To Abolish the Star Chamber

16 Car. 1, c. 10.

A. D. 1640.

An Act for the Regulating of the Privy Council, and for taking away the Court commonly called the Star Chamber.

“Whereas by the Great Charter many Times confirmed in Parliament, it is enacted, That no Freeman shall be taken or imprisoned, or disseised of his Freehold or Liberties, or Free Customs, or be outlawed or exiled or other wise destroyed, and that the King will not pass upon him or condemn him, but by lawful Judgment of his Peers, or by the Law of the Land: and by another Statute made in the fifth Year of the Reign of King Edward the Third, it is enacted, that no Man shall be attached by any Accusation, nor forejudged of life or limb, nor his Lands, Tenements, Goods nor Chattels seized into the King’s Hands, against the Form of the Great Charter, and the Law of the Land: and by another Statute made in the five and twentieth Year of the Reign of the same King Edward the Third, It is accorded, assented and established, That none shall be taken by Petition or Suggestion made to the King, or to his Council, unless it be by Indictment or Presentment of good and lawful People of the same Neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ Original at the Common Law, and that none be put out of his Franchise or Freehold, unless he be duly brought in to answer, and forejudged of the same by the Course of the Law, and if any Thing be done against the same, it shall be redressed and holden for none: And by another Statute made in the eight and twentieth Year of the Reign of the same King Edward the Third, it is amongst other Things enacted, That no Man of what Estate or Condition soever he be, shall be put out of his Lands or Tenements, nor taken, nor imprisoned, nor disinherited, without being brought in to answer by due Process of Law: And by another Statute made in the two and fortieth Year of the Reign of the said King Edward the Third, It is enacted, That no Man be put to answer, without Presentment before Justices, or Matter of Record, or by due Process and Writ Original, according to the old Law of the Land, and if any Thing be done to the contrary, it shall be void in Law and holden for Error: And by another Statute made in the six and thirtieth Year of the same King Edward the Third, It is amongst other Things enacted, That all Pleas which shall be pleaded in any Courts before any the King’s Justices, or in his other Places, or before any of his other Ministers, or in the Courts and Places of any other Lords within the Realm, shall be entered and enrolled in Latin; And whereas by the Statute made in the third Year of King Henry the Seventh, Power is given to the Chancellor, the Lord Treasurer of England for the Time being, and the Keeper of the King's Privy Seal, or two of them, calling unto them a Bishop and a Temporal Lord of the King’s most Honourable Council, and the two Chief Justices of the King’s Bench and Common Pleas for the Time being, or other two Justices in their Absence, to proceed as in that Act is expressed, for the Punishment of some particular Offences therein mentioned; And by the Statute made in the one and twentieth Year of King Henry the Eighth, the President of the Council is associated to join with the Lord Chancellor and other Judges in the said Statute of the Third of Henry the Seventh mentioned; but the said Judges have not kept themselves to the Points limited by the said Statute, but have undertaken to punish where no Law doth warrant, and to make Decrees for Things having no such Authority, and to inflict heavier Punishments than by any Law is warranted,—

II. “And forasmuch as all Matters examinable or determinable before the said Judges, or in the Court commonly called the Star-Chamber, may have their proper Remedy and Redress, and their due Punishment and Correction, by the Common Law of the Land, and in the ordinary Course of Justice elsewhere; and forasmuch as the Reasons and Motives inducing the Erection and Continuance of that Court do now cease; and the Proceedings, Censures and Decrees of that Court, have by Experience been found to be an intolerable Burthen to the Subjects, and the Means to introduce an arbitrary Power and Government; and forasmuch as the Council-Table hath of late Times assumed unto itself a Power to intermeddle in Civil Causes and Matters only of private Interest between Party and Party, and have adventured to determine of the Estates and Liberties of the Subject, contrary to the Law of the Land and the Rights and Privileges of the Subject, by which great and manifold Mischiefs and Inconveniences have arisen and happened, and much Incertainty by Means of such Proceedings hath been conceived concerning Men’s Rights and Estates;” for settling whereof, and preventing the like in Time to come;

