Talk:Sixteenth Amendment to the United States Constitution/Archive 2

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Which states ratified it?

I certainly don't agree with the people who say the 16th Amendment was never fully ratified, but given that this is an interesting controversy, I think it would be useful if we provided a list of which states ratified the amendment. From the article as it is now, I can tell that some of them were Ohio, Illinois, Minnesota, Washington, and Missouri. Where could I find a list of the others? Jimpartame 17:01, 23 April 2006 (UTC)

See article.Robert A.West (Talk) 03:08, 24 April 2006 (UTC)

Didn't Alaska and Hawaii also ratify the entire Constitution (including the 16th Amd.) when admitted to statehood? bd2412 T 22:08, 24 April 2006 (UTC)

I thought so, but I couldn't find an on-line source for that. The 7th Circuit noted that additional states ratified later, and since there was no deadline on ratification, this has the effect of mooting any argument that seeks to invalidate one or a few states' ratifications. Not that it's needed, but it just adds a level of unreality to the arguments. Robert A.West (Talk) 01:38, 25 April 2006 (UTC)

Hmmmm - nothing in the Act of Congress admitting Alaska to statehood required ratification of the U.S. Constititution.[1] bd2412 T 19:30, 25 April 2006 (UTC)

No, but if memory serves, several states upon their admission took the trouble to ratify the amendments-to-date. There were also symbolic ratifications of various amendments as part of various Bicentennial celebrations in 1976 and 1987. An interesting question is what the article meant (before Septentrionalis's edit) happened on Feb 25, 1913. I had understood that was the date Knox received the 36th certification, but when did he make the proclamation? Robert A.West (Talk) 21:45, 25 April 2006 (UTC)

Claims of non-ratification

I removed the following unsourced and weasel-worded text:

Critics of Thomas's decision claim this fails to address Benson's strongest argument, which is that six state legislatures failed to obtain the required majorities in both legislative bodies, yet Secretary Knox counted these states as having ratified the 16th Amendment and that this constitutes prima facia evidence of fraud either by Secretary Knox or by the State authorities notifying Knox of ratification.

The allegation of Fraud is unsupported by any reliable source I can find. At minimum, the critics and states should be named; otherwise, this looks like urban legend. Robert A.West (Talk) 15:25, 8 June 2006 (UTC)

I concur with respect to the analysis by Robert A. West and in the removal of the weasel words. Famspear 19:17, 8 June 2006 (UTC)

The source is Benson's book of course. The critics include Benson himself as well as others who have corresponded with him concerning the pattern of rulings. As to the specific States, I'll see if I can locate the list given by Benson. I don't have his book. Jim Bowery 22:23, 8 June 2006 (UTC)

I found an old file listing the states Benson claimed failed to ratify the Amendment, not due to technicalities such as punctuation or wording change, but due to failure of both houses the respective state legislatures to ratify: Kentucky, Georgia, Kansas, New York, New Jersey and Vermont. I recall some confusion regarding Vermont but not the the precise issue. Moreover, in a footnote to U.S. vs STAHL there occurs this text: "He further argues that Secretary of State Knox committed fraud by certifying the adoption of the amendment despite these alleged errors." I believe that every single defendant has claimed fraud on the part of Knox and/or the State authorities of at least Kentucky, Georgia, Kansas, New York and New Jersey. Jim Bowery 22:56, 8 June 2006 (UTC)

I found another source for Benson's list of errata which differs from my list somewhat: [2] Apparently someone needs to get Benson's book and clear this up. Jim Bowery 23:15, 8 June 2006 (UTC)

This matter has already been "cleared up." The controversy surrounding the ratification of the Sixteenth Amendment, like the controversy regarding the ratification of the Fourteenth Amendment, is a legal matter and has already been resolved in the U.S. legal system. Every court that has been asked to consider the arguments raised by tax protesters -- that the Sixteenth Amendment was somehow not properly ratified -- has ruled against the tax protesters. See, for example, Ficalora v. Commissioner, 751 F.2d 85, 85-1 U.S. Tax Cas. (CCH) paragr. 9103 (2d Cir. 1984); Sisk v. Commissioner, 791 F.2d 58, 86-1 U.S. Tax Cas. (CCH) paragr. 9433 (6th Cir. 1986); and United States v. Stahl, 792 F.2d 1438, 86-2 U.S. Tax Cas. (CCH) paragr. 9518 (9th Cir. 1986), cert. denied, 107 S. Ct. 888 (1987). Indeed, if in some or all of these court cases, some "defendants" have claimed that there was fraud on the part of Secretary Knox or certain state authorities or anyone else, then that claim has obviously been rejected.

