Guest column by Glenn Neal, retired-lawyer-turned-writer
As President-elect Barrack Obama moves toward his inaugural, and maybe the highest taxes in history, there is a more sinister taxing body many people don't even know about. Do you remember voting for a delegate to represent you on the United States Supreme Court? I don't.
Chief Justice John Marshall wrote, "An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation." The Supreme Court seems to have forgotten that.
In Missouri v. Jenkins (1990), the Court affirmed the right of federal courts to levy taxes. Justice Anthony Kennedy criticized that part of the decision giving the federal courts the power to levy taxes directly. He called it, "An expansion of power in the Federal Judiciary beyond all precedent. Today's casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions."
There are also indirect taxes. When the courts require local governments to build new, more "humane" jails, for example, the argument is not about whether the court has jurisdiction to do that. It doesn't, actually--the Constitution confers no authority for the federal courts to impose unfunded mandates on the states. The court just assumes it has jurisdiction and the Supreme Court allows it to happen.
Direct and hidden taxes levied by the federal courts are separate from taxes levied by Congress. Over the past ten years, federal taxes enacted by Congress have averaged 19% of Gross Domestic Product (GDP), according to the Congressional Budget Office (CBO).
The director of CBO testified earlier this year that if entitlements continue to expand at their present rate, by the middle of this century the tax to pay for just three of the entitlements -- Social Security, Medicare and Medicaid -- will be 21% of GDP, up from 4.1 %in 2004. The cost of running the government, the military, foreign aid, the farm subsidies, the bailout and all other federal giveaways would be in addition to that.
So what can we do about it?
To believe that you can successfully "lobby" the average heroin addict to give up his habit voluntarily, without drastic intervention by some outside force, is naïve. To believe Congress or the Court will restrain itself from imposing taxes goes beyond naiveté to delusional. For there to be meaningful tax reform and/or limitedgovernment, there must be some draconian action by the people to impose limits that Congress--and the Supreme Court--cannot avoid.
President Lincoln at Gettysburg called on those gathered there, "to be dedicated here to the unfinished work . . . that this nation,under God, shall have a new birth of freedom--and that government of the people, by the people, for the people, shall not perish from the earth." We need to follow his lead.
Stay with me, I'll tell you how.