The May 17 deadline extension for filing this year’s taxes is quickly approaching. But some people contend that the 16th Amendment, which established the income tax in 1913, is unconstitutional because, they claim, it wasn’t actually ratified by at least 36 states.
THE QUESTION
VERIFY viewer George asked: Was the 16th Amendment ratified by the required number of states, as per the U.S. Constitution?
THE SOURCES
- Internal Revenue Service (IRS)
- Erik M. Jensen: Coleman P. Burke Professor Emeritus of Law, Case Western Reserve University
- Ohio History Connection
THE ANSWER
Yes, the 16th Amendment was ratified by more than the required number of states in 1913.
WHAT WE FOUND
According to the Internal Revenue Service, “This argument is based on the premise that all federal income tax laws are unconstitutional because the Sixteenth Amendment was not officially ratified or because the State of Ohio was not properly a state at the time of ratification.”
Backers of the argument contend that Ohio’s ratification should not have counted because it was not technically admitted as a state until 1953 and that several other states did not follow proper procedures on ratification.
According to Ohio History Connection, in November 1802, the Ohio State Convention petitioned for admittance into the United States by approving the Ohio Constitution. A delegate delivered the document to D.C. and presented it to Congress in December of that year. In accordance with Thomas Jefferson’s 1802 Enabling Act, Congress approved the action, however, they “neglected to ratify the Ohio Constitution.”
In 1953, when Ohio was about to celebrate its 150th birthday, Ohio History Connection states: “A problem occurred because the Library of Congress did not have some of the documents. Namely, the legislation that granted statehood to Ohio. It was quickly realized that Ohio technically hadn’t been legally admitted into the United States in 1803.”
The premise gained attention with “The Law That Never Was,” a 1985 book by William J. Benson and Martin J. "Red" Beckman, said Erik M. Jensen, the Coleman P. Burke Professor Emeritus of Law at Case Western Reserve University in Cleveland, Ohio.
“I think it’s fair to say that almost all serious commentators think that that is basically a conspiracy theory,” said Jensen.
Jensen, who has lived in Ohio for 38 years, said the claim regarding Ohio’s statehood was over a technicality as it wasn’t a constitutional requirement to join the union in 1803. When the missed step in Ohio’s path to statehood came to light in 1953, Congress passed a resolution confirming that Ohio was indeed a state in 1803 — and even if Ohio’s ratification didn’t count, Arizona and New Mexico ratified the amendment after the original 36 states, according to Jensen.
As for procedural errors by other states, “the argument is usually that there were slight variations in the form of the resolutions (e.g., differences in punctuation) that were voted on in different states during the ratification process, so that there weren't enough states agreeing to a common version for that version to be ratified,” Jensen told VERIFY. “I'm quite sure that no court today is going to take such an argument seriously. The amendment has been on the books for more than 100 years. Any serious court is going to treat such a claim as frivolous and perhaps impose penalties on anyone making it.”
According to the IRS, another claim regarding the 16th Amendment argues that “the Sixteenth Amendment does not authorize a direct non-apportioned income tax and, thus, U.S. citizens and residents are not subject to federal income tax laws.”
Jensen says that even without a 16th Amendment, the federal government has always had the power to collect taxes.
“The 16th Amendment does not say that Congress all of a sudden had the power to tax incomes,” he said. “Congress always had that power." Some legal scholars argue that made the amendment unnecessary, according to Jensen.
What the 16th Amendment does, the IRS says, is “authorize a non-apportioned direct income tax on United States citizens” — the key word being non-apportioned.
“Imagine two states with identical populations … one rich state, one poor state,” said Jensen. If a tax is apportioned, both states would pay identical amounts.
“The tax rates for a national income tax would have to be higher in the poorer state than in the richer state, which would just be absolutely absurd,” said Jensen. “So what the 16th Amendment did was make it clear that apportionment of taxes on incomes was not required by the Constitution.”
On its website, the IRS dispels this myth, saying that the law states, “The constitutionality of the Sixteenth Amendment has invariably been upheld when challenged. Numerous courts have both implicitly and explicitly recognized that the Sixteenth Amendment authorizes a non-apportioned direct income tax on United States citizens and that the federal tax laws are valid as applied.”
The IRS says lawsuits citing improper ratification and other challenges to the 16th Amendment have proved “frivolous” or “without merit,” listing cases and why they failed. In the end, it says 40 states ratified the 16th Amendment. In “The Truth About Frivolous Tax Arguments,” the IRS shares the most common “frivolous” arguments made by people or groups in an effort to get out of federal income taxes.
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