Mr. Benson's putative argument (assuming it was one of his arguments) -- that six state legislatures failed to obtain the required majorities in both legislative bodies, yet Secretary Knox counted these states as having ratified the 16th Amendment -- may or may not be Benson's "strongest" argument. Whether it was his "strongest" argument is probably not something that is verifiable for purposes of Wikipedia. As a legal matter, whether Knox counted certain states as having ratified the amendment certainly is not prima facie (not facia) "evidence" of fraud or anything else. Whether an amendment is really part of the U.S. Constitution is a legal question or a political question -- but not a question of fact and therefore not a question of evidence -- and thus not the basis for a prima facie showing of anything.

In a free country, anyone can second-guess a court decision -- for purposes of forming a personal opinion. However, in legal matters where parties actually litigate an issue, the decision of the court is determinative -- until and unless a higher court overrules, reverses, vacates, etc., that decision, or until the law being interpreted (whether Constitution, statute, treaty, etc.) is later changed, repealed, etc. Despite numerous attempts by litigants, no court has ever ruled that Secretary Knox committed fraud in certifying the ratification of the Sixteenth Amendment, and no court has ever ruled that the Sixteenth Amendment was not properly ratified.

This controversy has already been documented in this article and in the article on tax protesters. Indeed, as noted in the latter article, William J. Benson himself was unsuccessful with his Sixteenth Amendment argument when he had his own very serious legal problems. See United States v. Benson, 941 F.2d 598, 91-2 U.S. Tax Cas. (CCH) paragr. 50,437 (7th Cir. 1991). Benson was convicted of tax evasion and willful failure to file tax returns in connection with over $100,000 of unreported income. See United States v. Benson, 67 F.3d 641, 95-2 U.S. Tax Cas. (CCH) paragr. 50,540 (7th Cir. 1995). By the way, he was sentenced to four years in prison, and served time -- so I would think he tried pretty hard with his own "research" to "prove" in a court of law that the Sixteenth Amendment was not properly ratified. He was unable to do so, and we would not able to make his case for him here in the pages of Wikipedia. I'm not saying that I or any other editor is trying to "prove" Benson's case; I am saying that trying to persuade readers that Benson's "research" is "correct" would not be a proper use of Wikipedia.

This controversy is from a legal standpoint a tempest in a teapot, and is already described in at least two Wikipedia articles, as is the resolution of the controversy in the U.S. legal system. We can certainly continue to improve this and other articles, but as Wikipedia editors we cannot change the Constitution or the court decisions interpreting it. Wikipedia readers are free to form their own opinions for themselves, if they so desire, as to whether the U.S. legal system or, alternatively, Mr. Benson, a convicted felon, is "correct" about what the law is. That the Sixteenth Amendment was properly ratified as part of the United States Constitution, however, is well-settled law. Yours, Famspear 04:01, 9 June 2006 (UTC)

You're changing the subject. The subject was not the validity of the opinion of some random tax protester but what that opinion actually was as it pertains to the 16th Amendment. This is called relevant NPOV here in Wikipedialand. Jim Bowery 05:15, 9 June 2006 (UTC)

Dear fellow editor Jim Bowery: Yes, I agree that I changed the subject. In your last post you were writing that you found another source for Benson's list of errata which differs from your list, and you suggested that someone needs to get Benson's book to clear that up. I changed the subject a bit by instead commenting mainly on the text removed from the article by fellow editor Robert A. West, and the implications that could flow from leaving text like that in the article. My comments illustrate why (in my view) editor West's removal of that verbiage was well-advised. My comments relate to how the Wikipedia article itself should look, which is what this talk (discussion) page is supposed to be about.

I would argue that the essence of NPOV here in Wikipedia is presenting various points of view without taking a position as to whether any one viewpoint is "correct." However, Wikipedia NPOV does not entail giving equal weight to all sides (see below) and NPOV does not necessarily mean exhaustively documenting the details of every argument. And NPOV does entail making clear whether a particular position is the position accepted by the overwhelming weight of authorities on the subject, which is different from taking a position as to whether that majority viewpoint is "correct."

