IRS

The IRS v. the First Amendment

Whatever happened to "Congress shall make no law"?

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Of all the discouraging news in the scandal involving President Obama's Internal Revenue Service, the most illuminating is that one of the things that triggered additional scrutiny from the IRS for groups applying for tax-exempt status was any plan for "educating on the constitution and bill of rights."

As the details of the situation have emerged, various explanations have arisen for the behavior of the IRS officials involved. A 2,700-word report issued over the weekend by a team of seven New York Times journalists attributed the problem to "an understaffed Cincinnati outpost that was alienated from the broader I.R.S. culture."

A more straightforward explanation is that, rather than being culturally alienated, the IRS officials, and their bosses, right up to and including the president, were genuinely afraid of what Americans might find out if they did actually have a careful look at the Constitution and the Bill of Rights.

The most potentially devastating development would be if people read the First Amendment. That says "Congress shall make no law…abridging the freedom of speech…or the right of people peaceably to assemble, and the petition the government for the redress of grievances."

The First Amendment doesn't say "Congress shall make no law so long as you apply to the IRS and register under section 501(c)4 of the Internal Revenue Code, but if your 'major purpose' under the Federal Election Commission's regulation is politics, you have to register with the FEC and disclose your donors, and if you are a lobbyist, you have to register and disclose your clients."

The First Amendment doesn't say that if a person wants to exercise the rights of speech, assembly, or petition, the person should have to wait months for IRS approval and spend all kinds of money on lawyers and accountants who have expertise in navigating these shoals. It doesn't say there's a higher bar for Tea Party groups, or that those groups have to wait longer or supply more information.

What the First Amendment does say is pretty plain: "Congress shall make no law…"

The rest of the document is pretty clear, too. The powers of the Congress and of the President are enumerated. Nowhere among those enumerated powers is the power to demand that individuals disclose their donors, their plans to run for elective office, or their social media posts as a condition of exercising their rights to speech, assembly or petition. And the Ninth Amendment makes clear that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In other words, if people read the Constitution and the Bill of Rights, they might realize that the entire elaborate regulatory apparatus that politicians and bureaucrats have erected to limit these rights of speech, assembly, and petition rests on constitutional ice that is thin-to-nonexistent. The response from the "campaign finance reform" crowd is that it's not speech, assembly, or petition that is being regulated, but money, and that there's a legitimate government interest in regulating money to prevent corruption. A Supreme Court majority has agreed with that argument up to a point, but only up to a point.

There's a case to be made that a way to fix all this would be to get rid of both the corporate income tax and the charitable giving tax deduction. That way there'd be no need for the IRS to pass judgment on which corporations are taxable and which are tax exempt, and on which of the tax-exempt ones get to have their donors qualify for the charitable deduction.

But an even more basic fix is education on the Constitution and the Bill of Rights, so that people have a crystal clear understanding of their rights to speech, assembly, and petition for redress, and of how those rights are not subject to abridgment by Congress. That understanding, sadly, is what the IRS under President Obama seems to have been determined to prevent. And if there's a positive aspect of the IRS scandal, it's that it turns out that despite the IRS, enough Americans already have a robust understanding of the First Amendment that they met the IRS's behavior with the outrage it deserved.

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  1. Maybe it’s time for some reasonable and common sense restrictions on unfettered IRS investigative powers. Like no more audits, no more waivers of 5th Amendment rights, no more jail time for violators, and a national registry of IRS agents?

    1. No more collection of income tax.

      1. No, but it has to be voluntary.
        They can have telethons and give out tote bags.

        1. I can see Obama running a telethon. He’d be perfect for that job.

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        1. You drive a Peugeot. Jesus Frack, get a real job and real car.

        2. Why on earth would you buy a French car with all that income?

  2. Amen!

    My best friend from high school/college visited me over Xmas. While not a libertarian purist, he’s always leaned that direction. Smart guy. Like 1400 SAT, 140 IQ, smart. ME degree with an MBA.

