This post is a reproduces a comment by Pilgrim 7 which appeared at the Isaac Brock Society. Because of its reference to Cook v. Tait, I thought it would be worth adding to the Cook v. Tait book of posts. This is the second comment by Pilgrim7 that I have turned into a separate post at this Renounce US citizenship blog.
I’m going to post a comment which was originally submitted to an American publication with a rather large word limit. Consequently, it won’t fit the rather small word limits for opinion pieces in Canadian newspapers. So, rather than have it go to waste, here it is. (Oh, this would be my answer to those who call us whiners and complainers. If we are, then the so-called founders of the Republic are as well. If their cause was legitimate, then so is ours.
The Shot Heard Round Our Deck
The shot heard round our deck, just now, was not a lead ball propelled by black powder–like that famous “shot heard round the world”–but rather a champagne cork (The “Widow” Clicquot) fired by carbon dioxide. Nor was it part of an opening salvo in a revolution against tyranny, but rather it was fired in celebration of a release from a tyranny of precisely the same ilk.
While my wife and I will always celebrate May 17th as “Independence Day,”–the day we renounced our U.S. citizenship–the shot heard round our (Canadian) deck marked the culmination of the process of achieving full freedom. As the American colonials had to wait through a passage of time from Concord Bridge to the Treaty of Versailles, a passage of time which included, among other things, the victory over the British (attributable mainly to French sea power), and the initial period of abuse heaped on those who had remained loyal to the Crown, so too did we have to wait for our documents of freedom, namely our Certificates of Loss of US Nationality.
Our champagne marks the arrival of these.
The original shot heard round the world was fired in protest of, among other things, unjust taxation. The colonial intellectuals appealed to a principle of “consent” set out by John Locke. The foundation of that principle was a more basic one, namely, that governments are not entitled to part an individual from his property (i.e. tax him) unless they meet certain requirements, thus: “But still it must be with his own consent, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them…”(Second Treatise of Civil Government, 140).
While consent to taxation is one hallmark of Locke’s social contract form of government, there is another, and more basic, principle, which precedes it, namely: governments must provide protection in return for that taxation. “ It is true, governments cannot be supported without great charge, and it is fit every one who enjoys his share of the protection, should pay out of his estate his proportion for the maintenance of it.” (Second Treatise of Civil Government, 140).
The U.S. Government appears to acknowledge this requirement of protection in what is still the definitive decision on the taxation of expatriates, namely Cook v. Tait (1924). The opinion was that of Joseph McKenna, (an individual so ill-prepared for appointment to the court, that he was forced to take law courses at Columbia before taking his seat, and who, nine years before had suffered a stroke, which resulted in his being required to resign in 1925).
The core of McKenna’s opinion was:
“…the government, by its very nature, benefits the citizen and his property wherever found and, therefore, has the power to make the benefit complete.”
For there to be reciprocity between protection and taxation, all that appears to be necessary is for government to simply exist.
This is not what Locke meant by protection. Locke had followed his first master, Thomas Hobbes, in building a theory of government on the basis of an hypothesis both writers called “The State of Nature”–an imagined situation in which human beings lived without government of any kind. Hobbes thought that life in this State of Nature would be “nasty, brutish and short”, and Locke did not disagree with him on this point. Locke called it the “State of War.”
However, unlike Hobbes, Locke proposed that, however precarious life might be, people in his State of Nature had “inalienable”rights, “natural rights”, which, when they contracted to form governments, came with them into political society, the creation of government being to better protect those rights from the “State of War” in the State of Nature.
For Locke, most rights were rights of “property” (which is best read as those things “proper” to oneself, including “life, liberty and the pursuit of happiness” and, of course, possessions).
Since, in most instances, governmental deprivation of possessions will be through taxation, the case must be so strong that the consent of the governed will be readily given. But, as important, such deprivation must be in furtherance of those ends of government which make settled society safer than the State of Nature, where property is always threatened by the State of War.
Protection as understood by Locke (and the drafters of the U.S. constitution), meant essentially protection from foreign foes and from internal depredation. And consequently, that protection must be direct and constantly on-going. A government which does not provide direct and constantly on-going protection, is not entitled to tax. At least in the political theory which underlies the American form of government.
Consequently, “the government, by its very nature, benefits the citizen and his property wherever found and, therefore, has the power to make the benefit complete” is simply not protection unless that government is in a position to defend property (in all senses) from foreign invasion and from internal strife and depredation. Again, that protection must be direct, and on-going, it cannot, as McKenna appears to have believed, be a kind of promissory note to be paid up when and as the government is in a position to do it.
Such protection can only happen when the citizen is habitually resident within the territory a government can defend and within which it can maintain civil order and peace. Where an individual does not reside within that protected territory, there can be no lawful claim by government for tax, nor any extension of tax jurisdiction based on citizenship.
Locke’s first requirement for lawful taxation, namely protection from war and strife–the ills of the State of Nature–is not met by the Government of the United States in its extra-territorial extension of tax jurisdiction. It is thus unlawful in this sense, but since the Lockean social contract thinking underlies the U.S. Constitution, taxation on the basis of citizenship, without direct and on-going protection, is completely un-American.
It may be suggested that if the “protection” requirement had the same weight as the “consent” imperative, the colonials would have complained on that basis as well. But the colonials could not complain on the protection ground. Unlike current American expatriates, they were within the territorial jurisdiction of the state, and while this in itself is no guarantee that the obligation of direct and on-going protection will be fulfilled, the British Crown could claim that it had actively defended them. The Stamp Act was enacted to reimburse the Crown for expenditures incurred in driving the French threat from the colonies’ northern border, and the “intolerable” Quartering Act secured housing for the troops intended to protect the colonials from war and internal strife.
No, the colonists could make no complaint on the first of Locke’s principles of legitimate taxation, namely direct and ongoing protection–so they were left with the second, namely lack of consent through representation.
Technically, I cannot complain on the basis of representation, since, again technically, the U.S. thinks that I was–until May 17th–represented by the congressional delegation from a state I left forever on September 9, 1965. Technically. But I can, and do, complain about the lack of any legal protection beyond the tiny possibility that I might have resorted to a U.S. consulate abroad (“might” being the operative word, since equally I might resort to a Canadian consulate). Otherwise: no protection from foreign enemies, no protection from internal depredation and strife, and consequently, no lawful basis for extending an “internal”revenue jurisdiction beyond the territorial boundaries of the United States.
This extension begins in a fraudulent attempt to get around the territoriality requirement of the rule of law, proceeds through egregious inequality in that the taxed are not eligible for most benefits of the taxation, and ends in the hypocrisy of the U.S. refusal to recognize Locke’s first principle of legitimate taxation as regards American expatriates, having relied on the second to justify its revolution.
There is space on the shelf of tyrants. George III has shifted over to make room for the American Eagle.
I cannot raise a “rabble in arms” to fight this tyranny. But I can quit. And that I have done.
And so, there has been a shot fired round our deck, the Widow’s cork has flown and the champagne is flowing.
We are free at last.