Professional Documents
Culture Documents
INTRODUCTION
Part 1: details the methodology used by the federal courts and the
Department of Justice to prevent any legal challenge to the income tax
from being brought before the court in income tax cases. The method,
in violation of our most basic constitutional right, has been held to void
any claim of jurisdiction in non-tax cases.
These legal points are basic fundamental tenants of pleading that any
first year law student must learn. The provision dates from the Magna
Carta: "No freeman shall be taken, or imprisoned, or disseised, or
outlawed, or exiled, or anywise destroyed, nor shall we go upon him,
nor send upon him, but by...the law of the land." To be sure, "due
process" is the evolutionary heir to "law of the land." Buchalter v New
York, 319
US 427 (1943); Bartkus v Illinois, 359 US 121 (1959); ref. The
Constitution of the United States of America, United States Printing
Office (1973), p 1137-1145. Due process is violated if a practice or
rule offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental. Snyder v
Massachusetts, 291 US 97, 105 (1934). After reciting several
constitutional restrictions that can be side-stepped, the court declares:
"What may not be taken away is notice of the charge and an adequate
opportunity to be heard in defense of it." id 105. Of what
value is process if it does not charge the defendant with a crime?
The Supreme Court has been very specific: The district court's
jurisdiction for revenue cases must pertain to a law providing in its
terms for revenue which is directly traceable to the constitutional
power to lay and collect taxes. US v Hill, 123 US 681, 686 (1887).
Defendants have written volumes on the inconsistent adjudication that
the income tax is an excise tax, a direct tax, or is empowered by the
16th Amendment. When inadequate pleadings are challenged, due
process requires the government to establish the authority for a tax,
and whether it is an excise, a duty, a direct tax, or is authorized by the
16th Amendment. "Plaintiff's implied essential allegation that the right
sought to be enforced is consonant with the constitution, when denied,
constitutes a primary issue of law, which must be determined at the
outset of litigation." 71 CJS, Pleading §516. Whether these conditions
are enforced upon the IRS is an open question.
An indictment for willful failure to file income tax returns (26 USC
§7203) relies upon the phrase "as required by law." What law? "As
required by law" is a legal conclusion. Legal conclusions are not
acceptable in criminal process. Notification of legal responsibility is
"the first essential of due process of law." Connally v General
Construction Co., 269 US 385, 391 (1926). If there is no legal
requirement for an individual to pay a tax, the citizen is free to do as
he wishes. Flora v US, 362 US 145 (1959). It is a "well-settled rule
that the citizen is exempt from taxation unless the same is imposed by
clear and unequivocal language, and that where the construction of a
tax law is doubtful, the doubt is to be resolved in favor of those upon
whom the tax is sought to be laid..." Spreckles Sugar v McClain, 192
US 397 (1904). The 26 USC §7203 declaration that "Any person
required under this title to pay any...tax..." or go to jail applies to any
of 80 taxes; it does not give identification or suggest legal
responsibility of any tax being pursued. It is a power, not an
authorized purpose. Lack of a challenge by the defendant in the face of
denial of basic due process requirements---in the record---does not
vest jurisdiction in the court. Smith v US, 360 US 1 (1958).
The court will even say "Respondent argues that the Federal
Government does not have the authority to levy and collect income
taxes from individuals." You had merely asked to see their authority
and they won't show it to you. They say in effect: "We have the
authority and we don't have to show you." The court will then impose
fines for raising such a "frivolous" issue.
As citizens are required to sign IRS forms under threat of perjury and
to produce books and records pursuant to court order, it is apparent
that the words of the Supreme Court have been forgotten. "(I)t is
elementary knowledge that one cardinal rule of the court of chancery
is never to decree a discovery which might tend to convict the party of
a crime, or to forfeit his property. And any compulsory discovery by
extorting the party's oath, or compelling the production of his private
books and papers, to convict him of crime or to forfeit his property, is
contrary to the principles of a free government. It is abhorrent to the
instincts of an Englishman; it is abhorrent to the instincts of American.
It may suit the purposes of despotic power; but it cannot abide the
pure atmosphere of political liberty and personal freedom."Boyd v
United States, 116 US 616, 631-632 (1886). The compelled production
of books and records to avoid self evidencing arbitrary assessments
(90 day letters ?) was the prime issue in Boyd and has not been
overturned. Chancery was not a criminal court. It is unknown how
forms that must be signed under threat of perjury are compatible with
this holding. The courts do enforce an IRS summons for which you
must appear before the IRS with your books and records. After that...
