The controversy over the ratification of the 16th Amendment has been raised in federal court for decades, and every court to consider it has rejected it. Challengers argue that clerical variations in state ratification documents, alleged irregularities in Secretary of State Philander Knox’s 1913 certification, and questions about Ohio’s statehood should invalidate the amendment that authorizes the federal income tax. No court has agreed. The IRS classifies these arguments as frivolous, and taxpayers who file returns based on them face a $5,000 penalty per submission before any other consequences kick in.1Internal Revenue Service. The Truth About Frivolous Tax Arguments
What the Challengers Actually Claim
The modern version of the argument traces to Bill Benson, a former Illinois revenue agent who visited state archives in the 1980s and published his findings in a 1985 book, The Law That Never Was. Benson catalogued differences between the amendment text Congress proposed and the text various state legislatures actually voted on. The differences included variations in capitalization and punctuation, and in a few instances substituted words (for example, “remit” appearing where the original text read “permit”).
Benson’s theory: if a state approved language that differed from what Congress proposed, that state did not truly ratify the amendment. Subtract every state with a discrepancy and the count falls below the three-fourths threshold required for adoption. Under his reading, the federal income tax has rested on a legal fiction for over a century.
A second line of attack focuses on Knox himself. Internal State Department records show that the Solicitor flagged clerical errors and wording differences in the ratification notices various states submitted. Knox certified the amendment anyway on February 25, 1913, after thirty-six of the forty-eight states then in the Union had submitted ratification notices.2National Archives. The Documents That Made April Famous Critics argue Knox lacked authority to overlook the textual variations and that his proclamation was therefore invalid.
A third argument targets Ohio. When Ohio was organized in 1803, Congress passed an enabling act and Ohio formed a government, but Congress never passed a formal resolution declaring Ohio admitted to the Union the way it had for other states. In 1953, Congress passed a joint resolution retroactively setting Ohio’s statehood date as March 1, 1803.3Congress.gov. House Joint Resolution 121 – Joint Resolution for Admitting the State of Ohio Into the Union Ratification challengers seize on the gap and argue Ohio had no standing to ratify the 16th Amendment in 1911.
Why the Arguments Fail Legally
Federal courts have examined these claims repeatedly and rejected all of them. The reasoning falls into two overlapping doctrines that together make ratification challenges essentially impossible to win.
The Political Question Doctrine
The Supreme Court has long held that the process of amending the Constitution is committed to Congress and the states, not to the courts. In Coleman v. Miller, 307 U.S. 433 (1939), the Court ruled that questions about whether an amendment has been properly adopted fall within Congress’s discretion.4Legal Information Institute. Early Political Question Doctrine Courts will say what the constitutional standards are; they will not audit whether those standards were met in practice.
The Enrolled Bill Doctrine
Once a constitutional amendment has been officially certified, courts will not go behind the certification to look for procedural defects. The Supreme Court applied this principle to amendment ratification in Leser v. Garnett, holding that an official ratification notice from a state legislature, once certified by the Secretary of State’s proclamation, “is conclusive upon the courts.”5Justia. Leser v Garnett, 258 US 130 (1922) Knox’s 1913 proclamation is the legally operative fact. Whether some states submitted imperfect documents is not something the courts will revisit.
What Courts Have Said About Benson Specifically
The Seventh Circuit addressed Benson’s research directly in United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986), concluding that Benson “did not discover anything.” When Benson was criminally prosecuted and appealed his own conviction, the same court reiterated: “We have repeatedly rejected the claim that the Sixteenth Amendment was improperly ratified. One would think this repeated rejection would put the matter to rest.”6FindLaw. United States v Benson (2009) In Miller v. United States, the same circuit said it found “it hard to understand why the long and unbroken line of cases upholding the constitutionality of the sixteenth amendment” had not persuaded challengers “to seek a more effective forum.”
The underlying legal problem with the textual-discrepancy argument is that minor variations in ratification documents have never been treated as invalidating a state’s vote. The standard is whether the state legislature intended to ratify the proposed amendment. In an era of typewriters and manual transcription, small errors were routine in all kinds of legislative paperwork.
The Ohio argument fails for a different reason. Ohio functioned as a state in every legal and practical sense from 1803 forward: it elected members of Congress, participated in presidential elections, and was treated as a state by every branch of the federal government. Even setting Ohio aside entirely, the ratification count still reached the required threshold because more than the minimum thirty-six states approved the amendment.
The Supreme Court also confirmed the amendment’s substantive validity three years after ratification in Brushaber v. Union Pacific Railroad, ruling that the amendment freed income taxes from the apportionment requirement the Court had imposed in Pollock v. Farmers’ Loan & Trust Co.7Justia. Pollock v Farmers Loan and Trust Co
What Happens to Taxpayers Who Rely on These Arguments
The IRS does not treat 16th Amendment challenges as a legitimate legal disagreement. The agency’s document “The Truth About Frivolous Tax Arguments” specifically identifies the claim that “the federal income tax laws are unconstitutional because the Sixteenth Amendment to the United States Constitution was not properly ratified” as a frivolous position. Revenue Ruling 2005-19 reinforced that stance, emphasizing that “a taxpayer cannot avoid income tax by making frivolous constitutionally based arguments.”8Internal Revenue Service. Internal Revenue Bulletin 2005-14
Filing a return or submission based on that position triggers a stack of penalties, and courts have shown no patience for taxpayers who advance the argument.
- Frivolous submission penalty of $5,000. Under 26 U.S.C. § 6702, anyone who files a return based on a position the IRS has identified as frivolous owes a flat $5,000 penalty. The same penalty applies to frivolous requests for collection due process hearings, installment agreements, or offers in compromise. The IRS must give the filer 30 days to withdraw the submission, but the penalty is automatic if the filer does not.9Office of the Law Revision Counsel. 26 USC 6702 – Frivolous Tax Submissions
- Tax Court sanctions up to $25,000. If a taxpayer petitions the Tax Court with a frivolous or groundless position, the court can impose a penalty of up to $25,000 under 26 U.S.C. § 6673. In Stearman v. Commissioner, the Tax Court imposed the maximum $25,000 against a taxpayer whose arguments the court called “characteristic of tax-protester rhetoric that has been universally rejected.”10Office of the Law Revision Counsel. 26 USC 6673 – Sanctions and Costs Awarded by Courts11Internal Revenue Service. The Truth About Frivolous Tax Arguments – Section III
- Civil fraud penalty of 75% of the underpayment. Under 26 U.S.C. § 6663, if the IRS determines that a tax underpayment is attributable to fraud, it can assess a penalty equal to 75% of the fraudulent underpayment on top of the tax owed.
- Criminal prosecution and up to five years in prison. Anyone who willfully attempts to evade taxes faces a felony charge under 26 U.S.C. § 7201, with penalties of up to five years in prison and fines of up to $100,000 for individuals or $500,000 for corporations. Benson himself was criminally convicted, and the Seventh Circuit rejected his ratification defense on appeal.12Office of the Law Revision Counsel. 26 USC 7201 – Attempt to Evade or Defeat Tax
These penalties stack. A person who files a frivolous return, underpays the tax owed, then petitions the Tax Court with the same argument can end up owing the $5,000 filing penalty, the back taxes, the 75% fraud penalty, and up to $25,000 in Tax Court sanctions before any criminal exposure enters the picture. The controversy is settled as a matter of law, and treating it as an open question in a tax filing is expensive.