SUPPORTING BRIEF #1: THE PERVERSION OF THE INCOME TAX LAWS, Page 5
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There was also supposed to be set up an old-age benefit fund which was predicted to accumulate to a $50,000,000,000 reserve in 1980. This estimate was made by the President's Committee on Social Security. However, as the May 14 article predicted:
"But there isn't going to be any such amount of loose change lying around in the old-age benefit reserve fund. The Federal Government is going to use every dollar of it to pay its other debts with." ibid., pg. 40.
It is pretty much common knowledge that social security taxes just go into the general fund today. There is no old-age benefit reserve fund at all.
If labor was only taxed at a rate of 3 per cent today, I doubt there would be much opposition to the taxation. However, today the average worker must work around three to four months out of the year just to pay their income tax. This resulted because of the imposition of the "victory tax" to help support the W.W. II war effort. This tax began withholding 5 per cent of the wage earners' pay on January 1, 1943. This tax was in addition to the social security taxes. After the war was over and "victory" was achieved, the additional withholding process continued and expanded to the levels they are today. In fact, it was Executive Order #9397 in 1943 that made social security numbers taxpayer identification numbers. Where's Congress?! We've come a long way since 1913.
What about the Supreme Court? How were they reacting to the mass of New Deal legislation? Why doesn't the Court today recognize many of the older cases? Let us now consider this issue.
SENATOR JOHNSON of California: "The Supreme Court is out of it?"
SENATOR LOGAN of Kentucky: "The Supreme Court is out of it."
SENATOR JOHNSON: "Glory be to God!"
This is the opening paragraph of one of the three articles entitled "The 168 Days" in The Saturday Evening Post appearing in the Sept. 18, 1937 issue (part 1). The article "The 168 Days" appeared in three parts and can be found in the Sept. 18, Sept. 25, and Oct. 16, 1937 issues of The Saturday Evening Post. They explain in detail the vicious attack upon the Supreme Court by the administration to negate their effect in declaring federal "New Deal" laws unconstitutional.
Massive amounts of legislation, mostly originating in the executive branch of government, started being passed into law by Congress in the spring of 1933. This process was continued in the years after 1933 by the "New Deal" administration. Many learned people of the time seriously doubted the constitutionality of much of this legislation and were filing suits in court to attack the constitutionality of many of these laws. Consider the following excerpt from the editorial of Mr. Lorimer entitled "The Duty of Congress" in The Saturday Evening Post of Feb. 1, 1936.
"Constitutional objections have been raised to nearly every important piece of legislation enacted since the beginning of the Government (New Deal), says the Attorney General....When something like two thousand suits are brought to test the constitutionality of laws passed in a few brief years, the presumption is exceedingly strong that the lawmakers have either been extraordinarily careless and ignorant or else very astute in passing the buck in the hope of at least temporary political credit for doing something which they knew in their hearts could not be done. Surely the duty of Congress is higher than this; nor is it along these lines that permanent progress is made." ibid., pg. 22.
One of the first cases to come before the Supreme Court challenging the constitutionality of "New Deal" laws was A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495. This case was also reported in The Saturday Evening Post article entitled "The House We Live In" found in the August 3, 1935 issue. This case was basically "Chicken Farmers" v. "Executive Branch of Government". The executive branch of government, by virtue of the laws pursuant to the National Recovery Act, indicted these vicious "chicken farmers" for conspiracy (the supreme court referred to it as "alleged conspiracy") and for violation of the Code of Fair Competition for the Live Poultry Industry of the metropolitan area in and about the city of New York.
The Supreme Court in this case, sitting en banc, ruled 9-0 that the laws that were being imposed upon the "chicken farmer" were unconstitutional. Let us examine what they had to say on the matter.
If we read the footnotes on the case, we will see that the laws being enforced upon the "chicken farmers" were, not Acts of Congress, but Executive Orders signed by the President. The Supreme Court addressed this issue.
"[2] Second. The question of the Delegation of Legislative Power.-- We recently had occasion to review the pertinent decisions and the general principles which govern the determination of this question. The Constitution provides that 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Article 1, § 1. And the Congress is authorized 'To make all Laws which shall be necessary and proper for carrying into Execution" its general powers. Article 1, § 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which is thus vested." A.L.A. Schechter Poultry Corp. v. U.S., supra, 55 S. Ct. at page 843. (cites omitted)
So we see that the Supreme Court saw the legislative powers being exercised by the executive and told both Congress and the Executive that this was forbidden in the Constitution. This is really pretty basic stuff. One of the most basic elements in the Constitution is the Parliamentary Procedure for making laws. This was being ignored by the government at this point in our history and the Supreme Court saw fit to bring this forward.