The IRS will argue before the jury in an Article III court (who are
prescreened by the IRS before jury call) that the defendant filed
1040's in previous years, and he knew he had to file for the missing
years. They ignore the succinct quotation from Lord Camden by the
court: "If it is law, it will be found in the books; if it is not to be found
there, it is not law." Boyd v US, 116 US 616,627 (1886).
There is no statute imposing legal liability for the income tax. If the
law exists, wouldn't the IRS be averring it in their pleadings? The
absence of a law imposing legal responsibility in an indictment or
complaint for the income tax is a denial of due process. A rule 12
(b)(2) motion that the pleading does not charge an offense/ show
jurisdiction in the court may be made at any time in criminal cases or,
in civil cases, a motion to dismiss for want of jurisdiction/ failure to
state a claim upon which relief can be granted (rule 12b) would put
the question in the judge's lap. "When the existence or the content of
a law is called into question, the court must necessarily decide the
question the same as it decides any other question of law." Walnut v
Wade, 103 US 683, 689 (1880). Lots of luck. Be prepared to see a
government based on a rule of man rather than a rule of law.
“The dividing line between what is lawful and unlawful cannot be left to
conjecture. The citizen cannot be held to answer charges based upon
penal statutes whose mandates are so uncertain that they will
reasonably admit of different constructions. A criminal statute cannot
rest upon an uncertain foundation. The crime, and the elements
constituting it, must be so clearly expressed that the ordinary person
can intelligently choose, in advance, what course it is lawful for him to
pursue. Penal statutes prohibiting the doing of certain things, and
providing a punishment for their violation, should not admit of such a
double meaning that the citizen may act upon the one conception of its
requirements and the courts upon another.” Connally v General
Construction 269 US 385, 393.
The IRS has recently suggested on their web site that 26 USC §§6011,
6012, and 6072 are statutes that impose liability.
http://treas.gov/irs/ci/tax_fraud/docnonfilers.htm.at page 4. If the IRS
believes this, why are the statutes not cited in pleadings as required
by due process? The suggestion that these statutes impose liability
must be taken as an acknowledgment that pleadings for
decades---without having the sections cited---have not fulfilled the
basic requirements of due process. And their refusal to cite such
statutes upon innumerable demands in court documents,
congressional inquiries, and correspondence to the IRS itself even
pursuant to FOIA, can only be seen as a deliberate and willful effort to
prevent any law that might impose liability from being exposed to
judicial attack.
The theory that all district courts are operating as territorial courts and
not as Article III courts can be found on the internet but offers no
verifiable distinctions. Additional theories that dealing in Federal
Reserve Notes or the corporate privilege of having a checking account
is the basis for the income tax can be easily postulated, and there are
many more theories that can be conjectured or have been rejected.
Until the government avers their authority for the income tax, there is
no possibility of challenging it. King John claimed that being his subject
was sufficient to seize the peasant's pig to feed the troops. The Magna
Carta's requirement that property could be taken only by "the law of
the land" prevented such arbitrary confiscation.
Will the appellate courts concur with this analysis? Do not bet the farm
on it. Will the Supreme Court grant certiorari? Not for two or three
cases, and certainly not without a lot of publicity. But then again, with
so many 'tax reformers' selling advice for $20 to $7000, maybe they
do not want to rock the boat. Capitalistic ambitions may prevail over
avowed objectives.
If the IRS avers a law that they claim imposes the income tax, is there
any defense that might be raised to challenge the tax?? Let us
consider the constitutional right of Liberty.
PART 2. NO TAX ON LIBERTY
If there is any one specific right firmly entrenched in our organic law, it
is the right to Liberty as identified in the Declaration of Independence,
the Preamble to the Constitution, the Fifth Amendment, and
specifically applied to the states by the 14th Amendment. Our
forefathers succinctly identified the purpose for lawful government:
"That to secure these rights (of Life, Liberty, and the pursuit of
Happiness), Governments are instituted among Men..." Declaration of
Independence. It has been said that the rights to life, liberty, and
property are so related that the deprivation of any one of these
separate and independent rights may lessen or extinguish the value of
the others. Smith v Texas, 233 US 630 (1914).
