst all the members from the twelve States present at the federal convention, there were only three who did not sign the instrument to attest their opinion of its goodness. Of the eleven States who have received it, the majority have ratified it without proposing a single amendment. This circumstance leads me to suppose that we shall not be able to propose any alterations that are likely to be adopted by nine States; and gentlemen know, before the alterations take effect, they must be agreed to by the Legislatures of three-fourths of the States in the Union.
The 9th Amendment was part of a sales pitch and looks like it says more than it does.
I have frequently made disparaging reference to penumbras formed by emanations from various rights. With the 9th Amendment, you stepped squarely into the penumbras and emanations divined by the U.S. Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 116 U. S. 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." * We recently referred
381 U. S. 485
in Mapp v. Ohio, 367 U. S. 643, 367 U. S. 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully an particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).
We have had many controversies over these penumbral rights of "privacy and repose." See, e.g., Breard v. Alexandria, 341 U. S. 622, 341 U. S. 626, 341 U. S. 644; Public Utilities Comm'n v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 167; Lanza v. New York, 370 U. S. 139; Frank v. Maryland, 359 U. S. 360; Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.
While nobody can recite a list of rights guaranteed by the 9th Amendment, some may divine that such rights are found within a penumbra emanated by some fundamental constitutional guarantee within the Bill of Rights.
No. The 9th Amendment states a rule of constitutional construction and does not, in itself, contain a guarantee of any right, or proscription of any infringement.
The 9th Amendment states a rule of constitutional construction and does not, in itself, contain a guarantee of any right, or proscription of any infringement.
lol how cute. Words don't mean what they say.
Au contraire, the words of the 9th Amendment mean exactly what they say, neither more, nor less.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The subject of that sentence is enumeration. It is the enumeration that shall not be construed as stated.
The text of the Amendment quite clearly states a limit on the manner in which the enumeration of certain rights within the Constitution may be construed.
The Committee of Eleven did not strip out the meaningful portion of Madison’s proposed amendment via some unhappy accident. It was an intentional act that achieved a desired effect. It delayed ratification by more than two years, but the opposition eventually caved.
This Article presents previously missed or unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison's initial draft of the Ninth Amendment expressly adopted language suggested by the state conventions, and he insisted that the final draft expressed the same rule of construction desired by the states. The altered language of the final draft, however, prompted former Virginia Governor Edmund Randolph to halt his state's efforts to ratify the Bill of Rights due to his concern that the Ninth no longer reflected the demands of the state convention. Antifederalists used Randolph's concerns to delay Virginia's, and thus the country's, ratification of the Bill of Rights for two years. While ratification remained pending in Virginia, Madison delivered a major speech in the House of Representatives explaining that the origin and meaning of the Ninth Amendment in fact were rooted in the proposals of the state conventions and that the Ninth guarded against a "latitude of interpretation" to the injury of the states. Although the Ninth's rule of construction distinguishes it from the Tenth Amendment's declaration of principle, Madison and other legal writers at the time of the Founding viewed the Ninth and Tenth Amendments as twin guardians of our federalist structure of government. Over time, the Tenth Amendment also came to be understood as expressing a federalist rule of construction. The original federalist view of the Ninth Amendment, however, remained constant and was repeated by bench and bar for more than one hundred years.
James Madison and the 'acrobatic history' of the Ninth Amendment
By Dr. Lynn Uzzell Washington Times Monday, December 12, 2016
The history of constitutional interpretation is notorious for its occasional contortions of speech and logic. But in the case of the Ninth Amendment, history has been truly acrobatic. Whereas the original purpose of this amendment was to guard against expansions of federal power, its recent interpretations have tended (you guessed it) to expand federal authority.
When the Constitution was first being debated during the Ratification period of 1787-88, many Antifederalists denounced the plan of government because it did not contain any bill of rights. Several Federalists, including James Madison, countered that a bill of rights was not only unnecessary in a constitution of limited powers, it was even “dangerous, because an enumeration which is not complete is not safe.”
The Federalists argued that any enumeration of rights would unavoidably imply powers that had never been granted. For instance, if the Framers were to add a provision declaring that Congress had no power to abridge the right of free speech, that prohibition would imply that Congress would have possessed that power without the prohibition. And the Framers did not wish to imply that Congress possessed any powers except the ones that had been enumerated.
When Madison wrote to Thomas Jefferson about the prospects of adding a bill of rights, he confessed: “My own opinion has always been in favor of a bill of rights, provided it be so framed as not to imply powers not meant to be included in the enumeration.”
And when proposing a bill of rights to the First Congress, Madison acknowledged that this fear — “that those rights which were not singled out” would be insecure by implication — was “one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system.” But he assured Congress that his proposal for what would eventually become the Ninth Amendment should prevent any such misinterpretation of the Constitution.
Therefore, the Ninth Amendment (like the 10th Amendment) was always intended to be nothing more than a rule of construction: a guide for understanding how the Constitution was meant to be interpreted.
Madison’s initial proposal for the Ninth Amendment makes these intentions clear: “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution” (emphasis added).
However, Congress streamlined Madison’s wording by removing the clauses about the enlargement of federal powers.
Virginia delegate Edmund Randolph was incensed when saw the revised version, believing that Congress had removed the most important part of the amendment. Virginia’s objections to the final wording of the Ninth Amendment actually delayed that state’s ratification of all the amendments for two years, which delayed ratification of the entire Bill of Rights.
Madison was flummoxed trying to understand the basis of Virginia’s objections, because he believed that the protection of individual rights and the protection against expansions of federal powers were merely two sides of the same coin: “the distinction,” insofar as Madison could see it, was “altogether fanciful.”
Alas, among Madison’s most charming blind spots was this one: He earnestly believed that Americans could always be trusted to interpret the Constitution in accordance with its intended meaning.
Madison’s faith was proved disastrously misplaced with recent interpretations of the Ninth Amendment. In Griswold v. Connecticut (1965), Justice Arthur Goldberg wrote that “the right of privacy in the marital relation is fundamental and basic — a personal right ‘retained by the people’ within the meaning of the Ninth Amendment.” In other words, the Ninth Amendment was being used to grant the Court an authority to decide which rights (unnamed within the Bill of Rights) now deserved protection by the federal government. It was being used as an expansion of federal authority over state laws.
In his dissent, Justice Potter Stewart criticized the Court’s interpretation of this amendment: “to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history.” Nevertheless, the Court’s reasoning in Griswold has turned somersaults in “privacy cases” ever since, including Roe v. Wade (1973). It has been a truly acrobatic history.
• Lynn Uzzell, Ph.D., is a member of the James Madison Society at Princeton University and an adjunct professor of politics at the University of Virginia. She is currently working on an authoritative and impartial appraisal of Madison’s Notes of the Constitutional Convention.
A Project of the National Archives Go Inside the First Congress Amendments in Process House Article the Fifteenth Rights Retained by the People
At 148: Ideas Proposed in the State Ratifying Conventions
There are certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
Virginia Convention, June 27, 1789
That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and Right, which is not by the said Constitution clearly delegated to the Congress of the United States, or to the departments of the Government thereof, remains to the People of the several States or to their respective State Governments to whom they may have granted the same….
New York Convention, July 26, 1788
At 149: As Proposed by James Madison
James Madison proposed that the following language be inserted into Article I, Section 9, of the Constitution between Clauses 3 and 4:
The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
June 8, 1789
This proposed amendment stated the principle that listing certain rights did not define the total body of rights possessed by the people. Additional rights of equal importance could be unlisted. nor did that listing mean that government could expand its powers.
At 150: As Proposed by the House Committee
Article I, Section 9—Between Clauses 2 and 3 insert:
The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
July 28, 1789
The committee of eleven shortened Madison’s proposal and focused it on rights alone.
At 151: As passed by the House of Representatives
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others, retained by the people.
August 24, 1789
The house passed this amendment essentially as proposed by the select committee.
At 152: As Approved or Amended by the Senate
The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others, retained by the people.
September 7, 1789
The senate adopted this amendment as passed by the house.
The next step occurs after more than a two year delay.
At 153: As Reported by the Conference Committee
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
December 15, 1791
Passed by both bodies, the amendment was not discussed in the conference committee.
At 154: As sent to the States for Ratification
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
October 2, 1789
The amendment was sent to the states for ratification in this form.
At 155:
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
October 2, 1789
The amendment was sent to the states for ratification in this form.
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Hamilton, Federalist 78, “The interpretation of the laws is the proper and peculiar province of the courts.”
SCOTUS, Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.”
Randy Barnett, Our Republican Constitution, 1st Ed., Broadside Books, 2016, p. 172, “Then two more amendments were added to ensure the powers of the federal government were limited. The Ninth Amendment was supposed to ensure that the eight amendments protecting rights would not be construed as exclusive.”
Laurence Tribe, American Constitutional Law, 2nd Ed., The Foundation Press Inc., 1988, pp. 774-75, “James Madison introduced the ninth amendment in specific response to the arguments of Hamilton and others that enactment of a Bill of Rights might dangerously suggest “that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.” The ninth amendment, which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” therefore at least states a rule of construction pointing away from the reverse incorporation view that only the interests secured by the Bill of Rights are encompassed within the fourteenth amendment, and at most provides a positive source of law for fundamental but unmentioned rights.”
Consequently, Madison’s original draft of the 9th Amendment read: “The exceptions, here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”
Unfortunately, a select committee removed the key portion of the proposed amendment—which would have prohibited the power of the federal government from being enlarged through interpretation—before the amendment was enacted. Thus, the entire purpose of the amendment (and its future applicability) was rendered moot.
The 9th Amendment was intended to provide a mode of interpretation for the Constitution, guaranteeing that federal courts would have been expressly forbidden from creating new governmental powers through clever interpretation. Given how much trouble varying interpretations of the Constitution have caused throughout American history, it’s a shame this principle was not explicitly included. A lot of subsequent and continuing constitutional mischief could have been avoided.
Texas Law Review Volume 85, Number 1, November 2006
The Ninth Amendment: It Means What It Says Randy E. Barnett
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. —U.S. CONST., amend. IX
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication.
U.S. Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
And from the Legal Information Institute (LII) at Cornell University:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
RIGHTS RETAINED BY THE PEOPLE
The Federalists contended that a bill of rights was unnecessary. They responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that, inasmuch as it would be impossible to list all rights, it would be dangerous to list some and thereby lend support to the argument that government was unrestrained as to those rights not listed.1 Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”2It is clear from its text and from Madison’s statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.3 In 1965, however, the Amendment was construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.
The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court4 until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut.5 The Court in that case voided a statute prohibiting use of contraceptives as an infringement of the right of marital privacy. Justice Douglas, writing for the Court, asserted that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”6 Thus, although privacy is not mentioned in the Constitution, it is one of the values served and protected by the First Amendment through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.
“The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.”7
Therefore, although neither Douglas’ nor Goldberg’s opinion sought to make the Ninth Amendment a substantive source of constitutional guarantees, both read it as indicating a function of the courts to interpose a veto over legislative and executive efforts to abridge other fundamental rights. Both opinions seemed to concur that the fundamental right claimed and upheld was derivative of several express rights and, in this case, really, the Ninth Amendment added almost nothing to the argument. But, if there is a claim of a fundamental right that cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?8
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Footnotes
1 THE FEDERALIST No. 84 (Modern Library ed. 1937).
2 1 ANNALS OF CONGRESS 439 (1789). Earlier, Madison had written to Jefferson: “My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. . . . I have not viewed it in an important light—1. because I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted. 2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.” 5 WRITINGS OF JAMES MADISON, 271–72 (G. Hunt ed., 1904). See also 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1898 (1833).
3 To some extent, the Ninth and Tenth Amendments overlap with respect to the question of unenumerated powers, one of the two concerns expressed by Madison, more clearly in his letter to Jefferson but also in his introductory speech.