Nihil aliud potest rex quam quod de jure potest. The king can do nothing but what he can do legally. 11 Co. 74.
Now let us look at how the administration reacted to this decision by the Supreme Court. In the article aforementioned entitled "The House We Live In" we will see the administration's reaction.
"The style of criticism toward both the United States Supreme Court and the Constitution was set by the President. On the Friday following the Court's decision declaring the NRA to be unconstitutional, he assembled the newspaper correspondents at the White House and talked to them about it for an hour and a half. That clause in the Constitution granting to Congress the power to regulate commerce among the states- the so-called interstate commerce clause- had been written, he said, in the horse-and-buggy days, when there was no interstate commerce to speak of." ibid., pg. 8.
I wonder how the American People today would react to a President that openly criticized the Constitution and the Court, now that the fruitages of Liberty of Regimentation have been realized by the People. Consider Mr. Roosevelt's further statements at this same press conference at the White House.
"And arising at the same time was the absurd argument that the power to be abated, this dictatorial judicial power, telling Congress what it could and could not do, was a nonexistent power- the argument, namely, that for the Supreme Court to invalidate an act of Congress by declaring it unconstitutional is in itself an unconstitutional act, because there is nothing in the Constitution about it; that John Marshall, the great Chief Justice of the United States, invented the power and put it over on the country; that in England such a thing never happens, and there a judge was hanged for declaring an act of Parliament to be void." ibid., pg. 9
First of all, let me point out the error that it was John Marshall that "invented" the idea that the Supreme Court could declare an act of Congress unconstitutional. All one has to do is read the Federalist #78 thru #83 by Hamilton and one can easily see that the framers fully intended to give the Supreme Court the power to declare an act of congress unconstitutional. The framers knew that sometimes emotions in politics could get out of hand and that the court could dispassionately examine the laws in light of the Constitution.
"This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from the quarter: I mean, so long as the judiciary remains truly distinct from both the legislative and executive. For I agree that "there is no liberty if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from its union from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such an union must ensue from a dependence of the former on the latter, not withstanding a nominal and apparent separation; that as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution and in a great measurers the citadel of the public justice and public security.
"The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to legislative authority; such for instance as that it shall pass no bills to attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." The Federalist #78, Hamilton. (emphasis added)
Therefore, in the landmark case of Marbury v. Madison (1803), Chief Justice Marshall stated:
"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument." Marbury v. Madison, 1 Cranch 137, 180 (1803)
What is it then that declares an act of Congress unconstitutional? Is it the Justices of the Supreme Court or the Judges of the lower Courts? It is the Constitution itself that does so. All the Justices or Judges do is look at the Constitution and compare it to the Act of Congress under challenge. If the Act adheres to the spirit and letter of the Constitution, then the Act is upheld. If it is repugnant to the spirit and letter of the Constitution, then it is so declared. All that this does is set the precedent that any future cases making the same challenges will be subjected to the principle of res judicata. It does not mean that the law cannot be kept on the books and attempted to be enforced. It simply means, as far as the judgement of the law is concerned, no court will enforce the law because it has been declared unconstitutional. It is one of the essential systems of checks and balances afforded by the Constitution to prevent governmental encroachment upon Liberty.
Interest reipublicæ res judicatas non rescindi. It concerns the commonwealth that things adjudged be not rescinded. See Res Judicata.
The administration was determined to negate the effect of the Supreme Court so that its laws would be upheld and enforced. In the "168 Days" article of Sept. 18 we read:
"The drama's prologue was played in the President's White House office on May 31, 1935, four days after the Supreme Court had unanimously invalidated the NRA. The four days had given the President's temper to reach the boiling point, and Felix Frankfurter and Gen. Hugh H. Johnson, who conferred with him in the pleasant oval room among the flags and ship pictures, found him in a fighting mood. He told them that he wouldn't take the court's action lying down, that he wouldn't stand for it. The country was with him, not with the court, he said, and he promised angrily to bring the court into line, if he had to "pack it" or even "deny it appellate jurisdiction." It was thus that Franklin Delano Roosevelt first announced his decision to give battle to the court. Frankfurter and Johnson tried to dissuade him from a public expression of anger, but they could do nothing. The famous horse-and-buggy press conference took place a little later." ibid., pg. 8.
In The Saturday Evening Post editorials of April 25, 1936 under the heading of "The Court" we read:
"...and fifty or more bills to hamper or to throttle the courts are pending before Congress." ibid., pg. 26.
