Guardians of the Constitution; D. Pilla

It is for this reason the United States is referred to as a nation of laws, not of men. Our republican form of government assures all citizens that basic law, justice, liberty, and due process will be observed as to each person, regardless of his financial standing or political influence. As the highest court in the land, the Su preme Court is intended to be the guardian of liberty. In Federalist No. 78, Alexander Hamilton referred to the judicial branch as the "citadel of the publicjustice and the public security." The Supreme Court, indeed the entire judicial branch of government under Article III, was set up as an element of government independent of the other two. Mr. Pilla is a tax litigationconsultant and author of nine books onsuccessfulmethods ofdealingwithand preventingIRS abuse. The founders knew that an independent ju diciary was critical to maintaining liberty. The legislative powers are vested in Con gress under Article I. They are intended to pass laws necessary to carry out the terms of the Constitution as set forth in the preamble.

The executive department under Article II possesses the power to carry out the legiti mate functions of government and to control the armed forces. Described in modern terms, the Supreme Court, on the other hand, is intended to function as a goalie. It is to "kick out" any legislative or executive act that infringes the plain language of the Constitu tion. Regarding legislation, the court is to do nothing more than compare the language of the statute with that of the Constitution to see whether the former comports with the latter. If so, the statute is legitimate and enforceable. If not, the statute is void under the terms of Article VI. It is to be struck down. Of the language describing the three branches of government, Article III is by far the most succinct.The founders dedicated ten sections in Article I to explain the function of the legislative branch and four lengthy sec tions in Article II to describe the executive.

Article III has just three short sections. These, combined with the concise language of Article VI, make it clear that the court has no power to make lawsor negate specificConstitutional 543 544 THE FREEMAN • SEPTEMBER 1997 provisions or protections. The court is a goalie, not a forward. Goalies do not score. For decades since the 1930s, however, the Supreme Court has taken an activist role. Too many of its decisions fall outside the scope of judicial review; they have the character of legislation. As a result, our constitutional liberties have eroded substantially, while at the same time the power and reach of the federal government has been extended to all areas of our private livesin absolute disregard of the limitations set forth in the Constitution. The Judges Go to Court This is particularly true in tax cases. Whereas the Constitution plainly confines the power of government in several important areas, virtuallyall the limitshave been declared invalid as they relate to the Internal Revenue Service. But when the power of taxation imposes upon the rights of federal judges, the courts are quick to protect their own.

Consider the case of Judge Terry J. Hatter and 15 of his colleagues. Hatter and the others are federal judges all appointed to the bench sometime before January 1983. Like most federal employees at the time, they were not subject to the Social Security tax laws.Rather, they enjoyed their own pension under the Civil Service Retirement System. Beginning in 1982, however, Congress changed the law. To address the growing concerns over the solvencyof Social Security, two major tax laws were passed in 1982 and 1983. The first was the Tax Equity and Fiscal Responsibility Act of 1982. The second was the Social Security Amendments of 1983.The first made the hospital insurance portion of Social Security applicable to federal employ ees, including judges, effective January 1, 1983. The second made the old age and survivors disability portion-the bulk of So cial Security taxes-applicable to federal em ployees, including judges, effectiveJanuary 1, 1984.

As a result of being brought within the pale of the Social Security tax scheme by these two laws,Hatter and his brethren sued the federal government claiming a violation of their con stitutional rights. How can imposing income taxes on judges possibly violate the Constitu tion? If we citizens have to pay taxes, why not federal judges? The answer lies within the language of Article III, section 1, which holds that the compensation of federal judges "shall not be diminished during their Continuance in Office." Hatter argued that the imposition of the tax after he took office violated that clause. Hamilton described the purpose of the compensation clause as being essential to protecting the separation of powers. He wrote in Federalist No. 79 that, "in the general course of human nature, a power over a man's subsistence amounts to a power over his will." Nothing could more aptly describe the power of the purse. Our founders knew that if the judiciary was to remain independent of Con gress and the executive department, their compensation would have to be beyond their tampering.

The language of Article III has alwaysbeen broadly construed to prohibit any diminution in compensation during a judge's tenure. Indeed, a similar suit was brought by federal judges in the years immediately following the adoption of the income tax in 1913. The case of Evans v. Gore found its way to the Supreme Court, where it was held that the prohibition contained no exception for "diminution by taxation." Judges appointed to the bench after the tax took effect were subject to it. However, those who held officebefore the tax was enacted were held exempt. In the case of Hatter v. United States, the U.S. Court of Appeals reached the same conclusion. The Supreme Court unceremoni ously affirmed the ruling. Some Are More Equal Than Others When the question of the constitutionality of a federal tax relates to a federal judge, the courts seem to have no difficultyascertaining the plain language of the Constitution and applying it to the statute. When it is found that the Constitution prohibits the legislative act prescribed by the statute, the courts have no difficultyslapping down the infringement.

But let us contrast that with a case involving THE SUPREME COURT: GUARDIANS OF THE CONSTITUTION? 545 a private citizen and his equally compelling constitutional argument. That case is United States v. Lee (1982). The case involved pre cisely the same Social Security laws. The fundamental difference is that Lee was not a federal judge but a self-employed farmer and carpenter. He was a member of the Old Order Amish and employed several persons in his business. Lee's complaint grew not from the compensation clause but from the free exercise clause of the First Amendment. Because the Amish are religiously opposed to the kinds of benefits offered by Social Security, Lee did not participate in the system. He neither paid into it nor expected to draw from it. Prior to the Social Security amendments of 1982and 1983,the lawexpresslyprovided that Lee and those of his religious community were not required to withhold Social Security taxes from their employees or pay the match ing funds. The new law, however, extended the tax obligation to wages paid by employers to employees, even if the employees were not liable for the tax themselves. As a result, Lee found himself faced with the duty to pay matching funds for a tax that he was plainly opposed to on religious grounds and that he was exempt from paying under prior law.

