As I mentioned a while back, I’m putting together a “tax resistance reader” with historical examples of writing by and about tax resistance in its various forms.
I wanted to include at least one example from the American “Constitutionalist” tax protester movement. Although it is a different sort of egg than the conscientious or tactical tax resistance examples that are the main focus of the reader, it is a surprisingly large and influential movement, and one that occasionally mixes with the contemporary American war tax resistance movement.
The Constitutionalist tax protesters say that the federal government is exceeding its Constitutional authority in the way it taxes Americans, particularly in the case of the income tax — that there is no law, or no Constitutional law, or no valid law, or something of that sort, that requires us to pay a tax on our incomes. They typically hope that the federal court system will see things their way (though the courts rarely if ever do) but, at the same time, are so convinced by their understanding of the Constitutional limits on government that court cases to the contrary usually neither convince nor deter them.
It’s a charming faith in a sort of Platonic Constitution as it ought-to-be (or, often, a fantasy nostalgia for the Constitution of an imaginary past). At its best, it asserts a citizen’s prerogative to the superior share of responsibility for running the republic and restraining its government that is a frequent theme in democratic political theory. But at its worst, it’s a bunch of bizarre mumbo-jumbo and cargo cult legal blather.
Most of the contemporary tax protester literature is devoted to an intricate analysis of a legal framework that exists nowhere on Earth, but only in an imaginary world. It’s a bit like watching people play role-playing games in which they become space captains or World War Ⅱ generals or sword-wielding elves, only in this game they become lawyers.
Baroque and fascinating as these arguments can sometimes be, they’re also pretty dumb — and quickly anachronistic, as new “can’t miss” Constitutional or “common law” arguments are advanced by a new generation of tax protesters, to replace the ones that failed for the last set. Each new generation of arguments requires a deeper dive into the arcana of obscure court opinions, old lawbooks, and bizarre logical constructions.
I hoped to find an example of the genre that was more straightforward and sparing on the mumbo-jumbo. For this, I went back to Vivien Kellems, a fascinating woman and one whose tax resistance in defense of her version of the Platonic Constitution serves as an exemplar of the American Constitutionalist tax protester phenomenon.
The trick was to find some of her writing and get permission to include it in my reader.
Kellems wrote about her tax resistance in a book called Toil, Taxes and Trouble, that was published by E.P. Dutton in . E.P. Dutton was later absorbed by the Penguin Group. Their permissions department says that the rights to the book reverted to the author, who was represented by Curtis Brown Ltd. However, a representative of Curtis Brown told me they don’t represent Kellems’s work any longer, and didn’t have any leads for me.
My understanding is that a book that was published in went into the public domain if its copyright registration wasn’t renewed by . So my next step was to try to find out if the registration was renewed, and if so, by whom. I checked the on-line database at the U.S. Copyright Catalog (which covers copyrights registered after ), and I even checked through the full, pre-1978 database (which is huge, hard to track down, and only recently available to the public). There’s no sign of Kellems’s book in either database. So, I’m going to go on the assumption that Toil, Taxes and Trouble is now free-for-all.
And, in that spirit, and from that book, here’s a transcript of the speech Kellems gave to the Los Angeles Rotary Club on , to announce that she was going to stop withholding taxes from the paychecks of her employees:
It has frequently been said that history repeats itself, and today, we are witnessing a repetition of the act of Caesar Augustus two thousand years ago. It all began in , when we issued a decree “that all the world should be taxed,” every man in his own city. For in that year we adopted the Sixteenth Amendment to our Constitution:
“The Congress shall have the power to lay and collect taxes on income from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
And when we adopted this income tax amendment, we departed from our constitutional method of taxation.
For , the Federal Government had levied taxes and they were always apportioned among the several States. Why do you suppose the Constitution is so specific and so explicit that Federal taxes shall be uniform and apportioned among the States? For one reason only. Our forefathers were determined to build a republic, with equal opportunity and equal responsibility for each and every one of us. They knew that the power to tax is the power to destroy, and they did not wish to have one group of citizens, or one part of the country penalized for the unfair advantage of another.
How wise and farsighted they were! For this was our traditional, constitutional system of taxation, and under it we built the richest, most powerful nation in the world. We developed and maintained for the majority of our people, a standard of living, undreamed of in any other country, the hope and envy of all the world.
