Conservatives who support or are inclined to support Donald Trump need to look past his words and think carefully about the logic (or illogic) of his actions when compared with his words. Consider two well-known and controversial facts: Trump has refused to release his income tax returns. Trump has expressed support for denying the 2nd amendment rights of people placed on the Executive branch’s terror watch or no-fly lists.
Though people thoughtlessly refuse to focus on it, one of the greatest objections to the imposition of the income tax is the demand that people file an income tax return which they affirm as true under penalty of law for perjury. In the myth of voluntary compliance were in fact true, there might be some rationale for saying that this waiver of their 5th Amendment protection against forced self-incrimination is somehow justified. In fact, the notion that compliance is voluntary flies in the face of fact and common sense.
Therefore, the administration of the income tax requires that Americans not guilty of any crime, nor even accused, be denied the same respect for their Constitutional rights as is accorded to people being taken into police custody because they are suspected of a crime. This is a travesty. In light of this travesty, it was a tenet of my political campaigns for national office that, until the blessed day when the Federal income tax is abolished, every income tax return should come with a version of the so-called Miranda warning prominently featured in the header of each page (“You have the right to remain silent. …etc.”)
Aside from the waiver of 5th Amendment right, the “voluntary compliance” lie puts every person subject to the Federal Income Tax in the position of waiving the presumption of innocence in any criminal prosecution that involves the statements contained in their income tax returns. This is why the administrative law proceedings that in any way involve the contents of their returns proceed on the basis that people charged with some violation are guilty until proven innocent, shifting the burden of proof from the government to the individual. Obviously, this sets the stage for using the IRS to harass and persecute individual citizens, and/or their lawful organizations and associations, until legal costs push them over the brink of bankruptcy.
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In a word, the income tax creates a tool for would-be tyrants which is already being used as such. Now, given the columns I’ve been writing for quite some time, my readers know that I do not, and will never support Donald Trump. But I think that all Americans have a stake in making sure that the inherently anti-Constitutional administration of the income tax is not enshrined, by equally anti-constitutional legislation, as a prerequisite for national office. His opponent(s) certainly have the prerogative to make an issue of it, for judgment by the voters. But any attempt to legislate it as a requirement would formally bias the whole political process against the logic of the 5th Amendment’s due process protections. After all, if citizens can be barred from office for refusing to surrender their Constitutional right, what of their office as voters, their right to vote?
The Constitution includes the so-called ‘Bill of Rights’ precisely in order to thwart the creation of such tools for tyranny. The Founders were well-instructed by Great Britain’s experience with what became the infamous “Star Chamber” court of British monarchs in the 15th to 17th centuries. The Courts began as a means of dealing with the criminality of upper class individuals whose public power and influence otherwise placed them beyond the reach of ordinary law. But this good purpose was perverted until it became a tool for persecuting all those considered to be in opposition to the religion and/or policies of the reigning monarch.
If, with these considerations in mind, we turn to the issue of banning gun purchases by anyone placed on the government’s anti-terrorist watch or no-fly lists, what do we see? The exigencies of the war on terror (which is ongoing despite the Obama administration’s feckless effort to prevent use of that term) seem to provide a cogent national security rationale for supporting such a ban. But one of the fundamental premises on which our institutions of government are based, at all levels, is that the primordial purpose for those institutions is to secure the God-endowed unalienable rights of those who govern themselves with respect for that endowment.
Does it make sense to allow the excuse of national security to license government actions that discard God-endowed rights, when the security of those rights is the primordial purpose of all governments? When exigent circumstances give rise to a dire and immediate existential threat to the security of the nation and its government, common sense makes room for this excuse. But since careless tolerance for it must inevitably license abuses that defeat the right purpose of government, the possibility of such carelessness puts those truly loyal to our constitutional liberty on the horns of a dilemma.
Unless some way is found to deal with that dilemma, the excuse of national security becomes a ready tool, like the Star Chamber Court, for would-be tyrants to abuse against their political or ideological opponents. We have already seen preparations for such abuse in moves by both the Clinton and Obama Administrations to stigmatize their conservative opponents, even portraying them as likely “terrorists”, simply because they home-school their children; demand respect for their 2nd Amendment right; or have served honorably and with distinction, in our armed services.
The move to allow to ban people from the purchase of arms simply because officers of the Executive branch, acting without reference to the Judicial branch, place them on the terror watch and no-fly lists tosses the whole apparatus of due process out the window. Yet the Constitution clearly states that “No person shall… be deprived of life, liberty, or property, without due process of law….” Though remarked upon less often than it should be, one important element of that due process precisely involves making sure that the Executive cannot, on the strength of mere suspicion, deprive people of their liberty, including the right to defend against immediate threats to their lives and property.
This is why a distinction should be made between terror watch lists, which exist for the purpose of informing and prioritizing the Executive’s anti-terror activities and preparations, and things like the no-fly list, or the proposed ban on arms purchases. As long as it is simply an in-house Executive branch tool for keeping track of developed information, the terror watch list does not, in and of itself, impair respect for the Constitution’s provisions. However, if the lists are used to restrict liberties connected with fundamental rights, respect for due process obviously comes into play. When it does, the 5th Amendment plainly requires that Executive action against individuals be subject to scrutiny by the other branches, beginning with the Judiciary, to make sure that due process requirements are met; or by the legislature, to make sure the sovereign rights of the body politic are not endangered.
This thinking is Constitutional Prudence 101 to conservatives who sincerely uphold the provisions and logic of the Constitution. When it comes to his personal income tax problems Donald Trump appears to rely on respect for both. But when it comes to the God-endowed right to life of the citizens (the duty of self-preservation being its first corollary) he gives them short shrift, taking a position that carelessly disregards what is, for a free people, the first and most fundamental meaning of national security.
How can a candidate who thus prefers his own individual interest to the common good of the people he says he will serve and represent, be trusted to subordinate his proven ambition for wealth and power to that public good? His citizen record shows, and he himself admits, that he has habitually done the opposite throughout his life. His present approval of the proposal to regulate the right of the people to keep and bear arms, without proper regard for the Constitution’s due process requirement, suggests that he has not broken that habit.
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