4 In United Public Workers v. Mitchell, 330 U.S. 75, 94–95 (1947), upholding the Hatch Act, the Court said: “We accept appellant’s contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth, and Tenth Amendments.” See Ashwander v. TVA, 297 U.S. 288, 300–11 (1936), and Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143–44 (1939). See also Justice Chase’s opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798), and Justice Miller for the Court in Loan Ass’n v. Topeka, 87 U.S. (20 Wall.) 655, 662–63 (1875).
5 381 U.S. 479 (1965).
6 381 U.S. at 484. The opinion was joined by Chief Justice Warren and by Justices Clark, Goldberg, and Brennan.
7 381 U.S. at 488, 491, 492. Chief Justice Warren and Justice Brennan joined this opinion. Justices Harlan and White concurred, id. at 499, 502, without alluding to the Ninth Amendment, but instead basing their conclusions on substantive due process, finding that the state statute “violates basic values implicit in the concept of ordered liberty” (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Id. at 500. It appears that the source of the fundamental rights to which Justices Douglas and Goldberg referred must be found in a concept of substantive due process, despite the former’s express rejection of this ground. Id. at 481–82. Justices Black and Stewart dissented. Justice Black viewed the Ninth Amendment ground as essentially a variation of the due process argument under which Justices claimed the right to void legislation as irrational, unreasonable, or offensive, without finding any violation of an express constitutional provision.
8As Justice Scalia observed, “the [Ninth Amendment’s] refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”Troxel v. Granville, 530 U.S. 57, 91 (2000) (dissenting from recognition of due-process-derived parental right to direct the upbringing of their children). Notice the recurrence to the Ninth Amendment as a “constitutional ‘saving clause’” in Chief Justice Burger’s plurality opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 579–80 & n.15 (1980). Scholarly efforts to establish the clause as a substantive protection of rights include J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 34–41 (1980); and C. BLACK, DECISION ACCORDING TO LAW (1981), critically reviewed in W. Van Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 YALE L. J. 207 (1981). For a collection of articles on the Ninth Amendment, see THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT (Randy E. Barnett ed., 1989).
The Founders who were leery of the Bill of Rights were not opposed to the rights enumerated. Rather, they were concerned about the application to matters of rights of the interpretive doctrine that has come down to us as the "expresio unius" doctrine, from the Latin "expresio unius est exclusio alterius" (literally, to express one thing, or a set of things, in a contract as being covered by that contract is to exclude everything NOT listed).
We see lawyers draft around the "expresio unius" problem by adding the words "including, but not limited to..." before lists in modern contracts.
The 9th Amendment is an 18th Century effort to prevent the application of what we would call "expresio unius" doctrine. The fear was that the list of enumerated rights would be interpreted to exclude all other rights not enumerated, as in a contract. The 9th Amendment says no.
Now the example: the marital right of consortium is long established in Common and Civil Law. It's not mentioned in the Constitution. It did not, therefore, cease to exist with ratification, but rather, is assumed to exist as before. That's what the 9th is for - it's a safeguard against that sort of interpretive game by an unscrupulous government. There is no list of unenumerated rights - that's the whole point of the exercise.
[Vicomte13 #116 to A K A Stone] The Commerce Clause of the Constitution, like every other clause therein, means what the Supreme Court says it means.
This is the fact, although it tends to be given short shrift around here. SCOTUS is the ultimate arbiter of what the law is. A personal opinion that a Court opinion is wrong does not have any legal effect.
[Vicomte13 #116 to A K A Stone] Currently, the meaning is so broad that I can't off the top of my head think of any commerce not being regulable. Perhaps there is some limiting case law. When I last looked at the issue, long ago in law school, a farmer growing crops on his own farm to feed his own livestock was sufficiently engaged in "interstate commerce" (because of the potential effect of such activity thereupon), that his activity was regulable. I can't think of any economic activity that wouldn't be federally regulable under that broad standard.
For the lurkers to this conversation, I believe the farmer case was Wickard v. Filburn 317 U.S. 111 (1942). In that case, the family farm was in Montgomery County, Ohio.
I agree with your assessment that the Court expanded the Federal power to encompass just about every conceivable act of commerce. It was not easy to attempt expansion of power exceeding every conceivable act of commerce, although Obamacare found a way to try.
With Obamacare, an attempt was made, pursuant to the Commerce Clause, to regulate or penalize inaction, a failure to engage in commerce by not purchasing private, for-profit health insurance. I argued the unconstitutionality of such attempted usage of the Commerce Clause to regulate what was the absence of commerce. Because the individual mandate was declared unconstitutional under the Commerce Clause, the mandate was interpreted as a tax and upheld under the taxing power, but SCOTUS recently held that it can no longer be interpreted as a tax as legal changes have stripped it of any ability to raise revenue, eluding the definition of a tax.
At least there is something that escapes the Commerce Clause, although it is not an action, but an inaction. Then again, perhaps an inaction is a nothing.
[Vicomte13 #118 to nolu chan] Perhaps an example will help clarify.
The Founders who were leery of the Bill of Rights were not opposed to the rights enumerated. Rather, they were concerned about the application to matters of rights of the interpretive doctrine that has come down to us as the "expresio unius" doctrine, from the Latin "expresio unius est exclusio alterius" (literally, to express one thing, or a set of things, in a contract as being covered by that contract is to exclude everything NOT listed).
You are perfectly correct in what you state. I would only supplement that Framers saw the original Bill of Rights as only applicable in restraint of the Federal government. It did not apply at all to the States until after the 14th Amendment, and subsequent selective incorporation against the States by the Court.
[Vicomte13 #118 to nolu chan] The 9th Amendment is an 18th Century effort to prevent the application of what we would call "expresio unius" doctrine. The fear was that the list of enumerated rights would be interpreted to exclude all other rights not enumerated, as in a contract. The 9th Amendment says no.
The proposed 9th Amendment was stripped of much of its important content by the Committee of Eleven. The adopted 9th Amendment (and the whole BoR) generally served as a restraint on the Federal government. The text of the 9th served to restrain the Federal government from adopting any construction of the inclusion of enumerated rights as excluding unenumerated rights, as you state.
This only restrained actions against claimed unnumerated rights on the basis of their lack of enumeration.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The enumeration of certain rights cannot be cited to deny an unnumerated right. It is left to the Courts to decide what is, or is not, an unnumerated right, and whether that right is "fundamental." Not all legislation that burdens a fundamental right is unconstitutional, but is subject to a stricter standard of review.
For the casual reader, Black's Law Dictionary, 6th Ed.:
Fundamental rights. Those rights which have their source, and are explicitly or implicitly guaranteed, in the federal Constitution, Price v. Cohen, C.A.Pa., 715 F.2d 87, 93, and state constitutions, Sidle v. Majors, 264 Ind. 206, 341 N.E.2d 763. See e.g., Bill of rights.
Challenged legislation that significantly burdens a "fundamental right" (examples include First Amendment rights, (privacy, and the right to travel interstate) will be reviewed under a stricter standard of review. A law will be held violative of the due process clause if it is not closely tailored to promote a compelling or overriding interest of government. A similar principle applies under Equal Protection law.
I would note one quibble with Black's. The Constitution does not guarantee rights, so much as it declares restrictions upon the powers granted to the Federal government. Congress shall pass no law abridging the right to free speech. The restriction is not absolute, as the right to free speech is not absolute. The right itself does not include a "right" to utter libelous or slanderous statements, to shout "fire" in a crowded theater, or to incite a riot.
[Vicomte13 #118 to nolu chan] Now the example: the marital right of consortium is long established in Common and Civil Law. It's not mentioned in the Constitution. It did not, therefore, cease to exist with ratification, but rather, is assumed to exist as before. That's what the 9th is for - it's a safeguard against that sort of interpretive game by an unscrupulous government. There is no list of unenumerated rights - that's the whole point of the exercise.
You are absolutely correct in asserting that, the marital right of consortium is long established in Common and Civil Law.
[Vicomte13 #118 to nolu chan] It did not, therefore, cease to exist with ratification, but rather, is assumed to exist as before. That's what the 9th is for - it's a safeguard against that sort of interpretive game by an unscrupulous government.
However, I would note, the marital right to consortium of two people of the same sex is not long established in Common and Civil Law. Nor does the penumbra of an emanating unnumerated right of privacy broad enough to encompass condoms and abortions seem to be well established in Common and Civil Law.
In Obergefell, Griswold, and Roe, the Court appeared to use the empty vessel of substantive due process to pour new meaning into the Constitution. A criticism of this is that the Court appears almost as an ad hoc Constitutional Convention, expanding Federal power. It is strange that the Bill of Rights is invoked to expand Federal power, when it was designed to prevent the expansion of Federal power.
For an example, the right to privacy is an unnumerated right, as is the right to abortion. The 9th Amendment, inter alia, was cited in support of the right to abortion. The 9th Amendment restrained government denial of the asserted right to abortion via construing the Constitution to deny the existence of said right because it was not enumerated. Application extended to the States by incorporation via the 14th Amendment would appear to restrain the States from denying the asserted right to abortion via construing the Constitution as denying said right's existence because it was not enumerated.
What I fail to see is how the 9th Amendment can be contorted to establish the existence of a positive right to abortion. If it existed as a right in Common or Civil law, I see how it could be found there. But how it is found in a penumbra from an emanation from an unnumerated right eludes me.
I do not find the right to abortion in a penumbra emanating from the unenumerated right to privacy. I simply do not find abortion to be a constitutional right. SCOTUS found that, and they made it law. SCOTUS can overturn Roe and it will no longer be a constitutional right, much as Pluto is no longer a planet.
In the end, what SCOTUS says is the law. Until they change their mind, or the law itself is changed, and then the most recent statement becomes the law.
In the end, what SCOTUS says is the law. Until they change their mind, or the law itself is changed, and then the most recent statement becomes the law.
If you want to change the law, start with changing the flag with the yellow-fringe on it. usa-the-republic.com/item...interest/flag%20code.html You can read where titled "THE FLAG IS PRECISELY DEFINED BY LAW"
Your blather is tax protester nonsense which was was disposed of decades ago as being frivolous and of no merit whatever. A lawyer making that argument could be subjected to sanctions for frivolous filing.
United States v. Greenstreet, 912 F.Supp. 224 (N.D. Tex. 1996).
[Excerpt]
Finally, Defendant Greenstreet's response to Plaintiff's motion for summary judgment identifies this Court as an "Admiralty Court" without further discussing his allegation. If his reference is to be construed as a jurisdictional challenge, his motion is denied. Others have attempted to persuade the judiciary that fringe on an American flag denotes a court of admiralty. In light of the fact that this Court has such a flag in its courtroom, the issue is addressed. The concept behind the theory the proponent asserts is that if a courtroom is adorned with a flag which happens to be fringed around the edges, such decor indicates that the court is one of admiralty jurisdiction exclusively. To think that a fringed flag adorning the courtroom somehow limits this Court's jurisdiction is frivolous.See Vella v. McCammon, 671 F. Supp. 1128, 1129 (S.D.Tex.1987) (describing petitioner's claim that court lacked jurisdiction because flag was fringed as "without merit" and "totally frivolous"). Unfortunately for Defendant Greenstreet, decor is not a determinant for jurisdiction.
Vella v. McCammon, 671 F. Supp. 1128 (S.D. Tex. 1987)
[Excerpt]
The remaining claims that Petitioner has asserted by way of motion to dismiss, e.g. Court lacking jurisdiction because the Court's flag has yellow fringes on it, were denied and the Court considers them to have not only been without merit but also to have been totally frivolous. Petitioner's claims have no arguable basis in law or fact and the appeal is not taken in good faith.
Your blather is tax protester nonsense which was was disposed of decades ago as being frivolous and of no merit whatever. A lawyer making that argument could be subjected to sanctions for frivolous filing.
