SRC-SEW S.R. 286 77(R)   BILL ANALYSIS


Senate Research Center   S.R. 286
77R4505 CCK-DBy: Wentworth
State Affairs
3/1/2001
As Filed

DIGEST

In 1990, the United States Supreme Court, in the case of Missouri, et al.
v. Jenkins, et.al. (495 U.S. 33) chose to disregard Article I, Section 8,
of the United States Constitution, which reserves exclusively to the
legislative branch of government the power to tax the citizenry.  In
drafting that constitutional section and allocating the power of taxation,
the founding fathers drew upon the Petition of Right, an English law
initiated by Sir Edward Coke, then approved by the British House of Commons
and accepted by King Charles I on June 7, 1628, which states in pertinent
part that "...no man hereafter [may] be compelled to make or yield
any...tax...without common consent by Act of Parliament...."  

 In 1787, the framers of the United States Constitution reiterated this
principle of limited taxation, specifically vesting with the legislative
branch the "...Power To lay and collect Taxes, Duties, Imposts and
Excises...."  Their intent is made clear by the analysis of James Madison,
who observed in The Federalist No. 48 that "...the legislative department
alone has access to the pockets of the people...." The same view is
expressed by Alexander Hamilton, who asked rhetorically in The Federalist
No. 33, "[w]hat is the power of laying and collecting taxes but a
legislative power...?," and follows consistently in The Federalist No. 78,
in which he argued that the judiciary should be the least dangerous branch
of government inasmuch as judges would have "...no influence over either
the sword or the purse...."   

Yet today, Hamilton's argument no longer rings true.  Through legal orders
and the exercise of judicial threat and intimidation, federal courts have
usurped the power of the legislative branch and have gone so far as to
apply it to non-federal levels of government, mandating state and local
requirements that have the direct, or indirect, effect of imposing judicial
taxes upon the states and their political subdivisions.  In so vesting
itself by fiat with control of the public purse strings, the federal
judiciary has contravened and overridden the constitutional separation of
powers between the different branches and levels of government, threatening
creation of a fiscal oligarchy unbeholden to influence by the electorate. 
 
The states and Congress have too long ignored this self-proclamation and
seizure of taxation powers, and it behooves all Americans to preserve their
rights by the adoption of an amendment to the Constitution of the United
States, re-establishing the link between taxation and representation.
Seeking to reverse the aforementioned Jenkins decision of 1990, lawmakers
in 21 other states, beginning in 1993, have already adopted and transmitted
to Congress memorials requesting that Congress propose an amendment to the
United States Constitution, and those memorials have been entered in the
Congressional Record. 

PURPOSE 

As proposed, S.R. 286 submits the following resolutions:

Provides that the 77th Texas Legislature memorializes the United States
Congress to propose and submit to the states for ratification an amendment
to the United States Constitution to prohibit all federal courts from
ordering or instructing any state or political subdivision thereof, or an
official of any state or political subdivision, to levy or increase taxes.
Provides that Congress also be respectfully requested to entertain certain
suggested text for such an amendment.  Provides that the secretary of the
Texas Senate forward official copies of this  resolution to certain stated
parties, with the request that this resolution be entered officially in the
Congressional Record as a memorial to the United States Congress to propose
for ratification a federal constitutional amendment to prohibit
judicially-imposed taxes.