That liberty includes the right to pursue a livelihood and provide for a
family is a most profound proviso of constitutional adjudication. Liberty
"means not only the right of the citizen to be free from the mere
physical restraint of his person, as by incarceration, but the term is
deemed to embrace the right of the citizen to be free in the enjoyment
of all his facilities; to be free to use them in all lawful ways; to live and
work where he will; to earn his livelihood by any lawful calling; to
pursue any livelihood or avocation, and for that purpose to enter into
all contracts which may be proper, necessary and essential to his
carrying out to a successful conclusion the purposes above
mentioned." Allgeyer v Louisiana, 165 US 578, 589 (1897). And again:
"It requires no argument to show that the right to work for a living in
the common occupations of the community is of the very essence of
the personal freedom and opportunity that it was the purpose of the
amendment to secure." Truax v Raich, 239 US 33, 41 (1915). Greene
v McElroy, 360 US 474 (1959); Meyer v Nebraska, 262 US 390 (1923);
Butchers Union v Crescent City, 111 US 746 (1884); Grosjean v
American Press, 297 US 233 (1936): Regents v Roth, 408 US 564
(1971); Hall v Geiger-Jones, 242 US 539 (1917); Chicago B & Q R. Co
v McGuire, 219 US 549 (1911).
Of what value is life if the individual cannot exchange the sweat of his
brow for the things that make life worthwhile? If ever there was a
fundamental right that is "preservative of all rights" (ref. Harman v
Forssenius, 380 US 528, 537 (1965) referring to the right to vote), it is
the right to make a living. What more fundamental right do citizens
have than to feed and house themselves? An individual cannot
maintain any freedom from government if the earnings of his labor are
subject to some arbitrary self-serving government assessment made in
the cavernous depths of some political bureaucracy without
authorization by the citizenry. The question of whether the fruits of an
individual's labor belonged to another resulted in a most violent period
in this nation's history. Slavery is no less reprehensible because it is a
government action.
The court has recognized the power to tax is "the power to control or
suppress its enjoyment." Murdock v Pennsylvania, 317 US 105, 112
(1943). The Bill of Rights specifically enumerates areas forbidden to
the federal government; they are reserved and secured for the people.
A tax upon any right secured by the Bill of Rights would require
relinquishing control of that right to the government. We the people do
not desire to relinquish control of our livelihood nor are we aware of
any such action in the past. Acquiescence in loss of fundamental rights
will not be presumed. Johnson v Zerbst, 304 US 458, 464 (1938);
Brookhart v Janis, 384 US 1, 4 (1966); Ohio Bell v. Public Utilities
Commission, 301 U.S. 292 (1936). "Waivers of constitutional rights not
only must be voluntary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely
consequences." Brady v US, 397 US 742, 748 (1970).
Perhaps the concept escapes the casual observer: the right to trial by
jury cannot be conditioned upon the payment of $10,000 in advance to
defray the costs of the trial; an annual fee of $3000 cannot become a
condition to keep a rifle in the house; the right to security of papers in
a home or of the freedom of the press cannot be conditioned to only
papers that do not contain unpleasant remarks about the government;
the assistance of counsel is not conditioned to an ability to pay; the
right to cross a state boundary cannot be taxed. Crandall v Nevada, 73
US 35 (1868). "The right...is too precious, too fundamental, to be so
burdened or conditioned." Harper v Virginia, 383 US 663, 670 (1966).
Surely the right to vote in the Harper case is no more precious or
fundamental than putting food on the table and a roof over your
family. The $1.50 optional poll tax forbidden by the Harper court pales
when compared with the criminally enforced mandatory burden on
pursuing a livelihood. "The mere chilling of a constitutional right by a
penalty on its exercise is patently unconstitutional." Shapiro v
Thompson, 394 US 618 (1969). If conditions can be imposed on
constitutional rights, all constitutional rights can be conditioned out of
existence.
It may be suggested that the revenue from the income tax is required
by the government, or more euphemistically: "There is an overriding
government interest to uphold" or "A sound tax system is of such a
high order." (King John reportedly made similar platitudes when forced
to accept the Magna Carta; King Charles shortly before he lost his
head; King George before he lost the colonies.) It is submitted there is
no higher order, in a republic as guaranteed by article 4, section 4 of
the constitution than the rights of the people. A claim of necessity has
little sway if the constitution has any significance. "It must be
conceded that there are such rights in every free government beyond
the control of the state. A government which recognized no such
rights...is after all but a despotism...of all the powers conferred upon
government, that of taxation is most liable to abuse...the power to tax
is the power to destroy." Loan Association v Topeka, 87 US 655, 663
(1875).
