October 2010

No One Should Be Judge in His Own Cause

By Dr. Don Racheter

When NASA launches a space probe designed to land on, or fly by, another planet, they equip the vehicle with small rockets which can be fired by remote control so that the mission controllers can make corrections in the trajectory as the mission progresses. They know that no matter how carefully they plan the original launch, given the vast distances that have to be traveled, it is impossible to meet their targets without corrections along the way.  Even a tiny deviation in the flight plan will result in a miss by thousands of miles after months of flight.  The Founding Fathers, among the most eminent political scientists of their day, also understood the need for a correction mechanism for the Constitu­tion they crafted and launched into the years of American history.  Without the amending process provided in Article V, a small oversight made in 1787 could result in a large problem after the passage of 200+ years.

We Americans, because of the unwillingness of the Congress to pass amendments which limit the powers of the national government, and the “bad example” of the Founders creating a whole new Constitution instead of just revising the Articles of Confederation coupled with the scare-mongering of extremists about what a second constitutional convention might do, have not been making enough “course corrections” to our Constitution. Thus the failure to specify who would decide disputes between the state and national governments in 1787, insignificant at the time, has come to create a large “error” with the passage of 200 years.

Americans need to revise Article III to change the jurisdiction of the current United States Supreme Court (USSC) and to create a “Supreme Court of the United States” (SCUS) which shall be composed of nine justices drawn at random from among the justices of the highest courts in the fifty states whenever a case arises involving a conflict between a state law or act and the national constitu­tion, a national law, or treaty. No justice shall serve in a case involving his or her own state, and no more than one justice from the same state shall serve on any given case.   A new court­house should be con­structed to house this court somewhere near the geograph­ical center of the current fifty states, far from the seat of the national government.

It has come to be common practice for the national government to “bribe” states into passing laws such as the 55 mph speed limit, right turn on red after stop, and the 21-year-old drinking age by threatening to withhold highway funds if they do not. Ironically, the money the feds use for this exercise is taxed from the very same citizens of the states so coerced into doing what they otherwise would not!  The fact that there is no constitutional warrant for either the national government to be in the highway business in the first place, or to be mandating laws about stopping, drinking, or speed limits on high­ways inside the several states in the second, does not seem to enter the heads of anyone involved in this perversion of the Founder’s division of labor between the national and state governments.

For this reason, but also because the IRS is becoming more Gestapo-like in its behavior each year, and because it is perverse to tax, and thus discourage, income generation, we Americans need to pass a Constitutional Amendment which repeals the 16th Amend­ment, specifically denies the power to any level of govern­ment to levy a tax on personal or corporate incomes, and abolishes the IRS.  Federal reve­nues should come from the FAIRTAX, or from a combination of a “head tax” (which would give the national govern­ment a strong incentive to follow the Constitutional mandate to do “an actual enumera­tion” of all citizens), a percentage add-on to property taxes collected by local governments, and a percentage add-on to state sales taxes collected by state departments of revenue and forwarded to the Treasury Depart­ment (thus allowing the com­plete abolition of the IRS).

Since all four of these taxes would be more visible than income-tax withholding, it would create pressures to hold down, or even cut back, national government spending. It certainly would make it less likely that the national government would have funding for grants to the states and localities nor the ability to threaten to withhold them unless the state and local governments pass laws which Congress does not have the constitutional authority to pass on their own.  Indeed, we might even see the day when state and local governments threaten to withhold the national share of these taxes unless the feds balance their budget, cut back on onerous regulatory overreach, and pass term limits on themselves.

The USSC would still have plenty of cases to deal with involving disputes between two or more states, between the branches of the national government, and covering appeals of decisions of the lower national courts and administrative agencies. Very few cases involve disputes between a state or states and the national government, but the few that do have been some of the most important cases in our collective history.  It is not right that judges appointed by the national President, confirmed by the national senate, and paid by the national congress should be deciding cases involving the rights and powers of the national govern­ment — it is a long-standing legal principle that no one should be judge in his own cause.

Dr. Don Racheter is President of Public Interest Institute (PII) and a member of the Board of Directors of Tax Education Foundation. 

The views expressed herein are those of the author and not necessarily those of PII or Tax Education Foundation.  They are brought to you in the interest of a better-informed citizenry.