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Context of 'May 6, 2009: Fox News Legal Analyst Again Suggests Repealing 16th Amendment'

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Arthur Porth, a Wichita, Kansas, building contractor, files a claim in a Kansas court to recover his income tax payment of $151. Porth argues that the 16th Amendment is unconstitutional because it places the taxpayer in a position of involuntary servitude contrary to the 13th Amendment. The court rules against Porth, but the defeat does not stop him. For 16 years Porth continues battling the income tax requirement, finding new and inventive challenges to the practice. He claims that the 16th Amendment “put[s] Americans into economic bondage to the international bankers,” a claim that the Southern Poverty Law Center will call “a thinly veiled anti-Semitic reference to the supposed ‘international Jewish banking conspiracy.’” He also argues that because paper money is not backed by gold or silver, taxpayers are not obligated to pay their taxes because “Federal Reserve notes are not dollars.” In 1961, Porth files an income tax return that is blank except for a statement declaring that he is pleading the Fifth Amendment, essentially claiming that filling out a tax return violates his right of protection from self-incrimination, a scheme that quickly becomes popular among anti-tax protesters. Porth becomes an activist and garners something of a following among right-wing audiences, traveling around the country distributing tax protest literature that includes a book, A Manual for Those Who Think That They Must Pay an Income Tax. He even issues his own “arrest warrants” against “bureaucrats” whom, in his view, violate the Constitution. In 1967, Porth is convicted of a number of tax evasion charges, but, as the Anti-Defamation League will later write, “he had already become a grass-roots hero to the nascent tax protest movement.” His cause is championed by, among others, William Potter Gale, who will go on to found the racist, anti-government Posse Comitatus movement (see 1969). Gale uses the newsletter of his Ministry of Christ Church, a church espousing the racist and anti-Semitic theology of Christian Identity (see 1960s and After), to promote Porth and the early tax rebellion movement. Porth exhausts his appeals and goes to jail; though sentenced to five years’ imprisonment, he only serves 77 days. One of Porth’s most active followers is his lawyer, Jerome Daly, whose activism eventually leads to his disbarment (see December 9, 1968 and After). Daly meets Porth in 1965 and files his own “protest” tax return just days before Porth is indicted by a grand jury. Daly is also convicted of tax evasion; in 1969, a federal appeals court will issue a ruling invalidating what has by then become known as the “Porth-Daly Fifth Amendment Return.” Porth receives the support of several far-right organizations, many of whom tie their racist views into his anti-tax protests. In a 1967 article for the far-right American Mercury magazine, tax protester and editor Martin A. Larson writes, “The negroes in the United States are increasing at a rate at least twice as great as the rest of the population,” and warns that the tax burden posed by blacks “unquestionably doomed… the American way of life.” Larson will later write regular columns for the white supremacist magazine The Spotlight, in which he will call black women prostitutes whose “offspring run wild in the streets, free to forage their food in garbage cans, and grow up to become permanent reliefers, criminals, rioters, looters, and, in turn, breeders of huge litters of additional human beings belonging to the same category.” He will also write several books promoting Porth’s anti-tax protest strategies. (Southern Poverty Law Center 12/2001; Anti-Defamation League 2011)

Arizona tax protester Marvin Cooley writes a best-selling book, The Big Bluff, documenting the struggles of his fellow anti-tax protester, W. Vaughn Ellsworth. Cooley, whose gruff tirades against the IRS and the federal government make him popular on the far-right speaking circuit—in 1971, he wrote to the IRS: “I will no longer pay for the destruction of my country, family, and self. Damn tyranny! Damn the Federal Reserve liars and thieves! Damn all pettifogging, oath-breaking US attorneys and judges.… I will see you all in Hell and shed my blood before I will be robbed of one more dollar to finance a national policy of treason, plunder, and corruption”—includes sample letters and copies of his own tax returns in his book. Among Cooley’s adherents is Robert Jay Mathews, who will go on to found the violent neo-Nazi group The Order (see Late September 1983). In 1970, the 17-year-old Mathews, still living with his parents in Phoenix, becomes a sergeant-at-arms for some of Cooley’s meetings. In 1973, Mathews will use Cooley’s income tax theories to fraudulently list 10 dependents on his W-4 tax form, a common protest tactic that winds up with Mathews convicted of tax fraud (see 1973). Cooley, a vocal proponent of tax protester Arthur Porth (see 1951-1967)‘s “Fifth Amendment Return” strategy (refusing to pay taxes on Fifth Amendment grounds) will go to jail for tax evasion in 1973 and again in 1989. (Southern Poverty Law Center 12/2001; Anti-Defamation League 2011)