The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excise, to Pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and excises shall be uniform throughout the United States;" The Constitution for the United States of America, Article 1, Section 8, paragraph 1. [emphasis added]
No Capitation or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration hereinbefore directed to be taken." The Constitution for the United States of America, Article 1, Section 9, paragraph 4. [emphasis added]
As for your tax protestor comment I will leave you with the exact tax statute that would be applicable were I held to be liable to collect such a tax.
26 CFR, 601.103 (a) is the only place which tells us who is required to file a return, provided that person has been properly noticed by the District Director to KEEP RECORDS AND THEN NOTICED THAT HE/SHE IS REQUIRED TO FILE. It states, "In general, each taxpayer (or person required to collect and pay over the taxes) is required to file a prescribed form of return ..." Are you a Taxpayer? (l.o.- you must first be a tax collector)
Things never known until Dan Meador showered his wisdom down on the gullible masses.
Highlights:
At 2-3:
Petitioner alleges that the four memorandum segments incorporated in this instrument are adequate: (1) The Article IV United States District Court for the Northern District of Oklahoma has statutory and regulatory capacity to prosecute only misdemeanor and petty offenses, with consent of the accused, on military installations and on land under Department of the Interior jurisdiction, and (b) the Federal Rules of Criminal Procedure, Federal Rules of Evidence, etc., do not apply to proceedings in Article III district courts of the United States, which have original criminal jurisdiction under 18 USC § 3231; (2) all entities involved in prosecution of the instant matter must disclose five essential elements of authority to establish standing and territorial and subject-matter jurisdiction; (3) the "United States of America" is a government foreign to the United States, and has no standing either by Constitutional delegation of authority or Titles 18, 19, 21, 26 and other titles of the United States Code, save Title 48; and (4) contrary to Article I § 9.3 of the Constitution, the Article IV United States District Court, being a legislative rather than judicial court, has effected a bill of attainder against petitioner.
At 3-4:
The fact that judicial officers (magistrates) in United States District Courts preside under the gold-fringed Union Jack (executive martial law/admiralty banner), rather than the official flag of the United States, prescribed at 4 USC § 1, is proof positive of underlying authority and purpose – when the executive admiralty-martial law authority is extended beyond borders of the geographical United States subject to Congress' Article IV § 3.2 legislative jurisdiction, and the authority moves under threat or actual force of arms, it cannot be construed other than as acts of plunder and war, with the sovereign people of the several States being the object of plunder, suppression, sedition and treason.
At 4:
For example, the last sentence of 40 USC § 255 stipulates that until the United States has formally accepted jurisdiction over land acquired by the United States, with jurisdiction ceded by the legislature of the State where the land is acquired, United States jurisdiction is presumed not to exist. Where the instant matter is concerned, counsel for the "United States of America" may prove United States jurisdiction in the county of Kay, or the community of Ponca City, state of Oklahoma, by entering proof that the United States formally accepted jurisdiction to the county or community in compliance with requirements of 40 USC § 255 and Article I § 8.17 of the Constitution.
At 5:
1. The United States District Court for the Northern District of Oklahoma, and all other United States District Courts located in the Union of several States party to the Constitution. (1) Lack authority to prosecute felony crimes. (2) have no jurisdiction authority beyond that prescribed at 18 USC §7(3), and (3) are incompetent at law as contemplated by the "arising under" clause at Article III § 2.1 and the Fifth Article of Amendment to the Constitution.
At 35:
The Fourteenth Amendment and several amendments promulgated since 1870 expand United States authority relative to voting and civil rights violations against "citizens of the United States", and might conceivably extend authority relating to a true income tax levied under authority of the Sixteenth Amendment, but the United States does not have general civil and criminal jurisdiction throughout the Union of several States party to the Constitution. Without a special constitutional grant of authority, per U.S. vs. Constantine and New York vs. United States, supra, courts of the United States, whether Article III judicial courts (district courts of the United States), or Article IV legislative-territorial courts (United States District Courts), lack subject matter jurisdiction within the Union of several States save on Federal enclaves, defined as United States special maritime and territorial jurisdiction, per 18 USC § 7(3). In many instances, prosecutors for the "United States of America" (a government foreign to the United States) predicate prosecution of offenses on the commerce clause (Art. I § 8.3), but there is an inherent fallacy in this notion as no specific authority for prescribing punishment is enumerated in the Constitution (Tenth Amendment block; U.S. vs. Warrall, supra), and Title 18 of the United States Code addresses only offenses committed in the geographical United States subject to Congress' Article IV § 3.2 legislative jurisdiction, and United States admiralty and maritime jurisdiction.
At 44:
The fact that the Internal Revenue Service is not an agency of the Department of the Treasury of the United States is verified by consulting the list of Department of the Treasury agencies in Title 31 of the United States Code. Also of particular significance where the instant matter is concerned, the Department of the Treasury of the United States is an executive department, the Treasury of the United States is a Congressional department, with the General Accounting Office, under direction of the Comptroller General, being distinct, separate, and responsible for collection of obligations to the United States, including taxes owed under provisions of Subtitles A & C of the Internal Revenue Code (Vol. 68A of the Statutes at Large), as amended in 1986 and since.
The Internal Revenue Service, successor of the Bureau of Internal Revenue, Puerto Rico, (T.D.O. No. 150-29, 1953), operates out of or in conjunction with Puerto Rico Trust No. 62 (Internal Revenue), which is still administered by the Secretary of the Treasury (31 USC § 1321). The Internal Revenue Service has delegated authority to collect certain customs taxes in United States off-shore territories of the United States, and United States maritime jurisdiction.
The so-called "income tax" prescribed in Subtitle A of the Internal Revenue Code is not generally included in authority delegated to the Internal Revenue Service. The "income tax" is simply the "normal tax" preserved in the Internal Revenue Act of November 23, 1921, and the Public Salary Tax Act of 1939 (see Statutes at Large). The "normal tax", as the name of the Public Salary Tax Act of 1939 suggests, applies only to Government employees and officers of corporations construed to be instrumentalities of the United States - corporate entities the United States retains a proprietary interest in. Definitions at 26 USC § 3401(c ) & (d), which apply to withholding Subtitle A & C taxes at the source, confirm this allegation. And as various regulations specify, withholding agents, not employees in general, are the persons liable for these taxes (see 26 CFR, Part 1.1441, etc.).
Obviously, you didn't bother to check all those statutes he mentioned on that link I posted. Instead you choose to attack Meador and his literal works. Do yourself a favor, nolu chan, by going back and clicking onto that link of Meador's, and thoroughly read each section he discusses. Then, head to a law library to pull all those statutes. And along with that pull 26 CFR, 601.103 (a) I referenced of his, there should also be a Federal Register that cross-references this statute.
You say I posted nonsense. All that you post is case law which is non-positive law. If you click onto this link, www.tax-freedom.com/ta16013.htm it list all the US Codes that are Positive Law. Title 26 governs the IRS. All those that are Positive Law have an asterisk next to them. If you notice closely, Title 26 has none.
And along with that pull 26 CFR, 601.103 (a) I referenced of his, there should also be a Federal Register that cross-references this statute.
You say I posted nonsense. All that you post is case law which is non-positive law. If you click onto this link, www.tax-freedom.com/ta16013.htm it list all the US Codes that are Positive Law. Title 26 governs the IRS. All those that are Positive Law have an asterisk next to them. If you notice closely, Title 26 has none.
Meador's bullshit is not only without merit, it is without arguable merit. It is bullshit which this bloodsucking leach packaged and sold the unsuspecting, and the willfully ignorant. He and his bullshit are beneath contempt.
United States v. Galletti, 541 U.S. 114 (23 March 2004)
III
We now turn to the question whether the Government must make separate assessments of a single tax debt against persons or entities secondarily liable for that debt in order for § 6502's extended statute of limitations to apply to those persons or entities.4 We hold that the Code contains no such requirement. Respondents' argument that they must be separately assessed turns on a mistaken understanding of the function and nature of an assessment as identical to the initiation of a formal collection action against any person or entity who might be liable for payment of a debt. In its numerous uses throughout the Code, it is clear that the term "assessment" refers to little more than the calculation or recording of a tax liability. See, e. g., 26 U. S. C. § 6201 (assessment authority); § 6203 (method of assessment); § 6204 (supplemental assessments); 26 CFR § 601.103 (2003). See also Black's Law Dictionary 111 (7th ed. 1999) (defining "assessment" as the "[d]etermination of the [tax] rate or amount of something, such as a tax or damages"). "The Federal tax system is basically one of self-assessment," whereby each taxpayer computes the tax due and then files the appropriate form of return along with the requisite payment. 26 CFR § 601.103(a) (2003). In most cases, the Secretary accepts the self-assessment and simply records the liability of the taxpayer. Where the taxpayer fails to file the form of return or miscalculates the tax due, as in this case, the Secretary can assess "all taxes (including interest, additional amounts, additions to the tax, and assessable penalties)," 26 U. S. C. § 6201(a), by "recording the liability of the taxpayer in the office of the Secretary," § 6203. In other words, where the Secretary rejects the self-assessment of the taxpayer or discovers that the taxpayer has failed to file a return, the Secretary calculates the proper amount of liability and records it in the Government's books.
Obviously, the U.S. Supreme Court said you are full of shit.
You cite and misapply a general regulation to overrule a specific statute law.
The United States filed the instant action on March 1, 2012, seeking to reduce federal income tax assessments against Defendant to judgment and foreclose on Defendant’s real property pursuant to 26 U.S.C. § 7403 in order to satisfy that judgment. The only argument raised in Defendant’s Motion to Dismiss is that this action must be dismissed with prejudice because the government “[does] not have a statute that makes an individual LIABLE for INCOME taxes.” (Motion to Dismiss, p. 1) (emphasis in original).
This precise assertion, as well as countless other “frivolous tax-protester arguments,” has been “uniformly and conclusively rejected by every court that has examined the issue,” typically without further discussion.[1]Belmont v. Commissioner of Internal Revenue, 2007 WL 686388, *1 (U.S. Tax. Ct. 2007) (rejecting petitioner’s taxprotester arguments as “frivolous and without merit”); Jibilian v. United States, 2005 WL 1491908, * (Fed. Cl. 2005) (characterizing the argument that “there is no law that makes [plaintiff] liable for income tax” as “without merit and frivolous”); seealso, e.g., Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984) (“We perceive no need to refute these [tax-protester] arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit.”); Upton v. I.R.S., 104 F.3d 543, 545 n. 1 (2nd Cir. 1997) (stating that the plaintiff’s “tax protestor arguments” were “barely worth a footnote”); United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (characterizing such arguments as “shop worn” and without merit); Robnett v. United States, 165 B.R. 272, 274 (9th Cir. 1994) (noting that tax protest issues are “completely without merit” and serve no purpose “except to clog the court’s dockets, waste judicial time and cause protracted delays in worthy litigation.”); United States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992) (stating that constitutional tax protest issues are “completely without merit, patently frivolous and will be rejected without expending any more of this Court’s resources on their discussion.”); United States v. Drefke, 707 F.2d 978, 981 (8th Cir. 1983) (contention that individuals have no duty to pay income taxes is “totally without arguable merit”); Maxwell v. I.R.S. 2009 WL 920533, *2 (M.D. Tenn. 2009) (argument that “no law exists which imposes an income tax” has been “routinely rejected”); Bonnaccorso v. Comm’r of Internal Revenue, 2005 WL 3241913, **1-2 (U.S. Tax. Ct. 2005) (argument that petitioner had found “no code section that made [him] liable for any income tax” had been “consistently rejected and characterized as frivolous in innumerable cases” and required no discussion).
[1] We note, parenthetically, that 26 U.S.C. § 1(a) imposes an income tax of "every" United States citizen and that, pursuant to § 1(a), 26 C.F.R. § 1.1-1(b) provides that "all citizens of the United States . . . are liable to the income taxes imposed by the Code . . ." .
