Tag Archives: constitution


I just got back from jury duty, and boy, are my arms tired.

It was my first jury duty summons since moving to North Carolina; it’s taken them four years to track me down. I must be a favorite of the legal system, because I’ve been on half a dozen juries in my life. Others in my recent panel said they have been on one or two, or none, over the course of their lives. But I am old and I’ve seen a lot.

Each time I serve, I get a lump in my throat because I see from the inside how seriously each of my fellow jurists takes the job. Only once in all those juries was there the stereotypical white businessman on a cellphone barely able to spare a moment to consider the case. He was roundly drummed by the rest of the members and eventually forced to put down the phone.

This case was both simple and dull. A man was charged with drunk driving. He was videotaped during the initial traffic stop and after the arrest, tested via the breathalyzer and shown to have double the legal limit of hooch in his veins. We were all charged by the judge in the case to maintain our presumption of innocence. The defendant sat quietly next to his lawyer and until we heard any evidence, I certainly had no trouble assuming he might be innocent.

If you have never had the pleasure of sitting in a jury box, you might not understand how slow and methodical a trial must be. You can’t ask a witness what someone’s blood alcohol might have been; first you must establish that the witness is qualified to testify and that the equipment used had been recently maintained and whether it was a test accepted by the state of residence and other states in the union. Then the district attorney will take us through the process of administering the test, step by slow, slow step. This simple process of asking the police officer in the witness box whether the defendant had a blood alcohol level above the prescribed point-zero-eight percent can easily fill up an hour, during which time we learn how long the officer has been with the force, what his previous jobs were, where he lives, whether he is married. They nearly asked him to empty his pockets to see what he carries.

During the entire trial, the defendant said nothing, either to the court or to his lawyer, sitting next to him at the table. He might as well have been a stuffed teddy bear. Meanwhile the two D.A.s spread out all the evidence, had us watch the dashboard camera videotape of the traffic stop — most of which was taken up by the man standing behind his car waiting for the police officer who was off-camera in the car filling out paper work.

There were frequent interruptions while the jury marched out of the courtroom into the holding cell while the lawyers conferred with the judge on some legal matter, after which we were marched back in to resume the glacial accumulation of damning evidence. We also learned the marital status of two more police officers. The first witness was the officer who pulled the defendant over at 2 p.m. on a Sunday morning after noticing that he was weaving back and forth in his car. But because that officer hadn’t yet earned the proper certification, he called in backup — an officer cleared to administer the field sobriety tests necessary to determine if an arrest was warranted. The second officer — married, by the way — then gave our borrachista three standard tests, whose scientific pedigrees were painfully explained in trial testimony. We saw on the video that the defendant had trouble with all of the tests — walking heel to toe down a straight line and stumbling on the way; following a pen the officer moved back and forth in front of the defendant’s eyes; and standing on one foot for a prescribed period of time while answering questions.

After a lunch break of an hour and a half — during which time, we are assured, the judge and lawyers were not just imbibing three martinis, but were continuing to conference and work while grabbing a quick bite of sandwich their wives must have packed them in the morning — we resumed. It was time for the defense. The defendant’s attorney stood up professorially and said with due gravity, “No witnesses, your honor.”

The judge turned to us and explained that we were now to hear the summations, which we were not to take as evidence, but purely as spin — although he did not use that precise characterization. The prosecuting attorney just rehearsed the evidence they had previously presented — the failed sobriety tests and the breathalyzer test showing a point-one-five.

He sat down.

The defense attorney got up, walked to the jury and reminded us that the machine that tests a driver’s breath for alcohol was a large, opaque box and we could not see into it, and so, could we really trust the numbers it spit out on a ribbon of paper? Clearly he was grasping at straws.