Financial and insurance consultant Irwin Schiff uses the anti-tax arguments of Arthur Porth (see 1951-1967) and Marvin Cooley (see 1970-1972) to bring the anti-tax protest message to a much more mainstream audience than Porth, whose appeal was largely confined to right-wing and racist audiences. Schiff, who bills himself as “America’s leading untax expert,” will appear on national television for more than 25 years before eventually going to jail for tax evasion. His biggest impact comes with his 1976 book, The Biggest Con: How the Government is Fleecing You. His second book, published six years later, is called How Anyone Can Stop Paying Income Taxes. The Biggest Con earns him $135,000 in royalties over the two years that follow its publication, and $85,000 in royalties for the decade following. In 1978, Schiff is charged for failing to file tax returns, and eventually convicted; he will be convicted of similar charges in 1985 and again in 2005. He tells one judge: “I only received federal reserve units, not dollars. I received no lawful money upon which a tax can be collected.” The US government says Schiff owes over $2.6 million in back taxes, interest, and penalties. (Southern Poverty Law Center 12/2001; Tax Protester Dossiers 10/23/2010) In 1996, Schiff will be a candidate for the Libertarian Party’s nomination for president. (C-SPAN 7/5/1996)

Former lawyers Jerome Daly and William Drexler, disbarred for their actions as anti-tax protesters in Minnesota (see December 9, 1968 and After), are sentenced to lengthy prison terms for founding and marketing fake churches (the Basic Bible Church and the Life Science Church) for the purpose of allowing people to avoid paying income taxes. Daly and Drexler are proponents of the popular “Fifth Amendment Return” that features citizens refusing to pay federal income taxes on Fifth Amendment grounds (see 1951-1967) and the idea that Federal Reserve paper notes are not legitimate currency because they cannot be redeemed “in specie”—a citizen cannot go to a bank and redeem a paper note for the note’s value in gold or silver. (Anti-Defamation League 2011)

The cover of the first volume of ‘The Law that Never Was.’The cover of the first volume of ‘The Law that Never Was.’ [Source: Radaris (.com) / Amazon (.com)]Two anti-tax protesters, William “Bill” Benson and Martin J. “Red” Beckman, publish a two-volume book, The Law that Never Was, that argues the 16th Amendment, the constitutional amendment giving the federal government the authority to levy income taxes, is null and void (see 1951-1967, 1970-1972, 1976-1978, and Early 1980s). The arguments in the book include the idea that because the amendment was ratified by different states with small differences in capitalization and punctuation, it was never properly ratified, as well as the argument that since Ohio was not yet a state when it ratified the amendment, Ohio’s ratification of the amendment renders it null. The authors include other arguments—the Internal Revenue Code is not “positive law”; the Internal Revenue Service is not a legitimate government agency; wages do not qualify as “taxable income”; “sovereign citizens” are exempt from income tax—all of which will be declared worthless and frivolous by various state and federal courts. The Anti-Defamation League will write that the arguments advanced by Benson and Beckman “are used again and again by tax protesters.… When a tax protest argument fails in court, the response among tax protesters is typically not to conclude that the argument was erroneous but rather to assume that the judge was wrong, corrupt, or deliberately misinterpreting the law.” Benson is a former investigator for the Illinois Internal Revenue Service, while Beckman is a virulent anti-Semite who accuses Jews of worshiping Satan and says the Holocaust was God’s “judgment upon a people who believe Satan is their god.” In 1991, Benson will be convicted of tax fraud and tax evasion, and will be sued by the US government to stop him from promoting an “abusive tax shelter” by selling what he calls a “Reliance Defense Package” while doing business as “Constitutional Research Associates.” In 2007, a federal court will find that his Reliance Defense Package “contained false or fraudulent information concerning tax advice,” and will note that a circuit court “explicitly rejected Benson’s arguments that the Sixteenth Amendment was not properly ratified.” Benson’s work will frequently be cited by tax protesters, many of whom will be fined or convicted for relying on his claims. (Southern Poverty Law Center 12/2001; Tax Protester Dossiers 11/30/2009; Anti-Defamation League 2011)