In United States v. Drefke, 707 F.2d 978, 981 (8th Cir. 1983), the Eighth Circuit Court of Appeals stated, in discussing section 6151, that “when a tax return is required to be filed, the person so required ‘shall’ pay such taxes to the internal revenue officer with whom the return is filed at the fixed time and place. The sections of the Internal Revenue Code imposed a duty on Drefke to file tax returns and pay the appropriate rate of income tax, a duty which he chose to ignore.
United States v Drefke et al, 707 F2d 978 (8th Cir 1983)
United States of America, Appellee, v. Paul M. Drefke, Appellant.united States of America, Appellee, v. Richard O. Jameson, Appellant, 707 F.2d 978 (8th Cir. 1983)
U.S. Court of Appeals for the Eighth Circuit - 707 F.2d 978 (8th Cir. 1983)
Submitted May 9, 1983. Decided May 13, 1983. Motion for Stay of Mandate Denied June 7, 1983
Richard O. Jameson, pro se.
Paul M. Drefke, pro se.
Robert G. Ulrich, U.S. Atty., David C. Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.
Before BRIGHT, ROSS and JOHN R. GIBSON, Circuit Judges.
PER CURIAM.
Paul Drefke and Richard Jameson were both convicted of failure to file income tax returns for the years 1979 and 1980 in violation of 26 U.S.C. § 7203 and for filing false withholding exemption certificates for the years 1979, 1980 and 1981 in violation of 26 U.S.C. § 7205. They were arrested at the same time but tried separately before juries,[1] Jameson approximately two weeks after Drefke. Both were sentenced to two years in the custody of the Attorney General and placed on probation for three years. Because both raise a number of the same issues, we consider their appeals together. Both have filed lengthy pro se briefs with numerous attachments. We affirm all counts of both convictions.
Drefke and Jameson during calendar years 1979, 1980 and 1981 were employed by Roadway Express, Inc. in Strafford, Missouri. In 1979 Drefke had a gross income of $31,651.34 and in 1980 his gross income was $39,497.26. In 1979, Jameson had a gross income of $28,517.98, and in 1980 his gross income was $30,881.76. Both failed to file tax returns for these two years although they had previously filed tax returns for the years 1976, 1977 and 1978. In 1979, 1980 and 1981 Drefke and Jameson filed W-4 forms with their employer in which they claimed that they were exempt from federal income taxes and certified that they had not incurred a liability for federal income taxes in the preceding calendar year.
A five count indictment was returned against both men charging them with failing to file income tax returns for the two years[2] and of filing the three false withholding exemption certificates.[3] The separate trials resulted in the convictions of both Drefke and Jameson on all five counts.
Drefke and Jameson contend that 18 U.S.C. § 3231[4] does not confer jurisdiction on federal courts to try tax offenses. They argue that the general jurisdiction granted to federal courts in Sec. 3231 extends only to those federal crimes which appear in Title 18 of the United States Code. The argument is without merit.
In United States v. Spurgeon, 671 F.2d 1198 (8th Cir. 1982), we held that Sec. 3231 confers jurisdiction on district courts to try charges of failure to file income tax returns. Id. at 1199. Section 3231 grants federal courts jurisdiction over "all offenses against the laws of the United States" (emphasis added). Article I, Section 8 of the Constitution and the Sixteenth Amendment empower Congress to create and enforce an income tax. Pursuant to that power, Congress made federal crimes of certain actions aimed at avoiding payment of income tax. See 26 U.S.C. §§ 7201-7210. The district court, then, clearly had jurisdiction under 18 U.S.C. § 3231 to try the appellants for the offenses of failure to file income tax returns and filing false withholding exemption certificates.
Drefke also charges that the district court "obstructed justice" by refusing to consider his jurisdictional challenge. This argument is frivolous, and can only be considered as advanced in bad faith because the district court reviewed and denied Drefke's jurisdictional motions in an order issued on April 2, 1982.
Drefke and Jameson both argue that they were denied an administrative hearing on jurisdiction in violation of the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. The Act does not impose a requirement of adversary hearings before an agency but only specifies the procedure to be followed when a hearing is required by another statute. Califano v. Saunders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977); Webster Groves Trust Co. v. Saxon, 370 F.2d 381 (8th Cir. 1966). The Internal Revenue Code nowhere grants individuals who are under criminal investigation the right to a hearing to challenge the Service's jurisdiction over them. Therefore the provisions of the Administrative Procedure Act cited by Drefke and Jameson are inapplicable.
Drefke argues that taxes are debts which can only be incurred voluntarily when individuals contract with the government for services and that those who choose to enter such contracts do so by signing 1040 and W-4 forms. By refusing to sign those forms, Drefke argues he is "immune" from the Internal Revenue Service's jurisdiction as a "nontaxpayer."
This is an imaginative argument, but totally without arguable merit. 26 U.S.C. § 1 imposes upon "every" individual a certain rate of income tax depending upon their amount of taxable income. 26 U.S.C. § 6012 states that unmarried individuals having a gross income in excess of $4,300, and married individuals entitled to make joint returns having a gross income in excess of $5,400 "shall" file tax returns for the taxable year. Considering Drefke's gross income for 1979 and 1980, he was clearly required to file tax returns for those years.
26 U.S.C. § 6151 states that when a tax return is required to be filed, the person so required "shall" pay such taxes to the internal revenue officer with whom the return is filed at the fixed time and place. The sections of the Internal Revenue Code imposed a duty on Drefke to file tax returns and pay the appropriate rate of income tax, a duty which he chose to ignore.
Jameson argued during voir dire that he would be prejudiced by media coverage of the trial of Paul Drefke. Drefke's trial, which ended two weeks before Jameson's commenced, received substantial media attention. The district court conducted a lengthy voir dire examination to insure an impartial jury, and identified those who knew about Drefke's trial and excluded those persons from the jury. Jameson requested and the district court denied separate written and oral voir dire of the seventy-one prospective jurors.
It is well established that decisions regarding the form and scope of voir dire examination are left largely to the discretion of the district court. Ham v. South Carolina, 409 U.S. 524, 528, 93 S. Ct. 848, 851, 35 L. Ed. 2d 46 (1973); United States v. Bowman, 602 F.2d 160 (8th Cir. 1979). Absent a finding of substantial prejudice or an abuse of discretion appellate courts will not disturb such decisions. United States v. Kershman, 555 F.2d 198 (8th Cir. 1977), cert. denied, 434 U.S. 892, 98 S. Ct. 268, 54 L. Ed. 2d 178 (1977). No substantial prejudice or abuse of discretion occurred in the present case from the district court's failure to permit a separate voir dire.
Jameson further argues that the district court erred in denying his motion to quash the entire jury panel for prejudice. During voir dire one venireman, in response to the question whether he could be impartial, stated: "I feel that if the individual was a mature individual with an income, he had knowledge that he should by law file an income tax return." We do not believe that this isolated comment caused substantial prejudice to Jameson and the district court's denial of his motion to quash the panel was not an abuse of discretion.
Jameson argues that he was prejudiced by the district court's denial of several jury instructions including an instruction on "jury nullification," that would have told the jury that it had a right to ignore the court's instructions on the law in the case. He contends that the authors of the Bill of Rights intended the Sixth Amendment to incorporate such a right, and makes a lengthy argument based on historical precedents.
We have specifically held in other cases involving prosecutions under tax laws that there is no right to a jury nullification instruction.United States v. Buttorff, 572 F.2d 619, 627 (8th Cir. 1978); United States v. Wiley, 503 F.2d 106, 107 (8th Cir. 1974). In Wiley we said, quoting earlier authority:
To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.
503 F.2d at 107.
Since the Supreme Court's decision in Sparf and Hanson v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), federal courts have uniformly recognized the right and duty of the judge to instruct the jury on the law and the jury's obligation to apply the law to the facts, and that nullification instructions should not be allowed. It would serve no useful purpose to examine the history of nullification instructions further,[5] or to engage in debate concerning the relationship between the general verdict and the court's instructions. The jury returned a general verdict against Jameson finding him guilty on all counts.
Jameson further argues that the district court erred in refusing to define the words "fraudulent" and "income". 26 U.S.C. § 7205 makes it a crime to supply "false" or "fraudulent" information.[6] The government proceeded under the theory that the withholding exemption certificates submitted were false and the term "false" was defined by the district court. 26 U.S.C. § 7203 uses the term "gross income" which was also defined by the district court in an instruction. Jameson's arguments that further definitions were required have no merit.
Drefke argues that 26 U.S.C. §§ 7203 and 7205 giving rise to his conviction constitute punishment for failure to give self-incriminating information. Both the Supreme Court and the Eighth Circuit have held that the Fifth Amendment right against self-incrimination does not authorize individuals to refuse to disclose information concerning their income. United States v. Sullivan, 274 U.S. 259, 47 S. Ct. 607, 71 L. Ed. 1037 (1927); United States v. Russell, 585 F.2d 368 (8th Cir. 1978).
Drefke also argues that these sections violate the Thirteenth Amendment prohibition on involuntary servitude because they authorize imprisonment for nonpayment of debts. The Thirteenth Amendment, however, is inapplicable where involuntary servitude is imposed as punishment for a crime. Drefke was prosecuted and convicted for the violation of two federal offenses: failure to file income tax returns and filing false withholding exemption certificates.
Denying Jameson a non-jury trial was not error because the government refused to consent to Jameson's waiver of his right to a jury trial, as is required by Rule 23(a) of the Fed.R. of Crim.P.
Jameson argues that W-4 forms which he had signed in previous years and which were admitted into evidence against him were involuntary confessions. He contends that the district court violated 18 U.S.C. § 3501(b) (2) by failing to hold a hearing to determine whether these confessions were voluntary and admissible. It is evident that signed W-4 forms are not confessions and that 18 U.S.C. § 3501(a) has no relevance to this case.
Jameson's argument that the assistant district attorney created prejudice by referring to him in argument as "Mr. Drefke" is without merit. The attorney stated the occurrence was purely accidental and the reference to Drefke was insignificant because no member of the jury had knowledge of Drefke's trial.
Drefke has submitted over 240 pages of documents in addition to his brief and reply brief, which are labeled exhibits, addendums and supplements. Some of these additional documents are affidavits, earlier prepared petitions or briefs, a lengthy written report concerning jurisdiction to try criminal sanctions in the Internal Revenue Code, and some material that is simply additional argument. Jameson likewise has filed supplemental materials substantially in excess of the brief limitations and which similarly contain affidavits, newspaper articles and written statements of position. Some of the documents evidently were prepared by an information service. There is no showing that these particular items were before the district court. Justice Blackmun, then a Judge of this Court, rejected consideration of affidavits contained in the appendix of a brief in Stearns v. Hertz Corp., 326 F.2d 405, 408 (8th Cir. 1964) and stated:
Plaintiffs' attempt to buttress their statutory purpose argument with a state legislator's affidavit produced for the first time in an appendix to their appellate reply brief is of no consequence. In addition to serious questions of admissibility and of persuasiveness, [citations omitted] the affidavit is not to be considered here because it was not presented to the trial court. The appeal is to be determined upon the record below. Watson v. Rhode Island Ins. Co., 196 F.2d 254, 256 (5 Cir. 1952).
Drefke argues that Rule 28(j) of the Federal Rules of Appellate Procedure supports this filing. We interpret this rule to permit parties briefly to inform the court in a letter of pertinent authorities that have come to their attention after their briefs have been submitted. We do not read the rule to authorize the filing of lengthy printed or specially prepared materials such as both Drefke and Jameson have attempted to do in this case. As we must review the case on the record of the district court, these items may not be considered by the court.