The judge then explained the law we were to apply and the questions we were to answer and the bailiff marched us back out into the jury room, where on a fast show of hands, we convicted the poor fellow. We were also supposed to decide on two aggravating conditions. The remaining time in the deliberations were spent on deciding if we thought the defendant had been “grossly impaired” while driving, and whether he had reached the aggravating limit of a point-one-five alcohol level. The machine answered the second charge, but we seriously considered the question of what was meant by “grossly.” We sent a note to the judge asking for guidance, and he sent back a not saying “It’s up to you.” We argued back and forth for maybe 10 minutes before we all agreed that we might be able to give him the benefit of a “reasonable doubt” about the word “grossly,” and let him off the hook on that one.

We marched back into the courtroom, went through the prescribed ritual of a jury poll and delivered the verdict and were released by the judge. Everyone else went home. I went back to the courtroom to hear the sentence. Our man was given 180 days in county jail, suspended; a year’s probation; a mandatory alcohol rehabilitation term; loss of driver’s license for two years and a $200 fine. No change of expression on his face.

As they were leaving the courtroom, I asked the prosecuting attorneys if it were not odd that a case with essentially no defense at all should make its way to a jury trial. It would have seemed to the defendant’s advantage to take a plea deal. Why did he insist on going the full monte? “From what I heard,” said the D.A., “pure spite.” He cost the county two days of court time (I haven’t mentioned the first day, which was spent entirely on jury selection. Most of those selected were eventually dismissed. After the panel was finalized with 12 men and women and my name had not been called, I felt something of a relief, until the judge announced, “Now we have choose an alternate.” Bingo. My name. In further news, the next morning when I arrived to be the alternate, one of the jury’s elect had been hospitalized overnight, and so I became Juror No. 6.)

I now am free from jury duty for the next two years, and pocketed a quick $24 for my service. But I have to say, I have never looked upon serving as something to be shunned. Not only is it a civic obligation, it is genuinely interesting. Especially now that I am retired, it provides a welcome break in routine, but even when I was working, it was something I felt was a meaningful look at a part of my humanity that I otherwise would not know, at least no more than what I had gleaned from watching old Perry Mason episodes.

The episode caused me to remember my previous trials, beginning with the first in the mid-1970s. It was for a man named “Babe” who had shot up a pizza parlor in Greensboro, N.C. Babe had come that night with his teenage daughter, who, we learned, was a regular, where she would leave each night with a different man. On the night in question, the comely daughter was approached by a potential suitor (if that is what we might call him) and the father took offense, especially over the haggling of a price for the evening. Apparently Babe didn’t know what line of business his daughter had adopted. Anyway, a fight broke out, beer pitchers were smashed and shards of glass proffered as weapons; Babe then took out his Second-Amendment argument and proceeded to use it to punctuate the ceiling of the establishment. Needless to say, the joint emptied out rapidly and eventually the police came and arrested Babe.

At the trial, Babe, a graduate of no known law school, decided he should be his own defense attorney. The judge asked him if he had ever been arrested before. Babe said yes. The judge asked, “What for?” And Babe said, “You name it.” Let’s just say the defense went downhill from there. Babe’s primary witness was a friend who had run from the pizza parlor the moment the fracas commenced, so he didn’t see anything, but offered himself as a character witness. The judge asked him “Have you ever been arrested?” “Yessir.” “What for?” “Assault on a woman.”

The next trial I was called for was in Arizona and left me with a bad taste in my mouth for civil trials. It was a case where one party claimed the other party had failed in its obligation to a contract. Let me say right now, that if you ever find yourself summoned to a jury, pray you get a criminal case and not a civil one. We in the jury sat through a week of financial statements, ledger books, fine print, receipts and transcribed telephone conversations. Day after day, the slow build up of numbers piled on top of numbers, witnesses claiming this fiduciary that and that binding word this. At the end of the week, we were called back from the jury room and told we were dismissed, as the parties had settled out of court. That is a week of stultifying boredom I will never have restored to my brief span on this earth.