And then what happened? We chucked our proved system of taxation out the window, and we passed the income tax. Gone was our uniformity, gone was our apportionment among the States. And with uniformity and apportionment went a great deal more — our fundamental American rights. At first, we started with a tiny little one per cent on all incomes. That being more or less painless, we raised it to 2 per cent. And then 5 per cent, and then 10 per cent, and then 20 per cent, and then 50 per cent, and up and up and up to 90 per cent and in , due to that clever so-called 75 per cent forgiveness trick, some citizens in this country were taxed more than 100 per cent of their incomes. Is it a tax or is it confiscation?
But that isn’t all. Being so intrigued with the income tax, we decided that if one tax is good, two are better and we proceeded to pass the capital gains tax which slapped business right in the face and sent it reeling into the corner. And to salt it down, we added the idiotic capital stock tax. And still not satisfied, we made sure that every dividend should pay two taxes — one by the corporation and another by the stockholder, if and when he got it. And right in the middle of this tax orgy, we elected an Administration that made a wonderful discovery: The world was its little oyster to open.
Up to this point we thought we had done pretty well, but we soon realized we were just pikers. Taxes? We didn’t know the meaning of the word, but we soon found out that the New Dealers did. Taxes? A new one every day or two! They rained upon us as the gentle dew from Heaven. “Tax and tax, spend and spend, elect and elect,” quoth the delighted Harry Hopkins. Soak the rich in Illinois, or New York, or Connecticut and buy some votes in Oregon or Nevada or wherever they are needed. The formula worked like magic for political purposes but it threw our country into the deepest and most tragic depression of our history. The depression of was a tax depression. Business simply could not function. It took a world-wide war, billions of dollars, and the precious lives of thousands of our boys to pull us out of it.
But with the adoption of the income tax, we lost something more precious than uniformity and apportionment among the States. Let us go back to our Fourth and Fifth Amendments: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated…” and “…no person shall be compelled to be a witness against himself, nor be deprived of life, liberty or property without due process of law.”
These two Amendments insured to the citizens of the United States the right of privacy. It was ours in every sense, until the passage of the Sixteenth Amendment, but with the income tax, we lost this precious right. If I say, “No,” you cannot come into my house without a search warrant, and before you can secure such a warrant, you must advance good and sufficient cause for searching my house. But the Income Tax Inspector can come into my home or yours. In the name of the Income Tax, the Federal Government can search and seize every paper you own, it can force you into court, to be a witness against yourself, and if you are not able to pay the tax, it can sell you out, lock, stock and barrel. The Income Tax is the strongest weapon ever placed in the hands of an unscrupulous government, and as long as that Amendment is a part of our Constitution, our freedom is in jeopardy. Our right to privacy, so carefully insured to us by the Fourth and Fifth Amendments, has vanished.
But taxes are like strong drink. They grow upon you. If income taxes are good for some of us, they must be good for all of us. If one citizen is to pay an income tax then every person who has an income should also pay his proportionate share. With which conclusion I agree. But I disagree with the premise — I don’t think an income tax is good for anyone, the taxpayer or the Government.
But this time we really did a job. Under the hypnosis of war hysteria, with a pusillanimous Congress rubber-stamping every whim of the White House, we passed the withholding tax. We appointed ourselves so many policemen and with this club in our hands, we set out to collect a tax from every hapless individual who received wages from us. We became our “brother’s keeper.”
From time immemorial the tax collector has been feared and hated. The baron of old used to farm out his tax collections, paying his agent a percentage of what he was able to wrest from his impoverished subjects. It is not accidental that this job was placed upon the employer. A crafty Administration which thrived upon class hatred “planned it that way.” Here was another wedge to drive between the employer and the employee, another opportunity to cause misunderstanding and dissension. The employee did not blame his government, he blamed his employer, and even today thousands of workers in this country still think it is a dirty trick of the wicked capitalists.
But we weren’t as clever as the barons’ tax collectors. We didn’t pay ourselves for collecting taxes, we didn’t even reimburse ourselves for our expense in collecting taxes, we made ourselves responsible for other people’s taxes and we penalized ourselves for not collecting them. Let us read the law: “Every person required to deduct and withhold the tax… from the wages of an employee is liable for the payment of such tax whether or not it is collected from the employee. If, for example, the employer deducts less than the correct amount of tax or if he fails to deduct any part of the tax, he is nevertheless liable for the correct amount of the tax. However, if the employer… fails to deduct and withhold the tax and thereafter the income tax… is paid, the tax shall not be collected from the employer.” In other words, the Government won’t collect it twice — isn’t that big-hearted? But there is more. “Such payment does not, however,… relieve the employer from liability for penalties or for failure to deduct and withhold within the time prescribed by law.” So, if your employee does not pay his tax, you have to pay it, and if he does pay it but you do not deduct and withhold it, you can be fined and sent to prison. This in free America!