US Representative Ron Paul (R-TX) introduces the so-called “Liberty Amendment” as, his office says in a press release, “what should be 28th Amendment to the US Constitution; HJ116, the Liberty Amendment.” The Liberty Amendment would repeal the 16th Amendment, which gives the federal government the right to levy income, estate, and gift taxes, and would severely limit the power of the federal government in areas not strictly defined by the Constitution, giving vast new powers to the states instead. The Liberty Amendment was first introduced in Congress in 1952; in 1957, Representative Elmer Hoffman (R-IL) reintroduced it with the new prohibitions on federal taxations. The Anti-Defamation League will write, “In this form, the amendment garnered considerable support among extreme right-wing conservatives as well as the budding libertarian movement.” Right-wing libertarian Willis Stone became the chairman of the Liberty Amendment Committee in the late 1950s, and for years attempted to raise support for the amendment. In recent years, Paul has become the champion of the amendment. After introducing the amendment, Paul tells reporters: “Over the years this amendment has enjoyed widespread support and has been introduced several times in the past by various members of Congress, but finally this measure has a chance of success given the conservative Congress and mood of the country in favor of a more limited, constitutional government which respects individual liberty.… The income tax is the most regressive tax imaginable, allowing government to take first claim on our lives. The income tax assumes government owns us, as individuals, and has a sovereign claim to the fruits of our labor. This is immoral. But government has been compelled to levy this economically damaging tax because government has grown so big. By reducing the size of the federal government to those functions strictly enumerated in the Constitution, there will no longer be a need for the income tax.… Once again, Americans are being treated to hearings on the abuses of the IRS. For as abusive as the IRS is, it is in fact simply the predictable result of the underlying income tax. By eliminating the income tax, we will go a long way toward eliminating these abuses.” Paul has regularly introduced the amendment in the House since 1981. (Ron Paul 4/28/1999; Anti-Defamation League 2011) The Liberty Amendment is part of the anti-tax movement stemming at least as far back as 1951 (see 1951-1967).

Fox News legal analyst Andrew Napolitano, a former federal judge and a guest on Fox News host Glenn Beck’s broadcast, says: “How about floating a constitutional amendment amongst the states? Let’s rescind the 16th Amendment. That’s the income tax. If 25, 30 states start thinking about it and talking about it seriously, the Congress will take note because they will be scared to death it will starve them out of existence. And they won’t be able to regulate progressively or retrogressively how we live.” (Media Matters 9/7/2010) The 16th Amendment allows Congress to collect income taxes. It was passed by Congress and submitted to the states in 1909 and ratified in 1913, both under President William Howard Taft. Recently, far-right Republicans (see 1951-1967, 1970-1972, 1976-1978, Early 1980s, and 1985) and tea party activists have begun calling for its repeal, joined by some members of Congress (see April 28, 1999). (Media Matters 9/7/2010; Legal Information Institute 2011)

Fox News legal analyst Andrew Napolitano, a former federal judge and a guest on Fox News host Glenn Beck’s broadcast, advocates repealing the 16th Amendment, something he has done previously on Beck’s show (see April 28, 2009). Beck asks about “this solution that you and I have talked about on a constitutional amendment, or a threat of a constitutional amendment.” Napolitano replies: “If two-thirds of the states ask the Congress to call a constitutional convention to consider the adoption of this amendment, which I’ll describe in a moment, as it gets closer and closer to the two-thirds necessary and Congress would be required to call the convention, you’ll see some reaction on the part of Congress to attempt to placate the states that want to call this. Now, the constitutional amendment is a simple one. It simply abolishes the 16th Amendment and states affirmatively that Congress shall have no power to tax the personal incomes of individual persons. If that were enacted, it would starve the federal government back into the original footprint that the founders intended for it. But as it gets closer to enactment, Congress will have to do something for fear that it might be enacted.” (Glenn Beck 5/6/2009; Media Matters 9/7/2010) The 16th Amendment allows Congress to collect income taxes. It was passed by Congress and submitted to the states in 1909 and ratified in 1913, both under President William Howard Taft. Recently, far-right Republicans (see 1951-1967, 1970-1972, 1976-1978, Early 1980s, and 1985) and tea party activists have begun calling for its repeal, joined by some members of Congress (see April 28, 1999). (Media Matters 9/7/2010; Legal Information Institute 2011)

