Are Taxpayers Complicit with Government Crimes?

As I mentioned , a frequent point of contention in debates about conscientious tax resistance is whether (and if so, to what extent) paying taxes makes a taxpayer complicit in the deeds of the government.

Different people have taken positions at either extreme (not at all complicit, absolutely complicit) and at various points in the middle, and have deployed persuasive arguments and metaphors to argue their cases.

I’ll explore some of these arguments today. I’m going to start off with some discussion of law and legal culpability.

The Nuremberg Principles

One reason a discussion of legal theory is important in what initially seems to be a discussion about moral, not legal, responsibility, is the Nuremberg Principles. The people who drafted these Principles were trying to articulate what they supposed to be universal, eternal, and self-evident crimes. (This was meant to solve the problems of jurisdiction and ex post facto law in the trials of Nazi war criminals, and also to formally outlaw such things as aggressive war.)

The Principles state, in part,

  • “Complicity in the commission of a crime against peace, a war crime, or a crime against humanity [elsewhere defined] is a crime under international law.”

and

  • “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

A number of war tax resisters have taken these Principles as an inspiration, and some have even adopted the conceit of saying that they are afraid that if they pay taxes they may risk being prosecuted under the theory the Principles articulate.

The United States government is certainly guilty of the crimes listed under that first bullet point, so — leaving aside the practical difficulties involved in holding anyone accountable for complicity with the United States government at this stage of the game — what must one do if one wants to avoid such complicity? Must one resist paying taxes, for example?

Larry Rosenwald is one war tax resister who believes the answer to that question is an unequivocal “yes”:

To pay war taxes is to acquiesce in building weapons of mass destruction… what international law as derived from the Nuremberg principles arguably defines as a crime… It is, simply, a wrong act for any pacifist, any adherent of international law, any person fundamentally opposed to American policy; and I do not understand what keeps such people from refusing taxes…

And he’s not alone.

Conspiracy theory

I quoted blogger FSK yesterday as saying, “If you pay taxes, you are as responsible for war as the soldier who kills people. If you pay taxes, you are directly responsible for every bad thing government does. Paying taxes is immoral.”

This representation bears some resemblance to the legal concept of conspiracy. One set of jury instructions about conspiracy put it this way:

[W]here several persons conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law, the act of one is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan.

There are a couple of glaring problems with stretching the concept of conspiracy to cover taxpayers. For starters, it seems hard to take seriously once you consider all of its ramifications.

For instance, I don’t think FSK really believes what he’s saying he believes. He’s said on other occasions that he has an above-ground job at which taxes are withheld from his paycheck, and that while he’d be willing to take a job in the underground or “agorist” economy in order to avoid these taxes, he wouldn’t be willing to take a pay cut to do so. Can it really be true that as a taxpayer he feels “directly responsible for every bad thing government does,” — as responsible as the people who directly carry out those bad things, but that he feels so blasé about this that he wouldn’t stop doing it if it cost him any money?

His excuse may be that he has to earn a living, but how is this different from the same excuse given by a soldier, Senator, or bureaucrat — assuming you believe, as FSK says he does, that a taxpayer is just as responsible as they are for their actions?

Secondly, to prove “conspiracy” in the legal sense, you have to show that the parties to the agreement agreed to work together to achieve some common end, and that either the end itself, or the methods they chose to reach that end, were illegal. This isn’t as hard to prove as it might sound at first. You don’t necessarily have to prove that the conspirators actually met or signed onto a formal plan. As one set of jury instructions put it:

[I]t is not necessary to constitute a conspiracy that two or more persons should meet together, and enter into an explicit or formal agreement for an unlawful scheme, or that they should directly, by words or in writing, state what the unlawful scheme was to be, and the detail of the plans or means by which the unlawful combination was to be made effective. It is sufficient if two or more persons, in any manner, or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common and unlawful design.

and another:

[A]ll who take part in a conspiracy after it is formed and while it is in execution, and all who, with the knowledge of the facts, concur in the facts originally formed and aid in executing them, are fellow conspirators. Their concurrence, without proof of an agreement to concur, is conclusive against them. They commit the offense when they become partners to the transaction or further the original plan.