    We got discussing politics and he freely admitted he’d never read the Constitution. I was dumbfounded.

    I’d be willing to bet that 80% (or more) of the population hasn’t read it since grade/high school.

    1. So what? It’s not like it matters anyway. When the commerce clause applies to things neither commerce nor interstate, then you know words mean nothing.

  3. In other words, if people read the Constitution and the Bill of Rights, they might realize that the entire elaborate regulatory apparatus that politicians and bureaucrats have erected to limit these rights of speech, assembly, and petition rests on constitutional ice that is thin-to-nonexistent.

    Please. That stuff is at least a hundred years old and was written by dead white slaveowners. Who could possibly understand what it means?

    Besides, we live in the 21st century. The government is your friend now and only wants good things for you.

    The response from the “campaign finance reform” crowd is that it’s not speech, assembly, or petition that is being regulated, but money, and that there’s a legitimate government interest in regulating money to prevent corruption.

    How does one engage in speech across the community without money? Even in ye olde days, does pamphlets and broadsheets and newspapers didn’t produce themselves. Unless you have a large house, or don’t mind gathering in the park, you have to pay to rent someone’s space in order to peaceably assemble. If you plan to petition the government, how do you get to the place of government, especially if you don’t live nearby? Do you walk? If no one in the government are unable to see you when you arrive, do you just sleep on the floor until they can, or do you rent a room to stay in?

    Money isn’t speech is accurate, but it is a falsehood. Without money, speech is unreasonably limited.

    1. Then work harder so they can tax you more. To birds, one stone.

      1. TWO!

  4. Please. That stuff is at least a hundred years old and was written by dead white slaveowners. Who could possibly understand what it means?

    And the guys who wrote it talked like fags.

    1. and reading. Come on. Who does that anymore?

    2. Actually, like fagf.

  5. attributed the problem to “an understaffed Cincinnati outpost that was alienated from the broader I.R.S. culture.”

    IOW, to the I.R.S.

  6. Not that I’m anyone to defend the IRS, but let’s not exaggerate here. No one said, “You can’t have that rally without our permission,” So let’s not act like Bull Connor is standing on the street corner looking to crack some heads with his slide rule if any of these pesky taxpayers come marching by.

    The argument is whether or not the donations received to pay for the rally/assembly are taxable. Making that determination based on political or religious beliefs is where the real Equal Protection and First Amendment issues are.

    Unfortunately, I’m not holding my breath that some court somewhere will be outraged enough to blow up the whole system. It’s fairly settled jurisprudence in this country that most of the 4th, 5th, and 6th Amendments simply don’t apply to collecting income taxes, so what harm would there be in adding another exception? I can totally see some judge saying pretty much the same thing I wrote in my first paragraph.

    All that being said, our existing tax jurisprudence is exactly backwards. Rather than saying,

    “Well, we gotta collect those taxes, so the normal ____ Amendment protection doesn’t apply here,” the judges SHOULD be saying,

    “Well, we gotta protect civil rights, so this type of taxation isn’t compatible here.”

  7. “The response from the “campaign finance reform” crowd is that it’s not speech, assembly, or petition that is being regulated, but money, and that there’s a legitimate government interest in regulating money to prevent corruption. A Supreme Court majority has agreed with that argument up to a point, but only up to a point.”

    That’s kind of funny because I thought the supreme court said that money is speech in Citizen’s United. . .

  8. Passing the FairTax would pretty much eliminate the IRS and this whole problem.

    1. In other words, that’ll never happen.

  9. Samantha. I can see what your saying… Leroy`s remark is impossible… I just purchased a great Honda NSX from earning $8465 this past four weeks and just over 10-k last-month. this is really my favourite-work Ive had. I started this 10-months ago and immediately startad bringin in minimum $84… p/h. I went to this site,, KEP2.COM

  10. Yo dawg, I herd you like free speech. So I put the word “free” in your constitution, so you can pretend to speak freely while your pretend to speak.

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