We have considered these and all other allegations of error made in Jameson's and Drefke's pro se briefs. It is apparent that Jameson and Drefke have gone to great lengths to study a mass of materials that they believe relates to the tax laws, criminal procedures and constitutional rights. From perusing the materials attached to and filed with the briefs discussed in VIII, this was at best a wellspring of misinformation. Both had a substantial income and under misguided interpretation of the law chose not to assume the burden that is imposed on all of our citizens. Finding no error, we affirm their convictions on all counts.
ON MOTION FOR STAY OF MANDATE
Appellant Paul M. Drefke moves for a stay of mandate to permit application to the Supreme Court of the United States for a writ of certiorari and moves for release pending issuance of the court's mandate.
This court's opinion affirming Drefke's conviction was filed May 13, 1983. The record reveals that the United States District Attorney filed a motion to revoke bail at approximately 11:00 a.m., May 13, 1983, on the ground that Drefke's appeal is frivolous and taken for the purpose of delay, relying on 18 U.S.C. § 3148. The district court entered an order revoking bail, effective at 3:00 p.m. on May 13, 1983, upon motion of the United States "and for good cause shown." Drefke's motion recites that at approximately 4:00 p.m., May 13, 1983, he was arrested and incarcerated.
Our opinion plainly stated that at least two of the grounds asserted in the appeal by Drefke and co-appellant, Richard O. Jameson, were frivolous or without arguable merit. The opinion demonstrates that all of the issues raised were not only without merit, but without arguable merit, and thus legally frivolous. The order of the district court based on the motion that the appeal was frivolous and taken for delay was fully justified.
Even though the filing of the notice of appeal transferred jurisdiction of this case from the district court to the court of appeals, the district judge retains jurisdiction over a defendant for the limited purpose of reviewing, altering or amending the conditions under which that court released the defendant. The district court is empowered to revoke or forfeit the defendant's bond during pendency of an appeal for any of the reasons which would have supported an initial denial of the defendant's application for release. United States v. Black, 543 F.2d 35, 37 (7th Cir. 1976); United States v. Elkins, 683 F.2d 143, 145 (6th Cir. 1982).
The issues in the appeal presented to this court were frivolous and issues that may be raised in a petition for certiorari to the United States Supreme Court are also frivolous, and will be taken only for the purpose of delay.
Accordingly, the motion to stay mandate is denied, the order of the district court revoking bail is affirmed, and the motion for release pending issuance of mandate is denied.
[1] Before the Honorable Russell G. Clark, Chief Judge, Western District of Missouri
[2] In violation of 26 U.S.C. § 7203 which provides:
Any person required under this title ... to make a return, ... who willfully fails to make such return, ... shall ... be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than one year, or both, together with costs of prosecution.
[3] In violation of 26 U.S.C. § 7205 which provides:
Any individual required to supply information to his employer ... who willfully supplies false or fraudulent information ... shall ... upon conviction thereof, be fined not more than $10,000, or imprisoned not more than one year, or both.
[4] Section 3231 provides:
The district court of the United States shall have original jurisdiction, exclusive of the courts of the states, of all offenses against the laws of the United States.
[5] An exhaustive discussion is contained in United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969) involving the trial of the Vietnam War protestors. The problems attendant on the use of nullification instructions in cases tried pro se was discussed in United States v. Dougherty, 473 F.2d 1113, 1137 (D.C. Cir. 1972)
[6] See note 2 supra
= = = = = = = = = = = = = = = = = = = =
Saying 26 CFR § 601.103, harumphhh, does not create an exemption from the income tax mandated by Federal statute.
26 C.F.R. PART 601--STATEMENT OF PROCEDURAL RULES
TITLE 26--Internal Revenue
CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY
(a) Collection procedure. The Federal tax system is basically one of self-assessment. In general each taxpayer (or person required to collect and pay over the tax) is required to file a prescribed form of return which shows the facts upon which tax liability may be determined and assessed. Generally, the taxpayer must compute the tax due on the return and make payment thereof on or before the due date for filing the return. If the taxpayer fails to pay the tax when due, the district director of internal revenue, or the director of the regional service center after assessment issues a notice and demands payment within 10 days from the date of the notice. In the case of wage earners, annuitants, pensioners, and nonresident aliens, the income tax is collected in large part through withholding at the source. Another means of collecting the income tax is through payments of estimated tax which are required by law to be paid by certain individual and corporate taxpayers. Neither withholding nor payments of estimated tax relieves a taxpayer from the duty of filing a return otherwise required. Certain excise taxes are collected by the sale of internal revenue stamps.
Are you saying too that this here source:www.loc.gov/item/uscode1988-001000002/ is bullshit? Cause this is where Meador got his information from and embellished upon it on his own website. The reason why I mention this link is because in one of my post on this thread, I had mentioned that if you desire to change the laws, you start with the removal of the fringed flag that sits in the courtroom. I referenced a link concerning that. You see, in our society, we don't use words as much as we do symbols. And in a courtroom setting a fringed flag is a specific symbol which tells us everything we should know before crossing the bar in that room. It has no business being in any courtroom setting at all nor a church or school. However, to my dismay I have witnessed this flag in just about every indoor setting. Meador mentioned this in his essay of flag etiquette and law.
Are you saying too that this here source: www.loc.gov/item/uscode1988-001000002/ is bullshit? Cause this is where Meador got his information from and embellished upon it on his own website. The reason why I mention this link is because in one of my post on this thread, I had mentioned that if you desire to change the laws, you start with the removal of the fringed flag that sits in the courtroom. I I referenced a link concerning that. You see, in our society, we don't use words as much as we do symbols. And in a courtroom setting a fringed flag is a specific symbol which tells us everything we should know before crossing the bar in that room. It has no business being in any courtroom setting at all nor a church or school. However, to my dismay I have witnessed this flag in just about every indoor setting. Meador mentioned this in his essay of flag etiquette and law.
Yes, convicted felon Meador and your link to convicted felon Meador are bullshit. Meador was not only a tax fraud, he was enshrined in the Quatloos Hall of Shame for his shameful efforts. He reached the pinnacle of achievement at being an asshole.
I quoted the U.S. Supreme Court stating, The Federal tax system is basically one of self-assessment," whereby each taxpayer computes the tax due and then files the appropriate form of return along with the requisite payment. 26 CFR § 601.103(a) (2003). They do not seem overly impressed with Meador's bullshit about 26 CFR § 601.103(a). I also provided you a quote of the whole section. You have proceeded to make no legal point, just harumph.
The cited flag law does not prohibit a fringe and contains no penalty for anything. An official opinion of the Attorney General and multiple court opinions have upheld the use of the gold fringe.
If the flag of the United States that is in the courtroom has a gold fringe, then the court is operating under martial law.
There is actually some interesting history behind this nonsense.
There is a federal statute that defines the American flag as thirteen horizontal stripes, alternate red and white, with a “union” of a blue field with one white star for each state. 4 U.S.C. §§ 1 and 2. The statutory definition says nothing about any kind of fringe of the kind often used on ceremonial flags displayed indoors, and at some point someone in the military wondered whether a flag with a fringe was “legal.” In 1925, the Attorney General issued an opinion that a fringe “does not appear to be regarded as an integral part of the Flag, and its presence cannot be said to constitute an unauthorized addition to the design prescribed by statute,” concluding that “The presence, therefore, of a fringe on military colors and standards does not violate any existing Act of Congress. Its use or disuse is a matter of practical policy, to be determined, in the absence of statute, by the Commander in Chief....” 34 Op. Atty. Gen. 483 (May 15, 1925).
Perhaps you can see where this is going? Because the Attorney General expressed the opinion that the President as Commander-in-Chief can put a fringe on military flags, tax protesters have leapt to the conclusion that all flags with fringes are military flags. This idea has been flatly rejected in numerous court decisions. See, e.g., McCann v. Greenway, 952 F. Supp. 647 (W.D. Mo. 1997); United States v. Greenstreet, 912 F.Supp. 224, 229 (N.D.Tex.1996) (“To think that a fringed flag adorning the courtroom somehow limits this Court’s jurisdiction is frivolous.”); Vella v. McCammon, 671 F.Supp. 1128, 1129 (S.D.Tex.1987) (rejecting argument that a federal court lacks jurisdiction to impose penalties for civil and criminal contempt because its flag is fringed); Commonwealth v. Appel, 438 Pa.Super. 214, 652 A.2d 341, 343 (1994) (rejecting argument that a fringed flag in a state courtroom conferred on the court admiralty or maritime jurisdiction).
In Leverenz v. Torluemlu, 1996 WL 272538, at *1 & n. 3 (N.D.Ill. May 20, 1996), the court noted that the complaint named as defendants a judge, a state attorney general, a doctor, several police officers from different communities, and 600 unnamed John and Jane Does and that “[s]ome idea of what is to come is provided by this legend that Leverenz attaches to his ‘Complaint’ heading: “This case is under the jurisdiction of the American flag of peace of the United States of America. No flags of war will serve this case jurisdiction.” (In National Auto. Dealers & Assocs. Retirement Trust v. Arbeitman, 89 F.3d 496, 502 (8th Cir.1996), a later motion in the Leverenz case was described as “bizarre.”)
Dan Evans nailed it on the fringed flag. And that fringed flag is the unspoken symbol putting all on notice who walk into any courtroom. This flag needs to be replaced with a lawful banner (or flag) that represents the republic of the united States of America.
As for Dan Meador's works, I still stand with what he has relayed to the public. Many people have elected to judge him for his literal works just as they did Irwin Schiff in his works, The Federal Mafia.
I find it interesting that in one of your threads you had posted about the recent ruling by the Fifth Circuit Court of Appeals (this may not be your link you posted) www.texastribune.org/2019...idual-mandate-obamacare/, that the IRS, had been collecting penalty fees all this time knowing this was indeed unconstitutional. This truly exposes the scam both from the United States government in their unlawful mandates but also makes the IRS vulnerable to a lawsuit as well. And it confirms why I posted that link from the Library of Congress concerning the lawful nature of the Title 50 Table of Contents and which are positive law and others that are not.
As for Dan Meador's works, I still stand with what he has relayed to the public. Many people have elected to judge him for his literal works just as they did Irwin Schiff in his works, The Federal Mafia.
I find it interesting that in one of your threads you had posted about the recent ruling by the Fifth Circuit Court of Appeals (this may not be your link you posted) www.texastribune.org/2019...idual-mandate-obamacare/, that the IRS, had been collecting penalty fees all this time knowing this was indeed unconstitutional. This truly exposes the scam both from the United States government in their unlawful mandates but also makes the IRS vulnerable to a lawsuit as well. And it confirms why I posted that link from the Library of Congress concerning the lawful nature of the Title 50 Table of Contents and which are positive law and others that are not.
Do you have any legal experts who are not convicted felons, or is that all you've got?
When cornered for being the rat bastard that he was, Irwin Schiff attempted to plead mental ilness, a delusional disorder. For shoveling this Shiff shit on this board, do you also claim your behavior is the result of your delusional disorder, or do you have a different excuse?
Dr. Ortega hospitalized him in October 2003 for depression and “high risk for suicide.” Dr. Ortega’s professional opinion was as follows:
“In my professional opinion I felt that the patient did not pay taxes because he was convinced that the law does not require him to do so. I think this is a delusional disorder.
[...]
His mental illness makes it “almost impossible… to persuade him he is wrong.” His opinions and thus his conduct is “driven by his mental illness.” Hayes Report, P. 6-7. According to Dr. Ortega he suffers from a “delusional disorder” which has convinced him “that the law does not require him to pay taxes.” Ortega Report, P. 4. Dr. Barry states that Schiff’s “belief system is not under voluntary control.” He has “little or no ability to alter his beliefs.” “Mr. Schiff’s behavior is not rational.” His conduct “is the product of a Delusional Personality Disorder.” Barry Report, P. 2.