Actually, regarding Mr. Benson and his arguments, there is a third Wikipedia article -- and this one is specifically on Benson's book, The Law That Never Was. Perhaps more detail on what Mr. Benson did or did not say in his book might be more appropriate in that article than in the articles on the Sixteenth Amendment to the United States Constitution or Tax protesters, although duplication in articles is of course almost inevitable. This is art, not hard science. My reference to the matter having been already cleared up was a reference to the legal validity vel non of the points Benson raised, not specifically to your quest to clear up the matter to which you referred, so I apologize for not being clear.

One of the problems we have in Wikipedia is that a few editors try to use Wikipedia to persuade Wikipedia readers that a particular fringe, minority viewpoint about a topic is "correct" and that the majority viewpoint is "incorrect." One of the tenets of Wikipedia is, however, that Wikipedia, like other encyclopedias, does not give equal weight to minority, fringe viewpoints. The articles relating to Federal income taxation are intermittently used as "targets" by tax protesters with fringe, legally frivolous viewpoints to promulgate those viewpoints to the public -- and more specifically to misrepresent those views as being "correct" -- in the guise of an "authoritative" encyclopedia article. As part of the process of writing and editing in Wikipedia, many editors are watching for signs of that kind of abuse.

I also apologize if I'm doing too much "preaching to the choir" here. Yours, Famspear 14:42, 9 June 2006 (UTC)

It's one thing to say that the prevailing opinion is that a view point is nonsense. It's quite another to misportray that viewpoint. I think the problem here is that the viewpoint has not been properly portrayed either by the Wikipedia articles you cite nor by the courts. This creates a serious problem that cannot be resolved by reminding people they face imprisonment if they take seriously those viewpoints. Jim Bowery 15:58, 9 June 2006 (UTC)

Well, first, nobody faces imprisonment merely for taking any particular viewpoint seriously, except to the extent a person actually willfully engages in conduct that violates a criminal law. Second, I don't see that Wikipedia is trying to resolve the supposed problem that Mr. Benson's viewpoint "has not been properly portrayed" by reminding people they face imprisonment, etc. Third, the Wikipedia articles do not state that the "prevailing opinion" is that Mr. Benson's viewpoint is nonsense. The articles do essentially point out either expressly or impliedly that according to the U.S. courts Mr. Benson's arguments are without legal merit and, at this point, are now (I think, but maybe I'll have to double-check on this to be sure that the courts have actually used this term in the Benson-related cases) legally frivolous. That is not merely a matter of a "prevailing opinion" in the sense that you or I might have a personal opinion. That is a matter of law. Wikipedia articles on law may properly report the state of the law, which is Verifiable for purposes of Wikipedia.

Just as an aside, I'd like to point out that these terms, "without merit" and "frivolous," are technical, legal terms. The fact that these terms have negative, pejorative connotations is of no moment. Courts are in the business of rendering judgments. The officers who render judgments in court are called judges. Wikipedia's role as an encyclopedia is, to this extent, to report the state of the law. Under the U.S. legal system, which is based on the English common law system, the bulk of our law is case law (judge-made law), not just statutes. There is no part of U.S. law that recognizes Mr. Benson's contentions as being legally valid. We can report that in Wikipedia without "taking sides."

The determination that Benson's arguments are without legal merit is not merely my personal assessment. It is not "Wikipedia's" assessment. It is the assessment of the U.S. legal system, as stated by the courts in case law. That is easily Verifiable for purposes of Wikipedia. Under the rules, Wikipedia can report on that legal determination without "taking sides" on the issue of whether Mr. Benson is somehow "right" or "wrong."

If in fact Mr. Benson's viewpoint as expressed in his book has not been properly portrayed, however, there is a place in Wikipedia where this might be corrected: in the article on the book. Wikipedia editors can probably work together to portray or describe Mr. Benson's viewpoint "accurately" in that article. We just need to be careful to avoid implying that Wikipedia itself lends any particular credibility or weight to his viewpoint. Yours, Famspear 16:49, 9 June 2006 (UTC)

