FALSE STATEMENT:

The Fifth Amendment is NOT a constraint on income taxation of human beings protected by the Constitution. This is affirmed by the following:

So far as the due process clause of the Fifth Amendment is relied upon, it suffices to say that there is no basis for such reliance since it is equally well settled that such clause is not a limitation upon the taxing power conferred upon Congress by the Constitution; in other words, that the Constitution does not conflict with itself by conferring upon the one hand a taxing power and taking the same power away on the other by the limitations of the due process clause. Treat v. White, 181 U.S. 264; Patton v. Brady, 184 U.S. 608; McCray v. United States, 195 U.S. 27, 61; Flint v. Stone Tracy Co., supra; Billings v. United States, 232 U.S. 261, 282. And no change in the situation here would arise even if it be conceded, as we think it must be, that this doctrine would have no application in a case where although there was a seeming exercise of the taxing power, the act complained of was so arbitrary as to constrain to the conclusion that it was not the exertion of taxation but a confiscation of property, that is, a taking 25*25 of the same in violation of the Fifth Amendment, or, what is equivalent thereto, was so wanting in basis for classification as to produce such a gross and patent inequality as to inevitably lead to the same conclusion. We say this because none of the propositions relied upon in the remotest degree present such questions.

[Brushaber v. Union Pacific Railroad, 240 U.S. 1, 24-25 (1916);
SOURCE: https://scholar.google.com/scholar_case?case=5893140094506516673]

REBUTTAL:

This general statement contains equivocation and is therefore more propaganda than truth.

“Dolosus versatur generalibus. A deceiver deals in generals. 2 Co. 34.”

“Fraus latet in generalibus. Fraud lies hid in general expressions.“

Generale nihil certum implicat. A general expression implies nothing certain. 2 Co. 34.

Ubi quid generaliter conceditur, in est haec exceptio, si non aliquid sit contra jus fasque. Where a thing is concealed generally, this exception arises, that there shall be nothing contrary to law and right. 10 Co. 78.
[Bouvier’s Maxims of Law, 1856]

The above ruling was written by Justice E.B. White, who was the minority dissenting opinion in the following landmark case:

Pollock v. Farmers Loan and Trust, 157 U.S. 429 (1895)
https://scholar.google.com/scholar_case?case=7292056596996651119

E.B. White was a socialist his whole life so of course he is going to want to make income taxation look like a “sovereign power” that requires no consent. He tried to chip away at Fifth Amendment protections for private property his whole life.

1. Not a limitation on the Takings Clause

The above cite does not refer to the Takings Clause (the “property clause”) of the Fifth Amendment. In Brushaber, the Court is speaking only about the Due Process Clause, and it is drawing a sharp doctrinal line between:

• the Due Process Clause (which cannot be used to invalidate a tax that is otherwise within Congress’s taxing power), and
• the Takings Clause (which could apply if a tax were actually a disguised confiscation).

The passage you quoted is the Court saying:

“Don’t rely on due process to attack a tax. But if a tax were so arbitrary that it was really a taking, that would be a different question — and this case is not that.”

1.1. What the passage is actually doing

1. Rejecting a Due Process challenge

The Court says the Fifth Amendment’s Due Process Clause does not limit Congress’s taxing power. This is the long‑standing rule from:

• Treat v. White
• Patton v. Brady
• McCray v. United States
• Flint v. Stone Tracy
• Billings v. United States

These cases all hold that a tax within Congress’s enumerated taxing power cannot be struck down as a violation of due process.

2. Acknowledging the Takings Clause as a separate doctrine

The Court then adds a hypothetical:

If Congress pretended to tax but actually confiscated property, that would be a Takings Clause problem, not a due process problem.

This is the key sentence:

“…even if it be conceded… that this doctrine would have no application in a case where… the act complained of was so arbitrary as to constrain to the conclusion that it was not the exertion of taxation but a confiscation of property, that is, a taking of the same in violation of the Fifth Amendment…”

This is explicitly the Takings Clause.

