The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
17. In the several States a like limitation of the powers of the
Legislature is made in the constitutions. A typical statement of this
limitation may be found in the constitution of Pennsylvania, in the
last clause of the Declaration of Rights:
To guard against transgressions of the high powers which we
(“the people of the Commonwealth”) have delegated, we declare
that everything in this article (“the Declaration of Rights”) is
excepted out of the general powers of government and shall forever
remain inviolate.[46]
The discrimination here is between government and sovereignty by means
of a clear limitation or denial of powers. Thus the carefully guarded
fundamental rights are sovereign, not governmental rights. That the
sovereign has the right or power to delegate any of these fundamental
rights, or the control over them is a question in political science.
That the sovereign, in the modern republic, has not so delegated them,
is indisputable. Yet, in 1913 the people of the United States ratified
the Sixteenth Amendment, namely, that “The Congress shall have power to
lay and collect taxes on incomes from whatever source derived, without
apportionment among the several States and without regard to any census
or enumeration.”[47] This amendment more nearly identifies government
with sovereignty than any other in the Constitution. It removes
limitations on the power of Congress with respect to what is commonly
called “direct taxation.” It makes Congress practically sovereign in
its power to impose such taxation and to collect such taxes. It does
not require that direct taxes, like indirect taxes, shall be “uniform
throughout the United States.” It is the first departure in America
from the doctrine of limited government.[48]
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