Perhaps the best thing to do is move the "Controversy" section to its own article, somewhat the way Holocaust Denial moved the Holocaust revisionist viewpoint to another article and merely makes reference to the fact that the prevailing opinion is that Holocaust revisionist viewpoints are not valid, but then link to an article concerning the history of that controversy. Likewise this article's controversy section should link not tax protesters but to Challenges to the 16th Amendment. tax protesters can then make reference to Challenges to the 16th Amendment. By "not valid" above I'm not meaning to replace, but to subsume, such things as legal rulings declaring Challenges to the 16th Amendment to be "nonjusticable", although if that is the real legal status of such challenges then "nonjusticable" should appear, rather than excerpts from court rulings on the relatively trivial matter of details in the formatting of the ratified Amendment. As things stand, this article gives the appearance that the courts justification for rejecting Benson's claim is that he is attempting to overturn nearly a century of law based on little more than errors in capitalization, spelling and punctuation. This portrayal of the courts is not fair to them nor to Benson. Jim Bowery 18:09, 9 June 2006 (UTC)

Well the thing is, that's exactly what Courts do - they go only as far as they have to in order to determine the issue. Although the courts have said that Benson's claims are without merit, the ruling rests on the fact that the court lacks the power to make a definitive decision as to Benson's claims because these claims challenge a political decision and are untimely. bd2412 T 18:36, 9 June 2006 (UTC)

Dear fellow editors: This is a bit tangential, but I did go back and add cites in the article to some cases where Benson's "not properly ratified" arguments were expressly deemed "frivolous" by the courts. Gotta run for now, but let's continue this discussion later! Yours, Famspear 19:35, 9 June 2006 (UTC)

I don't see the need for a new article on anti-16th-Amendment arguments: I think that creating it would risk giving undue weight to a fringe position. They are well summarized under Tax protester arguments already. Benson's specific flavor is properly covered in the article on his book. As for being unfair to Benson, the courts have pretty well torn his arguments into shreds -- something that they did not have to do if their rulings were purely based on non-timeliness. Take, for example, Seventh Circuit's opinion in the Thomas case. Appellant's arguments were considered carefully for four paragraphs, while timeliness and reviewability were only alluded to in the last sentence. The court thus leaves its options open if some future alleged amendment is promulgated in a transparently defective manner. Benson's arguments don't rise to that level. Robert A.West (Talk) 21:46, 9 June 2006 (UTC)

The proper link to [WP:NPOV#Undue_weight] has changed. I disagree that Benson's flavor is properly covered anywhere in Wikipedia. When all references to his argument focus on the items that his own website declares to be unimportant -- including the quotes from the relevant court rulings -- it gives the appearance that Wikipedia and the courts are behaving in an intellectually dishonest manner. It is the sort of thing that invites people to take his viewpoint more seriously rather than less. Jim Bowery 12:17, 10 June 2006 (UTC)

Regardless of the link one prefers, the policy has not changed. The article on The Law that Never Was does mention the fraud arguments. If more detail is appropriate, it should be there. Robert A.West (Talk) 13:41, 10 June 2006 (UTC)

More detail is appropriate in The Law that Never Was and less detail is appropriate in this article, and possibly in the tax protesters article. Specifically, it is appropriate to move the references to trivial deviations in the ratified copies of the amendments to a minor place in The Law that Never Was, consistent with Benson's argument stated at his website which deemphasizes them in his argument, and represent the court decisions in the most fundamental sense of what was actually ruled -- which is that the claims of nonratification are nonjusticable and, in the alternative, not timely. Jim Bowery 14:15, 10 June 2006 (UTC)

Or, in the alternative, the arguments presented are nonsense. If an issue is nonjusticiable, or not timely, there is no need for detailed consideration of the arguments themselves. The courts have made much of the fact that there is no evidence of fraud and the triviality of the discrepancies. Benson may now say that the discepancy arguments are unimportant, but they are the ones most frequently litigated, therefore the ones of most encyclopedic interest.

Strictly speaking, the courts cannot consider the arguments on their merits without claiming jurisdiction and asserting timeliness. At the same time, the courts have made it clear that the arguments are pretty bad, which is one reason that these are not the cases for clarifying when, if ever, the validity of a certification is justiciable. The whole issue of justiciability is still open -- if Secretary Rice tomorrow proclaimed the 28th Amendment prohibiting gay marriage, I would expect the court to slap it down as transparently defective, probably noting the immediate political furor as evidence. Robert A.West (Talk) 14:59, 10 June 2006 (UTC)