Todd M. Leventhal 600 South Third Street Las Vegas, Nevada 89101 702 384 1990
Michael B. Nash 53 West Jackson Blvd. Suite 620 Chicago, Illinois 312 236 8788 Counsel for Defendant Irwin A. Schiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA
UNITED STATES OF AMERICA v. IRWIN A. SCHIFF
CR-S-04-119-KJD(LRL)
SCHIFF’S MOTION FOR DOWNWARD DEPARTURE
Defendant Irwin A. Schiff respectfully moves this Court for a downward departure pursuant to U.S.S.G. § 5K2.13. It states as follows:
“A downward departure may be warranted if (1) the defendant committed the offense while suffering from a b>significantly reduced mental capacity[/b]; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this police statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.”
The Application Note defines “significantly reduced mental capacity.”
“‘Significantly reduced mental capacity’ means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful” U.S.S.G § 5K2.13, Application Note 1
The burden is on the defendant to establish that he committed the offense while suffering from a reduced mental capacity, and that it contributed substantially to the commission of the offense. This is not a “but for” test. “(T)he policy statement rejects such a broad basis for departure by explicitly requiring that the defendant‘s reduced capacity merely ‘contribute to’ the offense.” United States v. Leandre, 132 F.3 796,803 (D.C. Cir. 1998). In United States v. Cantu, 12 F.3d 1506, 1515 (9th Cir. 1993) the Ninth Circuit noted that the other circuits which had addressed this issue were “unanimous in holding that the disorder need be only a contributing cause, not a but-for cause or sole cause” and it, therefore, “adopt(ed) this commonsense holding.”
There are two issues to examine. The first is whether defendant suffered from a significantly reduced mental capacity. The second is whether that reduced mental capacity contributed substantially to the commission of the offense. The answers to both questions are contained in the reports of Dr. Daniel S. Hayes, Ph.D., L.L.C. Clinical Psychologist, 2199 Ironwood Center Drive, Coeur d’Alene, ID 83814, Dr. Cynthia Barry, Ph.D. Licensed Psychologist PSY 10826, 1066 Saratoga Avenue Ste 100, San Jose, California 95129 and Dr. Luis Carlos Ortega, MD, Valley Hospital and Medical Center, 620 Shadow Lane, Las Vegas, NV 89106, which have previously been supplied to the Court.
Dr. Ortega hospitalized him in October 2003 for depression and “high risk for suicide.” Dr. Ortega’s professional opinion was as follows:
“In my professional opinion I felt that the patient did not pay taxes because he was convinced that the law does not require him to do so. I think this is a delusional disorder. He has this thing for a long time but no medication seems to make him believe otherwise.” Ortega Report, P.4.
Dr. Barry examined Schiff on January 6, 2004 at the request of his then attorney William A. Cohen. Her diagnosis was that Dr. Ortega was correct in concluding that Schiff suffered from Bipolar Disorder. She also stated that he suffered from Delusional Personality Disorder and an “Axis II personality disorder.” Her professional opinion was as follows:
“In my opinion, and in the history detailed above, Mr. Schiff’s distorted beliefs appear to have grown out of the stress of his business failures and his first, undiagnosed manic episode. However, once developed, these delusional beliefs have carried forward quite separate from the state of his bipolar mood swings and the impact of psychiatric medication. With very high probability they will continue unabated in the future. There is a significant element of paranoia in his MMPI protocol; however, he is extremely constricted emotionally so that underlying anger does not surface. His pseudo-rational belief system is confined to one area and this is no disorganization of thought. Further, it does not appear to originate from anti-social tendencies. However, the belief system is not under voluntary control. Individuals suffering from Delusional Disorder have little or no ability to alter their beliefs. Mr. Schiff acknowledges that even his two sons have advised him to pay his taxes and avoid the negative consequences. However, he states that he cannot do so because ‘I cannot pay what I do not owe.’ This despite the fact, that he recently experienced a suicidal depression serious enough to require hospitalization (related in part to recognition of a probable prison sentence if he is found guilty of the current charges.) In short, Mr. Schiff’s behavior is not rational. It is likely the product of a Delusional Personality Disorder that is not amenable to treatment and is unlikely to remit.” Barry Report, P. 2
Dr. Hayes examined Schiff on February 18, 2005 for six (6) hours at the request of Magistrate Judge Lawrence R. Leavitt, District of Nevada. The examination was “to provide an opinion regarding his (Schiff’s) competency to stand trial and desire to represent himself during that trial.” Hayes Report, P. 1. Dr. Hayes’ report gives a brief history of Schiff’s mental health history and Schiff’s version of his history with the Internal Revenue Service. Dr. Hayes concluded his narrative quoting Schiff as follows: “‘If I lose now, I’ll spend the rest of my life in jail.’
He is absolutely sure and confident that he will win this time because he will not ‘make the same mistakes… I know the law. I don’t need it interpreted to me. Why would I mislead my family and everyone else?.... I know I have a tiger by that tail and I have to beat them at this point…. I can’t pretend I don’t know this. It’s not right what they’re doing to the American people.” Hayes Report, P. 3.
Although Dr. Hayes noted that it was not within the scope of his evaluation “to formally assess Mr. Schiff’s cognitive capacity,” he noted that Schiff’s “cognitive functioning appeared to be impacted by what appeared to be a mood disorder, affecting his ability to attend and sustain concentration and focus outside his areas of preoccupation.” Hayes Report, P. 4.
Dr. Hayes’ report clearly established that Schiff suffered from a “significantly reduced mental capacity” and that it contributed substantially to these offenses. He reviewed Dr. Ortega’s and Dr Barry’s diagnosis and concluded that Schiff suffers from “Bipolar II Disorder, with recurrent major episodes and hypomanic episodes, without full inter-episode recovery.” Hayes Report, P. 7. In reaching this conclusion Dr. Hayes stated that Schiff’s beliefs regarding taxation set him “apart from the average individual” and that to a certain degree “Mr. Schiff’s focus on this topic (is) being driven by his mental illness.” Hayes Report, P. 7. The basis for Dr. Hayes’ conclusion are “the years he (Schiff) has devoted to this subject area, the research and documentation he believes to be in support of his beliefs, and the commitment and passion with which he hold his beliefs to be true.” Hayes Report, P. 6.
“He appears to have extremely rigid, fixed, inflexible, doggedly determined opinions and beliefs that cannot be changed by others’ reasoning. And, in his case, even punishment has not had a corrective impact in his thinking or behaviors. He appears impervious to any suggestions that he reconsider his conclusions or his actions, in part because of the thorough research he has conducted which has yielded evidence and facts to support his conclusions, coupled with the fact that he considers himself to be an “expert” with knowledge that supersedes that of any other individual claiming to have expertise in this subject area. Most people have beliefs that have a greater degree of flexibility and openness to change that does Mr. Schiff. Although some may have beliefs that parallel Mr. Schiff’s, they differ from him in that they are unwilling to jeopardize their freedom and suffer the consequences of their beliefs to the degree that Mr. Schiff has. As a result, it would be almost impossible at this point in his life to persuade him that he is wrong, particularly since he feels that there are few, if any, individuals who could match the breadth and depth of knowledge he appears to have as a result of the time, effort, focus, and intellect he has devoted to the subject. Any arguments against him are likely to be seen by him as naïve and sophomoric, and he is likely to dismantle any such arguments quickly and handily by quick reference to materials his opponent is unlikely to have at the ready for consideration and rebuttal.” Hayes Report, P. 6-7.
The purpose of 5K2.13 is to treat with “lenity” a defendant whose mental illness contributes to his offense. “The defendant’s mental condition and the circumstances of the offense must be undertaken ‘with a view of lenity, as section 5K2.13 implicitly recommends.’” United States v. Cantu, 12 F.3d 1506, 1511 (9th Cir. 1993), quoting United States v. Chapman, 986 F.2 1446 1454 (D.C. Cir. 1993). Cantu stated that lenity is appropriate because the purpose of 5K2.13 is to treat with “compassion” those with a reduced mental capacity which contributed to their offense. United States v. Cantu, at 1511. See also United States v. Leandre, at 804-805. According to Judge Orlofsky in United States v. Checoura, 176 F Supp 310, 315, (D.C. N.J., 2005) 5K2.13 is an “encouraged departure.” The lynchpin is a defendant’s ability to reason and process information and to voluntarily form the intent to act in a criminal manner. United States v. Withers, 100 F.3 1142, 1148 (4th Cir. 1996). The basis for 5K2.13 is the inability of an individual to fully understand ordinary concepts which others are able to grasp. It is a lack of “full intellectual functioning” or the ability to make “reasoned judgments.” United States v. Cantu, at 1512-1513.
As noted by Dr. Hayes, Schiff’s conduct was a result of extremely rigid, fixed, inflexible doggedly determined opinions and beliefs that cannot be changed by others’ reasoning.” He is “impervious to any suggestions.” His mental illness makes it “almost impossible… to persuade him he is wrong.” His opinions and thus his conduct is “driven by his mental illness.” Hayes Report, P. 6-7. According to Dr. Ortega he suffers from a “delusional disorder” which has convinced him “that the law does not require him to pay taxes.” Ortega Report, P. 4. Dr. Barry states that Schiff’s “belief system is not under voluntary control.” He has “little or no ability to alter his beliefs.” “Mr. Schiff’s behavior is not rational.” His conduct “is the product of a Delusional Personality Disorder.” Barry Report, P. 2. In United States v. Weedle, 30 F.3 532, 540 (4th Cir. 1994) the Fourth Circuit stated explicitly that “U.S.S.G § 5K2.13 is intended to create lenity for those who cannot control their actions but are not actually dangerous.” In United States v. Leandre, the court spoke of “the obligation to treat with lenity defendants who suffer significantly reduced mental capacity.” United States v. Leandre, at 804. In doing so the Leandre court cited United States v. Cantu, a Ninth Circuit case, in which the court stated “(t)he goal of the guideline is lenity toward defendants whose ability to make reasoned decisions is impaired.” United States v. Cantu, at 1511.
There is a very practical side of this section of the Guidelines. Judge Easterbrook in his dissenting opinion in United States v. Poff, 926 F.2d 588, 595 (7th Cir. 1991) noted that legal sanctions are ineffective in dealing with persons suffering from mental illness. When “a disturbed person’s conduct is non-violent… incapacitation incarceration is less important.” United States v. Poff, at 595. In other words, “the power of specific deterence has little hold over an individual defendant whose conduct is somewhat involuntary.” United States v. Cheroura, at 314.
Schiff’s mental illness is significant and clearly contributed to his commission of the offenses here. Three reputable doctors have stated so unequivocally, one of whom was engaged by the Court. A downward departure is not only appropriate here; to do otherwise is to ignore the mandate of the guidelines.
Respectfully Submitted,
s/Michael B. Nash
Michael B. Nash 53 West Jackson Blvd. Suite 620 Chicago, IL 60604 (312) 236-8788
As for Dan Meador's works, I still stand with what he has relayed to the public. Many people have elected to judge him for his literal works just as they did Irwin Schiff in his works, The Federal Mafia.
Irwin Schiff, another convicted felon dirtbag enshrined in the Quatloos Hall of Shame.
Irwin A SCHIFF v United States, 919 F2d 830 (2nd Cir, 1990)
Irwin A. Schiff, Appellant, v. United States of America, Appellee, 919 F.2d 830 (2d Cir. 1990)
US Court of Appeals for the Second Circuit - 919 F.2d 830 (2d Cir. 1990)
Argued Nov. 13, 1990. Decided Nov. 21, 1990
Irwin A. Schiff, New York City, pro se.
Joel A. Rabinovitz, Dept. of Justice, Washington, D.C. (Stanley A. Twardy, Jr., U.S. Atty., Hartford, Conn., Shirley D. Peterson, Asst. Atty. Gen., Gary A. Allen, and Ann B. Durney, Dept. of Justice, Washington, D.C., on the brief), for appellee U.S.
