19A052 Villainy in Court by Jim Davies, 12/24/2019    

There is a long list of major villains who fashioned American history. Among the Presidents there is a spectrum of knavery from the least evil (Jefferson, Reagan) to the worst (Lincoln, F D Roosevelt.) Lincoln plunged everyone into our bloodiest war so as to dominate the whole, and later on Roosevelt deliberately tricked Americans into entering and prolonging WW2 so as to create an American Empire, hence bearing blame for a large fraction of about 70 million deaths.

But here today I thought to focus on just one of the villains who have polluted the Supreme Court, which has carried nearly as much power as the Executive Branch. He is Oliver Wendell Holmes, a member from 1902 to 1932, and as one can expect when a government exists to operate "justice", he did terrible damage to the cause of freedom. Let's look at a couple of the key cases he influenced.

1. The Income Tax. Curiously, in the period following the alleged ratification of Amendment 16, from 1916 to 1921, the Supreme Court handed down some of its best decisions. Its best of all on this subject had been the Pollock case of 1896, in which Congress' attempt to tax income was properly shot down because it failed to conform to the requirement that all direct taxes must be apportioned. Apportionment means that if the Feds directly tax citizens, they must do so in proportion to State populations; thus if State A has twice as many residents as State B, the total tax collected from those in State A must be twice as much as that taken from those in State B.

That might be feasible if each State had the same per-person income, but they don't. This list shows that MD, for example, has an average of $80,776 per household, while WV has one of $43,469. So clearly it's impossible for a direct tax on income to be collected legally, and Pollock so ruled.

Congress responded by proposing Amendment 16 to remove that restriction, but it is highly defective: it was never actually ratified as written, it does not explicitly overturn or repeal the Pollock decision or the three "apportionment clauses"in the Constitution, and it fails to define the vital legal term "income" - so it carries no actual meaning whatever.

Accordingly, in the late 1910s SCOTUS confirmed that no income tax could legally be placed on Americans. That didn't stop it happening, but it did mean that all who collect it are violating the supreme law. Some cases are:

Brushaber (1916) held that Am. 16 "gave Congress no new taxing power"
Eisner v Macomber (1920) ruled that Congress cannot define "income"
Merchants' Loan (1921) said that "income" is defined only as corporate profit

While SCOTUS may well have been crossing its 90 fingers when issuing these rather favorable opinions, the IRS took no heed of them and went on collecting the tax and the Court played no further part until 1927, when Holmes wrote the opinion in the less-known but vastly influential case of US v. Sullivan. This cleverly avoided overturning any of the cases above, yet implied that collection of the income tax could legally continue. He reversed the Supreme Court, but without explicitly saying so. Seldom was villainy more cleverly expressed.

Mr Sullivan was a creative entrepreneur, running two businesses: he repaired automobiles, and distributed moonshine. Faced with a law that seemed to compel him to declare all his income (which he presumed meant, all that he earned) he had a dilemma: if he declared what he earned from running liquor, he'd be prosecuted under the Prohibition laws. Yet if he omitted those earnings from his return, he'd be prosecuted for filing a false return. So he solved it by not filing at all, relying on Amendment 5, which clearly says that he did not have to incriminate himself.

The Sullivan decision, authored by our Villain of the Week, explicitly said that he did, anyway, have to incriminate himself. Read Wiki's first sentence.

Therefore SCOTUS, represented by Oliver Wendell Holmes, purported to amend Amendment Five. As y'all know from Article 5, it cannot legally do that. But ever since 1927, not one of the members has been impeached for high treason or any other infraction of the Supreme Law. Evidently, laws apply only to us peons. This bit of villainy costs us nearly a trillion dollars a year.

2. Free Speech and the Draft. Holmes had also written the Court's opinion in the landmark Schenck case of 1919, which was dreadful, unanimous and criminal. Wiki continues:-

The facts of the Schenck Case were as follows. Charles Schenck and Elizabeth Baer... oversaw printing and mailing [of] more than 15,000 fliers to men slated for conscription during World War I. The fliers urged men not to submit to the draft, saying "Do not submit to intimidation", "Assert your rights", "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain," and urged men not to comply with the draft on the grounds that military conscription constituted involuntary servitude, which is prohibited by the Thirteenth Amendment.

Seldom did Socialists express themselves so well!

SCOTUS unanimously ruled against Schenck, and Holmes' opinion became a precedent famous for his use of an analogy: he likened draft resistance to falsely shouting "FIRE!" in a crowded theater. That was wholly bogus - no American was in danger in 1917 from Germans - but it set in stone the principle that laws are quite okay if they prohibit speech that encourages the breaking of other laws.

Thus, the Court single-handedly gutted Amendment One of its force. Holmes enthused over an effective amendment to the US Constitution, which cannot legally take place unless ratified by ¾ of the States. Raw villainy; and perhaps Holmes was practising in 1919 for his closely comparable villainy of 1927. The two have had a devastating effect on waging war and the means to pay for it.