The Sixteenth Amendment to the Constitution of the United States provides:

The original Constitution required direct taxes to be apportioned among the states in accordance with population. An income tax is not so apportioned, so the amendment was needed to authorize such parts of the income tax as would constitute "direct" taxes.

Some tax protestors claim that this amendment is not really part of the Constitution -- it was never ratified! Therefore, they say, the income tax is unconstitutional. This argument was popularized by Bill Benson in a book called "The Law That Never Was."

Surprisingly enough, this argument has a little something to it. When the Sixteenth Amendment was ratified by state legislatures in the early twentieth century, the versions that some states voted on contained minor textual errors. Some of them neglected to capitalize the word "States," one had "income" in place of "incomes," one said "remuneration" instead of "enumeration," one said "levy" instead of "lay," and so on.

If the states didn't all vote on the same, identical text for the Sixteenth Amendment, can the amendment really be considered ratified? When Congress makes a law, the House and the Senate must vote on the same text. Similarly, if the states didn't vote on the right text, one could argue that they didn't ratify the amendment. No Sixteenth Amendment, no income tax, the argument goes.

However, it seems that the amendment really was ratified. The alleged defects in the ratification process were considered at the time of ratification in 1913. The Solicitor of the Department of State convincingly explained why the minor textual variations in the versions the states voted on should be disregarded.

First, it seems that the state legislatures intended to ratify the amendment as proposed by Congress. They understood themselves to be voting to approve the proposed Sixteenth Amendment. The text set forth in their instruments of ratification was for recitation purposes only. The errors in the text were not proposals to change the text being ratified; they were just inadvertent errors that do not detract from the intention of the state legislatures to ratify the amendment as proposed.

Benson denies this. He claims that states deliberately altered the text of the proposed amendment. But the evidence just isn't there. In one of his court filings, Benson singles out Oklahoma as a particularly clear case. He says the facts "unequivocally show that Oklahoma intentionally amended what the United States Congress had proposed" (see page 2 of Benson's filing). But looking at Benson's own book (pp. 61-67), one can see that the Oklahoma legislature adopted what it called "A resolution ratifying an amendment proposed by the sixty-first Congress of the United States" (emphasis added). This resolution then begins its ratification by reciting that "Whereas . . . Congress . . . on Monday the fifteenth day of March, one thousand nine hundred and nine, by joint resolution proposed an amendment to the constitution of the United States, in words and figures as follows:" Then, it's true, the resolution misstates the text of the amendment (and pretty badly too). But it sure looks as though the Oklahoma legislators thought they were ratifying the amendment that Congress had proposed on the specified date and just misstated it. So even in a case that Benson himself singles out, it seems quite clear that the state legislature thought it was ratifying the Sixteenth Amendment, not proposing to change it.

Indeed, the states, when voting on a constitutional amendment, have no power to make changes to the amendment's text. They can only vote yes or no on the text that Congress has proposed to them. The stituation is not comparable to the passage of a bill through Congress, where either house can make amendments. Therefore, as the Solicitor of State noted, it "seems a necessary presumption, in the absence of an express stipulation to the contrary, that a legislature did not intend to do something that it had not the power to do, but rather that it intended to do something that it had the power to do, namely, where its action has been affirmative, to ratify the amendment proposed by Congress."

Moreover, as the Solicitor noted, similar textual problems had occurred in the state ratifications of the Fourteenth and Fifteenth Amendments, and those amendments had long been regarded as ratified. The applicable precedents, therefore, suggest that, where a state legislature votes to ratify a proposed amendment to the Constitution, minor textual errors in the recitation of the amendment in the state's instrument of ratification are to be disregarded.

Thus, it seems that the amendment really was ratified.

In addition, there is a strong argument that the declaration of the effectiveness of the amendment, made by Secretary of State Phliander Knox in 1913, must be considered definitive. The Secretary of State was at that time the government official charged with determining whether an amendment to the Constitution has been ratified (today it's the Archivist of the United States). The courts, although regarding themselves as empowered to determine the meaning of the Constitution and the laws, generally regard themselves as not competent to say what the definitive text of the Constitution and the laws is. When the Speaker of the House and the President of the Senate certify that Congress has enacted a certain bill text into law, the courts will not question whether that really happened: they will not inquire into whether the House and the Senate really voted on the proper text. This is known as the "enrolled bill rule." Similarly, the Supreme Court has held that when the Secretary of State certifies that an amendment to the Constitution has been ratified, no court is empowered to look behind that claim to determine whether it was really ratified. E.g., Leser v. Garnett, 258 U.S. 130 (1922). So whatever might have been the problem with the ratification of the Sixteenth Amendment, the Secretary of State considered it and decided that the amendment really was ratified, and that's it.

Finally, it is worth noting that the Sixteenth Amendment has been around for over 100 years now and has been considered and applied by courts, including the Supreme Court, in innumerable cases. As one court put it, "While this alone is not sufficient to bar judicial inquiry, it is very persuasive on the question of validity." It would take an extraordinarily strong argument to show that everyone has been wrong all this time, and the argument from minor textual problems in the ratification instruments just isn't strong enough.

For all these reasons, it seems clear that the Sixteenth Amendment really is part of the Constitution.

Certainly that has been the uniform holding of the courts in cases in which this argument has been raised. For some representative cases, see United States v. Benson, 941 F.2d 598 (7th Cir. 1991) (rejecting these arguments in a criminal case brought against the author of the "Law that Never Was" book); United States v. Foster, 789 F.2d 457 (7th Cir. 1986); Cook v. Spillman, 806 F.2d 948 (9th Cir. 1986) (calling the argument that the Sixteenth Amendment was never ratified "frivolous" and imposing sanctions of $1,500 on the party making it); United States v. House, 617 F.Supp. 237, 238-39 (W.D. Mich.1985).

So while this argument is not as utterly absurd as most tax protestor arguments, one can be confident that it would not succeed in any actual court proceeding.

And one last thing — even if the Sixteenth Amendment weren't properly ratified, that wouldn't mean that Congress couldn't impose an income tax. The Supreme Court case to which the Sixteenth Amendment was a response didn't hold that Congress couldn't impose an income tax; it held that Congress could not, without apportionment, impose a tax on income derived from property (e.g., rents). So even without the Sixteenth Amendment, most of the income tax, particularly including its application to wage and salary income, would still be valid. For details, see here.