Lee opted to stick to his religious principles and did not pay the taxes. He was assessed several thousand dollars by the IRS, and after paying a portion of the tax, he sued for a refund. After initial success, Lee found him self before the Supreme Court. The First Amendment, of course, expressly states that Congress "shall make no law" respecting an establishment of religion or "prohibiting the free exercise thereof." In its opinion, the Supreme Court found that be cause of the Amish faith, "compulsory par ticipation in the social security system inter feres with [Lee's] free exercise rights" under the First Amendment. This is the conclusion a liberty-minded person would have hoped the court would reach. Unfortunately, its reasoning did not end there. Chief Justice Warren Burger went on to explain that the courts must strike a "balance" between the rights of the citizen and an "overriding"

governmental interest. He reasoned that when the government could show such an "overriding interest," it could infringe the plain and clear constitutional rights of the citizen. The Court held that Lee must be forced to participate in the Social Security program despite its finding that this expressly violated his First Amendment rights. It rationalized the infringement by citing the government's "overriding interest" in collecting taxes and stating that "mandatory participation is in dispensable to the fiscal vitality of the social security program." Citing the questionable financial soundness of the system, Chief Jus tice Burger observed that "widespread indi vidual voluntary coverage under social secu rity ... would undermine the soundness of the social security program." In no uncertain terms, the Supreme Court said that because the government needs the money it is permissible to violate the consti tutional rights of a citizen. Thus, the only "overriding governmental interest" involved in the Lee case is financial.

In concluding, Chief Justice Burger rea soned that religious beliefs "can be accom modated, but there is a point at which accom modation would radically restrict the operating latitude of the legislature." The Supreme Court was saying that Congress must have free rein-absolute freedom-to pass laws. Religious and presumably other constitutional rights cannot be permitted to exist if they threaten the government's ability to do so. Note how far this logic is removed from the model set forth by Hamilton in Federalist No. 78. In affirming the court's power of judicial review, Hamilton said, "If there should hap pen to be an irreconcilable variance between the two [the Constitution and a legislative act], that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute." From beginning to end, the Bill of Rights places express restrictions on government's ability to pass laws. Without such restrictions, this government is no better than any dicta torship that has ever existed. Those restric tions directly and simplyforbid the invasion of 546 THE FREEMAN • SEPTEMBER 1997 individual rights by a government eager to pass laws that infringe our liberty. Yet the Supreme Court in Lee held that the limita tions are placed on the individual, not on government. Individual rights can be "accom modated," but only if they do not stand in the way of some legislative goal. With such a test, there is literally nothing the federal govern ment cannot do in the name of some "over riding interest."

Are Rights to Be Balanced? Where in the First Amendment does it say that your religious liberty is dependent upon a "balancing" test? Where does it say that Congress should "accommodate" those rights, but only if they do not interfere with its own right to legislate? Just as the Supreme Court noted in Evans regarding Article III and the compensation clause, there are "no excepting words" in the First Amendment. The right is absolute and is expresslyintended to limit Congress in its zeal to pass restrictive laws. What other purpose is possibly served by the plain language "Congress shall make no law"? When it comes to the rights of the average citizen, the courts have abandoned a strict reading of the plain language in favor of judicial creativity designed specifically to achieve the predetermined goal of getting into your pocket. Hamilton insisted on strict adherence to the letter of the document. "If we set out with ... a scrupulous regard to the Constitution," he said, "the government will acquire a spirit and tone productive of per manent blessings to the community. If, on the contrary, the public counsels are guided by humor, passion, and prejudice; or from re sentment to individuals, or a dread of partial inconveniences, the Constitution is slighted, or explained away, upon every frivolous pre text, the future spirit of government will be feeble, distracted and arbitrary."

Hamilton's message is simple. Continuity of the moral fabric of society is dependent upon legal absolutes, especially where citi zens' rights are concerned. If the government is free to "explain away" the protections of the Constitution, in the end there will be no Constitution. If the rights of the citizens are made the "sport" of every change of govern mental opinion, in the end citizens will have no rights. How is it that a federal judge's constitu tional rights are more sacred than those of the average citizen? Judges are charged with the sacred duty of protecting the rights of all citizens from encroachment by government. Yet, as we have seen, they embrace that duty when it comes to their own liberty and tear it to shreds when it would cloak the liberty of the average man. What has happened to our courts? They have caused our priceless constitutional sys tem of law and limited government to dete riorate. What system of taxation or social program is so important that we should sac rifice our precious liberty to save it? 0 THEFREEMAN IDEAS ON LIBERTY FederalGovernmentGrowth Beforethe New Deal by Randall G. Holcombe P opular opinion holds that most of the credit (or blame) for the incrediblegrowth of the federal government should go to Pres ident Franklin D. Roosevelt and his New Deal. While Roosevelt certainly was a willing participant in that process, the federal gov ernment began its amazingly rapid growth well before the New Deal, and it is unlikely that it would be much smaller today even had FDR never come along.