If Benson has changed his argument from the time of the court decisions to now then that should be stated in the article on his book. I don't think he did simply because the last time I looked at this issue was 12 years ago and at that time I had the impression that he had merely presented the minor errors for completeness and that the primary complaints were of non-ratification by at least one house in several states. The principle of jurisdiction seems to be controversial. Is the principle of timeliness controversial? If, for example, it was discovered that Sec. Knox did in fact commit fraud -- ie: it became transparent -- would the courts still flatly refuse to hear cases regarding the 16th amendment's legitimacy as law? Jim Bowery 21:06, 11 June 2006 (UTC)

Without having studied all the case law, I would suspect that the answer is probably that the courts would continue to rule that the Sixteenth Amendment is valid, which I think is what fellow editor Jim Bowery is really asking. Obviously, the courts have agreed to hear, and have heard, many cases regarding the Amendment's legitimacy, and have uniformly ruled that the Amendment is a valid part of the U.S. Constitution. The political question doctrine happens to be the legal doctrine the courts tend to cite, of course.

On the question of alleged fraud by Secretary Knox, "proving" fraud would presumably entail proving that a certain number of states really did not ratify the amendment, and that Knox knew that. This would be like trying to prove that any other amendment was not really ratified, or that the original constitution itself was not really ratified. This is a practical impossibility -- for what should be an obvious reason. If a particular state legislature really did not ratify a particular amendment, how would things go forward without the members of that legislature raising the political furor mentioned by editor Robert A. West in the Secretary Rice example?

On this point, the basic idea seems to be (1) that some states that were listed as having ratified the Amendment really did not ratify it, and (2) that Secretary Knox committed "fraud" by listing those states as having ratified it, and (3) that none of the members of the legislatures of those states noticed even though the Amendment was published as having been ratified by those same states or, if they did notice, they did not publicly object, and (4) that nobody else noticed the "fraud" from the year 1913 to the 1970s or 1980s or whenever the first court cases on this issue were brought, and (5) that Mr. Benson somehow did all this research and figured all this out, and (6) that Mr. Benson, when charged with criminal tax violations, was unable to prevail in court despite having done all this "research" on the Sixteenth Amendment, and (7) that no one else who has read his book and looked at Benson's "research" has ever been able to prevail in court on Benson's Sixteenth Amendment arguments, either. Is this about it? How easy or difficult would it be to "prove" that any state listed as having ratified the amendment did not "really" ratify it? I personally suspect that the answer is that it would be almost impossible to "prove" that any such state did not ratify it.

As a footnote, the officer responsible for certifying ratification of constitutional amendments is now the Archivist of the United States rather than the Secretary of State.

As in the time of Secretary Knox, the certification is nothing more than a ministerial act. The ratification itself is done by the states (by state legislatures or conventions), not by the Archivist or Secretary of State. I submit to you that it would be virtually impossible for the Secretary of State (or, now, the Archivist) to fraudulently certify the ratification of a constitutional amendment without the affected state legislatures screaming bloody murder. Even the CIA can't keep some of its most important secrets. The idea that Secretary of State Knox openly, deliberately, falsely listed one or more state legislatures as having ratified a constitutional amendment paving the way for the modern Federal income tax and that this supposed fraud did not provoke a political firestorm in the year 1913 is, in my opinion, laughable. Yours, Famspear 04:18, 12 June 2006 (UTC)

More to the point, the position is almost the definition of a fringe position with no standing among acknowledged experts. Every claim has been, at some point, called "frivolous" by an acknowledged expert (i.e. a Federal appellate judge), and no acknowledged expert has written in opposition. None. Benson does not qualify as an expert, and his book has been so thoroughly refuted as not to qualify as a reliable source. Robert A.West (Talk) 09:47, 12 June 2006 (UTC)

• I should add that I am speaking here with respect to this article. The book obviously is a valid primary source for the article on the book. Robert A.West (Talk) 09:48, 12 June 2006 (UTC)

I would suspect that the answer is probably that the courts would continue to rule that the Sixteenth Amendment is valid... Then timeliness seems controlling and one is left wondering why the appelate courts bothered hearing the cases to begin with. Jim Bowery 19:50, 12 June 2006 (UTC)