There are political forms espousing ideologies that include government
control of common occupations. We try to believe these forms are not
within the United States. If the power to tax exists, it is a matter of
indifference to the courts if the tax destroys the object of the tax.
Magnona v Hamilton, 292 US 40, 46 (1934). Whether the income
tax is destroying the secured liberty of the U.S. citizen may depend on
whether the beholder is a taxpayer or a tax beneficiary, but it is
irrelevant for adjudication. The issue is principle, not feigned necessity.
There are those who would suggest the United States got along much
better for 165 years without a significant income tax than the last 60
years with continually heavier taxation. A significant reduction of the
tax burden is analyzed by some economic pundits to result in a great
boon for the U.S. economy. In adamant concurrence, former Secretary
of the Treasury William E. Simon repeatedly warned a deaf Congress
during innumerable hearings that the level of taxation threatens "the
liberty of the American people...that the state itself is a threat to
individual liberty." A Time for Truth, p 12, 14. [Mr. Simon accuses the
U.S. and New York City of cooking their accounting books. Judging
from numerous recent accounting and management fiascoes in private
business, "the government is the potent, the omnipresent, teacher
which breeds contempt for law among the people by its example."] But
the courts have wisely declared the social/economic philosophies of
Herbert Spencer---or John Maynard Keynes or Murray Rothbard---are
irrelevant to the court. The issue is still principle. This is a constitution
we are propounding.
Our judicial system has recognized the status of the sovereign citizen
and acknowledged individuals voluntarily comply with provisions of the
tax law. Flora v U.S., 362 US 145 (1959). This individual has decided
that he no longer wishes to volunteer further and hereby claims his
constitutional rights. For that action, he cannot properly be found
guilty of a crime or be incarcerated. A law that improperly infringes on
constitutional rights is void from its inception and no person can be
obligated to obey such a law. 16A AmJur2d Constitutional Law, §203
(1998). Habeas Corpus may be used to challenge the
unconstitutionality of legislation. id §134, ref. 13 AmJur Pl & Pr forms,
Hab C.§§ 81,82. Federal Rule of Civil Procedure 60(b)(4) controls post
trial motions (in form of corum nobis ?) relating to void judgments.
Federal Rule of Criminal Procedure 12(b)(2) recognizes a challenge to
jurisdiction at anytime. Legal encyclopedia 46 AmJur2d Judgments,
section 27, informs us "in the absence of jurisdiction over the person,
any judgment or order the court might enter against defendant is
void." Section 31 continues with "a void judgment is a complete nullity
and without legal effect...and is open to attack or impeachment in any
proceeding, direct or collateral...where the invalidity appears upon the
face of the record." An interlocutory appeal may lie where jurisdiction
is nonexistant.
PART 3. SPRINGER, POLLOCK, 16TH. AMENDMENT
Belated apologies must be made at this point to the reader who is not
familiar with the nuances of legal jargon. Legalese can often turn on
the legal definition of one word to convey a completely different
meaning, and splitting of hairs is the essence of adjudication.
Familiarity with income tax history/adjudication is assumed in Part 3. A
neophyte would do well to read the Springer, the Boyd, and the two
Pollock cases that can be found on the internet---for starters. Be
prepared to spend several days, or months. Be wary of government
and even esteemed textbook analysis. Textbooks/articles frequently
find it easy to say Pollock held the income tax unconstitutional, but it
takes paragraphs to convey why the over-simplification is erroneous,
and more important, why the distinction is crucial. The impact of the
16th. Amendment is similarly contorted; the amendment is widely
believed to apply to an issue of wages/salary and to create new taxing
power. Another common misconception is that an amendment can
negate a fundamental constitutional right. It is of necessity to see how
the supreme court addresses these items rather than the government
propaganda mills.
There is no substitute for your own education; the truth will set you
free. The legal encyclopedias, American Jurisprudence and Corpus
Juris, can be located in the nearest law library. Our freedom is in your
hands.
Hopefully the message in Part 3 will come through to the uninitiated
without being too tedious.