III. Be it ordained and enacted by the Authority of this present Parliament, That the said Court commonly called the Star-Chamber, and all Jurisdiction, Power and Authority belonging unto, or exercised in the same Court, or by any of the Judges, Officers or Ministers thereof, be from the first Day of August in the Year of our Lord God one thousand six hundred forty and one, clearly and absolutely dissolved, taken away and determined; and that from the said first Day of August neither the Lord Chancellor, or Keeper of the Great Seal of England, the Lord Treasurer of England, the Keeper of the King’s Privy Seal, or President of the Council, nor any Bishop, Temporal Lord, Privy Councillor or Judge, or Justice whatsoever, shall have any Power or Authority to hear, examine or determine any Matter or Thing whatsoever, in the said Court commonly called the Star-Chamber, or to make, pronounce or deliver any Judgment, Sentence, Order or Decree, or to do any Judicial or Ministerial Act in the said Court: And that all and every Act and Acts of Parliament, and all and every Article, Clause, and Sentence in them, and every of them, by which any Jurisdiction, Power or Authority is given, limited or appointed unto the said Court commonly called the Star-Chamber, or unto all or any the Judges, Officers or Ministers thereof, or for any Proceedings to be had or made in the said Court, or for any Matter or Thing to be drawn into Question, examined or determined there, shall for so much as concerneth the said Court of Star-Chamber, and the Power and Authority thereby given unto it, be from the said first Day of August repealed, and absolutely revoked and made void.

IV. And be it likewise enacted, That the like Jurisdiction now used and exercised in the Court before the President and Council in the Marches of Wales; (2) and also in the Court before the President and Council established in the Northern Parts; (3) and also in the Court commonly called the Court of the Duchy of Lancaster, held before the Chancellor and Council of that Court; (4) and also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Council of that Court; (5) the like Jurisdiction being exercised there, shall from the said first Day of August one thousand six hundred forty and one, be also repealed and absolutely revoked and made void; any Law, Prescription, Custom or Usage, or the said Statute made in the third Year of King Henry the Seventh, or the Statute made in the one and twentieth of Henry the Eighth, or any Act or Acts of Parliament heretofore had or made, to the contrary thereof in any wise notwithstanding: (6) And that from henceforth no Court, Council or Place of Judicature, shall be erected, ordained, constituted or appointed within this Realm of England, or Dominion of Wales, which shall have, use or exercise the same or the like Jurisdiction as is or hath been used, practised or exercised in the said Court of Star Chamber.

V. Be it likewise declared and enacted by Authority of this present Parliament, That neither his Majesty, nor his Privy Council, have or ought to have any Jurisdiction, Power or Authority, by English Bill, Petition, Articles, Libel, or any other arbitrary Way whatsoever, to examine or draw into Question, determine or dispose of the Lands, Tenements, Hereditaments, Goods or Chattels of any the Subjects of this Kingdom; but that the same ought to be tried and determined in the ordinary Courts of Justice, and by the ordinary Course of the Law.

VI. And be it further provided and enacted, That if any Lord Chancellor, or Keeper of the Great Seal of England, Lord Treasurer, Keeper of the King’s Privy Seal, President of the Council, Bishop, Temporal Lord, Privy Counsellor, Judge or Justice whatsoever, shall offend, or do any Thing contrary to the Purport, true Intent and Meaning of this Law, then he or they shall for such Offence forfeit the Sum of five hundred Pounds of lawful Money of England unto any Party grieved, his Executors or Administrators, who shall really prosecute for the same, and first obtain Judgment thereupon, to be recorded in any Court of Record at Westminster, by Action of Debt, Bill, Plaint or Information, wherein no Essoin, Protection, Wager of Law, Aid Prayer, Privilege, Injunction or Order of Restraint, shall be in any wise prayed, granted or allowed, nor any more than one Imparlance: And if any Person against whom any such Judgment or Recovery shall be had as aforesaid, shall after such Judgment or Recovery offend again in the same, then he or they for such Offence shall forfeit the Sum of one thousand Pounds of lawful Money of England unto any Party aggrieved, his Executors or Administrators, who shall really prosecute for the same, and first obtain Judgment thereupon to be recorded in any Court of Record at Westminster, by Action of Debt, Bill, Plaint or Information, in which no Essoin, Protection, Wager of Law, Aid Prayer, Privilege, Injunction, or Order of Restraint, shall be in any wise prayed, granted or allowed, nor any more than one Imparlance: And if any Person against whom any such second Judgment or Recovery shall be had as aforesaid, shall after such Judgment or Recovery, offend again in the same Kind, and shall be thereof duly convicted by Indictment, Information or any other lawful Way or Means, that such Person so convicted shall be from thenceforth disabled, and become by Virtue of this Act incapable, ipso facto, to bear his and their said Office and Offices respectively; and shall be likewise disabled to make any Gift, Grant, Conveyance, or other Disposition of any of his Lands, Tenements, Hereditaments, Goods or Chattels, or to take any Benefit of any Gift, Conveyance, or Legacy to his own use.