On the other hand, a criminal trial can be unimaginably depressing. The next trial was one of domestic violence, and both the perpetrator and victim were such wretched specimens of my species that it was all I could do not to weep inconsolably at the sight of them both. Poor, unschooled, barely able to cover their hides with decent clothing, we first tore our hearts for the wife — barely skin and bones — who had been whipped by her man and left bruised and battered. We were ready to draw and quarter the villain. But then, he was himself so wretched, had been battered as a child by his father and was so inarticulate that we knew the only communication he knew was by knuckle and beltbuckle. He was guilty as hell, and we knew we had to convict him, but we also hoped that the judge would recognize the misery in front of him on both counts. Please, I thought, feed them a decent meal, send him to jail, and find someone to look after the battered waif.

On television, criminals all seem to be supervillains, drug lords or serial killers so clever they leave tantalizing clues written in ancient Greek scrawled on the bathroom mirror. But my experience with the court system tells me that the bulk of those hauled in to trial are no geniuses, but sorry specimens, usually poor and uneducated with few good options in the furtherance of their lives. They do stupid things and are caught because they are notably not clever. My heart goes out to them, while not excusing any crime they might have committed.

The final case I sat through in Arizona was a double homicide, in which some gang-members with a beef with some guy, blocked his car in a parking lot and went up to the side window and shot both driver and passenger. They didn’t seem to notice that there was a teenage boy in the back seat. During the trial, the boy was the chief eye-witness. The defense attorney attacked him mercilessly on the stand, but the kid was so honest and innocent, he didn’t notice he was being badgered, and just quietly answered each question with open-faced sincerity. If the kid had once weaseled or hesitated, the attorney would have pounced, but the kid was imperturbable. He simply sank any potential defense.

The district attorney laid out the details and evidence with such simple efficiency, one after another like pops from a machine gun, never for a moment making a simple rhetorical flourish or cheap aside. Just an accumulated pile of fact burying the defendant. The poor defense attorney had little choice but to pile the theatricality thick. Red herring was his primary weapon. Did the witness say it was a revolver or a semi-automatic pistol? Did he not contradict himself? The lawyer jumped and pounced and began to sound rather like Foghorn Leghorn. He had no real evidence to present, so all he could do was pretend the prosecution evidence was somehow a pile of beans. Several times he tried to make a point that depended solely on a bad translation from Spanish to English. There was no ambiguity in the Spanish. Living in Arizona, we, the jury, had no problem understanding the Spanish in question, so it only made the defense attorney look more desperate and hopeless. My heart goes out to any poor defense attorney with no legs to stand on. It’s a thankless job.

In several of the cases I observed, there was a highly educated lawyer in a good suit seated next to someone who could barely write his name, wearing a rumpled Goodwill suit and tie, probably bought for them just for the trial date, looking like a deer caught in a headlamp, never fully comprehending what was happening around him, and probably headed for his second or third stretch at the county jail. At the other table was the prosecuting attorney, in another good suit, with piles of condemnatory notes in front of her and both tables facing a superior court judge, also with a fancy law degree, a good house in a gated community, a second or third wife, and a BMW waiting in a parking spot with his name on it. Behind them, in the grandstands, sit those witnesses waiting to be called: prosecution witnesses often in police uniforms, or doctors called as expert witnesses; defense witnesses in Goodwill suits that don’t quite fit and sporting mullets and professional-wrestling mustaches, and maybe a tattoo or three.

Somehow, it hardly seems like a fair fight. The indictment says it all: “The State vs. so-and-so.” One cannot help but think of Franz Kafka. Perhaps that is why I feel so proud of the jury, which is made up of — in this most recent case — farmers, teachers, car mechanics, students, grocery-store clerks, and at least one retired art critic. The jury is notably more representative of the society we live in than the lawyers who run things. I hope it all serves to even the odds.


Perhaps the most peculiar thing about the Declaration of Independence is that the portion of it that seemed commonplace when it was written now seems revolutionary, and the part that seemed to its framers as most central, to us seems trivial, even whiny.