For a historical perspective, I did a quick search of the case law, and the earliest case I found where anyone argued that the Sixteenth Amendment was not properly ratified was in 1976: Ivey v. United States, 76-2 U.S. Tax Cas. (CCH) paragr. 9682 (E.D. Wisc. 1976). Ivey included the losing "Ohio was not really a state in the year 1913" argument. The earliest case where someone specifically cited Mr. Benson and his losing arguments that I found was in 1985: United States v. House, 617 F. Supp. 237, 87-2 U.S. Tax Cas. (CCH) paragr. 9562 (W.D. Mich. 1985). Mr. Benson himself testified in the House case. In House the court noted that the taxpayer specifically presented the argument that Kentucky had not ratified the Sixteenth Amendment, among other Benson arguments. Mr. House lost the case. So, let's see, if I can subtract correctly, from 1913 to 1976 is sixty-three years. From 1913 to 1985 is seventy-two years. Yours, Famspear 18:55, 12 June 2006 (UTC)

On the point about U.S. appellate courts bothering to hear these cases, good question. Appellate courts do generally hear lots of cases where the law is well-settled. Indeed, it may seem a bit counter-intuitive at first, but some of the most frequently litigated legal issues (especially in the tax law area) are those that are the most well-settled (i.e., all or virtually all the court decisions go the same way). Similarly, the mere fact that a litigant raises an issue that might be covered by the political question doctrine has little bearing on whether the appellate court will bother to hear the case. Indeed, under the adversarial system used in the U.S., the court generally wants to analyze the parties' briefs, and sometimes oral arguments as well, as part of the court's consideration of whether the political question doctrine or any other legal doctrine applies. Generally speaking, it's the parties themselves that raise the issues. Now, an appellate court might hear a particular case and dispose of it more or less summarily, without writing out a long, detailed, opinion -- or the court might give a particular issue a detailed, written analysis anyway, even if it's been litigated before a gazillion times. Of course, the more often a well-settled rule is re-litigated and simply has not even a faint shadow of merit, the more likely the courts are to rule that the losing contention is simply frivolous, and perhaps dispose of the issue without detailed discussion. I guess the reason the courts "bother" to hear these cases is so that they can do their job -- namely, deciding those cases. Yours, Famspear 20:18, 12 June 2006 (UTC)

I'm still confused about the timeliness doctrine. It seems that if something is "now beyond review" due to a timeliness doctrine then it should be obvious on the face of it that there is no appeal. Is there a timeliness doctrine regarding allegations of fraud? If not then what is really controlling these rulings? A whole bunch of partially explored arguments in the alternative doesn't sound like the basis of solid law. Jim Bowery 02:58, 13 June 2006 (UTC)

OK, I think I see where the hang up is: it's the word "review," which is being used in two slightly different but somewhat related senses. I'll call them "Review A" and "Review B."

Review A (an Appeal): For simplicity I'll just call this the legal concept of an appellate court's review of a lower court decision. To understand this sense of the word "review," forget about the Sixteenth Amendment and the political question doctrine. This sense of review refers to the ordinary "review" of a trial court decision by an appellate court, or a higher appellate court's review of a lower appellate court's decision, etc. In other words, an appeal. The appellate court is reviewing the lower court's decision for possible errors in the application of laws. That's a hearing on a APPEAL. A decision by the appellate court is a decision resulting from the appeal. If a trial court renders what's called a final judgment -- a judgment that can be appealed -- the "losing" party may decide to "appeal." Both sides go to the appellate court, arguing that the trial court did or did not apply a particular point or points of law correctly, and the appellate court makes a decision.

Review B: The court language to the effect that the ratification of the Sixteenth Amendment is now "beyond review" refers to the application of the political question doctrine (not to any refusal to hear an appeal). When a court says the ratification of a constitutional amendment is "beyond review" (the ratification being an action by the states) or the impeachment of a government official is "beyond review" (impeachment being an action by the Legislative Branch) or the decision to recognize a foreign country for diplomatic purposes is "beyond review" (diplomatic recognition being an action by the Executive Branch), the court is NOT referring to a refusal to hear an "appeal." The court is simply saying that the court will not second guess the actions of the states, or of another branch of government. Let's say the issue is whether the United States should recognize Iran diplomatically. Suppose the President instructs the Secretary of State to recognize Iran. Somebody (called a "plaintiff," let's say) sues the Secretary of State to try to block the diplomatic recognition on the ground that Iran allegedly supports terrorists, or whatever (for the sake of discussion, forget about possible "sovereign immunity" problems, "standing" problems, or other legal impediments that might throw the plaintiff out). The case goes to trial. (Remember, this is a trial court, not an appellate court. We're not to the point of "appeals" yet.) The trial court instructs both sides to submit written briefs. The court makes procedural rulings. The court hears oral arguments. Finally, the court decides the case -- ruling that the political question doctrine applies, and that the court will not block diplomatic recognition for Iran. That decision, based on the political question doctrine, is not a denial of an appeal. That is not a refusal to hear the case. That is a decision rendered -- after hearing a case. Now suppose the plaintiff appeals. In the appellate court, the parties go through the same process. The appellate court then "affirms" (upholds) the decision of the trial court that the political question doctrine applies. Again, the plaintiff has not been denied the opportunity to appeal. The plaintiff has not been denied the opportunity to be heard. The plaintiff has simply lost the case.

