Respected legal hstorian Leonard Levy writes in Origins of The Fifth Amendment that:
“…In 1774, the legislature(in the colonies)…passed a liquor excise requiring consumers to give an account to tax collectors, on oath, if necessary, concerning the amount spent by them for liquor.”
A group including Sam Adams and John Hancock, supported the efforts of Boston schoolmaster John Lovell that its practice would enslave the country. Samuel Cooper, minister of the Brattle Church, pointed out that if an accounting of any part of one’s innocent conduct could be so “extorted”, then “every other part will with equal reason be required, and a political inquisition, severe as that in Catholic countries, may inspect and control every step of his private conduct”.
The complaint centered around the right against incrimination, going to ancient times, and part of the protection of man’s conscience against human authority. No man can be forced to accuse himself. “Taxation without representation” therefore, was more than just getting the approval of your representative in the legislature, but even the legislature could compel no man to give personal accounting of the money he spent, if that same compulsion was used to incriminate him.
Taxes are, as admitted recently by a IRS official, voluntary. We know this because no man can be compelled, in any criminal case, to be a witness against himself. If any person is held criminally accountable for not reporting taxes, then the report itself becomes the basis for in criminal action, which is not allowed by the 5th Amendment.
This was understood as part of the Bill of Rights itself. The 4th Amendment was not considered seriously unil Madison pointed out that the power of the federal government to tax was plenary, but suppose, said Madison, the government wanted to look into our accounts witout warrant? The result immediately was the 4th Amendment.
Levy writes in Origins Of The Bill Of Rights that:
“James Madison…recalled that the legislative powe constituted a great danger to liberty; in Britain, he noted, ‘they have gone no further than to raise a barrier agains the power of the Crown. The power of the legislature is left altogether indefinite’. ”
The 4th Amendment, therefore, was intended as a protection against the federal legislature. But it is the wording of that amendment that needs to be examined:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”.
Notice that the amendment does not estabish such a right. It acknwledged that such a right already existed, and would not be violated. The people had a right to be secure against unreasonable search and seizure. So, what was “unreasonable” as they understood it?
We know that taxes could be collected, but the taxes could not be based on compelled testimony from the people. The right against self incrimination prohibited it. While the power of the federal governmen to tax was admittedly plenary, the right to collect those taxes could not violate pre-existing rights of securiy against unreasonable search and seizure.
What did the law say was unreasonable? The definition for that came from English common law, decided by Lord Camden, in a case called ” Entick v Carrington”. Camden stated that the law required no one to incriminate himself, for that would be ‘cruel and unjust’ to the innocent and guilty alike. “And it should seem, that search for evidence is disallowed upon the same principle“.
If the right against unreassonable search and seizure already existed, it was based on the 5th amendment right that no person, in any criminal case, can be compelled to be a witness against himself.
What we are not told is that there is a distinction between the “right against self in crimination” and the right against being a witness against yourself. The right agains self incrimination assumes that a person can be a witness in any case as long as that person is not the accused. At any point in testimony under oath, the witness may “plead the Fifth” on the grounds that an answer may tend to incriminate him. That is, the person may answer all questions except those questions that may incriminate him/her.
But the 5th Amendment declares that no person “shall be compelled in any criminal case to be a witness against himself”. The principle goes back to ancient times, and says that no man may be forced to accuse himself. If your punishment, therefore, is based on your voluntary compliance to report your taxes, there can be no prosecution against you if you fail to report them, because no person can be compelled to be a witness against himself.
While SCOTUS has ruled in “Miranda” that you must be informed of such rights upon arrest, the right always exists, whether you are arrested or not.
So, what is an arrest? By law, an arrest is any process by which you are detained by law enforcement with a warrant. Any detainment, including license checks, is a violation of “seizure” as SCOTUS clearly ruled in “Delaware v Prouse”. There can be no general warrant to stop or “seize” people. If people are stopped, then by law, no criminal penalties can be enforced, because no person can be compelled to be a witness against himself. No person may be deprived of life, liberty, or property, without due process of law, and “due process’ means courtroom time. The instant any deprivation comes into the courts, all evidence is disallowed(Entick v Carrington) because the accused was compelled to provide the evidence.
How does the government get around this? The government is not required to inform you of your rights unless you are arrested. That’s “Miranda”. Notice that, when you are given a traffic ticket, there is no arrest. If there were, the officer would be required to inform you of your rights. But when you do get a ticket/citation, notice that you can waive your rights and simply send payment in to he courts! The government avoids due process with your permission! It does the same when you fill out a 1040 form!
But, can we consider a taxpayer a “witness” under the terms of tax payment? In fact, we can.
In “Miranda”, the courts have staed that “The Fifth Amendment provision that the indiidual cannot be compelled to be a witness against himself cannot be abridged”.