The most un-American phrase in our modern vocabulary is “take home pay.” What do we mean, “take home pay”? When I hire a man to work for me we discuss three things: the job to be done, the hours he shall work, and the wages he shall receive. And on Friday when he received that pay envelope, we have both fulfilled our contract for that week. There is no further obligation on either side. The money in that envelope belongs to him. He has worked for it and he has earned it. No one, not even the United States Government, has the right to touch it. Who dares to lay profane hands upon that money, to rudely filch from that free man the fruits of his labor, even before the money is in his own hands. This is a monstrous invasion of the rights of a free people and an outrageous perversion of the spirit of the Constitution. This is the miserable system foisted upon the people of our country by New Deal zealots and arrogant Communists who have wormed themselves into high places in Washington. This system is deliberately designed to make involuntary tax collectors of every employer and to impose involuntary tax servitude upon every employee. We don’t need to go to Russia for slavery, we’ve got it right here.
The employer or professional man, not on a salary, is allowed a bit of time in which to prepare his accounting and pay his tax. But from the salaried worker or wage earner that pay envelope is rudely snatched from the paymaster’s hand and those taxes taken in advance out of today’s butter or tomorrow’s hospital bill. This withholding law has made a greedy, avaricious monster out of the Federal Tax Grabber and an unwilling Simon Legree out of the wretched employer forced to do his dirty work for him.
Many otherwise patriotic citizens have lent themselves to this system because they mistakenly believed that it would create greater tax consciousness and a sentiment for economy in our Federal expenditures. Even if this were true, the system is still wrong. Shall we compromise our fundamental American principles for expediency? The majority of workers today figure their wages by the money in that pay envelope. And so they should. That 20 per cent is disregarded completely — it has been shifted to the shoulders of the employers and is nothing more or less than a 20 per cent payroll tax which is added to the price of every manufactured article. Labor doesn’t need a raise. All labor needs is to get what labor earns. Lop off that 20 per cent payroll tax, labor will have its raise, and the inflationary spiral will take a sharp dip down. It’s as simple as that.
And how about the millions of dollars spent by employers each year in collecting that tax? If it costs my little company as much as it does to deduct, withhold and pay that tax, what must it cost a big company such as General Motors? Why should we bear this additional expense? The Government gets the tax, doesn’t it? Well then, how about the Government paying for collecting it? I have searched the Constitution through and can find no power or right granted to the Federal Government for this mass picking of the pockets of the American people.
The very men who shout the loudest against the demands of the Union for the checkoff have connived and conspired with the New Dealers for this vast Government Checkoff.
Just how far are we going? Are we going to deduct contributions for the church, dues for the lodge, money for the grocery bill, the electric light and coal bill? Shall we buy clothes for the children and pay tuition for their schooling? Once having started, where do we stop? If this is Russia, then let’s say so. Let’s just hand the worker an envelope full of coupons at the end of each week and call it a day!
Paying taxes is a duty, a responsibility and a privilege of citizenship. Without taxes we can have no government. However I do not exercise other duties, responsibilities and privileges of citizenship for my employees. I do not vote for them, I do not form political opinions for them, I do not select a church for them, I do not pay real estate taxes for them. They are all free American citizens, thoroughly capable of performing all of the duties and responsibilities of citizenship for themselves. And so, from this day, I am not collecting nor paying their income taxes for them.
It is in Westport. By this time our payroll has been distributed. The income tax of each individual has been distributed. The income tax of each individual has been deducted and withheld, but it is the last time the Kellems Company will perform this service for the Government. I have more confidence in my employees than has their Government. I believe that every person in my employ will pay his taxes as long as we have an income tax law, but if he does not, that is a matter between himself and his Government, exactly as his religion is a matter between himself and his God. I have no right to inject myself into either relationship.
