CAPITOL REVIEW: Consent of the governed

Filed under: Opinion |

When our founding fathers declared that government’s authority comes from “the people,” they charted a radical departure from the presumption of authority that established kings and rulers almost everywhere else in the civilized world.

Elsewhere, monarchs were considered to be divine descendents of God, unlike the commonfolk over whom they wielded the sword. Even in those nations where a ruling council – e.g., the Roman senate – held some authority, governing authorities were an elite class which commoners could never join.

In the 18th century, the idea that ordinary people could govern themselves – much less exert authority over their governors – was heretical. Nonetheless, the signers of the Declaration of Independence proclaimed that our government derives its “just powers from the consent of the governed.”

Consent of the governed necessarily includes the right of the people to establish limits on government. Our founding fathers drew a bright line (“Congress shall make no law&”) to protect individual freedoms.

Human nature being what it is, lawmakers have chipped away at those freedoms. The judicial branch increasingly turns a blind eye to excesses, rationalizing that such infringements can be tolerated if Congress has a “compelling interest” – a concoction of the courts, since the Constitution itself makes no such exception.

In states with a citizen initiative process, the people still actively limit the scope of government by establishing parameters for their elected representatives. However, the initiative process can just as easily expand the scope of government.

Legislators chafe at citizen constraints and challenge them through legislation or through the courts.

In 1990, Colorado became one of the first states to limit the terms of legislators. Over time, 21 states enacted term limits – all but two via citizen initiative. In five states, courts stepped in to overrule huge majorities and strike down term limits.

To be sure, term limits are a mixed bag – like so many bills passed by the Legislature which are neither great nor terrible. Still, term limits express the people’s desire to ensure that their elected representatives don’t forget what life is like outside the Capitol. That is the people’s prerogative, and courts should respect that decision.

More fundamental still is the right of the people to restrict the size of government by restricting its ability to tax. In Colorado, the Taxpayers Bill of Rights may have its imperfections, but the people certainly have the authority to keep their government on a tight rein if that’s the scope of government which they desire.

The power to tax is a legislative function, but in some states, including Colorado, the people not only delegate that authority to the legislature but also reserve it for themselves.

However, in several states, such as Ohio, Kansas and Arkansas, disgruntled citizens who could not legislatively obtain the level of school funding which they desired have petitioned the courts to order a tax increase. Similar lawsuits are percolating in Colorado.

For the judicial branch to rule that a legislative formula does not distribute school funding fairly among poor and wealthy school districts may be appropriate. However, to raise taxes through judicial fiat eviscerates the separation of powers.

The power to tax is a legislative function derived from the people. Once those in black robes seize this power for themselves they not only declare that the powers of all three branches are within their grasp, but they wrest the reins of ultimate authority away from the people.

Legislators who, in their own self-interest, may want courts to strike down citizen-enacted term limits must remember that a court which will disregard the will of the people to legislate will show no greater respect to acts of the Legislature.

Sen. Mark Hillman (R-Burlington) is the Republican Leader of the Colorado Senate. His e-mail address is