Judicial TaxationrnThe States Respondrnby John R. StoefflerrnThe Madison Forum was founded in 1993 by MissourirnState Senator Walt Mueller and me for three reasons.rnFirst, we wanted to respond to the Supreme Court’s claim inrnMissouri v. ]enkins (1990) that the federal judiciary’ has the authorityrnto levy or increase taxes. We believe this constitutionallyrnbaseless assertion by the Court poses a direct threat to ourrndemocracy.rnThe second reason concerned the federal judiciary’s “attitudernproblem.” This “attitude,” reflected in the Court’s decisionrnin ]enkins, was made clear to us in a 1994 meeting we hadrnwith Federal District Judge Russell G. Clark, who oversaw thern]enkins case for over ten years and levied the controversial taxrnwhich nearly doubled the property taxes in Kansas Cit’, Missouri.rnClark had no patience with the argument that the authorityrnto tax is vested in the legislative branch aloire, saying thatrnif the Supreme Court declares the judiciar)”s right to tax, thenrnthis power is constitutional, period. Wlren I said that he wouldrnhave us believe that the Court could declare a rainy day to bernsunny, Clark replied: “It may be raining outside, but if thernCourt says the sun is shining, then the sun is shining. Wliat yournbelieve makes no difference.”rnThe third reason has to do with Congress, hi Federalist 33,rnHamilton stated: “Wliat is the power of laying and collectingrntaxes, but a legislaHve power?” And in Federalist 81, he pointedrnout that it was an impeachable offense for the judician,” to usurprna legislative power. But Congress, being fully cognizant of thernJohn R. Stoeffler writes from St. Louis, Missouri. A version ofrnthis article was presented at a Heritage Foundation conferencernon judicial taxation.rnCourt’s decision in Jenkins, has neglected or refused to addressrnthis usurpation and exercise of what has been by custom, history,rnand tradition a legislative function.rnIn his defense ofMcCulloch v. Maryland, Chief Jushce JohnrnMarshall observed that the exercise of the judicial power to decidernall questions “arising under the Constitution and laws” ofrnthe United States “cannot be the assertion of a right to changernthat instrument.” Former Chief Jushce of Missouri Robert T.rnDonnelly narrowed that perspective further when he stated: “Ifrnin fact, the United States Supreme Court is exercising powersrnwithout the coirsent of the goverired —the people—then thernrights it purports to secure in their name are counterfeit—itsrnbenevolence a fraud.”rnWe contend that in Jenkins the Court committed whatrnamounts to judicial fraud by declaring that the District Courtrndid “satisfy equitable and constitutional principles governingrnthe District Court’s power.” This usurpation of power b- thernjudician.’ is een more staggeriirg when one remembers tiiat itrntook the 16th Amendment to the Constitution to empowerrneven the legislative branch to tax the people.rnThe Madison Forum has therefore asked each .state to petitionrnCongress for an amendment to the Constitution whichrnwould check this usurpation of power by the federal judiciar}’.rnTo date, the following states have sent Congress such a request:rnMissouri, Tennessee, New York, Colorado, Louisiana, .Alaska,rnMassachusetts, Arizona, South Dakota, Nevada, and Michigan.rnIn addition, the Americair Legislative Exchange Councilrnadopted a model resolution which will be forwarded to thernstates this ‘ear.rnProposing a constitutional amendment may seem likern22/CHRONICLESrnrnrn