Thursday, November 11, 2010

Capitation and Article I, Section 9, Clauses 4-8

Temecula Constitution Study with Douglas V. Gibbs
November 11, 2010

Last week Marvin asked in regards to Article I, Section 9, Clause 4, “What’s Capitation.” For some reason I was unable to pull the answer out of the normally accessible file drawers of my mind, so I told him I would have the answer to him tonight.

Capitation is a Poll Tax, and in the context of the period, any tax that singles out groups both directly and indirectly regardless of possession of lands or personal property. Since Article I, Section 9 is a prohibitory section, the specific call by the Founding Fathers in that clause was that there shall be No Capitation, which included No Poll Tax.

In early New England, in keeping with traditions from the homeland, capitation (caput, meaning head), or poll taxes, were common. These taxes were levied as a way to manipulate the people for the good of the government.

Our good leftist friend Alexander Hamilton, though condemning capitation taxes in his Federalist Papers writings, was in favor of “head taxes” for emergency revenue reasons. He felt that since sources for revenue were so few, if the government needed to expand for any reason, the ability to lay head taxes, or direct taxation, needed to be an option. However, most of the Founding Fathers disagreed, not only because of their belief that taxation must be indirect and small, but also because of their opinion that the federal government must remain limited to the few authorities granted to it by the U.S. Constitution.

Article I, Section 9, Clause 4 forbids Congress to lay a tax upon individuals except uniformly, and in proportion to the census provided for in Article I, Section 2, Clause 3, where this subject is first brought up.

As we have learned, the U.S. Constitution is not designed to necessarily tell the federal government what it can't do as much as it is designed to tell it what few authorities it has. But the Founders felt this to be so important that in addition to not giving such taxation to the Federal Government as an authority, they felt they must also spell it out that the Federal Government cannot tax in this manner. This clause restricts the Congress a lot more because it is prohibitive. Article 1, Section 8 provides a list of "enumerated powers," but knowing that politicians would bend and twist meanings to gain more power, as they have with the Commerce Clause of Section 8, Article 1, Section 9 was designed to spell out some very specific things the Congress is prohibited from doing (such as direct taxation and capitation taxes).

The intent of the Founding Fathers was to provide as little power as necessary to Congress (the part of the Federal Government that “makes law”). The fear, however, was without some specificity on certain things that the Federal Government cannot do, there would be a tendency toward using what may be considered unclear for power grabs.

Within a few years of the ratification of the Constitution, these fears found their way into the Constitution in the form of the Bill of Rights. The first eight amendments restricts the powers of Congress much more specifically, even though the main text of the Constitution already forbid such actions by not giving the Federal Government those powers in the first place.

In regards to Article I, Section 9, Clause 4 we must also remember that the 16th Amendment in 1913 rendered this clause obsolete.

When The South tried to apply poll taxes in elections, meaning that one must pay a tax in order to vote (which would make blacks unable to vote because they could not afford the tax), Article I, Section 9, Clause 4 was used to stop the practice (even though technically the clause only applied to Congress).

After 1913, with the passage of the 16th Amendment (which created the Federal Income Tax), the clause was no longer in force. So when the Civil Rights Movement of the 1960s resulted in Southern States once again applying poll taxes, one of the arguments was that poll taxes was no longer unconstitutional because of the passage of the 16th Amendment. As a result, the 24th Amendment was ratified in 1964, which in addition to requiring that all citizens shall not be denied the opportunity to vote for any reason, the amendment also provided the prohibition once again against poll taxes. This time, however, the law was careful to ensure that included in the wording was that the Federal Government, or any State, could not deny anyone the ability to vote by reason of failure to pay any poll tax, or any other tax.


Article I, Section 9, Clause 6:

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

This proposal was placed before the Constitutional Convention by the delegates from Maryland, their fear being that congressional legislation might prefer Chesapeake Bay ports of Virginia to those of their State. Under the Articles of Confederation, each State was free to impose duties and make regulations to the disadvantage of others, and it was desired that equality in commerce be maintained in the future. This also gives us a clue to the intentions of the Commerce Clause in Article I, Section 8. The Founding Fathers did not wish to give the Federal Government control over commerce, only the ability to ensure that commerce was maintained in an equitable manner in regards to the several States.

Article I, Section 9, Clause 7:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

This clause was inspired by the lessons learned in regards to merry old England. The Founding Fathers did not believe it should be in the power of the Executive alone, or of the legislature alone, to raise or spend the money at will. In Section 7 is the requirement that all bills for raising money must originate in the House of Representatives; but they must then pass the Senate and be signed by the President. In 1842 Congress began to make appropriations by joint resolution; but as that also must be signed by the President, there is no real difference. Also, in the interest of transparency to the people, the records of all monetary transactions both of receipts and expenditures must be made available for public scrutiny.

Article I, Section 9, Clause 8:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The Founding Fathers did not believe there should be any foreign influences in the affairs of our government, which is why I believe that today’s call by some politicians for taking in account international law would make the Founding Fathers tremble.

This provision was taken from one in the first section of Article VI of the Articles of Confederation. It permitted persons holding office under a State to accept, with the consent of Congress, the objectionable gifts or distinctions; but the constitutions of at least two of the States at that time forbade them altogether. This republic, being a nation born as a result of the tyranny of a monarchy should not grant titles of nobility, that much was easily understood. Nobility betrayed the trust and honor of the people through the use of prestige and favoritism. This was the kind of government that did not protect the liberties of the people.

Jefferson, as President, accepted from Alexander I of Russia a bust of that Emperor, which he said would be "one of the most valued ornaments of the retreat I am preparing for myself at my native home." He said that he had laid it down as a law of his official conduct not to accept anything but books, pamphlets, or other things of minor value; but his "particular esteem" for the Emperor "places his image in my mind above the scope of the law." However, without the consent of Congress, who was the final determining factor, he could not have accepted that gift.