Before FEINBERG, TIMBERS and MINER, Circuit Judges.
PER CURIAM:
Appellant Irwin A. Schiff appeals from a summary judgment entered September 13, 1989, in the District of Connecticut, Warren W. Eginton, District Judge, in favor of appellee United States in an action commenced by Schiff challenging the assessment and collection of income tax deficiencies owed for the years 1976 through 1978 and penalties imposed.
On appeal, Schiff contends that (1) the tax was collected in violation of the taxing and due process clauses of the Constitution; (2) the tax deficiencies were not properly assessed and collected; (3) the district court erred in granting summary judgment on the issue of civil fraud penalties; and (4) the district judge erred in failing to recuse himself since he ruled against Schiff in a previous case. The government seeks costs and damages for a frivolous appeal.
For the reasons that follow, since we agree with the district court that there is no genuine issue of material fact, we affirm the summary judgment of the district court and impose sanctions on Schiff for bringing a frivolous appeal.
We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
Schiff is no stranger to this court. This is another in a series of cases involving Schiff's refusal to pay income taxes.E.g., United States v. Schiff, 876 F.2d 272 (2 Cir. 1989); United States v. Schiff, 801 F.2d 108 (2 Cir. 1986), cert. denied, 480 U.S. 945 (1987); Schiff v. Simon & Schuster, Inc., 780 F.2d 210 (2 Cir. 1985); Schiff v. Simon & Schuster, Inc., 766 F.2d 61 (2 Cir. 1985) (per curiam); Schiff v. Commissioner, 751 F.2d 116 (2 Cir. 1984) (per curiam); United States v. Schiff, 647 F.2d 163 (2 Cir.), cert. denied, 454 U.S. 835 (1981); United States v. Schiff, 612 F.2d 73 (2 Cir. 1979). The instant appeal arises from Schiff's failure to pay income taxes for the years 1976 through 1978.
Schiff filed no tax returns at all for the years 1977 and 1978. In April 1977, Schiff did file a Form 1040 with the Internal Revenue Service (IRS) for the year 1976. That form set forth his name, address and social security number. He did not provide financial information in the relevant portions of the return, but instead placed asterisks in the columns and typed in the margin "I DO NOT UNDERSTAND THIS RETURN NOR THE LAWS THAT MAY APPLY TO ME. THIS MEANS THAT I TAKE SPECIFIC OBJECTION UNDER THE 4th or 5th AMENDMENTS OF THE U.S. CONSTITUTION TO THE SPECIFIC QUESTION." On page two of the return, Schiff also placed asterisks in the columns and typed at the bottom "THIS MEANS THAT SPECIFIC OBJECTION IS TAKEN TO THE SPECIFIC QUESTION ON THE GROUNDS OF THE 4th AND 5th AMENDMENTS OF THE UNITED STATES CONSTITUTION."
Schiff attached a letter to his Form 1040 addressed to the District Director of the IRS. That letter stated that Schiff had received federal reserve notes in 1976, which he distinguished from taxable dollars. Schiff concluded that federal reserve notes were worthless since he could exchange them only for other federal reserve notes, but not for gold or silver. In support of his contention that federal reserve notes are not dollars, Schiff attached a letter from Russell L. Munk, Assistant General Counsel of the Department of the Treasury, that so stated. That letter also stated that the fact that federal reserve notes could not be exchanged for gold or silver did not render them worthless. The letter concluded by warning Schiff that "there is no legal basis for an arguement [sic] that a taxpayer need not file a return of his income, expressed in dollars, on the ground that Federal Reserve Notes are not 'dollars'...."
On December 2, 1982, the IRS sent Schiff a notice of deficiency with explanations for the years 1976 through 1978. Although the notice informed Schiff of his right of review, Schiff did not challenge those determinations in the Tax Court. Accordingly, on April 1, 1983, the IRS assessed deficiencies in tax plus interest and penalties for failure to pay estimated taxes and for fraud for the years 1976 through 1978. Schiff was notified of the assessments by IRS Form 3552. He was assessed a total of $41,837.35 for 1976, $39,760.99 for 1977, and $110,247.89 for 1978. The form notified Schiff that payment was due within ten days. On April 18, 1983, having received no response from Schiff, the IRS sent him a final notice stating that enforcement action would be taken if he did not make payment within ten days.
Schiff did not satisfy the tax deficiency. The IRS therefore levied on royalties owed to him by Simon & Schuster, the publisher of a book he wrote entitled "How Anyone Can Stop Paying Income Taxes." Schiff's attempt to stop the IRS collection effort failed. Schiff v. Simon & Schuster, Inc., 780 F.2d 210 (2 Cir. 1985).
On May 11, 1985, Schiff filed claims for refunds of the amounts the IRS had collected for the years 1976 through 1978. The IRS denied those claims. Schiff commenced the instant action on October 9, 1986, seeking refunds for the years in question. On April 20, 1989, Schiff moved for summary judgment. The government filed a cross-motion for summary judgment on June 12, 1989. On September 6, 1989, the district court granted the government's cross-motion for summary judgment. Judgment was entered on September 13, 1989. Schiff filed two subsequent motions for reconsideration. Both were denied.
This appeal followed.
We review the district court's grant of summary judgment de novo. EAD Metallurgical, Inc. v. Aetna Cas. & Sur. Co., 905 F.2d 8, 10 (2 Cir. 1990). Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Since summary judgment was granted in favor of the government, we consider the evidence in the light most favorable to Schiff. E.g., EAD Metallurgical, supra, 905 F.2d at 10.
With the foregoing in mind, we turn to the merits of Schiff's appeal. We hold that all of his claims are completely lacking in merit.
Initially, Schiff's contentions that the imposition of a validly enacted income tax by Congress violates the taxing clauses of the Constitution have been rejected previously. E.g., Brushaber v. Union Pacific R.R. Co., 240 U.S. 1, 19-20 (1916); Schiff v. Commissioner, supra, 751 F.2d at 117; Ficalora v. Commissioner, 751 F.2d 85, 87 (2 Cir. 1984), cert. denied, 471 U.S. 1005 (1985).
Schiff's due process claim likewise is frivolous. He contends that the assessments amounted to a taking of property without due process. The notice of deficiency sent to Schiff clearly informed him of his right to appeal to the Tax Court. Such an appeal would have provided Schiff with an opportunity to be heard and to contest the IRS' calculations. Schiff chose not to avail himself of that opportunity.
We turn next to Schiff's claims regarding the propriety of the IRS' assessments. First, Schiff contends that since 26 U.S.C. § 6201(a) (1) (1988) requires that assessments be made from returns or lists, the IRS must prepare a substitute return pursuant to 26 U.S.C. § 6020(b) (1988) prior to assessing deficient taxes. It is clear, however, that when a taxpayer does not file a tax return, it is as if he filed a return showing a zero amount for purposes of assessing a deficiency. There is no requirement that the IRS complete a substitute return. Roat v. Commissioner, 847 F.2d 1379, 1381 (9 Cir. 1988); 26 C.F.R. Sec. 301.6211-1(a) (1990); see also Laing v. United States, 423 U.S. 161, 174 (1976) ("Where there has been no tax return filed, the deficiency is the amount of tax due").
Schiff also contends that the IRS must use Form 17 to provide notice of a deficiency and make a demand for payment. The Secretary of the Treasury is required to provide notice of a deficiency and make a demand for payment within 60 days of an assessment. 26 U.S.C. § 6303(a) (1988). In the instant case, the IRS gave timely notice to Schiff, using Form 3552. That form clearly stated the amount due and that payment must be made within 10 days. There is no requirement that the Secretary use a specific form to provide notice of a deficiency to a taxpayer. Planned Inv., Inc. v. United States, 881 F.2d 340, 343-44 (6 Cir. 1989).
Schiff further contends that the assessment against him for taxes owed for the year 1976 was barred by the statute of limitations. Generally, an assessment must be made within three years of the filing of a tax return. 26 U.S.C. § 6501(a) (1988). When no return is filed, however, an assessment may be made at any time. 26 U.S.C. § 6501(c) (3) (1988). Schiff's tax return for 1976 set forth no financial information at all. For statute of limitations purposes, such a return is treated as if no return was filed. Morgan v. Commissioner, 807 F.2d 81, 82 (6 Cir. 1986).
In short, we find no merit whatsoever in any of Schiff's claims with respect to the propriety of the IRS' assessments and their collection.
We turn next to Schiff's contention that the district court erred in granting summary judgment with respect to the imposition of civil fraud penalties. He contends that the imposition of such a penalty cannot be based solely on his failure to file a tax return. Stoltzfus v. United States, 398 F.2d 1002, 1005 (3 Cir. 1968), cert. denied, 393 U.S. 1020 (1969).
The fraud penalty can be imposed if the Commissioner proves "by clear and convincing evidence that taxpayers acted with an intent to evade paying taxes." Douge v. Commissioner, 899 F.2d 164, 168 (2 Cir. 1990). Fraud can be proved by circumstantial evidence. Id. "Such evidence may include (1) consistent and substantial understatement of income, (2) failure to maintain adequate records, (3) failure to cooperate with an IRS investigation, (4) inconsistent or implausible explanations of behavior and (5) awareness of the obligation to file returns, report income and pay taxes." Id.
The frivolous nature of this appeal is perhaps best illustrated by our conclusion that Schiff is precisely the sort of taxpayer upon whom a fraud penalty for failure to pay income taxes should be imposed. It is an understatement to say that Schiff has consistently and substantially under reported his income. The fact is that "he has not filed tax returns since 1973." Schiff v. Simon & Schuster, Inc., supra, 780 F.2d at 211.
A brief review of Schiff's history in this court provides substantial support for our holding that his failure to file tax returns for the years 1976 through 1978 was a fraudulent attempt to evade taxes. He was convicted of willfully failing to file tax returns for the years 1974 and 1975. We affirmed that conviction without opinion, United States v. Schiff, supra, 647 F.2d 163, and the Supreme Court denied certiorari. 454 U.S. 835. In addition, tax deficiencies and civil penalties were assessed against Schiff for his failure to file tax returns for those years. Schiff v. Commissioner, supra, 751 F.2d at 117. Schiff also was convicted of attempted tax evasion for the years 1980 through 1982 and for failing to file a corporate income tax return for the year 1981, United States v. Schiff, supra, 801 F.2d 108, and again the Supreme Court denied certiorari. 480 U.S. 945. Moreover, Schiff's background makes it inconceivable that he was unaware of his obligation to file returns and pay taxes. In light of Schiff's repeated attempts to evade his obligation to pay income taxes, we hold that summary judgment was justified on the issue of whether civil fraud penalties were properly assessed because of his failure to file returns for the years 1976 through 1978.
We hold that there was no genuine issue of material fact to preclude the district court from granting summary judgment in favor of the government.
This brings us to Schiff's contention that the district judge erred in failing to recuse himself. Schiff contends that the judge should have recused himself since he ruled against Schiff in Schiff's attempt to prevent Simon & Schuster from cooperating in the IRS attachment proceeding. This contention is totally lacking in merit. Prior adverse rulings "without more, ... do not provide a reasonable basis for questioning a judge's impartiality." United States v. Wolfson, 558 F.2d 59, 64 (2 Cir. 1977). There is nothing in the record to suggest that the judge was unable to render an unbiased decision. Indeed, were we to adopt the bright line rule that Schiff suggests, litigious individuals might run out of judges before whom their cases could be heard.
We hold that the district judge did not err in deciding not to recuse himself.
Having held that Schiff's contentions are frivolous, we turn now to the matter of sanctions. We do not undertake lightly a decision to impose sanctions pursuant to Fed. R. App. P. 38. However, " [r]eady as we are to protect and enforce [a litigant's] rights, we must be equally willing to employ lawful sanctions as a means of preventing needless waste of the court's time and resources." Acevedo v. INS, 538 F.2d 918, 920 (2 Cir. 1976) (per curiam).