Do taxpayers meet this sort of qualification? If you’re putting on your prosecutor’s-hat, you can probably look at these instructions and say, sure, I could make it stick. But if you’re defending the taxpayer against a charge of conspiracy, you’ve got a good trump card to play: In short, if my client is accused of illegally conspiring with a government, by paying taxes to it — how can you suggest that there was some sort of “agreement” or “mutual understanding” if the government had to threaten my client to comply? That doesn’t sound like an agreement to me. My client isn’t an accomplice, but a victim!

Duress — How much can it excuse?

But just how good of a defense is it to say that you were paying taxes under duress? Can such an argument always relieve you of all responsibility, or does it only work when certain conditions are met, or only relieve you of a certain amount of responsibility? How much compulsion must the government use before it absorbs responsibility? Is there a threshold? Does it depend on what they’re trying to absorb responsibility for?

It couldn’t be the case (could it?) that the government could “force” you to murder someone by threatening you with a $25 fine for refusing — and that the government could take all of the guilt off your shoulders in this way.

Alas, in the debates about tax resistance, usually government compulsion is seen as an all-or-nothing sort of thing, and questions like these go unanswered.

William Lloyd Garrison said at one point that willingly paying taxes to a government that upholds slavery was wrong, but that to acquit yourself it is sufficient for you to announce that you are not cooperating willingly, and to strike an attitude that is consonant with that declaration:

[A man] may consent peaceably to yield up what is demanded of him, but not without remonstrance, and only as he would give up his purse to a highwayman. He will not recognize it as a lawful tax — he will not pay it as a tax — but will denounce it as robbery and oppression.

Tolstoy agreed, emphasizing that although it was wrong to voluntarily pay taxes, under the Christian non-resistance principle that he (and Garrison) adhered to, it was also wrong to resist the government in seizing taxes:

A religious man may not resist by force those who take any of the fruits of his labour — whether they be private robbers or robbers that are called “the Government”…

The proper thing to do when the government comes calling, in this school of thought, is to refuse to pay voluntarily but to submit peacefully to distraint of property. But J.G. James argued against such passive tax resistance, by saying:

It may well be questioned if the payment of rates or taxes is voluntary at all, since the account is presented in the form of a demand, and not a polite request. Inasmuch as payment is compulsory in any case, is not Passive Resistance merely an awkward, expensive, and an inconvenient mode of payment for all concerned?

It’s easy to confuse these two cases:

  1. in which someone actually forces you to do something (such as forcing you to stay in prison by locking the doors)
  2. in which someone threatens you with unpleasant consequences if you do not do something.

In the first case, you don’t have alternatives to choose from, so you don’t have any blame for what you’re stuck with. In the second case, though, your options have merely been changed. You still have a choice to make, and that choice can be praiseworthy or blameworthy. Hannah Arendt wrote:

…in the words of Mary McCarthy, who first spotted this fallacy: “If somebody points a gun at you and says, ‘Kill your friend or I will kill you,’ he is tempting you, that is all.” And while a temptation where one’s life is at stake may be a legal excuse for a crime, it certainly is not a moral justification.

If the tax collector says “give me your money or else,” that isn’t the end of the inquiry, but the time to say “or else what?” and then to weigh the options. If I believed FSK’s argument that what the tax collector was saying was “be directly responsible for every bad thing government does or else” I’d be asking my “or else what?" with bluff-calling incredulity.

When you eat a Chiquita you’ve done your part

Can you be found legally guilty for payments you made under duress? You certainly can, under some circumstances anyway. Look at what happened to Chiquita (you know, the banana company).

Chiquita had been operating in Colombia and, as a cost of doing business there, had to pay taxes to some of the governments that control parts of the country. Three of those governments were designated as terrorist organizations by the United States government, which has passed a law prohibiting anyone from funding such organizations anywhere. In addition, there is an international agreement (as of ) that prohibits funding terrorist organizations. It says:

(On its face, this would seem to prohibit paying taxes to the United States government, but seeing as the government is a signatory to this agreement, and seeing as all of the signatories are governments, I’m sure there’s a loophole.)