I think you're a bit hung up on the "fraud" thing. Forget about "fraud." The whole point of the political question doctrine is that the court is not going to second guess the political acts of another branch of government, etc., and therefore the court determines it's pointless to decide the specifics of whatever the parties are alleging. In other words, the court does not need to decide whether Iran supports terrorists. In another case it might be an allegation of fraud, it might be something else. It varies from case to case. Again, we're not talking about the denial of an "appeal" here. We're not talking about the court "not hearing the case" that was decided by a lower court. We're not even talking about a lower court "refusing to hear the case." The court (whether trial court or appellate) is agreeing to hear the case, and IS HEARING the case. The parties file pleadings and briefs just as in any other case. They argue their case before the judge, and the judge makes a decision. We're talking about a legal doctrine called the political question doctrine that determines HOW the court will DECIDE the case that IS BEING HEARD. The doctrine basically says courts decide legal issues, not political issues. That's an oversimplification -- and perhaps not a very satisfactory explanation if you haven't studied the doctrine in depth. But I think it will make more sense if you understand that a court's decision not to "decide" a "political question" IS ITSELF A DECISION. It's a decision that the political question doctrine applies to that particular dispute, and it's a decision that the court is not going to overturn the political action of the other branch of government or the states, etc.

Thus, when you say that the issue is now beyond review due to a timeliness doctrine "then it should be obvious on the face of it that there is no appeal" you are incorrect. The "review" we're talking about when we say the issue is "beyond review" is "Review B," whereas when we use the term "appeal" (a higher court reviewing a lower court's decision) we are talking about "Review A," if that makes sense.

I know this is pretty dense stuff, and believe me I am no expert on the political question doctrine, so I'm probably not explaining it in the most artful way. Anyway, I hope this explanation helps some. Yours, Famspear 04:02, 13 June 2006 (UTC)

Oh, and on the question about whether there is a "timeliness doctrine" on questions of fraud, I think the answer is that timeliness is just one aspect of the political question doctrine. It's not so much that "too much time has passed for us to look at the details of these fraud allegations" if we can put it that way. It's more that too much time has passed for us to look at the details of ANY allegations that the Sixteenth Amendment was not properly ratified. Timeliness is just part of it. Recall the example of the diplomatic recognition of Iran. Timeliness was not even a factor in that example. Obviously, in the case of the Sixteenth Amendment, the lack of timeliness is a huge factor in deciding that the political question doctrine applies. The lack of timeliness itself would be bad enough (the seventy-two year gap from 1913 to 1985 where, apparently, no one raised these issues in court), but the lack of a history of any political furor over the ratification of the amendment just makes the whole argument about "fraud" lack any credibility. It's pretty easy to apply the political question doctrine to say "the court is not going to get into all the details about whether the Secretary did or did not commit fraud" when, at least as far as we can tell, the state legislators of all these states who were supposedly "defrauded" never whipped up a firestorm about the supposed "fraud," and nobody else raised the issue for seventy-two years. Are we to believe that Congress just started imposing income taxes without apportionment, and people started paying taxes, and the states that did not "really" ratify just went along with it, and the people who did mind paying income taxes and who challenged the laws on various grounds over the years just never thought to challenge the supposedly "fraudulent" certification -- until the year 1985, in which a baby born in 1913, the year the "fraud" supposedly occurred, would have reached the ripe age of seventy-two years? Yeah, right. Famspear 04:44, 13 June 2006 (UTC)

Good explanation of the two meanings of "review". I hadn't thought about it quite so clearly. Robert A.West (Talk) 08:35, 13 June 2006 (UTC)