Springer claimed the Civil War income tax was a direct tax and
unconstitutional because it was not apportioned among the states by
population and additionally claimed the seizure and selling of his real
estate without adjudication was a violation of due process. The court
observed the procedures to collect taxes included seizure by warrant
without oath which constituted conclusive evidence of the facts recited
in it. The indifference of the court is apparent: If the procedure
"involved any wrong or unnecessary harshness, it was for Congress, or
the people who make Congresses to see that the evil was corrected.
The remedy does not lie with the judicial branch of the government."
id 594.
It appears the court was ready to trammel, without objection, the
Fourth Amendment right to be free of General Warrants/Writs of
Assistance that had been a major factor in the Revolutionary War---to
expedite tax collection. The constitutional prohibition against Bills of
Attainder, a punishment without benefit of adjudication, was also
ignored.
Fortunately for the public, the tax had expired many years before the
seizure and adjudication had worked its way to the Supreme Court.
The income tax was rescinded after the Civil War, was reintroduced
in the 1890's, and was challenged in Pollock v Farmers Loan, 157 US
429, 158 US 601 (1895). The Pollock challenge involved income
derived from dividends from bonds and income from rental property.
The court distinguished the issues as being a tax levied upon the
income from capital investments that the court considered different
from a tax levied on "business, privileges, or employment." id 579.
The court held the tax levied on income from capital investments was
a direct tax and unconstitutional. Since this action would place the bulk
of the remaining tax on salaries and wages which was not the intent of
congress, the entire tax scheme on rehearing was declared invalid. id
637 (do not read unconstitutional). Pollock did not adjudicate any issue
relating to wages or salary, the issue did not have representation
before the court, it was not defended and it was not discussed in any
brief. Salaries/wages (employment) was mentioned by the Pollock
court to have previously "assumed the guise of an excise tax and been
sustained as such." id 157 US 579; 158 US 635. No authoritative
citation is given nor should we confuse a reference to a guise with a
holding. Congress could have reinstated an income tax on
wages/salaries without an amendment to the constitution, but not
upon dividends or rental income.
Congress passed the Corporate Tax Act in 1909 that was merged with
the income tax provisions of the Underwood Tariff Act in 1914.
Adjudication of an individual's constitutional rights relevant to the
income tax is sparse; most income tax litigation involve corporations
and corporate privileges. Subsequent adjudication has served to blur
the distinction between the two taxes. Numerous adjudication hold
corporations are subject to an excise tax. American Manufacturing v
St. Louis, 250 US 459 (1919); Flint v Stone Tracy, 220 US 107 (1911).
Perhaps it may be suggested the income tax is levied upon those who
are privileged to enjoy the benefits of government. The suggestion
witnesses a gross misunderstanding of the evolution of our
government.
It is not a privilege to enjoy government; government enjoys a
privilege to have been created by our forefathers. The suggestion is a
complete reversal of the role that government is the (civil) servant of
the people and suggests that government is the master bestowing its
gifts and privileges upon the citizenry. Government has absolutely
nothing to bestow, either finances or privileges, except what it has
already received or taken from the people and the pursuit of a
livelihood has never been knowingly acquiesced by the people. The
income tax does not fulfill adjudicated characteristics of an excise tax.
Agreement can be found in Internal Revenue Manual 9781, Section
452.1.
Even with the adjudication discussed above that the 16th. Amendment
does not grant new taxing authority to the federal government, there
may be some thought that plenary power to tax the constitutional
right detailed in Part 2 is authorized. Let us review Robertson v
Baldwin, 165 US 275. "The law is perfectly well settled that the first
ten Amendments to the Constitution, commonly known as the Bill of
Rights, were not intended to lay down any novel principles of
government, but simply to embody certain guaranties and immunities
which we had inherited from our English ancestors, and which had
from time immemorial been subject to certain well-recognized
exceptions arising from the necessities of the case." id 281. The
exceptions detailed by the court do not include a tax on an individual's
earnings.
It appears that sometime before the 1954 rewriting of the IRS code,
the defense of liberty was made to the courts by some knowledgeable
lawyer. The unknown case was quietly buried by the courts to
perpetuate the tax. Vivian Kellums might be an interesting case to
research. The rewriting of the code removed all declarations that the
defendant must be shown liable by law. Lawyers for the IRS, grasping
for adjudication to uphold the tax on an individual's wage or salary,
misrepresent dicta in Springer and Pollock. The courts, as Thomas
Carley found out, assist by adjudicating issues with hidden meanings
and distorted applications in an apparent concerted effort to prevent
any substantive challenge to the income tax, and will do anything
necessary to prevent an adjudication on the merits. Of all the
attributes of a representative society, greed, manifested by taxation, is
the most destructive but must somehow be controlled when given to
government.
