Devvy Kidd is At It Again

constitution

It was back about 15 or 20 years ago, more or less, that Devvy Kidd was making headlines along with one Joe Banister in challenging the federal income tax. The matter interested me because I was practicing income tax law, and would have liked nothing better for my clients than to see that portion of the federal codes go away. The federal income tax law should be considered the poster child for everything that can go wrong as a law gets totally out of hand and tries to do everything for everyone instead of doing precisely what it was intended to do; raise revenue and nothing else.

Kidd and Banister had challenged the income tax in large part on their interpretation of certain sections of the code, and also on the basis that it had never been ratified properly. In the end their challenges got nowhere, Banister lost his CPA license and was barred from representing clients before IRS. Banister was later acquitted on criminal charges and has essentially dropped off the map.

Kidd is another story. She has never been the subject of criminal action while raising a lot of noise on occasion about subjects she sincerely believes in. But so far she has done nothing more successful than temporarily making noise before fizzling out like a dud firework.

Kidd’s latest headlines stem from a lawsuit that she has filed in Texas challenging the ratification of the 17th Amendment to the Constitution; the amendment that provided for direct popular election of senators, rather than appointment by the respective state governments. The case will go nowhere, which is unfortunate, because the 17th Amendment removed one of the most important of the traditional “checks and balances” against excessive exercise of federal power. This was a major mistake created at the behest of President Woodrow Wilson, who desired absolute and unchecked authority for his government. It eliminated the power that the states held to veto acts of the popularly elected House of Representatives and eliminated the presence of State’s Rights and State’s Authority from the legislative equation. It has been a major reason for the growth of federal authority and the suppression of the traditional state ability to control their own internal affairs under the 9th and 10th Amendments.

It should be noted that the present troubling state of affairs in Washington DC could, in part, be remedied by a reinstatement of the 17th Amendment. Despite this, Kidd’s lawsuit will go nowhere because, if for no other reason, the amendment has been in force for a century and there are problems with overturning constitutional provisions in the courts. Kidd will likely be ruled to have no standing to sue. If, on the small chance that the case was allowed to proceed, the courts will deny the validity of her arguments and evidence, regardless, and the amendment will remain in force.

What is happening here is essentially the same thing that happened with respect to the 16th Amendment when Kidd attacked it previously. There was, purportedly, evidence that the 16th was never properly ratified, making it invalid. This writer has taken the time to examine the arguments, and found them wanting.

One of the lynchpins in the ratification argument was an issue that hinged on evidence that the amendment, as ratified, did not always exactly and precisely mirror the proposed amendment. Much of this was based on such things as misplaced punctuation or spelling irregularities, which, at the time, in 1912, before use of electronic copying and transmission, were a common problem, particularly in the rendering of lengthy real property descriptions on title deeds. The courts adopted a rational approach to this, looking to the intent of the parties at the time, and then chalked up the irregularities to “scriveners errors” and allowed the documents to stand as the were supposed to have been written, rather than exactly as written.

The question that this presented in the matter of the 16th Amendment rests on the intent of the parties involved. Did the states in question fully understand what they were ratifying and agree to do so, in that knowledge? The likely answer is that they did. Of course, one cannot assert that they understood that they were helping to create a monster, but then even Dr. Frankenstein didn’t fully appreciate the magnitude of his creation until it was too late. Studies of the history of the income tax reveal that its proponents believed they were doing something to benefit the nation, rather than creating a vicious monster that would become a millstone around the collective neck of the American economy.

It is likewise probable that the states ratifying the 17th Amendment did not fully appreciate the power that they were giving up in the name of a supposed greater democracy, when, in fact, the eventual fallout was to empower the political parties in ways that did not and could not exist previously, while disempowering the state governments.

What remains is one simple fact. The courts are extremely unlikely to change the Constitution, regardless of the evidence introduced, because to do so would call into question the validity of numerous acts of the federal government and create a crisis of credibility that could shake the very system from its moorings in ways impossible to control. This does not mean that Devvy Kidd is wrong in bringing the lawsuit, or that her evidence is not accurate. It would be incorrect to make any judgment without actually examining it. But Kidd is likely barking up the wrong tree here. To depend on parts of the political/governmental system to invalidate that system is, at best, downright foolish. It would be as reasonable to expect a hand to chop off its own head.

Devvy Kidd’s heart is in the right place. Her methods, while drawing attention to real problems, are calculated to bring zero results. The 17th Amendment is a major impediment to restoring the limited republic intended by the founders to maintain popular liberty. Creating an informed public movement in favor of repealing it would generate more progress than taking the matter two the courts. What stands in the way, aside from the government itself, is the political party structure which will do its best to maintain this amendment in force and effect, as a major part of their power foundation. It is another reason why the “two party system” is part of the problem in American politics today. Ms. Kidd should find better and more effective outlets for her energy, and the nation would benefit thereby.

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