Further, the court ruled that: “Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them”.
The legislature, therefore, cannot compel any person to report taxes, and then hold them criminally liable for not doing so! How do they get away with it? They don’t have to inform you of your rights unless you are arrested. If you are not arrested, they can do anything by statutory(not common law) law that you do not challenge. If the IRS says “WE can do this by statutory law”, they are correct, but statutory law does not override common law rights guaranteed by the Constitution!
Notice further, in “Sullivan v. United States”, that :
“There can be no question that one who files a tax return under oath is a witness within the meaning of the Fifth Amendment“.
That is the ruling of SCOTUS! In 1976, SCOTUS further ruled:
“The information revealed in the prparation and filing of an income tax return is, for Fifth Amendment analysis, the testimony of a ‘witness’ as that term is used herein”.
SCOTUS has clearly verified the right against self incriminatin regarding a 1040 form! No person, in ANY criminal case, can be compelled to be a witness against himself! There can be no criminal penalty for refusing to fill out a 1040 form!
I recently had a conversation with a North Carolina Department of Revenue official who was careful to tell me that, by statutory law, I could be penalized for not filliing out an income tax form. But he knew I could NOT be penalized by constitutional law, either the NC Constitution or the US Constitution!
How do they get away with it? First, because a large number of people are convinced they should report taxes, and second, because it simply costs more than it’s worth to fight them! They are happy to quote statutory law, and the people are too ignorant to know better!
But let’s look at the “Sullivan” case from which I quoted earlier. Manley Sullivan was an auto dealer who supplemented his income by selling moonshine during prohibition. Since he could not report illegal income, he simpy did not file a tax return. He was charged with willfully failing to file a tax return. He was convicted by a lower court, but the Fourth Circuit Court of Appeals overturned the conviction, rulng that:
1. Requiring Sullivan to file a tax return would be “in conflict with the Fifth Amendment”.
2.The language of the Fifth Amendment must “receive a liberal interpretation by the courts”
3.No one can be compelled “in any procedings to make disclosure or guive evidence which would tend to incriminate him, or subject him to fines, penalties, or forfeitures”
4.The Fifth Amendment “aplies alike to civil and criminal proceedings”
5. “There can be no question that one who files a return under oath is a witness within the meaning of the Amendment”.
The Court of Appeals understood it correctly. They recognized “Entick v Carrington” and the complete protection against self incrimination!
But notice, Sullivan did not file under the Fifth Amendment protection of being a witness against himself, but under the right against self incrimination. That technciality is exactly how SCOTUS overturned the Appeals Court decision! By filing his defense under the right again st self in crimin ation, Sullivan had implied that he WAS required to be a witness, not havig been yet accused, but that he only had to refuse certain information! The right against self incrimination does permit compelled testiomny, up to the point that the witness might incriminate himself. From that point, the witness may selectively answer questions that will not tend to incriminate him/her.
Oliver Wendell Holmes, Jr penned the response, and notice how he worded it:
“If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.”
Notice that Holmes ruled on the right against self in crimination, saying specifically that the defendant could not simply refuse to file a tax form based on the right against self incrimination. Sullivan had used the wrong defense! He should have declared that no person can be compelled to be a witness against himself! Since he had based his defense on the right against self incrimination, he was admitting that he should have filled out the form EXCEPT for certain information that would tend to incriminate him!
Notice further what Holmes stated:
“We are not called on to decide what, if a nything, he might have withheld. Most of the items warranted no complaint. It would be an extreme if not extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime.”
Strictly and tehnically, based on above information I have provided, Holmes was correct! The right not to be a witness a gainst one’s self did NOT include the point of self-incrimination, but was, as Lord Camden had said, a protection against BOTH innocent and guilty!
Holmes admitted as much!
“But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon”.
Sullivan had misapplied his defense! Crime can not be used as a defense in regard to the Fifth Amendment! Holmes correctly asserted that the 5th Amendment was never intended as the specific protection of crime. It was intended as a complete protection of both innocent and guilty, with the weight of evidence being provided by the goverment itself! That is precisely what Holmes said! The court therefore applied his defense as if he were a subpoenaed witness who failed to appear. But Sullivan was NOT a subpoenaed witness who had failed to appear, because a filer CANNOT be subpoenaed to be a witness against himself!
The Court of Appeals had given Sullivan a “break” by admitting that the Fifth Amendment demanded a liberal interpretation, but Holmes had techically and legally forced Sullivan to correctly state his defense, which he had not. He was not allowed to use the amendment in protection of crime.
“Sullivan” therefore, was NOT the test case for the 5th Amedment right againast being a witness against one’s self, but against the right against self incrimination concerning a subpoenaed witness.
On such technicalities, the American people are enslaved.