VII. And every Person so offending shall likewise forfeit and lose unto the Party grieved, by any Thing done contrary to the true Intent and Meaning of this Law, his treble Damages which he shall sustain and be put unto by Means or Occasion of any such act or Thing done, the same to be recovered in any of his Majesty’s Courts of Record at Westminster, by Action of Debt, Bill, Plaint or Information, wherein no Essoin, Protection, Wager of Law, Aid Prayer, Privilege, Injunction, or Order of Restraint, shall be in any wise prayed, granted or allowed, nor any more than one Imparlance.

VIII. And be it also provided and enacted, That if any Person shall hereafter be committed, restrained of his Liberty, or suffer Imprisonment, by the Order or Decree of any such Court of Star-Chamber, or other Court aforesaid, now or at any Time hereafter having or pretending to have the same or like Jurisdiction, Power or Authority to commit or imprison as aforesaid, or by the Command or Warrant of the King’s Majesty, his Heirs or Successors, in their own Person, or by the Command or Warrant of the Council-Board, or of any of the Lords or others of his Majesty’s Privy Council; that in every such Case every Person so committed, restrained of his Liberty, or suffering Imprisonment, upon Demand or Motion made by his Council, or other employed by him for that Purpose, unto the Judges of the Court of King’s Bench or Common Pleas, in open Court, shall without Delay, upon any Pretence whatsoever, for the ordinary Fees usually paid for the same, have forthwith granted unto him a Writ of Habeas Corpus, to be directed generally unto all and every Sheriffs, Gaoler, Minister, Officer, or other Persons in whose Custody the Party committed or restrained shall be, and the Sheriffs, Gaoler, Minister, Officer or other Person in whose Custody the Party so committed or restrained shall be, shall at the Return of the said Writ, and according to the Command thereof, upon due and convenient Notice thereof given unto him, at the Charge of the Party who requireth or procureth such Writ, and upon Security by his own Bond given, to pay the Charge of carrying back the Prisoner, if he shall be remanded by the Court to which he shall be brought, as in like Cases hath been used, such Charges of bringing up and carrying back the Prisoner to be always ordered by the Court, if any Difference shall arise thereabout, bring or cause to be brought, the Body of the said Party so committed or restrained unto and before the Judges or Justices of the said Court from whence the same Writ shall issue, in open Court, and shall then likewise certify the true Cause of such his Detainer or Imprisonment, and thereupon the Court, within three Court-Days after such Return made and delivered in open Court, shall proceed to examine and determine whether the Cause of such Commitment appearing upon the said Return be just and legal, or not, and shall thereupon do what to Justice shall appertain, either by delivering, bailing, or remanding the Prisoner: And if any Thing shall be otherwise wilfully done or omitted to be done by any Judge, Justice, Officer, or other Person aforementioned contrary to the Direction and true Meaning hereof, that then such Person so offending shall forfeit to the Party grieved his treble Damages, to be recovered by such Means, and in such Manner as is formerly in this Act limited and appointed for the like Penalty to be sued for and recovered.