3. But the Court says Brushaber does not present a Takings issue

The Court concludes:

“…none of the propositions relied upon… present such questions.”

Meaning: Brushaber is not a Takings case. It is only a Due Process challenge, and that challenge fails.

1.2. How to read this doctrinally

A. Due Process Clause

Cannot be used to invalidate a tax that is within Congress’s taxing power.

B. Takings Clause

Could apply if Congress enacted something so arbitrary that it was not really a tax but a disguised confiscation.

C. Brushaber is not about the Takings Clause

The Court mentions the Takings Clause only to say: “This case does not raise that issue.”

1.3. Why this matters for your doctrinal mapping

This passage is one of the clearest examples of the public‑rights doctrine in tax:

• When Congress acts under its sovereign taxing power, due process does not limit the substance of the tax.
• But if Congress crosses the line into confiscation, the action ceases to be “taxation” and becomes a taking, which is limited by the Fifth Amendment.

This is the exact hinge point between:

• PUB (public rights, sovereign power, taxation), and
• PRI (private rights, property, takings).

Brushaber is saying: As long as Congress stays on the PUB side, due process cannot be used to attack the tax. If Congress crosses into PRI territory (confiscation), then the Takings Clause applies.

2. Applicability of the Bill of Rights to Income Taxation

The subject of the above cite was blanket Fifth Amendment “due process” attacks on Congress’ taxing power. In other words, that the Fifth Amendment CATEGORICALLY invalidates ALL income taxation. That is NOT the position of this website, by the way. Our position on the applicability of any provision of the Bill of Rights to income taxation is that:

1. GEOGRAPHICALLY INTERNAL income taxation within United States the COUNTRY:
   1.1. This type of taxation is called “proprietary power”.
   1.2. The Bill of Rights implements PRIVATE rights and applies to all human beings standing on land protected by the constitution within the exclusive jurisdiction of a state of the Union by default.
   1.3. One may SURRENDER the protections of the Bill of Rights in pursuit of civil privileges legislatively created and therefore owned as propertyPUB by Congress. This is normally done through election.
   1.4. Once a PRIVATE rightsPRI are exchanged for PUBLIC rightsPUB through a privileged election, the Fifth Amendment no longer applies under the Constitutional Avoidance Doctrine and the Public Rights Doctrine. See:
   Catalog of U.S. Supreme Court Doctrines, Litigation Tool #10.020
   https://sedm.org/Litigation/10-PracticeGuides/SCDoctrines.pdf
   1.5. When no privileges/elections are made, then constitutional protections such as the Bill of Rights and the limits on Direct Taxation in Article 1, Section 9, Clause 4 and Article 1, Section 2, Clause 3 still apply.
2. GEOGRAPHICALLY EXTERNAL taxation of persons OUTSIDE the country
   2.1. This type of taxation is called “sovereign power” and comes under the Public Rights Doctrine and the Foreign Affairs Functions of Congress under Article 1, Section 8, Clause 3.
   2.2. The persons who are taxed are foreign nationals and foreign corporations residing outside the geographical United States as a country.
   2.3. Because the “taxpayers” reside outside the United States as a country, they have no constitutional protections such as the Bill of Rights and the limits on Direct Taxation in Article 1, Section 9, Clause 4 and Article 1, Section 2, Clause 3.
   2.4. Because constitutional protections do not apply to this type of taxation, then Direct Taxes upon gross receipts are permissible.