As a piece of rhetoric, it begins in generalities, narrows to specifics, and ends in a course of action. It couldn’t be more concisely structured. The committee charged with drafting it in the summer of 1776 chose wisely when it asked Thomas Jefferson to write the first version. Jefferson’s prose is a model of late 18th-century style: precise, lucid and syllogistic.

But the only part of the Declaration that most people can recall, outside the opening, “When in the course of human events,” is the second paragraph. That second stanza contains the seed of every revolution that followed, from the bloody French to the bloody Russian. It is a statement of belief that is the foundation of American society, and almost every government created since 1776.

US-original-Declaration-topIt states baldly and without argument or support, that all men are born equal, have certain rights by virtue solely of being born, and that when a government fails egregiously to effect the safety and happiness of the people, it is their right to replace it.

But Jefferson didn’t invent its ideas whole cloth. In fact, as Jefferson wrote years later, the purpose of his stirring words was “not to find out new principles, or new arguments, never before thought of, but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take.”

Much of the remainder of the Declaration is given over to a litany of complaints the colonies had about British governance. Some of these complaints still seem legitimate; many seem trivial, even trumped up. “The King did this” and “The King did that.” ”

He has plundered our seas, ravaged our coasts, burnt our towns and destroyed the lives of our people,” it says. Pure hyperbole.

These complaints were the part of the Declaration that was “news” in 1776. They constituted what made the document inflammatory.

Few can read through the whole of the Declaration of Independence now without a sense of fatigue: Those complaints were the issues of 1776, not of today.

It is the second paragraph that seems told to all people at all times, and remains news to us in the 21st century.

Bridge between ages

But to follow those ideas from the century before the Declaration into the ink on its page shows just how important its year of birth was. It was born in the cusp between two great ages, two overriding sensibilities, and partakes of both.

The period from about 1750 to about 1825 is one of the richest in humankind’s history, fertile, even febrile. It is in many ways, the hinge between the past and the modern, between the classically minded 18th century and the Romantic 19th. From an age of Reason to one of Sentiment — as it was called at the time. In Europe, it was the age of Goethe and Rousseau.

And no figure in the American experiment better demonstrates that shift of sensibilities than Jefferson.

On one hand, he epitomized the faith in science and logic of the Enlightenment; on the other, he shared with the revolutionary Rousseau the belief in the nobility of humanity and its drive to social improvement.

You can hardly fail to notice this point when you visit Jefferson’s home in Virginia.

Monticello is a mirror of its maker. Jefferson built a model of Palladian proportion and filled it with moose antlers. The outside lines of the house are clean and mathematically rational. The inside is a warren of peculiar and unnerving spaces.

Jefferson never fully reconciled these two aspects of his personality. He was a slave owner who sings of the dignity of the free man. How much more conflicted than that can you be?

The Declaration of Independence speaks to us now, in large part, because of this clash of sensibilities in Jefferson.

On the one hand, you have the ideas of the Enlightenment, that brilliant flame of philosophy and science that sprang up in Europe in the 17th and 18th centuries.

On the other hand, you have the growth of the individual as a thinking and feeling person.

The Enlightenment preached rationality and temperance, tolerance and universal principals. One of its most influential writers was John Locke, who, in his Second Treatise on Civil Government, from 1690, wrote that all human beings have natural rights and that these included “life, liberty and the pursuit of property.”

It was an idea that took hold and flourished.

By the time of the American Revolution, the idea was commonplace. It shows up in George Mason’s Virginia Declaration of Rights in June 1776, in slightly altered form:

“That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

When you compare that with what Jefferson first wrote, you can see how much better a writer Jefferson was. He only needed 31 words to say what Mason required 57 for, and say it more forcefully and memorably.

An economy of words

Writing_the_Declaration_of_Independence_1776_Jefferson’s first take on this was considerably more sonorous, but still not quite there:

“We hold these truths to be sacred, that all men are endowed by their Creator with certain unalienable rights, and that among these are life, liberty and the pursuit of property.”

