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IRS: Arbitrary power and the rule of the Constitution

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  • Legalbear
    The cardinal precept upon which the constitutional safeguards of personal liberty ultimately rest -- that this shall be a government of laws -- , because to
    Message 1 of 1 , Mar 5, 2011

      The cardinal precept upon which the constitutional safeguards of personal liberty ultimately rest -- that this shall be a government of laws -- , because to the precise extent that the mere will of an official or an official body is permitted to take the place of allowable official discretion or to supplant the standing law as a rule of human conduct, the government ceases to be one of laws and becomes an autocracy. Against the threat of such a contingency the courts have always been vigilant, and, if they are to perform their constitutional duties in the future, must never cease to be vigilant, to detect and turn aside the danger at its beginning. The admonition of Mr. Justice Bradley in Boyd v. United States, 116 U.S. 616, 635, should never be forgotten: "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. . . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis [resist the advances]."


      Arbitrary power and the rule of the Constitution cannot both exist. They are antagonistic and incompatible forces; and one or the other must of necessity perish whenever they are brought into conflict. To borrow the words of Mr. Justice Day -- "there is no place in our constitutional system for the exercise of arbitrary power." Garfield v. Goldsby, 211 U.S. 249, 262. To escape assumptions of such power on the part of the three primary departments of the government, is not enough. Our institutions must be kept free from the appropriation of unauthorized power by lesser agencies as well. And if the various administrative bureaus and commissions [IRS], necessarily called and being called into existence by the increasing complexities of our modern business and political affairs, are permitted gradually to extend their powers by encroachments -- even petty encroachments -- upon the fundamental rights, privileges and immunities of the people, we shall in the end, while avoiding the fatal consequences of a supreme autocracy, become submerged by a multitude of minor invasions of personal rights, less destructive but no less violative of constitutional guaranties.


      JONES v. SECURITIES & EXCHANGE COMMISSION, 1936.SCT.40292 <http://www.versuslaw.com>¶¶ 55-56 ; 298 U.S. 1 (1936).




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