IX. Provided always, and be it enacted, that this Act and the several Clauses therein contained shall be taken and expounded to extend only to the Court of Star-Chamber, and to the said Courts holden before the President and Council in the Marches of Wales, and before the President and Council in the Northern Parts, and also to the Court commonly called the Court of the Duchy of Lancaster, holden before the Chancellor and Council of that Court, and also in the Court of Exchequer of the County Palatine of Chester, held before the Chamberlain and Council of that Court, and to all Courts of like Jurisdiction to be hereafter erected, ordained, constituted, or appointed, as aforesaid; and to the Warrants and Directions of the Council Board, and to the Commitments, Restraints, and Imprisonments, of any Person or Persons made, commanded, or awarded, by the King’s Majesty, his Heirs or Successors, in their own Person, or by the Lords and others of the Privy Council, and every one of them.

X. And lastly provided, and be it enacted, That no Person or Persons shall be sued, impleaded, molested, or troubled, for any Offence against this present Act, unless the Party supposed to have so offended shall be sued or impleaded for the same within two Years at the most after such Time wherein the said Offence shall be committed.

Days Late

June 12 was the 137th anniversary of the Virginia Declaration of Rights.

Sometimes, history is funny

While I was looking for images of the Virginia Declaration of Rights (prompted by its 237th anniversary, today), I found this instead.

Notable parts of it include the claim that "the political woman will be a menace to society, to the home and to the state" and the offer of additional free literature on this subject (suggesting that author may have expected that readers would find these arguments so compelling that they would think, "Somehow, I need to find a way to get more literature of this kind").

Edward Coke owes his excellence to his access to a time machine

Also, Edward Coke lived in the 17th century.

A Gift From 1816

As Indiana’s bicentennial is now only four years away – and with that, the 200th anniversary of the adoption of the State’s first constitution – I propose that we amend Indiana’s current constitution to restore an important part of the original, which was replaced when Indiana’s second (and current) constitution took effect in 1851.

Our original (1816) constitution’s Bill of Rights began, “That the general, great and essential principles of liberty and free Government may be recognized and unalterably established; WE declare, That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights; among which are the enjoying and defending life and liberty, and of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”

This language, which is noticeably similar to one of the most memorable parts of the Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness”), was actually drawn from an early Pennsylvania constitution, which itself had adopted (with a slight modification) the language of the Virginia Declaration of Rights, which was adopted about two months before the Declaration of Independence. Twenty-one state constitutions currently include this or something like it, including Virginia and West Virginia, which use the older version from the Virginia Declaration of Rights. The very close Massachusetts variant, adopted in 1780, was used to bring about the end of slavery there, making it the first of the United States to do so. Later, in 1847, in Liberia, when former American slaves and their descendants formed a republic and constitution for themselves, they chose to incorporate into that constitution this same language that Pennsylvania, Indiana, and other American states had used.

At Indiana’s 1850 - 1851 constitutional convention, a delegate named Watts initially proposed carrying the 1816 language over into our new (and now current) constitution, but at the suggestion of another delegate, he agreed to replace it with the more elegant but less specific language of the Declaration of Independence, which ultimately was used. The only reason given for the change was to invoke and honor Jefferson and other contributors to the Declaration. Records of the debates and proceedings of the convention show delegates using the two versions interchangeably, with some delegates, including Watts, indicating that they believed the two versions to have the same meaning (though later on in the convention, Watts attempted to change the wording back to the 1816 version, explaining that the Declaration version did not include everything that he had thought that it included). Ultimately, the Declaration version was used, and it remains in Indiana’s constitution today (altered only by a 1984 amendment which replaced the word “men” with “people”).

The Hoosiers of 1851 were right to understand the rights to “life, liberty, and the pursuit of happiness” as having a certain, settled meaning which extends to the defense of life and liberty, the just acquisition, possession, and protection of property, and the pursuit of happiness and safety. However, these rights can only be applied in their long-established meaning, in practice, so long as the people, the legal community, and the judges of the state remain aware of that meaning. Unfortunately, through no fault of their own (after all, unless they had somehow been notified that the meaning and effect of natural rights had already been well-discussed, established, and settled, why would people go looking for that information, and how would they know where to look?), this no longer seems to be common knowledge, even among lawyers or judges. 1

If our legal system is unable or unwilling to vindicate the great rights of “Life, Liberty, and the Pursuit of Happiness” when they are stated in these general terms, then let us be more specific. We can begin by restoring the details that were declared and established by the first Hoosiers, in 1816.