If High Tax Harry wants me to get that money for him, then he must appoint me an agent for the Internal Revenue Department, he must pay me a salary for my work, and he must reimburse me for my expenses incurred in collecting that tax. And I want a badge, too. I am not a tax collector and if an American citizen can be fined and thrown into prison for not collecting taxes from his workers, then let’s know about it now. Let’s see what the court has to say about this law — it’s not the first one passed in violation of the Constitution.
The decision to take this step has not been made hastily nor has it been an easy one. There are many sincere people who will censure me for breaking the law. Knowing this and having been through one New Deal smear and persecution, I still break this law, deliberately. Before I reach Westport the income tax inspector will be ensconced in my office, completely surrounded by my private papers, my company books and my canceled checks. He will greet me at the door, righteous indignation all over his face. Well, having gone through it before, I can go through it again. Because you see I made a discovery. Like all bullies and bloodsucking parasites, those mangy little bureaucrats down in Washington are at heart yellow cowards. So no matter what they do I’m standing on my rights until the court hands down its verdict.
As in the life of each individual there occasionally comes a moment of grave decision, so in the life of a free nation comes a significant moment, fraught with fearful consequences. We have reached such a moment in our development. Free people preserve their freedom and rid themselves of tyranny only be resistance and by breaking the law. We have a country because our forefathers defied a tyrant and broke the law. They broke tax laws. Rather than pay a tax they threw the tea into the harbor. They refused to pay a stamp tax. They poured their whisky down the drain rather than pay a tax on it. An American is aroused indeed, when he will sacrifice his liquor! Every man who signed the Declaration of Independence was a lawbreaker and a rebel. He broke the law, but he founded a nation. Thousands of patriotic American men and women spirited Negro slaves across the Canadian border. They broke the law but they freed a race. Thoreau, one of our most revered and honored philosophers, refused to pay a tax and went to prison. He broke the law but he saved his honor, and while in prison, he wrote that immortal document “Civil Disobedience.” It was the reading of “Civil Disobedience” which determined the whole course of Gandhi’s life. Brave American women suffered humiliation and imprisonment when they dared to defy the Government. They broke the law but they won the vote and freedom for their sex.
One night in , a group of courageous women, about one hundred of them, gathered in my shop in Westport and at ten o’clock went to work. We were free American citizens prohibited by law from working after ten o’clock at night and before six in the morning. We broke the law but we gave back to the women of Connecticut their constitutional right to work when they please.
Did you ever break the prohibition law? Ever make any bathtub gin? Ever get a ticket for speeding? What is the difference between breaking the speed law and breaking the income tax law? A lot. For one you get slapped on the wrist with a small fine; for the other you get slapped in the jug with a big fine. The penalties should be reversed. Speeding may mean loss of life but cheating on the income tax means only loss of money. However, the New Deal has always valued American money more than American lives although it has spent both with impunity.
Unjust and tyrannical laws always breed contempt and evasion. Just as millions of Americans made, and sold, and drank liquor under Prohibition, so today millions of Americans are lying, and cheating, and evading the income tax. It is no more possible to enforce the income tax law than it was to enforce the prohibition law. We couldn’t plug those liquor leaks and we can’t plug these tax leaks. We are losing billions of dollars in unpaid taxes and the basis of business is rapidly shifting from credit to cash. Everything from apartment houses to fur coats is being sold for cash. We have become a nation of tax collectors, tax evaders and craven cowards. So, he who is without sin, let him cast the first stone.
Our forefathers bequeathed to us a heritage of freedom. Implicit in that bequest was the obligation and the responsibility to pass that freedom on to our posterity, unimpaired. What greater indictment can be made of our generation than that we have permitted that freedom to slip between our fingers; we have allowed despots and tyrants to tax it away from us. We cannot pass it on, in the American tradition, to our children who have every right to receive that freedom, so carefully guarded for us by our ancestors. We have failed in that sacred trust.
The whole country is confused and discouraged, no longer is there incentive and ambition to work, to achieve success, and to set aside savings for the future. Bombarded by ceaseless propaganda, robbed of his just earnings, the average American is like the worm ready to turn. All over this land there is one burning topic of conversation — taxes. A ground swell of seething resentment is growing into a tidal wave that may well engulf the tax planners, the tax grabbers and all their kind. Americans will bear a lot and are slow to anger but as this treasonable plot to sell us out unfolds before their eyes, they realize that this is not the ordinary corruption, mismanagement and bad government we have known in other periods of our history. This is something far more sinister. The destruction of the capitalistic system by increasingly heavy income taxes is the purest Marxian doctrine, and Lenin followed his great teacher, when in , he declared that the United States would spend itself into destruction. We are becoming aware that these ruinous taxes are not accidental, they are not even a result of the war; they have been deliberately saddled upon our backs as a part of a plot of the Communists to take us over. Bankruptcy and national suicide stare us in the face.