In any case, Chiquita pled guilty in a plea bargain and was hit with a $25 million fine.

But I’m not sure if this really is relevant to the topic at hand. Note that Chiquita was not charged with conspiring with these Colombian terrorist groups — wasn’t charged as a co-conspirator or accessory in their crimes — but was charged with a distinct crime of providing funds to terrorist organizations. On the other hand, that crime may itself just be a sort of legal shorthand that amounts to essentially the same sort of thing. I haven’t investigated the legal theory behind it.

It’s Caesar’s fault

J.G. James was a believer in law and government, and so he felt that when taxes or tax expenditures conflicted with conscience, the proper response was to do what could be done within the law to rectify the problem, but to go no further:

[I]t is the duty of a conscientious citizen to pay an unjust charge if he has tried in vain to prevent the measure passing into law, on the ground that he is no longer responsible for the expenditure of public funds, after he has done his utmost to control that expenditure by legalized means

This argument, that once the money is out of your hands you are no longer responsible for how it is spent, comes up frequently in debates about tax resistance — often even from tax resisters themselves, when trying to explain the limits of their resistance.

For instance, John H. Dadmun was a conscientious objector during the American Civil War who, in addition to refusing to serve in the military, refused also to pay someone else to serve as a substitute in his place (which was at the time a legal alternative to service). This was because, he said, “that is the same as to go myself.”

But he was willing to pay a militia exemption tax (though it would take him some time to raise the money). Someone chided him about this, noting that “the government can take the money and get a substitute.” Dadmun responded:

“It might do so, but there is no provision into the law to carry that into effect; and furthermore, the Marshal has told me it had not been so used, but must be paid into government and he could not trace it further…”

Eventually…

[T]he brethren gave me almost a hundred dollars, and others lent me for Christ’s sake, not knowing whether I would be able to pay or not, and thus I was able to purchase my liberty, and satisfying the government, by “rendering Caesar his own,” with image and superscription thereon; and if he makes a bad use of it, he is responsible; as I have no further control of it.

G.W. Gillespe, another Civil War-era conscientious objector, had a nearly identical stand:

[T]he idea of hiring a man to kill for me would implicate me in the crime; so I refused to give even five cents for a substitute.

If I had had three hundred dollars, I could conscientiously have given it to Caesar as a last resort, to get exempt from the bloody field of carnal strife. Some tried to persuade me that it was just as bad to pay the money as to hire a substitute, as the money was for that purpose. The difference is great. The Lord will not hold me accountable for the mischief that money, taken from me by force, would do when employed by others. Caesar demands taxes of us; we pay them, according to the instruction and example of our Lord. We render unto Caesar that which is Caesar’s, and Caesar hires a man to shoot his enemies for him; are we to blame? By no means. But to hire a man to fight in my place, would be like hiring a thief to steal in my place. Both guilty.

Rendering unto Caesar

Here we hit one of the big stumbling blocks that Christian tax resisters have run into. The New Testament is distressingly explicit, in Romans 13:

Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves.… [I]t is necessary to submit to the authorities, not only because of possible punishment but also because of conscience. This is also why you pay taxes, for the authorities are God’s servants, who give their full time to governing. Give everyone what you owe him: If you owe taxes, pay taxes; if revenue, then revenue; if respect, then respect; if honor, then honor.

If Jesus wanted us to know that we should resist taxes to governments that were going to apply the tax money in sinful ways, he was given every opportunity to make this clear when he was asked: “Is it right to pay taxes to Caesar or not?” Instead, he responded with the koan “Give to Caesar what is Caesar’s, and to God what is God’s” which confused everybody at the time, and the meaning of which continues to defy consensus today.