The court maliciously never addressed the above concerns, likely because:

1. They want to create the illusion that the Fifth Amendment is entirely irrelevant to income taxation in ALL circumstances, REGARDLESS of consent or election, rather than only SPECIFIC limited circumstances where consent or election has been made.
2. They want to create an opportunity for courts and administrative agencies to hide or obfuscate WHETHER or HOW consent or election is made so that process appears involuntary and thus consent is HIDDEN. See:
   2.1. Invisible Consent, FTSIG
   https://ftsig.org/how-you-volunteer/invisible-consent/
   2.2. Process to “Invisibly” join the Matrix: Electing a CIVIL STATUTORY STATUS, FTSIG
   https://ftsig.org/how-you-volunteer/process-to-invisibly-join-the-matrix-electing-a-civil-statutory-status/
3. By making consent or election hidden or invisible, they can deceive the public into believing that:
   3.1. There IS no “proprietary power” to tax under Article 1 Section 8, Clause 1 which requires consent and election and respect for the Fifth Amendment.
   3.2. All income taxation is a “sovereign power” under the Public Rights Doctrine where the Fifth Amendment is IRRELEVANT.

To completely and properly address this issue, we must uniquely and unequivocally address all of the following contexts:

1. Human beings standing on land protected by the constitution who make no elections.
2. Human beings standing on land protected by the constitution who make elections that waive constitutional protections.
3. Human beings NOT standing on land protected by the constitution with no elections.. By this we mean abroad or in a possession or unincorporated territory.
4. Human beings NOT standing on land protected by the constitution with elections.. By this we mean abroad or in a possession or unincorporated territory.
5. Domestic/Internal/Public privileged civil fictions legislatively created and therefore owned as propertyPUB by Congress.
6. Foreign/External/Private fictions of law such as trusts, associations, etc. standing on land protected by the Constitution with no elections.

We asked AI about the above contexts, and here was its answer:

Microsoft Copilot: Does the Fifth Amendment still protect people not voluntarily engaged in excise taxable activities and who make no elections?, FTSIG
https://ftsig.org/microsoft-copilot-does-the-fifth-amendment-still-protect-people-not-voluntarily-engaged-in-excise-taxable-activities-and-who-make-no-elections/

The table below summarizes every context and the types of income taxes that are constitutionally permissible so you can clearly see when the Fifth Amendment applies and when it doesn’t:

#	Description	Fundamental Rights Doctrine Protections?	Fifth Amendment Protections?	Direct Tax/ Gross Receipts protections?	Elections?
1	Human beings standing on land protected by the constitution who make no elections.	No	Yes	Yes	No
2	Human beings standing on land protected by the constitution who make elections that waive constitutional protections.	No	No	No	Yes
3	Human beings NOT standing on land protected by the constitution. By this we mean abroad or in a possession or unincorporated territory with no elections.	Yes	No	No	No
4	Human beings NOT standing on land protected by the constitution. By this we mean abroad or in a possession or unincorporated territory with elections.	No	No	No	Yes
5	Domestic/Internal/Public privileged civil fictions legislatively created and therefore owned as propertyPUB by Congress.	No	No	No	Yes
6	Foreign/External/Private fictions of law such as trusts, associations, etc. standing on land protected by the Constitution with no elections.	Yes	Yes	Yes	No

NOTES:

1. For a discussion of the Fundamental Rights Doctrine in column 3, see Section 3 below and:
   Balzac v. Porto Rico, 258 U.S. 298 (1922)
   https://scholar.google.com/scholar_case?case=8956361016270671048
2. For a comprehensive list of “elections” in the last column, see:
   Catalog of Elections and Entity Types in the Internal Revenue Code, FTSIG
   https://ftsig.org/catalog-of-elections-in-the-internal-revenue-code/

3. About the Fundamental Rights Doctrine:

What cases describe the fundamental rights doctrine

The fundamental‑rights doctrine in U.S. constitutional law is built almost entirely through Supreme Court cases interpreting the Due Process Clauses of the Fifth and Fourteenth Amendments. These cases define which rights are “fundamental,” why they qualify, and how courts review government burdens on them. The doctrine is not a single rule but a lineage of decisions that collectively establish the modern framework.

3.1. Core cases that define the doctrine

These decisions either identify a fundamental right, explain the test for determining one, or reshape the doctrine’s boundaries.