In 1810 Congress proposed an amendment, the original Thirteenth amendment (some would call it the lost 13th Amendment because some records showed it was ratified, then suddenly disappeared - as explained below), to add a heavy penalty to this clause by this wording:

"If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honor, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding office of trust or profit under them, or either of them."

The people were told that the proposed amendment lacked the necessary ratifying votes. Ongoing research has shown that the proposed amendment was indeed properly ratified, the State Department WAS notified and was on the books and records of the various States until at least 1876. From 1810 to 1812, twelve states ratified this amendment. The War of 1812 destroyed the library of Congress and these documents were thought destroyed, but in 1994 it was discovered they still exist. After receipt of an inquiry from President James Monroe and Secretary of State John Quincy Adams in 1818, Virginia confirmed the ratification March 12, 1819 with the act authorizing the publishing of the VA Revised Code in 1819. The Revised Code contained the Constitution -- including the original Thirteenth Amendment as proposed to the states for ratification in 1810, which the Virginia House and Senate quite propery had done May 1, 1810 The Virginia legislature subsequently authorized the distribution of the Revised Code of 1819 -- with ten copies designated for the executive branch of Virginia, five copies for the Clerk of the general assembly, and four copies for the Secretary of State of the United States, received not later than 29 August 1821; one copy each for Thomas Jefferson, James Madison, and President James Monroe; one copy each for the federal Senate, House, and Library of Congress, and one copy for every judge in the courts of the United States in Virginia. Thus was the Federal government notified of the ratification by Virginia. By February of 1820, sufficient copies of the Revised Code had been printed to make it available for public sale, and it was advertised as such in a Richmond newspaper. Research conducted on this subject indicates that at least six or seven other Virginia newspapers also carried advertisements for the new Code.

Article V of the Constitution does not stipulate that the States, having ratified or rejected a constitutional amendment, be required to report their actions in any one particular way. Therefore, under the Tenth Amendment, each State is left free to publish the actions of its legislative bodies in any manner whatsoever. Federal law as of 1818, and as amended in 1820, requires that the Secretary of State give public notice of such ratifications as may be reported by the States. That law cannot and does not impair the rights of the States to issue their notices in any manner that their lawfully elected representatives deem proper. Indeed, the Revised Code of 1819 was, and is, the fulfillment of a contract made between those in government and those who have given their consent to be governed, in this case the free men of Virginia.

Evidence has been found that only 10 States may have been required to ratify in 1812, not 13, as two of the States, Connecticut and Rhode Island, did not become full States until 1818 and 1842 respectively, as they were still operating under their original charters and had not instituted a proper State constitution as required by the Constitution until these dates. However, the proposed Thirteenth Amendment was properly ratified with the publishing of the Virginia statutes in 1819. Research has proven that this amendment was unlawfully deleted from the Constitution of the United States of America in random years until 1876 without legislation from any state, or congressional action on the national level.

Avenues are being sought to reinstate this original and lawful Thirteenth Amendment as it was never repealed, but only deleted by outright fraud. Because of this fraud and others, the members of the judiciary and law professions now control all three branches of government. Jefferson warned of this. It is thought that one effect of this original Thirteenth Amendment would have precluded any member of the Bar Associations from citizenship and the ability of holding any office under the Constitution of the United States. If the original Thirteenth Amendment were reinstated, as members of the Bar Associations retain a title of honor, i.e. "Esquire", setting them apart from the common man, or as possessed of special privileges or immunities before the courts and in government not available to the common man, they would therefore be excluded from citizenship and eligibility to office in government. There is some doubt in this, however.
The main effect that restoration and implementation of the original Thirteenth Amendment would have in these times in the 21st Century would be the heavy penalty to the members of the judiciary, politicians, and the political "war chests" which are on the "take" of emoluments from the lobbyists of the foreign nations, foreign special interest groups, and foreign/multinational corporations.

"They saw all the consequences in the principle and they avoided the consequences by denying the principle." -- James Madison

A Special Thanks to:

Faith Armory, 27498 Enterprise Cir W #2, Temecula, CA 92562
951-699-7500, - For providing us with a classroom to meet in.

Political for Donating Pocket Constitutions.


  1. re: "Article I, Section 9 is a prohibitory section, the specific call by the Founding Fathers in that clause was that there shall be No Capitation, which included No Poll Tax." -

    It reads, "unless in Proportion to the Census or Enumeration herein before directed to be taken"

    In order for Congress to levy a “Capitation, or other direct, Tax” they must first establish the amount of tax dollars to be collected, for this is what is to be apportioned according to population (2). Second, they must determine whether the tax will be assessed upon “people” (capitation) or upon “property” (or other direct). Third, this amount of tax is divided among the several States on the basis of their respective populations and the States can elect to pay the tax out of their own treasury. Or, if the States refuse, Congress can collect the tax directly from the population based upon the per-capita, per-acre or per-whatever “object” they made the assessment upon. (from Congressional Record of April 28,1909, page 1569-70, Senator Brown of Nebraska)

    for more context:

  2. Alexander Hamilton a leftist . . . that's rich! The man was an anti-democratic monarchist and arch-representative of the propertied class. Which explains his apparent willingness to revert to the old ways--i.e. capitation--of extorting disenfranchised people.

    Don't pervert history just to satiate your political greed. The Founding Fathers disagreed on a lot of things, including economic policy and foreign policy. Lumping them together is practically pointless. And your rhetoric tinged with exceptionalism and isolationism is obsolete.

    Given the economic circumstances and basic, factual policies of the Federalists in the 1780s-90s, your entire argument about government disinterest in regulating (and taxing) commerce if preposterous.