The best the resisters could come up with to justify their position was either a confidently asserted, if somewhat strained reading of the “Give to Caesar” koan (one war tax resister insisted that Jesus delivered his koan during a time of peace in the Roman Empire, so Jesus was by no means countenancing war taxes), or the story from Acts 5 in which the apostles defied the law and continued to preach the gospel according to God’s explicit command. Asked to explain themselves,

Peter and the other apostles replied: “We must obey God rather than men!”

Most Christian tax resisters took the “Give to Caesar” koan and certainly the Romans passage to mean that God does indeed command us to pay taxes, even to unjust governments, but took the Acts “We must obey God rather than men” statement to provide an occasional override: Essentially “render unto Caesar and submit to the government, unless that means disobeying God.”

T.S. Grimké put it this way:

[If the ruler] require me to pay taxes, although one object of the taxes be the support of idolatry, or the waging of war, I comply, simply because he has a clear right to levy taxes, and the responsibility of applying them is with him, not with me. He is lawfully possessed of the power on the principle of civil obedience, as taught us in the New Testament; taxes are among the usual and necessary instruments for the administration of government; the use to which he shall apply them, is not my province, but his: he requires nothing unlawful of me, and therefore I comply.

Here then is the distinction. If he commands what is unlawful, as a means for the attainment of even a lawful end, I refuse obedience. But if he commands what is lawful, intending when the command has been performed by me, to employ the fruit of my obedience in the accomplishment of unlawful purposes in which I have no hand, I obey, because he requires of me only what is rightful. I have nothing to do with his motive or his object.

I would illustrate this by the case of a debt. I am indebted to another. He demands payment. I am not at liberty to refuse, because I happen to know, or have reason to believe that he will employ the money, when paid, for unlawful or immoral purposes. This follows from the principle already stated. My duty is very clear, to pay the debt: the use of the money, when paid, is at once his right and responsibility. This may be aptly illustrated by a modification of the case stated. I am indebted to another; but the debt is not due. He calls for payment, not having a right to do so, and I happen to know, that his reason for wishing the money then, is to make an improper use of it. I am bound to refuse; because not being bound to pay then, I am volunteering to grant a favor, knowing that it will be abused.

On the same principle I can conscientiously pay taxes, knowing, that among other objects, the public money will be applied to pay judges and jurors for trying and condemning criminals to capital punishment; to pay the salary of the president of a college, who teaches that public prayer is unchristian, and the clergy a set of impostors; or to pay the expenses of war. This seems to me the only safe and wise principle, and it furnishes a suitable criterion for civil obedience.

[However, if the] magistrate, instead of a general tax law divides the taxes, and lays on the advocates of Peace the war tax. They cannot conscientiously pay it; because they are thus made the sole and direct instrument of carrying on the war, and without their compliance, it must be at a stand.…

…Obedience is due to the civil magistrate, not as a duty to society, but as a duty to God. God only can then lawfully fix the land-marks of that duty.

This was also Edward Swaine’s argument against tax resistance by nonconformist Christians against government support for establishment churches. And he was unafraid to take his argument to its logical ends:

If Cæsar say “Give me money,” we must give it; for God has nowhere said “Do not give Cæsar money,” or “Do not give Cæsar money without satisfaction that he will properly apply it.” If Cæsar say “Do not preach,” Paul must refuse obedience, for Christ has said to him “preach!” If Cæsar say to us, “Go to the North Pole” — or “wear a cocked hat” — we must do so; for God has not claimed our obedience to the contrary. He has not said, “Do not go to the North Pole” or “go only where you please.” He has not said, “Do not wear a cocked hat,” or “wear only what you like,” Those things, then, concerning which God has claimed nothing of us, we must render unto Cæsar.