As demonstrated above, we repeatedly have rejected Schiff's attacks on the tax system, which he has raised in this Court on numerous occasions. Indeed, we imposed sanctions on Schiff for asserting, on his appeal from the assessment of tax deficiencies resulting from his failure to pay income taxes for the years 1974 and 1975, issues very similar to the ones raised on the instant appeal. Schiff v. Commissioner, supra, 751 F.2d at 117. Moreover, we previously have described Schiff as "an extremist who reserve [s] the right to interpret the decisions of the Supreme Court as he read [s] them from his layman's point of view regardless of and oblivious to the interpretations of the judiciary." United States v. Schiff, supra, 612 F.2d at 75.
We conclude that the instant appeal is yet another in a series of frivolous appeals brought by Schiff "to make public his radical views on tax reform." Schiff v. Commissioner, supra, 751 F.2d at 117. We cannot countenance Schiff's continued resort to this Court to "rehash ... his basic thesis: [that] he does not have to pay taxes." United States v. Schiff, supra, 876 F.2d at 275. "The payment of income taxes is not optional ... and the average citizen knows that the payment of income taxes is legally required." Id. (citations omitted).
The imposition of sanctions against litigants who continuously abuse the appellate process is justified. E.g., In re Hartford Textile Corp., 681 F.2d 895, 897 (2 Cir. 1982) (per curiam), cert. denied, 459 U.S. 1206 (1983); In re Hartford Textile Corp., 659 F.2d 299, 303-06 (2 Cir. 1981) (per curiam), cert. denied, 455 U.S. 1018 (1982); Browning Debenture Holders' Comm. v. DASA Corp., 605 F.2d 35, 40 n. 5 (2 Cir. 1979). We hold that " 'the situation here is one of those "highly unusual" instances which permit the imposition of sanctions under Rule 38 because of "a clear showing of bad faith".' " In re Hartford Textile Corp., supra, 659 F.2d at 305 (citation omitted). We order that double costs in this Court and $5,000 damages be awarded against Schiff, to be paid to the United States.
"To make the sanction effective and thereby protect the processes of a court from abuse, a litigant against whom Rule 38 sanctions have been imposed must comply with those sanctions before being permitted to pursue new matters in that court." Schiff v. Simon & Schuster, Inc., supra, 766 F.2d at 62 (footnote omitted). Accordingly, we further order that the clerk of this Court shall not accept any more papers from Schiff for filing except upon proof of payment of the above sanction. E.g., In re Martin-Trigona, 795 F.2d 9, 12 (2 Cir. 1986) (per curiam); Johl v. Johl, 788 F.2d 75, 76 (2 Cir.) (per curiam), cert. denied, 479 U.S. 858 (1986); Schiff v. Simon & Schuster, Inc., supra, 766 F.2d at 62; In re Hartford Textile Corp., supra, 681 F.2d at 897-98. This prohibition against further filings does not apply to any petition for rehearing, petition for rehearing en banc, or petition for certiorari—in this case.
We order that the mandate issue forthwith; that the judgment of this Court include the provisions for double costs and damages as ordered above; that execution on the judgment of this Court for damages issue forthwith; and that execution on the judgment of this Court for costs issue within ten days of the date of the taxation of costs according to law.In re Hartford Textile Corp., supra, 659 F.2d at 305-06.
To summarize:
We hold that there was no genuine issue of material fact to preclude the district court from granting summary judgment in favor of the government. We further hold that the district judge did not err in declining to recuse himself. In light of the frivolous nature of this appeal and Schiff's pattern of bringing such appeals, we order that double costs in this Court and $5,000 damages be awarded against Schiff, to be paid to the United States. We further order that the clerk of this Court shall not accept any more papers for filing from Schiff except upon proof of payment of the above sanction.
Affirmed with double costs and $5,000 damages against Schiff.
As for Dan Meador's works, I still stand with what he has relayed to the public. Many people have elected to judge him for his literal works just as they did Irwin Schiff in his works, The Federal Mafia.
Irwin Schiff, another convicted felon dirtbag enshrined in the Quatloos Hall of Shame.
FOR IMMEDIATE RELEASE MONDAY, OCTOBER 24, 2005 WWW.USDOJ.GOV TAX (202) 514-2007 TDD (202) 514-1888
PROFESSIONAL TAX RESISTER IRWIN SCHIFF AND TWO ASSOCIATES CONVICTED IN LAS VEGAS TAX SCAM
WASHINGTON, D.C. - A federal jury in Las Vegas, Nevada convicted Irwin Schiff and two associates, Cynthia Neun and Lawrence Cohen, of aiding and assisting in the preparation of false income tax returns filed by other taxpayers in connection with a tax scam, and convicted Schiff and Neun of conspiring to defraud the United States, the Department of Justice and the Internal Revenue Service (IRS) announced today. Schiff was convicted on all counts, including income tax evasion and of filing false income tax returns for the years 1997 through 2002, and Neun was convicted of willfully failing to file federal income tax returns, Social Security disability fraud, and theft of government property in connection with Neun’s improper receipt of Social Security disability benefits.
According to the indictment and the evidence introduced at trial, beginning in 1995, the defendants directed thousands of taxpayers to file false federal income tax returns with the IRS that reported zero taxable income in spite of the taxpayers earning large amounts of reportable income. The defendants operated the scam through Freedom Books-a business owned by Schiff-that sold books, tapes, and packets encouraging customers not to pay income tax. According to a government witness who testified at trial, between 1997 and 2002 Freedom Books sold more than $4.2 million in products that promoted Schiff’s “anti-tax” scheme.
“People who evade their tax obligations, or encourage or enable others to do so, are cheating all law-abiding taxpayers,” said Eileen J. O’Connor, Assistant Attorney General for the Justice Department’s Tax Division. “The Department of Justice will prosecute these crimes, and juries will convict the offenders.”
The Justice Department filed a civil suit in the same court against Schiff, Neun, and Cohen in March 2003, and the court granted a temporary restraining order barring them from advertising or selling Schiff’s “zero-income tax return” plan; preparing tax returns for others; and assisting others to violate the tax law, including by “selling services, books or other materials that provide direction about how to fill out fraudulent or false tax forms. . . .” The preliminary injunction was affirmed after the defendants’ appeal to the U.S. Court of Appeals for the Ninth Circuit. The U.S. Supreme Court this month declined to hear Schiff’s challenge to the Ninth Circuit decision. The Justice Department will ask the district court to convert the preliminary injunction into a permanent one. More information about the injunction may be found on the Tax Division website at http://www.usdoj.gov/tax/txdv03357.htm, and http://www.usdoj.gov/tax/txdv03167.htm.
Evidence presented at trial proved that Schiff evaded the payment of more than $2 million in taxes he owed the IRS from 1979 through 1985. Schiff concealed income he earned from Freedom Books, in part by using offshore bank accounts and conducting financial transactions through secret “warehouse” banking services. The evidence also showed that Schiff used debit cards issued by offshore banks to obtain funds he transferred offshore, that he opened bank accounts using multiple tax identification numbers, and that he titled his ownership of a car in the name of a Pennsylvania corporation.
That marked the third time Schiff had been convicted of tax offenses. “Paying taxes is the price of citizenship. After three strikes, I would hope that even Mr. Schiff realizes that he has struck out,” said IRS Commissioner Mark W. Everson.
Mr. Schiff faced a maximum sentence of 43 years in prison and $3.25 million in fines andwas remanded to the custody of the U.S. Marshals Service.
FOR IMMEDIATE RELEASE FRIDAY, FEBRUARY 24, 2006 WWW.USDOJ.GOV TAX (202) 514-2007 TDD (202) 514-1888
PROFESSIONAL TAX RESISTER SENTENCED TO MORE THAN 12 YEARS IN PRISON FOR TAX FRAUD
WASHINGTON, D.C. - Longtime tax protestor Irwin Schiff was sentenced in federal district court in Las Vegas to total of 163 months in prison—151 months for tax fraud and an additional 12 months for contempt of court—the Department of Justice and the Internal Revenue Service (IRS) announced today. In addition, Schiff was ordered to pay more than $4.2 million in restitution and to serve three years of supervised release.
In October 2005, Schiff was convicted of conspiring to defraud the United States, aiding and assisting in the preparation of false income tax returns, filing his own false tax returns, and evading the payment of millions of dollars in back taxes owed. This marks the third time Schiff has been convicted for committing federal tax offenses. Schiff previously has spent more than four years in jail for his tax crimes. Two associates of Schiff, Cynthia Neun and Lawrence Cohen, were also convicted of aiding and assisting other taxpayers in the filing of false tax returns. On February 3, 2006, Cohen was sentenced to 33 months in prison. Neun was sentenced yesterday to 68 months in prison and ordered to pay $1.1 million in restitution.
“Last October, a jury of his peers found Mr. Schiff guilty of serious tax crimes related not only to his own tax evasion, but also to his encouraging and enabling others to file false returns. The prison sentence handed down today reflects the seriousness of those crimes,” said Eileen J. O’Connor, Assistant Attorney General for the Justice Department’s Tax Division. “The Department of Justice is working vigorously to vindicate the interests of law-abiding Americans who file returns and pay the taxes the law requires.”
“Mr. Schiff earned this sentence,” said IRS Commissioner Mark Everson. “For years he has preyed on others by holding out false hope that they need not pay their taxes.”
According to the indictment and the evidence introduced at trial, beginning in 1995, Schiff aided thousands of taxpayers in the filing of false federal income tax returns with the IRS that reported zero taxable income in spite of the taxpayers earning reportable income. Schiff owned and operated Freedom Books, a business that sold books, tapes, and informational packages encouraging customers not to pay income tax. According to a government witness who testified at trial, between 1997 and 2002, Freedom Books sold more than $4.2 million of these products.
The evidence presented at trial also proved that Schiff evaded the payment of more than $2 million in taxes he owed the IRS from 1979 through 1985. Schiff concealed income he earned from Freedom Books, in part, by using offshore bank accounts and conducting financial transactions through secret “warehouse” banking services. The evidence also showed that Schiff used debit cards issued by offshore banks to obtain funds he transferred offshore, that he opened bank accounts using multiple tax identification numbers and that he concealed his wealth by hiding his assets through the use of nominees.
Assistant Attorney General O’Connor thanked Tax Division Trial Attorneys Jeffrey A. Neiman, David J. Ignall, and Melissa Schraibman, who prosecuted the case. She also thanked Criminal Investigation Special Agents David Holland, Adam Steiner, and Autumn Woodard of the IRS, and the U.S. Attorney’s Office for the District of Nevada, whose assistance was essential to the successful investigation and prosecution of the case.
Many people have elected to judge him for his literal works just as they did Irwin Schiff in his works, The Federal Mafia.
You really should have read the legal disclaimer in Schiff's book, The American Mafia. This was so the simpletons who paid for his book, and swallowed the crap that they didn't have to file or pay income taxes, couldn't sue him when they found themselves in deep legal doo-doo, facing legal fees, penalties, interest, and possibly prison.
This book is designed to provide the author’s findings and opinion, based on research and analysis of the subject matter covered. This information is not provided for purposes of rendering legal or otherwise professional services, which can only be provided by knowledgeable professionals on a fee basis.
Further, there is always an element of risk in standing up for one’s lawful rights in the face of an opressive taxing authority backed by a biased judiciary.
Therefore, the author and publisher disclaim any responsability for any liability of loss incurred as a consequence of the use and application, either directly or indirectly, of any advice or information presented herin.
Copyright 1990 by Irwin Schiff Revised Third Edition 1999 Revised Second Edition 1992 First Edition Published 1990 ISBN 0-930374-09-6 01 02 03 5432