How much longer are we going to take it? Is there no more good, old-fashioned American courage, or have we become a nation of spineless jellyfish? Are we worthy of the sacrifices of our forefathers or are we the silly suckers the rest of the world thinks us? There is no time to lose. We must strike now. We are the Government. We, the people, are still the strongest thing in our country and we can still get what we want. We just have to want it hard enough. We have fought and won a global war to free the whole world and have succeeded only in bringing chaos and misery to that world and in making tax slaves of ourselves.
So let’s repeal the income tax. You think it can’t be done? If we left it to you men, it couldn’t. But I’ll tell you what’s going to happen. We women are going to repeal it. We got you out of that prohibition mess, didn’t we? Well, we’ll dig you out of this one. But I want to remind you that we didn’t vote for either one — they were both exclusively your ideas. So we’ll get you out once more but for goodness’ sake, the next time you get such a brain wave, will you please tell us so we can stop you in time!
You see we women have more to lose in this situation than you men, we own most of the assets of the country. Approximately 70 or 80 per cent of the wealth of the United States is in our little, lily-white hands, and if you dear, sweet men don’t start taking care of yourselves, we’ll soon own it all. You work yourselves to the bone and along about forty or fifty, you pop off with heart disease. And not content with that, ever so often you have a war and stand up and shoot each other. Just keep this up and it won’t be long until we own and run the whole country. And I’ll give you three guesses as to how many income taxes we’ll have.
Because we women are just about fed up with all this nonsense, so-called socialized medicine, federal aid to education and all the rest of his paternalistic claptrap, designed to make us incompetent dependents upon the Government. All we want is for the Government to give back to the American people the money which is rightfully theirs, the money for which they work and which they earn, and we’ll pay our own doctors’ bills, we’ll educate our own children, and we’ll once more become self-respecting, self-reliant citizens. And, incidentally, we’ll stop spending half our time filling out ten thousand silly income tax returns, questionnaires and forms which will give us more time in which to make more money — for ourselves. Of course, this will automatically get rid of thousands of form makers, form readers, form filers and tax collectors but we’re not going to shed any tears about them. They can go out into private life and get productive jobs like the rest of us. With them off our backs we’ll save thousands of dollars and give ourselves another tax reduction.
We women are simple people. We can’t understand why the Government shouldn’t first determine its income and then live within it. Why does it pass the budget first and then run out and see where it’s going to get the money? Right now the Senate won’t act on the tax bill until it sees what the budget is going to be. We believe that instead of passing Mr. Truman’s supercolossal budget the Senate should first give us a whopping, big tax cut, right across the board, and then tell Mr. Truman how much money he can spend. That’s what we do. We first find out how much money we’re going to have and then we decide what we’ll spend and if that income doesn’t mean fur coats and diamond rings, well then we just don’t have fur coats and diamond rings. And we think it’s time the Federal Government cut out fur coats and diamond rings for a spell, and concentrated upon meat and potatoes.
And so may I be very impolite and close this little talk with a few words, not to you, but to another audience, a vast, unseen audience, many not within sound of my voice. I’m speaking to women, millions of American women; to every woman whose husband comes home at the end of the week with 20 per cent of his wages taken out of his pay envelope, to every woman worried and harassed over the mounting grocery bill, to every mother wondering how to buy a little boy a new pair of shoes, to every mother frantic with fear over a sick child, unable to pay a competent doctor. Women, women of America, let us band together! Let us rise up and say we will take no more of it. Let us write, let us wire, let us telephone our Congressmen, let us march on Washington, if necessary, but let us demand that this monstrous, wholesale robbery of the American people come to an end!
Determining copyright expiration is a strange art, and the convoluted law that governs it is every bit as baroque as modern Constitutionalist tax protester legal theory. So, I may be jumping the gun here. If you, dear reader, hold the rights to Vivien Kellems’s writings, please do let me know, so I can ask for permission to include it in my reader, and forgiveness for including it here.