Swaine draws the line in this way:

God says to us in effect… If [Caesar] should say to you… “I resolve to establish the worship of Baal for the good of the Empire,” and to levy a tax for that purpose, the resources of the State are his, and you are bound to render the tax. But, if he should say I hold it to be for the good of the land, that every one acknowledge Baal to be God, and therefore require the payment of the tax to be accompanied by a recognition by the payers of the godhead of Baal, you are bound, while you pay the tax, to refuse the recognition, though impaling or burning be the penalty. Or, if the tax be collected under an enactment that every one who pays shall be considered as offering to Baal, you are bound to refuse the payment, for to pay in such case would be equivalent to worship, and a rendering to Cæsar of that which is God’s. But I do not justify your refusal of taxes, because they may be levied for a purpose that my law condemns. He who violates my law must answer, and that is not you who pay the tax, but he who levies it if a bad one. It is he who misapplies the National Funds, not you who had no rightful command over them to apply or misapply.

You have no responsibility, and violate none of God’s laws, if your tax dollars are spent in sinful ways, according to Swaine, because “the tax-gatherer comes… not for a contribution, or subscription, or aid, but for property no longer the subject’s to give or to withhold, and no longer under his rightful control…”

Taxes for bad objects are to be paid, not because we can be excused for helping evil by any voluntary act, that we are morally free to forbear, nor because the payment of such taxes will not help evil, for it will help evil, just as much as the payment of a debt to one who is going to misapply the money will help the evil, — but because the tax is not the subject’s any more than the debt is the debtor’s to help with or to withhold. The payment therefore is his duty, for he is not morally free to decline it, although it will help evil.

Is paying a tax like paying a debt?

This comparison of taxes to debts, as used by Grimké and Swaine above, was an important metaphor in the ongoing debate about tax resistance. If paying taxes to the government is good in and of itself, because God has so decreed it, then taxpaying can’t simply be judged according to its consequences.

A tax payment, in this way of thinking, is not a donation or a subscription or a contribution that is made voluntarily, but is a duty akin to repaying a debt. You can’t ethically refuse to repay a loan because you think the person you owe money to will spend it unwisely.

Here’s an example of how this metaphor was used by one tax resister: Joshua Maule was a Quaker advocate of war tax resistance. When a general tax was increased by a certain percentage in order to pay for war expenses (with the government explicitly saying this was the reason), Maule refused to pay this additional fraction of his taxes, and he insisted that this was the only position consistent with traditional Quaker teaching regarding war.

Maule’s critics asked him why he continued to pay other taxes (like excise fees) or the remaining portion of his general tax — since surely some of these taxes would also go to pay for war. Nathan Hall compared Maule’s stand to someone trying to avoid drinking intoxicating beverages by, for instance, only drinking 75% of a bottle of 50-proof (25% alcohol) liquor:

We both have a testimony against the use of ardent spirits, but are, being very thirsty, placed in a situation where we can get no water except some that has a small portion of whiskey in it. Being under the necessity of taking something, thee may, by inquiry and calculation, find what proportion of the objectionable article is contained in it, and leave just that much in thy bowl; while my understanding will be that in partaking I partake of both good and bad, and in refusing refuse both. So that with me the question is and has been, not what portion I should pay so much as whether any at all.

Maule responded by trying to draw a sharp line between ordinary civil taxes, which like a debt he must pay regardless of how some of it may be used, and explicit war taxes, which fall under a different rule:

The arguments used in reference to what disposition the officers of the law might make of the money collected appeared to me to be valueless.… I am not accountable for the acts of other men: if I owe a just debt, I must pay it; if the person receiving the money uses it for a bad purpose, the accountability is with him; but if he demand money of me avowedly to be used in any way to the plundering of my neighbor, destroying his property, or taking his life, then if I furnish money thus demanded I become an accomplice in the evil work and accountable for the sin. I consider our civil taxes a just debt that should be promptly paid, but I am satisfied that no human authority has either a moral or a religious right to demand of me money or means of any kind to aid in destroying the lives and property of my fellow-men.