3.1.1. Early articulation of the concept

• Corfield v. Coryell (1823) — Justice Bushrod Washington’s circuit opinion introduced the idea that certain rights are “fundamental” because they are inherent to citizenship and essential to liberty.

3.1.2. Economic liberty era and its reversal

• Lochner v. New York (1905) — Recognized a fundamental right to contract under substantive due process, treating economic liberty as central to individual freedom.
• West Coast Hotel v. Parrish (1937) — Rejected Lochner and held there is no fundamental right to contract, marking the end of economic substantive due process.

3.1.3. Incorporation and modern fundamental rights

These cases define rights as fundamental because they are “deeply rooted in the Nation’s history and tradition” or “implicit in the concept of ordered liberty.”

• Marriage — Treated as fundamental in multiple cases (e.g., Loving v. Virginia, Zablocki v. Redhail).
• Privacy and contraception — Griswold v. Connecticut (1965) recognized marital privacy as fundamental.
• Procreation — Skinner v. Oklahoma (1942) treated procreation as a basic civil right.
• Child‑rearing and custody — Recognized as fundamental family rights.
• Interstate travel — Treated as fundamental even though not textually enumerated.
• Intimate relationships and marriage equality — Obergefell v. Hodges (2015) (not fully shown in the snippet but part of the modern line).
• End‑of‑life decisions — Addressed under substantive due process.

3.1.4. Modern substantive due process framework

• Timbs v. Indiana (2019) — Incorporated the Excessive Fines Clause as a fundamental protection through the Fourteenth Amendment.
• Kahler v. Kansas (2020) — Clarified limits of due process but did not expand fundamental rights.
• Dobbs v. Jackson Women’s Health Organization (2022) — Overruled Roe and Casey, holding that abortion is not a fundamental right because it is not deeply rooted in history and tradition. This decision significantly reshaped the doctrine.

3.2. How the Court determines whether a right is fundamental

The Court uses two main criteria:

• Whether the right is deeply rooted in American history and tradition.
• Whether it is implicit in the concept of ordered liberty such that neither liberty nor justice would exist without it.

If a right qualifies, laws burdening it must satisfy strict scrutiny—the highest level of judicial review.

3.3. Why the doctrine is unstable

The doctrine has produced some of the Court’s “most controversial and contradictory opinions.” This instability comes from:

• Shifting historical interpretations
• Changing views of judicial role
• Tension between enumerated and unenumerated rights
• Reversals such as Lochner → West Coast Hotel and Roe/Casey → Dobbs

This is why fundamental‑rights jurisprudence is one of the most contested areas of constitutional law.

4. Conclusion

Further information on this subject:

1. Requirement for Due Process of Law, Form #05.045** (Member Subscriptions)
   https://sedm.org/product/requirement-for-due-process-of-law-form-05-045/
2. PROOF OF FACTS: Income taxation of “nationals of the United States” within the exclusive jurisdiction of a constitutional state is NOT a “sovereign power”, FTSIG
   https://ftsig.org/proof-of-facts-income-taxation-of-nationals-of-the-united-states-within-the-exclusive-jurisdiction-of-a-constitutional-state-is-not-a-sovereign-power/
3. HOW TO: How to distinguish “sovereign power” from “proprietary power” in the context of taxation, FTSIG
   https://ftsig.org/how-to-how-to-distinguish-sovereign-power-from-proprietary-power-in-the-context-of-taxation/
4. Microsoft Copilot: How can I prove that “sovereign powers” of taxation under the constitution are limited to foreign affairs functions only?, FTSGI
   https://ftsig.org/microsoft-copilot-how-can-i-prove-that-sovereign-powers-of-taxation-under-the-constitution-are-limited-to-foreign-affairs-functions-only/
5. Microsoft Copilot: Court Doctrines dealing with Proprietary Power, FTSIG
   https://ftsig.org/microsoft-copilot-court-doctrines-dealing-with-proprietary-power/