It was a committee of five, delegated by the Second Continental Congress, that were given the responsibility to draw up the Declaration. Jefferson wrote that first draft, but Benjamin Franklin, also on the committee, struck out “sacred” and replaced it with “self-evident.”

By 18th-century reasoning, self-evidence was universal, while sacredness could be construed as sectarian. Franklin wanted to emphasize the universal truth of the proposition.

And Jefferson himself changed “property” to “happiness,” and with that stroke made the Declaration jump from the past into the future.

The past was Thomas Hobbes, with his sense of the nastiness, brutishness and shortness of life, and a belief that the natural order of mankind was greed, rapine and thievery. Only strong central government, he wrote, could possibly control the natural impulses of humankind.

The future was Rousseau’s perfectibility of man, his belief in the nobility of those uncorrupted by society and government, the “natural man.”

The middle was Jefferson, perfectly if perilously balanced between.

The right of life remained pretty much the same looking forward and back, but the other two rights changed meaning over the cusp of 1800.

Locke believed that all humans coveted was property; Jefferson realized that there were many routes besides ownership to humanity’s true goal, individual happiness. Hence, the change in language.

Liberty is the word that has changed the most. In the 18th century, it meant being left alone, basically. Your government let you be: Taxes shouldn’t be too onerous and armies shouldn’t be quartered in your home at the whim of the commandant.La_liberté_guidant_le_peuple

But by the 19th century, liberty took on a more revolutionary turn: Romantic writers saw liberty as the antidote to repressive regimes around the world and one read poems to Count Egmont, the Prisoner of Chillon and Nat Turner. It fueled popular movements all across Europe and led to a crisis year in 1848. Liberty meant revolt — a very different thing from what John Locke had in mind.

(And it makes almost comic the confusion of the two versions of liberty conflated by contemporary anti-tax factions and the paranoid fringe looking for the black helicopters that we can get all belligerent and militant about “tyranny” in Washington, when compared to what is happening in Sudan, Russia or North Korea, we remain among the most liberty-ridden people on earth. Admittedly, the Declaration of Independence itself is full of the same sort of inflated rhetoric.)

“Life, liberty and the pursuit of happiness.”

This meant that the Declaration could speak, Janus-like, forward and backward. The fulcrum of modern history. The Enlightenment is emerging from its chrysalis into the age of Romanticism.

jefferson and hamilton

I lament the loss of the republic. Like the Roman senators under the emperors, who longed for the halcyon time before Julius Caesar, I long for the good old days when we had a republic in these United States.

For all the prating about democracy, and our current boilerplate pieties about the “will of the people,” it should be remembered that our Founding Fathers never intended that we should be a democracy. They feared democracy.

That is why they carefully crafted a republic.

The Romans and I lament the loss of the republic from opposite ends of the governance spectrum, but we lament nonetheless. Yes, just as Rome under the Claudians and Antonines maintained a certain hypocritical observance of the forms of the republic while the realpolitik was despotism, the United States maintains the observance of certain republican relics — like the Electoral College — while in reality giving over ourselves to mob rule.

“We are now forming a republican government,” wrote Alexander Hamilton during the debates of the Federal Convention in 1787. “Real liberty is neither found in despotism or in the extremes of democracy, but in moderate governments.”

And we wrote republicanism into our Constitution, giving the people the right to choose their leaders. The expectation was that these elected leaders would govern us. Instead, over the past 200 years, there has been an erosion of that idea into one where the people have come to micromanage. We vote or voice out about every single issue that comes up with the odd self-assurance that any regular Joe can know and understand complex issues as well as the thoughtful and educated people who have studied them for years.

It’s as if we elbowed Steve Jobs out of his position at Apple and let the assembly-line workers make the corporate and financial decisions. Jobs was a leader for a reason. We expect talent at the head of our businesses, we expect them to know more than we can possible know about the particularities of their fields. They are hired to know what we cannot: Specialists, not generalists.