Mr. Lorimer also stated:
"It is extremely shortsighted, ignorant and shallow to attack the Court. For it protects the lowly and ignorant as well as the lofty and great. In almost countless instances it has upheld the rights of labor and the power of the states to enact advanced social legislation. It orders the highest court of a Southern State to give a humble negro a new and fair trial; it is constantly upholding the right of free speech and of free press. Threats against it are really nothing more or less than very poorly concealed attacks upon the liberties of the people." ibid.
The corrupting influence of power is clearly evident in this period of our history. It was a grave error for the Congress to delegate its essential legislative functions to the executive. We can now see that the executive, exercising legislative functions not allowed by the Constitution, needs to usurp the judicial powers to see to it that the laws of the executive will be upheld and enforced. Thus, the attack upon the Supreme Court to negate its effect as an independent branch of government.
At the start of Mr. Roosevelt's term as President, he had a meeting with the Chief Justice of the Supreme Court, Justice Hughes, as reported in the Sept. 18 (The 168 Days) article.
"He had intimated to the Chief Justice that he would like to discuss his important plans concerning the general welfare, to get the court's slant on them before he acted. But the Chief Justice had been Olympianly chilly. He had given the President to understand that the strictest separation between the court and the White House was not only advisable but necessary."
"'You see,' said the President to the senator, 'he wouldn't co-operate.'" ibid., pg. 9.
The administration did succeed in usurping the judicial powers by this attack upon their independence. The attack was viscous. Please consider the following excerpts taken from The Saturday Evening Post article entitled "Washingtonia" in the May 16, 1936 issue. The article was written by Raymond G. Carroll. They are statements from members of the halls of Congress during the years 1935-36, and also some of the proposed bills to negate the effect of the Supreme Court. The reader however needs to bear in mind that the Executive had written many resolutions of their own to hamper or throttle the Court. There is a strong presumption that many of these measures before Congress were the Executive's bills with a congressional member's name on them to give them a legal appearance.
"The position of those who would lessen the powers of the Supreme Court was, perhaps, best expressed on the floor of Congress by Rep. Robert Lincoln Ramsay, Democrat, of West Virginia: 'Today we are, in the final analysis, governed by a theory of government that was supposed to have died with the Federalist Party, but we still feel the dead and withered hand of Alexander Hamilton directing, through our Supreme Court, the policies of every administration, regardless of whichever party may be in power.'"
"Rep. James W. Wadsworth, of Geneseo, New York, on March 4, 1936, upon the floor of the House, said: 'My information is that tens of thousands of telegrams passing between citizens have been seized by the Federal Communications Commission. They have been pawned over and examined. No warrant has been issued for the seizure of this private correspondence; no search warrant emanating from any court of competent jurisdiction...And Congress had no intention of clothing any branch of our Government with the power of search and seizure. In fact, Congress cannot do so under the Constitution, in view of the Fourth Amendment.'"
"Rep. John E. Rankin, Democrat, of Tupelo, Mississippi, said: 'How are you ever going to catch men who violate the postal laws?'"
"Mr. Wadsworth said: 'As I understand it, you must at least make a prima-facie case, go before a court, and have a judge say that there is some prima-facie evidence here, and - We grant you permission to search the effects of the person.'"
"Mr Rankin said, with respect to the pursuit of postal-law violators: 'Oh, they have searched letters going through the post office ever since this Government began, without appealing to a court. They have a right to do it.'"
"Mr. Snyder stated: 'much has been said about the constitutionality of the Acts of Congress since the days of George Washington's first inauguration. After checking up, it is gratifying to know that out of 24,000 acts of Congress, more or less, since that time, only sixty-three or sixty-four have been declared unconstitutional...Some forty of them were put on the statute books when the Republican Party was in the majority in both the House and the Senate and under a Republican President, while some fifteen when the Democrats were in the majority in the House and Senate and under a Democratic President.'
"Mr. Snyder further made the point that a decision against the validity of an act of Congress by the Supreme Court goes no further than is absolutely required by the case at bar. But his protest did not dampen the ardor of others in Congress to tear down and change the basic principles of the judicial branch of the Government, under which the Unites States has lived and prospered through peace and war, through good fortune and adversity for nearly 150 years.
"The judiciary is the intellect of the American form of government, just as the legislative branch is the heart and the administrative branch is the stomach, which, at moment, is being fed with a steam shovel rather than with a spoon, as the founders designed. To rob the intellect to satisfy the greed of the stomach cannot but destroy the heart in the end. No? Well, ask your doctor what overeating does to the heart."
"A composite articulation of the lot: 'Let us change the Court, or change the Constitution; only do something that will justify what we have done.'"