The information in Parts One, Two and Three can be rephrased into a
generic Motion to Dismiss with a memorandum of Points and
Authorities.
Any motion has to be modified to the situation. In the writer’s opinion,
a generic paraphrasing of forms from various books leaves many
options, such as the following:
{motion style}
{motion style}
The court will take judicial notice that the indictment claims the
defendant violated Title 26, United State Code, Section 7203 by reason
that he had gross income of $xxxx and that he did willfully fail to make
a tax return “as required by law.” There is no other statute from
Title 26 mentioned in the indictment.
In brief, the indictment does not charge the defendant with being
legally responsible for any tax. This position has been obliquely
observed in several recent adjudication that might be best to review.
In three appeals from tax court, Lively v CIR, 705 F2d 1017
declared a claim of “no law imposing an income tax on (Lively)” was
without merit while Ficalaro v CIR, 751 F2d 85 and Charczuk v CIR,
771 F2d 471 declared §§ 1 and 61made the taxpayers liable for the
income tax. Since all three citizens had petitioned tax court, there was
no indictment served nor did the ’taxpayers’ have standing to
challenge the legality of the income tax. A petitioner to tax court
cannot make such a challenge. To file a petition in non-judicial tax
court inherently assumes jurisdiction of the ‘court’ and the legal
position of a taxpayer. That is the Roman civil law procedure that is
applicable in administrative tax court. To challenge liability for the
income tax in appellate court after acquiescence to the status of
taxpayer in tax court is an absurd appeal that justifies personal
sanctions upon the lawyer. It might be in the public interest to revoke
his license. The circuit courts only address error in the trial court (or in
the case of tax court, the hearing); appeals are not trial de nova.
In US v Moore, 692 F2d 95, pro se Moore suggested IRC §7203 was
unconstitutionally vague and additionally failed to specify who has to
pay an income tax. The trial court prevented such arguments from
being made to the jury and the appellate court declared IRC §l and
§6012(a) made the defendants responsible for the income tax.
In US v Bowers, 920 F2d 220, the defendants asserted they were not
“persons” within the tax law and wage income is not taxable. The court
declared IRC §6012 requires payment of taxes.
But the quotation misses the real point. We are not addressing a
vague statute. There is no ‘statute which requires the doing of an act’
averred in the indictment. It is manifestly obvious the defendant
cannot violate IRC 7203. The section reads: “Any person required
under this title to pay any estimated tax or tax, or required by this title
or by regulations made under authority thereof to …” emphasis added.
The requirement is clearly outside §7203; the defendant cannot violate
§7203. If the defendant is required ‘under/by this title‘, then the
punishment of §7203 can be pursued by the prosecutor. What law
“under/by this title” requiring the payment of a tax did the defendant
violate? There is no answer. .(Concurrence that legal responsibility is
outside §7203 is indicated in the circuit court opinions, Congressional
Report, and government websites detailed above.)
that was never made.” The IRS has not charged the defendant with
being legally responsible for an income tax. The present situation is
precisely the example envisioned by the court as a most egregious
violation of due process. Defendant must be given adequate notice of
the offense charged against him and for which he is to be tried. Smith
v O'Grady, 312 US 329 (1941). "Conviction upon a charge not made
would be sheer denial of due process." De Jonge v Oregon, 299 US
353, 362. (1937).
Would the lack of a statute averring legal liability constitute
harmless error? Again, let the Supreme Court address the issue. In
Smith v US, 360 US 1, the court held the constitutional right to an
indictment could not be waived by the defendant and that a
proceeding in violation of this constitutional requirement negated the
jurisdiction of the court. (The Supreme Court could not have returned
the case for a new trial if jeopardy had attached in the first trial.) The
constitutional right to be left alone unless charged with violating a law
(the essence of due process) is no less a constitutional right than
being indicted for an infamous crime. In fact, the Magna Carta’s
protection by “law of the land” (due process) predates the origin of the
indictment.
An indictment that does not charge a crime can not have substantive
issues modified by the prosecutor; an indictment is an emissive of a
grand jury. Rabe v Washington, 405 US 313 (1972).