So, leaders no longer lead. We complain about it all the time, yet in fact, when it comes to politics, we don’t want our leaders to lead. We want them to follow. To follow public opinion. If this week we want English as an “official language,” then, bigod, we’ll have it. If next week we want something else, then we’ll change once more. American history is fraught with the warnings of this.

There was a time, if constitutional republicanism hadn’t won out, that American voters would have outlawed Roman Catholicism. We would have prevented the Irish from immigrating. The majority has scant respect for minority rights. And how many times in the past decade has some group discovered that if given the chance, most Americans would revoke the First Amendment? And if Lyndon Johnson hadn’t actually led, but had instead followed the vox populi, we still might not have a voting rights act.

John Adams wrote Thomas Jefferson in 1815, “The fundamental article of my political creed is that despotism, or unlimited sovereignty, or absolute power, is the same in a majority of a popular assembly, an aristocratical council, an oligarchical junto, and a single emperor.”

It is instead with thoughtful, careful, prudent people that we should hope to entrust our governance. Admittedly, educated people are quite capable of stupidity. It was the “best and the brightest,” after all, who got us into Vietnam in the first place. But stupid half the time is an improvement on stupid all the time. If we leave government to momentary passion and popular prejudice, we will always be stupid as a people. At least the “aristocracy of merit” that Thomas Jefferson foresaw has the chance to lower the percentage of egregiousness in our governance.

“There is a natural aristocracy among men,” wrote Thomas Jefferson. “The grounds of this are virtue and talents.” That idea has faded into a lumpen and ignorant interpretation of his “all men are created equal,” as though you or I could play point guard for the Chicago Bulls, or build a moon rocket in our garage or write good law.

In a republic, we hire the best people to spend their time understanding just such things. In a democracy, such as we pretend to have now, our leaders need know nothing, as long as they do what we tell them in this week’s Gallup Poll, and change it all over again next week.

Tea party 2

America is a nation of tax whiners.

It is one of our least attractive features. I understand complaining about tax money ill spent; I understand about fretting over taxes being spent on programs we disagree with. In such cases, one should petition for reform of the wasted money or campaign for representatives who will repeal the programs. But complaining merely about taxes seems entirely beside the point.

After all, the very people who most whine about taxes are the same people who scream at the top of their lungs of American exceptionalism: “We’re Number One!”

But, if you live in a country club, you have to pay the dues.

Whine, whine, whine.

It is our unofficial national anthem.

We were founded on the principle of complaining about taxes, and the whining has never ceased despite that Americans pay less in tax than citizens in most other developed countries.

According to the Organization for Economic Cooperation and Development, the only developed nations that have less of a tax burden than the United States are Australia, Japan, Korea and Mexico.

Total tax revenue in the United States is a shade more than 29 percent of the Gross Domestic Product, 25 down the list from the world tax leader, Sweden, which pays more than 50 percent of its GDP in tax.

We are beat out by all of Europe. The median percentage on the list for Europe is about 35 percent of GDP, and the average is above 40 percent.

Many, of course, would say that Americans pay less tax precisely because of their chronic whining — to which we also owe our prosperity and our freedom. Whether you agree, it’s likely that seldom before in history has there been a people who expected so much — in terms of government service — for so little. And in recent years, America’s traditional anti-tax sentiment has increasingly blended into our resurgent demonization of government in general.

Today you cannot turn on a television newscast without hearing a politician or a protester complain that American taxes are unconscionable.

“Taxes are too high and government is charging more than it needs,” said President George W. Bush in his budget speech to the joint session of Congress. “The people of America have been overcharged.”

His answer at a time of two unfunded wars: tax cuts. Whoopee!

This has always been gospel in America. The fighting cry for independence in the 18th century was, “No taxation without representation,” although the protest often seemed more against taxation of any kind.

In 1776, in fact, the American colonists paid less per capita in taxes to the crown than mainland English citizens did. And they paid five times more tax in 1698 than they did in 1773, the year of the Boston Tea Party.

It is ironic that the most famous act of tax rebellion in our history actually protested the elimination of a tax. How many of our current Tea Party activists know that?