1. In Doe v. O’Connor, in 2003, though the Indiana Supreme Court did not ultimately apply this section or state its understanding of it, the Court’s review of other states’ courts’ treatment of similar sections of their own constitutions strongly implies that it would treat our own Article I, Section I as though it were only a vague mission statement rather than binding law – notwithstanding that the Court has given effect to that section on previous occasions. (Indeed, if conclusions can be drawn from that portion of Doe v. O’Connor, the Court may well even be hesitant to apply the more specific, 1816 language; however, even if the change has no other effect, I would hope that the Court could be persuaded at least to recognize the right to defend life, liberty, and property – traditionally known as the “First Law of Nature” – which the 1816 language would clearly embed.)

More from Gibbons v. Ogden, and more concerning the American Revolution

This is a bit more substantial than the previous post:

"It is true, that duties may often be, and in fact often are, imposed on tonnage, with a view to the regulation of commerce; but they may be also imposed with a view to revenue; and it was, therefore, a prudent precaution, to prohibit the States from exercising this power.  The idea that the same measure might, according to circumstances, be arranged with different classes of power, was no novelty to the framers of our constitution.  Those illustrious statesmen and patriots had been, many of them, deeply engaged in the discussions which preceded the war of our revolution, and all of them were well read in those discussions.  The right to regulate commerce, even by the imposition of duties, was not controverted; but the right to impose a duty for the purpose of revenue, produced a war as important, perhaps, in its consequences to the human race, as any the world has ever witnessed."

The regulation of commerce may be accomplished by means which raise a revenue, and the raising of revenue (using taxes) may be accomplished by means which regulate commerce.  This might be diagrammed using the familiar diagram of two overlapping circles, where the section of overlap is a tax (by any name) which regulates commerce, or at least which is designed to regulate commerce as it brings in revenue.  During the Revolutionary War, the Founders opposed the imposition of taxes for the purpose of raising a revenue where it was not a bona fide regulation of imperial commerce, but NFIB v. Sebelius has brought before us (or, at least, made us conscious of) the matter of regulations -- of something other than commerce among the several states -- which are not bona fide revenue-raising levies.  The overlap between taxes and regulation did not stymie the First Continental Congress.  Maybe we should follow its lead, and draw the line at the boundary between good faith and bad.

Gibbons v. Ogden and NFIB v. Sebelius

Please forgive the absolute lack of context:

"In imposing taxes for State purposes, they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States."

Here is a link, in case you are interested in knowing what the Court was actually considering.  I guarantee that this would qualify, at best, as obiter dicta, but still ...

McCulloch v. Maryland and NFIB v. Sebelius

I just re-read McCulloch v. Maryland for the first time since the Supreme Court decision on the health care bill was "handed down," and I was surprised to find that the reasoning, though not necessarily the holding, of McCulloch was very arguably hostile to the understanding of the federal taxing power that was employed by Chief Justice Roberts in his opinion.  (I should admit up front that other parts of the McCulloch opinion tend to favor holding the taxing power to nevertheless extend beyond the distinctions recognized in McCulloch, so I am not making the claim that McCulloch itself, as a precedent, stands or stood against Chief Justice Roberts' opinion -- the importance of it is that such crucial distinctions were understood and recognized early in the Constitution's existence.)

On its face, McCulloch may seem to have little similarity to the health care case, NFIB v. Sebelius -- it concerns the extent of the power of the states to impose a tax directly and specifically on an enterprise of the federal government (which the Court had just determined to be constitutional), and the extent and contours of the power of Congress to impose taxes was not even considered.  However, at several points, the Court recognizes that a tax for certain purposes, or with certain effects and apparent purposes, may differ from other taxes in a crucial legal way.

"That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction, would be an abuse, to presume which, would banish that confidence which is essential to all government. But is this a case of confidence? Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not. Why, then, should we suppose, that the people of any one state should be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it is as it really is."

The part about the power to tax involving "the power to destroy" is well-known, but in the passage above, we find Chief Justice Marshall recognizing that taxes involve not only a power to destroy, but also "a power to control."

The (McCulloch) opinion continues,

"If we apply the principle for which the state of Maryland contends, to the constitution, generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states. The American people have declared their constitution and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the states. If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent-rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states."