Samuel Allinson put forward the most forceful attack on the tax-as-debt analogy in . First off, he denied outright that God has commanded us to give Caesar anything that Caesar plans to put to a sinful purpose: “if tribute is demanded for a use that is antichristian, it seems right for every Christian to deny it, for Cæsar can have no title to that which opposes the Lord’s command.” Having knocked out the divine pillar upholding taxpaying as a moral duty, he then proceeds to attack the idea that taxation represents some sort of secularly-contracted debt, or part of an implied “social contract.” Allinson argues that no Christian would agree to the terms of a contract that might require him to do the devil’s work:

Every valid contract is voluntarily entered into, and as it is the duty of every one previously to see that his engagement is innocent, so when his promise is purchased by a consideration given it would be dishonest and deceitful not to perform it, the other party having, as it were, deposited so much effects in his hands, which he is to render back according to agreement and when received the receiver has a right to apply it as he pleases without any account to the payer, but in the case of taxes he who gives has a right to call to such an account and therefore seems himself liable for and privy to the application. Every man has or has not given his assent to the government he lives under, in the first, he has formally declared his allegiance thereto, in the latter, that allegiance is implied in consideration of his receiving the protection and benefit of it in the safety of his person and the security of his property, in both, it is no more than to be “true and faithful” which can never mean a compliance with every requisition, for we owe a superior allegiance to the King of Kings, and whenever the requisitions of man run counter thereto we “ought to obey God rather than men” … We have never entered into any contract, express or implied, for the payment of taxes for war, nor the performance of anything contrary to our religious duties…

Conclusion?

So have we made any progress here? We’ve at least been able to review the question from several angles and to get some historical perspective on how it has been wrestled with. I think I’ve demonstrated that both of the extreme positions — that paying taxes makes you a fully-guilty accomplice in whatever the government then does, or that paying taxes because it is involuntary is a decision without ethical import — have serious flaws.

I’ve spent a lot of time on the Christian and the legal viewpoints, but as an atheist and an anarchist, to me those viewpoints are often only tangentially advisory at best and mere curiosities at worst. For me the question is an ethical one that has to be resolved with my reason and my conscience.

And as best as I can make out: I am under no original ethical obligation to pay a tax. Taxpaying is not in and of itself good, and I did not in reality enter into something akin to an agreement or contract that I would be unethically violating by failing to pay. Given that, I have to evaluate my decision to pay or not to pay a tax by looking at what consequences I expect will result — in other words, by imagining two worlds, one in which I paid the tax and one in which I haven’t — and choosing from them which one I’d prefer to be in. By doing this, I also imagine two of me, one who paid the tax and one who didn’t, and I choose which one I want to become.

In doing this, as with so many other decisions, some of my considerations are ethicalish (which of these worlds is more just? which of the possible me am I more proud of?) and some are more ordinarily self-interested (in which world am I more satisfied or better-off or esteemed?). This is, as far as I can tell, how it is and how it should be.

And where this has led me so far is where I’m at. Resisting some taxes completely (the federal income tax), others not-so completely (federal excise taxes), others hardly at all (the state sales tax), others dysfunctionally (the self-employment tax, which I don’t pay voluntarily, but which I accept will probably be seized). Along the way, I recalculate my situation and recalibrate my decisions based on my best judgment and my evolving understanding. And these wanderings through the thoughts of people who have grappled with these conundrums before me don’t hurt.


And now for the advertisement. Much of what I’ve drawn on to compose today’s entry can be found in my upcoming book We Won’t Pay!: A Tax Resistance Reader, including:

  • The Nuremberg Principles
  • Larry Rosenwald’s “On War Tax Resistance”
  • William Lloyd Garrison’s “No Union With Slaveholders”
  • Leo Tolstoy’s “Letter to a Japanese Correspondent”
  • J.G. James’s “The Ethics of Passive Resistance”
  • John H. Dadmun’s “Caesar is Responsible”
  • G.W. Gillespe’s “The Trial of One’s Faith”
  • T.S. Grimké’s “On Civil Obedience”
  • Edward Swaine’s “Law and Conscience”
  • Excerpts from Joshua Maule’s “Transactions and Changes in the Society of Friends, and Incidents in the Life and Experience of Joshua Maule”
  • Samuel Allinson’s “Why We Cannot Pay Taxes for the Support of War”
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