The colonists had paid a tax on tea for years, but in 1773 the British Parliament allowed the British-owned East India Co. to sell its tea in the colonies tax free, making its tea cheaper than the American-imported product and essentially creating a tea monopoly.

There were other taxes that colonists found intolerable even when the amount of money collected was nominal. The Sugar Act of 1764 and the Stamp Act of 1765 added fuel to the pyre of anti-tax sentiment.

The true call, it seems, was then, as now, for representation without taxation.

But even after independence, when taxation came with representation, the first serious threat to the new nation came in the form of a tax revolt — the Whiskey Rebellion of 1794, in which farmers of western Pennsylvania rioted against excise tax collectors. President George Washington had to lead the Army one last time to quell the revolt.

Four years later, when Congress enacted the Federal Property Tax to pay for the expansion of the military in anticipation of a feared war with France, John Fries began what is known as Fries Rebellion in opposition to the tax. Fries was tried and convicted of treason, though he was pardoned by President John Adams in 1800, not long before Adams left office.

The first American income tax was floated soon after to pay for the War of 1812, but the war ended before any tax money was collected, so it died a-borning.

It was reanimated during the Civil War; an income tax was collected from 1862 to 1872 although even then tax rebellion was afoot in the form of widespread tax evasion.

More to the point, there is an undercurrent of American historical thought that believes taxes were the primary cause of the Civil War.

Abraham Lincoln had promised the South that if elected he would not interfere with slavery. But he also promised in his inaugural address that he would enforce the collection of excise taxes even if the South attempted to secede. Those taxes were highly unpopular in the South as they favored Northern industry.

An income tax was tried again in 1893 under President Grover Cleveland. The primary income of the federal government had always been tariffs on the import of foreign goods, but Cleveland ran on the platform of reducing tariffs, which had restricted free trade. To make up for the lost revenue, he asked for an income tax on corporate earnings. The following year, Congress passed such a tax, expanded to include personal income.

The Supreme Court would have none of it and struck down the tax as unconstitutional.

The issue was Section 9 of Article I of the Constitution, which said, “No capitation, or other direct, Tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”

Which meant that the collection of direct taxes — as opposed to indirect taxes such as sales taxes — must be made in proportion to the populations of the various states. This made a simple income tax nearly impossible.

But as populist sentiment arose at the turn of the century, many saw an income tax as a way of getting money from the rich.

Theodore Roosevelt advocated a graduated tax on inheritance in 1906. In 1908, he called for Congress to enact a progressive income tax.

But the Constitution still stood in the way.

So, an amendment was proposed, which came into law in 1913 as the 16th Amendment, authorizing an unapportioned income tax. By the way, the Senate voted for the amendment 77 to 0, and the House of Representatives followed, voting 318 to 14. It was hardly a squeaker.

The first income tax under the new amendment gave a $4,000 exemption to families (perhaps equivalent to a $40,000 exemption today) and then charged 1 percent on the first $20,000 above that, 2 percent at $50,000 and a maximum rate of 7 percent on incomes above $500,000.

World War II made the big difference, spreading the tax burden into the middle class. Before the war, about 15 percent of the people paid all of the income tax. After the war, 80 percent paid it.

That is when the federal government first started payroll withholding. During the 1930s, federal individual income taxes never topped 1.4 percent of the Gross National Product. During 1990, that number was 8.77 percent.

The income tax remains the single most contentious tax we pay. And it is the center of most of modern whining.

“When the 16th Amendment became law in 1913,” wrote Robert Ringer in his book Restoring the American Dream, “an important step was taken in laying the groundwork for the destruction of the spirit that had made America the freest, strongest and most prosperous country in history.”

It might be noted that it wasn’t until after the income tax that America, in fact, rose above the level of a Third World nation and became the strongest, most prosperous country in the world.

But the complaints continue.

There was a local tax revolt in Chicago in the 1930s during the height of the Depression and another in California in the 1970s.

