Roger Conklin wrote: Petros, I forwarded your comments to a friend of mine who is much more conversant in the items you highlighted in your last post. I am taking the liberty of pasting his response to me. He seems to think it is more complicated. His comments are as follows: [My responses follow in blue]
There is actually no fundamental right to expatriate either explicit or implied in the Bill of Rights. It simply would never have occurred to our Founding Fathers that our country, founded as the beacon of freedom and liberty, would ever have sunk to such a low place. The Declaration of Independence states that if government gets to this point it is our right and duty to abolish a tyrannical regime. Not likely is it? It is a right under the UN Declaration of Human Rights, however, and in so far as treaty law trumps Constitutional law, this is what makes it so. Again, though, it isn’t un-Constitutional until or unless either Congress makes it so, or the Supreme Court judges it so. Since we simply have no power in Congress, forget that avenue. The courts have always been our best bet, but that requires someone being willing to step up and be the test case and spend the money to challenge – AND, of course, the Supremes have to be willing to accept the challenge.
The fundamental right to expatriate rests upon the Declaration of Independence setting the foundation for an entire country of people who expatriated from Britain. This fundamental right is protected in the Bill of Rights by the Ninth Amendment, and it is confirmed in Federal Law by Congress in Expatriation Act of 1868 and Freedom of Emigration in East-West Trade, USC Title 19 § 2432. Even the State Department recognizes the right to expatriate, as does the Universal Declaration of Human Rights of the United Nations: “(1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” May I remind readers that the United States is a founding and permanent member of the Security Council of the United Nations and voted for the Declaration in 1948?
Remember there are a great many people who believe that the South should have been allowed to secede from the USA in 1860. But nothing in the Constitution gives them that right either. On the contrary, the signing of the Constitution by the representatives of ALL states admitted to the Union has been deemed a one-way contract.
To be sure, since Lincoln prevented the southern states from expatriating The Civil War was a great blow to the right to expatriateand the 10th amendment. Nevertheless, Congress affirmed the right to expatriate in the Expatriation Act of 1868, after the Civil War, citing the Declaration of Independence.
In practical terms, if someone has a second nationality, he/she doesn’t really need a formal renouncement of US citizenship; they simply ignore the US government’s right, and chooses to have their rights protected under the other nationality. That person, of course, can never set foot on US soil again, but that’s the point.
Stating that the person may never step foot in the United States again is too categorical. It really depends on the nature of the claims that the United States makes against the person. If a person consider him or herself a citizen of Canada or another country, in all likelihood, he or she will be able to travel freely to the United States. I don’t see, for example, even I were deemed to be a covered expatriate, why I should fear going to the United States at all, except of course, that I am a vocal ringleader at the Isaac Brock Society. Still I have been convicted of breaking no laws, except perhaps the laws against free speech and freedom of the press. If need pressed, I think that I would go, taking my CLN and my Canadian passport. I might also have my lawyer sister check to see if there is a Federal warrant for my arrest.
Again, it was because none of our Founding Fathers could have ever imagined why our union, governed by the Constitution and the subsequent Bill of Rights, wouldn’t have provided adequate safeguards and guarantees for the individual – and states – that they would ever want anything else.
The extra-territoriality of the imposition of taxes on expat Americans HAS been determined by several Supreme decisions. Hence the Solicitor General’s position should something ever come up would undoubtedly be that it has the right – and indeed duty – to treat all Americans the same with respect to taxation no matter where they live. It could be argued that the IRS is not, in fact, treating expats in the same manner but more harshly, and therefore has exceeded its authority. They would say, they are only following legislation passed by Congress.
Well, that just fine. The Supreme Court has no jurisdiction where I live in Canada. How can their decisions then be “constitutional” for someone like me, who has no representation in Congress. Expats are considered resident in Washington DC. This is a fiction. Surely, the IRS is, as you say, treating expats more harshly than residents of the United States, by treating the expats domestic bank accounts (in their country of residence) as though they were foreign accounts in which they are trying to launder money or hide income. This is a violation of natural right, recognized as such in the English Speaking worlds for several centuries and Congress wishes to violate it through FBAR. A man’s house is his castle.
The 16th Amendment authorizing income tax is decidedly open: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
Such a sweeping statement, “without apportionment”, nevertheless does not permit taxation without representation as we expats experience, not being counted in the census. This is about each state paying taxes without concern of their respective populations, since in earlier tax law, every state only paid a tax proportional to their respective populations.
There are points on which to argue certain aspects: [I have no responses to the following statements at this time]
1. The 5th amendment protects a person from self-incrimination and provides for due process. It can be argues that many of the documents demanded by the IRS constitute self-incrimination, and that the system does not provide due process except at unfair costs and hardships on any who challenges.
2. The 8th amendment: ” Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It can be argued that paying any fine whatsoever to the IRS simply for lack of correctly filling out the forms when no taxes are due is indeed “excessive” AND “cruel and unusual punishments” particularly since expats have no effective due process available, no representation, and indeed, are judged guilty by the IRS without due process.
3. The 10th amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since expats are effectively outside of the governance of a state, and since nothing whatsoever in the Constitution makes extraterritoriality a Federal power, one could argue that ALL issues of extraterritoriality are outside of the purview of the Federal government, and therefore, it should be left to “the people” themselves how to behave. It would be an enormous legal somersault to argue, but there are connections here. Since the Constitution grants the President to enter into treaties with foreign entities which must be approved by the Senate, it ipso facto creates an acknowledgement of territorial limitation of the powers of Congress and Constitution. Indeed, ALL subsequent acts acknowledge a respect for territorial limitations of the state except taxation and citizenship.
4. The 13th amendment: “Neither slavery nor involuntary servitude except as punishment for a crime whereby the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction.” [my emphasis]. This has two pieces of interest: (a) It could be argued that the process for expatriation is “involuntary servitude”; and (b) again the IRS fines being imposed is guilty without being convicted; and the phrase “any place subject to their jurisdiction” would actually in this case definitely include expatriates.
But, as I said, all of this is great in theory, but unless or until someone is willing to undergo the expense to prove these issues, and the Supreme Court agrees to hear it, the Federal government is free to harass anyone they want! Knowing one’s “rights” or assumed rights isn’t the same as being able to implement and enforce them.