Straight Dope 

BETTER LATE THAN NEVER

In your column of December 6 you dealt with the argument that the 16th Amendment (income tax) was never properly ratified because Ohio was not a state of the union. You mentioned that the IRS referred you to the Porth case and that it "didn't specifically address the Ohio argument." Well, there have been court decisions that specifically addressed the Ohio argument. I enclose a copy of Knoblauch v. Commissioner of Internal Revenue (Fifth Circuit 1984), 749 F2d 200 [etc].

--Bernard Sussman, Bethesda, Maryland

Got a lot of mail about this, much of it actually pretty intelligent, which I hope is a trend. But first let's review. The Ohio argument, a favorite of tax resisters, goes like this:

(1) Congress neglected to ap-prove Ohio's application for statehood in 1803, though the territory had complied with the previously established requirements. The oversight wasn't discovered until the Ohio sesquicentennial in 1953, at which point the state sent a new application to Congress. This was duly approved and made retroactive to 1853. However:

(2) Retroactive legislation, tax resisters claim, is prohibited by the U.S. Constitution, which forbids ex post facto laws. Therefore Ohio wasn't a state until 1953.

(3) President Taft, during whose administration the 16th Amendment was introduced, was born in prestatehood Ohio. So he wasn't a natural-born citizen and couldn't legally be president.

(4) Since Taft wasn't legally president, his administration couldn't legally introduce legislation, including the 16th Amendment. As a result the 16th Amendment is invalid. Therefore:

(5) We don't have to pay income tax.

Yeah, right, you say. Me too. However, when I called the IRS, they referred me to Porth v. Brod-rick, which doesn't specifically address the Ohio argument. An admittedly cursory search of case law also failed to turn up anything. So while we knew in our hearts that the Ohio argument was off the wall, we didn't have any cases specifically refuting it.

Enter Bernard, above. He cites two cases: Knoblauch and Bowman v. Government of the United States. Knoblauch does address the Ohio argument, but in support it merely cites earlier cases in which said argument was rejected by the courts. Turning to the earlier cases, one finds the following declarations:

(1) In previous cases having nothing to do with the Ohio argument we upheld the constitutionality of the 16th Amendment, so too bad for you, Bobo.

(2) Since 1803 everybody had assumed that Ohio was a state, and we don't feel like upsetting the apple cart now.

Bowman deals with the issue in greater depth, but its finding boils down to: we ain't messin' with this one, Jack. Take it up with Congress.

Cecil understands that the courts don't want to open the door to substantive review of the Ohio argument, lest they be inundated by clowns seeking to have the government dissolved due to clerical error. Still, one can't help thinking the preceding arguments, while they may be legally solid, aren't exactly satisfying.

The Teeming Millions (well, dozens) to the rescue. As Cecil suspected, and as he certainly would've demonstrated had he the space and that law clerk he's been asking for, the Ohio argument can be refuted point by point, to wit:

(1) The ban on ex post facto laws refers only to criminal matters. Case law, 1798. Ohio's retroactive admission to the union was OK.

(2) Persons born in U.S. territories--not just in states--are U.S. citizens. E.g., Puerto Rico. So Taft was a natural-born citizen and could legally serve as president.

(3) Even if he wasn't, so what? Presidents don't introduce constitutional amendments; members of Congress do.

(4) Ohio was a state even without the 1953 resolution. The statehood admission process was somewhat casual in 1803; it required no formal resolution of admission.

Whew, you say. The republic saved again. Not that this'll stop the tax resisters. Some have argued against the income tax on the grounds that the IRS is an "establishment of religion." Taft not a citizen of the U.S.? These people aren't citizens of earth.

Art accompanying story in printed newspaper (not available in this archive): Illustration by Slug Signorino.

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