The latter revolt still reverberates today, culminating most recently in the Taxpayers Bill of Rights passed overwhelmingly by Congress and signed into law by President Clinton in 1998.

But there was an edge to that 1970s movement, championed by Howard Jarvis, among others, that began to question not just tax but the legitimacy of government.

It resulted in the passage of Proposition 13 in 1978, which limited the state’s ability to increase property taxes. Jarvis was an unlikely revolutionary; he looked more like a jowly retiree bearing photographs of his grandchildren, but he had a mission and a message:

“Tax, tax, tax, spend, spend, spend; elect and elect and elect, is bankrupting we the American people and the time has come to stop it.”


Implicit in his message was a growing mistrust of government in general.

“Proposition 13 in California was an assault not simply on taxes but on government as we know it,” tax historian Elliott Brownlee has said. “It was really the beginning of an anti-government crusade that has continued.”

More extreme elements of this sentiment thrive all over the Internet, in scores of screed-filled Web sites about the evils of tax, government and a one-world conspiracy. One describes taxes as the “economic rape of America.”

“Tax is theft,” it says, “legalized robbery, crime” — begging the question how something legal can be a crime. It is called parasitism, cannibalism, cancer and, alternately, a Mafia protection racket.

Such ranting is the equivalent, amplified and larded with aggressive hype, of the pamphleteering of Tom Paine and others more than 200 years ago. Appealing to the emotions and an unrefined sense of personal freedom, with little sense of practical reality or the interconnectedness of society, they are the screams of our national id.

The founding fathers, it could be said, created the Constitution as a kind of superego to that id, to help Adam Smith’s famous “unseen hand” bring collective benefit out of the selfishness of the individual.

Certainly, as April 15 spins around each year, we all grow anxious: No one likes paying. And if we could run our government on less money, we’d all breathe easier. But taxes, in and of themselves, are at the very least a necessary evil. America would hardly maintain itself if no one paid teachers or built roads. We should decide what we want from government and argue over that, rather than whine about having to pay anything at all.

Colbert painting

Jean Baptiste Colbert, finance minister to King Louis XIV of France in the 17th century, once famously said, “The art of taxation consists in so plucking the goose as to obtain the largest possible amount of feathers with the smallest possible amount of hissing.”

On this count, America may have the world’s lowest threshold of pain.

A look back

Tax receipts can be found among the oldest artifacts of human civilization. Wrapped in a pottery ball from the fourth millennium B.C. discovered in the Near East are the records of a tax having been paid.

The earliest taxes, though, probably came in the form of work extracted. People would be required to work for the state for a given period of time each year. They provided the labor to build roads or pyramids or fill the ranks of armies during war. The military draft was a late remnant of such taxation.

Before money, when tax was exacted, it came in the form of crops and cattle.

In ancient China, one fifth of a farmer’s crops was taken as a “flat rate” tax. A poem from the Chou Dynasty complained about big government: “Big Rat, Big Rat, do not gobble your millet.”

But by the time of the Roman Empire, tax was often monetary. Under Julius Caesar, for instance, a 1 percent sales tax was introduced. And at an early date, a 5 percent inheritance tax was created — later raised to 10 percent — although applied on only what was left after bequests to wife and children.

Roman taxes at first relied on “tax farming” — that is, hiring private enterprise to collect the taxes. These were the publicans mentioned in the Bible, who grew so corrupt that Caesar Augustus outlawed the practice, putting civil servants in charge of gathering the money.

The first income tax was created in 1799 in England to raise money to fight Napoleon. It was repealed in 1816.

In the United States, the first income tax came in 1862 to help underwrite the Civil War, 50 years after an aborted attempt to help finance the War of 1812.

In one of those periodically surreal pronouncements from Washington, D.C., the tax commissioner said, “The people of this country have accepted it with cheerfulness.”

A more realistic assessment of how happy people were can be found in 1870 — the year of the highest compliance for that first income tax — in a nation of 38 million people, that only 276,000 people filed returns.