Fox News chief Roger Ailes acknowledges that Fox News has undergone what he calls a “course correction” over the last year, dialing back some of the most inflammatory and partisan rhetoric that is its brand. The release of talk show host Glenn Beck (see March 28 - April 6, 2011) is one of the actions Ailes has taken to “moderate” Fox News’s stance, as is the lower profile given former Alaska Governor Sarah Palin as a prominent Fox personality—once aggressively promoted by the network as the savior of the Republican Party, Palin is much less visible on the network now. Fox executives admit that after Barack Obama’s election in 2008 (see January 2009), “the entire network took a hard right turn (see February 2, 2009, February 9-10, 2009, February 10, 2009, February 20, 2009, March 16-17, 2009, March 17, 2009, March 17-24, 2009, March 18, 2009, March 23-24, 2009, March 24, 2009, March 24, 2009, March 31, 2009, April 1, 2009, April 1, 2009, April 1-2, 2009, April 3, 2009, April 3-7, 2009, April 6, 2009, April 6-13, 2009, April 6-7, 2009, April 13-15, 2009, April 15, 2009, April 16, 2009, April 22, 2009, April 23, 2009, April 28, 2009, April 29, 2009, May 5-6, 2009, May 6, 2009, May 8-15, 2009, May 13-14, 2009, May 26, 2009, May 27, 2009, June 2, 2009, July 8, 2009, July 23, 2009, July 27, 2009, July 28, 2009, July 28-29, 2009, July 30, 2009, August 3, 2009, August 3, 2009, August 7, 2009, August 8, 2009, August 10, 2009, August 10, 2009, August 11, 2009, August 11, 2009, August 14, 2009, August 28, 2009, September 1, 2009, September 12, 2009, September 18, 2009, September 29, 2009, October 11, 2009, October 16, 2009, November 3, 2009, November 5-8, 2009, November 18-19, 2009, November 24, 2009, January 27, 2010, May 20-22, 2010, June 11, 2010, June 24, 2010 and After, July 2, 2010, July 24, 2010, September 1, 2010, September 4, 2010, September 4, 2010, September 15-16, 2010, September 18, 2010, September 18, 2010, September 27, 2010, September 28, 2010, September 29, 2010, September 29, 2010, September 30, 2010, October 1, 2010, October 3, 2010, October 26, 2010, November 9-11, 2010 and After, and November 9-11, 2010 and After)… but, as the tea party’s popularity fades (see August 25, 2011), is edging back toward the mainstream” (see November 16, 2010, November 17-18, 2010, February 23, 2011, February 28, 2011, March 19-24, 2011, March 23, 2011, March 23, 2011, March 24, 2011, March 27-28, 2011, March 30, 2011, April 26, 2011, April 26, 2011, April 27, 2011, April 27, 2011, April 27, 2011, April 28, 2011, May 22, 2011, May 23-24, 2011, June 10, 2011, July 13-14, 2011, January 14, 2012, January 17-18, 2012, February 11-16, 2012, and February 12-13, 2012). Ailes has ordered the opinion show hosts such as Sean Hannity and Bill O’Reilly to tone down the rhetoric, in part in response to the shooting of Representative Gabrielle Giffords (D-AZ) and the resultant debate about the aggressive, violent rhetoric being promulgated on the right (see March 24, 2010). Moreover, as media pundit Howard Kurtz writes, “[i]t was, in his view, a chance to boost profits by grabbing a more moderate audience.” Ailes’s contract is up in 2013, and some expect the 71-year-old media magnate not to renew his contract thereafter. Ailes continues to insist that his news network is the only “fair and balanced” (see 1995) news outlet on television, with the other broadcast and cable news providers being relentlessly liberal in their presentations, but on the other hand implicitly admits that he routinely pushes right-wing memes and talking points on his network. Today, for example, he is touting Fox News’s new “Regulation Nation” series, pushing the idea that government regulations have a stranglehold on American business. “[N]o other network will cover that subject,” he says. “I think regulations are totally out of control.” Government bureaucrats hire Ph.D.s to “sit in the basement and draw up regulations to try to ruin your life,” he says. Under Ailes’s direction, Fox News will feature stories on “over-regulation” in many of its straight-news and opinion shows. Some non-Fox News conservative pundits, such as radio host Rush Limbaugh, wonder if Ailes hasn’t given up on his commitment to conservative principles in return for ratings, saying, “Fox wants these people [Republican primary candidates] to tear each other up, ‘cause they want approval from the mainstream media.” Kurtz says that Ailes has turned the Republican primary into his own “reality show” for ratings and profits, essentially agreeing with Limbaugh. Overall, others are registering that Ailes is attempting to dial back the hyperpartisan posturing, even former Obama administration aide Anita Dunn, who says, “You have the sense that they’re trying to at least appear less of the hyperpartisan political network they had been.” (Kurtz 9/25/2011)


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