The same applies to the issues of NFIB v. Sebelius.  Although freedom and individual choice are not made the supreme law of the land by the Constitution (though they are protected by it, to great extent), it can be doubted that the American people intended to subject every aspect of their conduct to the control of the federal government pursuant to the taxing power, just as it can very reasonably be doubted that they intended to subject the power of the federal government to the legislative powers of the individual states.  As one ought to intuitively sense, the power to tax is not a power to lay any conceivable amount of tax on any selected person or class of persons (or all people in the United States) and according to any scheme or on any basis that Congress could conceivably choose.

A principle is concerned, here, that I doubt was fully understood and developed at the time of the Constitution's drafting and ratification (and which I am not sure that I fully understand or have fully developed, yet), but it is nonetheless implicated by the Constitution: that the power to tax is a power to raise revenue, and that taxes levied for that purpose and pursuant to that power have certain attributes that distinguish them (and the incidental incentives and disincentives created by them) from taxes which are designed and levied so as to control human conduct as a general matter, or to reward or punish, or to assist or destroy.  Exactly what those attributes are, I cannot yet say -- as I admitted in an earlier post, Congress certainly should (and, as a logical matter, must) have a certain degree of discretion in deciding the extent to which it taxes what, and with what exceptions, and what exemptions, deductions, and credits, if any, it will allow, among other details.  I do not believe that it can be absolutely indifferent between all interests and all courses of conduct, and I doubt that a default mode or rate of taxation will ever be possible to discern.  Nonetheless, there must be outer limits to that discretion, restraining the use of taxes to roughly its proper purpose of raising a revenue (in ways that do not arrogate to Congress power and control that no one has ever validly given to it).  Otherwise -- if we cannot recognize anything that satisfactorily divides a tax from a law that mandates or prohibits, so long as the penalty is monetary and the violator is not given a trial -- what prevents Congress from effectively making an ex post facto law, where the penalty is a tax, or a bill of attainder or bill of pains and penalties, so long as the fine or forfeiture involved is characterized as a tax?  (Chief Justice Roberts attempted to explain why he accepted the penalty in the NFIB case as a tax, but the reasons he offered focused on forms, not substance.)

Finally, the opinion recognizes the distinction between a general tax which might happen to fall on the bank on the same terms as on everyone else, and one which is imposed specifically on the bank:

"This opinion does not deprive the states of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution. Such a tax must be unconstitutional."

Again, it does not necessarily follow from this that the individual mandate, if accepted as a tax, is unconstitutional; it would be necessary to conclude also that such a regulatory tax falls outside the scope of the taxing power. What McCulloch does, however, is stand for the notion that it is possible for the Court to distinguish between taxes which are intended or designed to constrain, restrain, or destroy, on the one hand, and taxes for the purpose of raising a revenue, and the incidental incentives that follow them, on the other.

Eventually, this will be important, because once this legal issue has been given more thought and attention, it will no longer be possible for a Chief Justice of the Supreme Court of the United States to be satisfied that a rule enforced by a fine is nothing more than a tax, simply because it is collected by the IRS, does not observe due process requirements (because it is to be collected "in the same manner as taxes"), does not have a scienter requirement (which, unfortunately, is not as reliably connected with modern penal statutes as the Chief Justice seemed to think -- why would a characteristic that penal statutes tend to have but are not presently required to have, and which nothing prevents a genuine tax from having, help to distinguish a penal statute from a tax?), is of a certain magnitude (the question of the magnitude of tax rates being committed entirely to the discretion of Congress, if anything is ... at least so long as the government is not accumulating an utterly unjustifiable surplus for no legitimate reason, or taxing at rates calculated to bring about our annihilation, for whatever reason), is located in the "Internal Revenue Code" portion of the United States Code, is adjusted in ways which happen to be associated with taxes, right now, or is defended by government lawyers who say that they do not consider nonobservance of the rule to be unlawful -- of which factors, most have more to do with whether Congress thought of the penalty as a tax, or wanted it to be thought of as a tax, than whether it ought to be considered a legitimate use of the taxing power of Article I, Section 8.