Colleen O’Connor reported this morning in the Denver Post that Herb Fenster, a prominent Boulder attorney, plans to sue the state over TABOR, claiming that the 1992 Douglas Bruce initiative, which extensively amended the Colorado Constitution is itself unconstitutional.
“His lawsuit,” O’Connor wrote,“ will argue that TABOR deprives the state legislature of its power to tax and made it “impotent, because the most important function of a legislature is to tax and spend.”
TABOR, he argues, violates Article IV Section 4 of the U.S. Constitution, which says the federal government must guarantee that states have a republican form of government, which he interprets as “a tripartite government, a legislative, executive and judicial branch.”
Under TABOR, the state legislature is unable to raise taxes. That power resides with the voters.
Fenster believes this constitutes a form of popular democracy, in which the population decides everything, not a representative democracy, in which the people are represented by a legislature that decides.
“If you want to vote on tax legislation, then send people to the legislature who are going to vote the way you want them to vote,” he said.
Fenster is one of those pesky, unpredictable, fearsomely smart people who are often despised by both political parties because they can’t be pinned down, demonized and dismissed. Is he a Rino (Republican in name only) or a Dino (Democrat ditto)?
Who knows? More to the point, does he have any chance of prevailing in court?
Probably not, since courts have historically deferred to the will of the voters (Bush v. Gore notwithstanding!). But it’s interesting to speculate how the Supreme Court might rule on such a case, if it ever reached that august and eccentric body.
The court includes in its membership at least four jurists (Roberts, Alito, Scalia, and Thomas) who hold, or pretend to hold, “originalist” views.
“Originalism” is a deceptively simple legal theory, which holds that the Constitution has a fixed, knowable, and invariable meaning, which was established at the time of its creation.
It seems clear that the Founders did not envision today’s unruly democracy. The right of initiative does not appear in the Constitution and is not listed as an “unalienable” right in the Declaration. Yet less than a century after the ratification of the Constitution, Colorado’s founding document guaranteed the right of initiative.
Strict originalism might suggest that the exercise of direct democracy via the process of initiative is of doubtful constitutionality. It’s clear, however, that no court in the land would dare strike down what voters in many western states regard as a fundamental right.
But are there limits to the rights of voters to tinker with the fundamental structure of government? Does TABOR violate those limits? It seems to me that Fenster has a pretty good argument – but I thought that Lindsay Fischer had a pretty good argument when he sued the city over its supposedly illegal uses of certificates of participation to fund the USOC deal. The court disagreed, and the deal went through.
But just suppose the Colorado Supreme Court agreed with Fenster? We’d have a delightful political/legal donnybrook on our hands. And if it made it to the Supreme Court, it’d be fun to watch the four most conservative justices wriggle and squirm, as they sought to find some justification for preserving TABOR. Is it an icon of the kind of limited government that the Founders sought to create? Or is it an example of the devolution direct democracy to mob rule, governance handed over to ignorant masses who are routinely deceived by demagogues of left and right?
Who knows? But if the Supremes were to issue a sweeping ruling empowering states to have whatever kind of government they might choose, we’d be on our way to fixing local government.
I can see it now – a simple proclamation from the mayor, altering our parochial city manager form of government to something a little more sophisticated – a kingdom!
King Lionel the first, Rex et Imperator! Ruling by decree, the king would establish a hereditary aristocracy, with dukes, earls, counts, lords, and a landed gentry. There’d be one catch – if you wanted a title, with the rights and privileges attendant thereto, you’d have to pay tribute. In fact, you’d have to pay tribute if you were the lowliest peasant. And if you didn’t pay, the king’s soldiers would come and squeeze it out of you. Taxes too low? The King would decree higher taxes! Taxpayers complaining? Off with their heads!
It’s simple, efficient and exactly what the Founders intended. Justice Scalia, read your Constitution!
Article 1, Section 9: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.
That may seem simple, but that just applies to the states! We’re a home rule city, Mr. Justice Smartypants! We can do what we please! Just ask Douglas, Lord Bruce …