High court's power grab may backfire

In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government — and the voters — to a perfunctory role. The high court's activist majority used Lobato vs. State not only to intrude on the legislature's constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review.

So much for separation of powers, consent of the governed, or checks and balances. In fact, the Lobato ruling leads to the obvious question: "What's left to check or balance the court?"

The majority opinion, written by Justice Michael Bender, represented such a stark — and sometimes disingenuous — departure from established precedent that Justice Nancy Rice, who frequently sides with the activist majority, instead joined two originalist justices in dissent.

A collection of school boards and parents initiated the lawsuit in 2005, contending the legislature should increase K-12 education spending by as much as $500 million a year — as if the state could find $500 million under the couch cushions.

Two lower courts dismissed their claims, finding that the state constitution provides no quantifiable standard — other Amendment 23, which the legislature has thus far implemented — to determine funding sufficiency. Thus, the courts ruled that K-12 spending is a "political question" which the constitution specifically places within the authority of the legislature and beyond the court's purview.

However, the supreme court's majority selectively quoted and distorted the law and its own precedent. Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government.

Bender's decision devotes five pages mostly to quote law school textbooks and journals — which have no force of law — to argue that the "political question doctrine … should be abolished."

Incredibly, Bender — joined by Chief Justice Mary Mullarkey and Justices Alex Martinez and Gregory Hobbs — reasons that failure to hear the plaintiffs' claims would "give the legislative branch unchecked power." Is the majority so infatuated by judicial supremacy as to forget that the legislature is routinely checked by the governor's veto and by citizens' initiatives?

In her dissent, Justice Rice demonstrates that a judge can be liberal in applying the law while still acknowledging that even the courts must be constrained: "Chief Justice Marshall noted that without the restraints imposed by the political question doctrine . . . the other departments would be swallowed up by the judiciary."

Rice — joined by Justices Nathan Coats and Allison Eid — argues that, when the constitution says "the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools," authority is clearly conferred upon the legislature and not the courts.

She also scolds the majority for twice distorting the court's 1982 Lujan ruling on school finance.

Bender asserts that Lujan explicitly established the court's authority to review public school finance. Rice corrects the record to show that the Lujan court said, "[O]ur sole function is to rule on the constitutionality of our state's system" (emphasis added) not "whether a better financing system could be devised."

Rice goes one better in dismantling the majority's argument that "the Lujan court engaged in a rational basis review of whether the state's system violated the 'thorough and uniform' mandate." She retorts: "This is simply untrue – the Lujan court never references any test for 'thorough and uniform,' uses the words 'rational basis,' or posits any standard of review."

In fact, the Lujan court left those determinations to the legislature because it was "unable to find any historical background to glean guidance regarding the intention of the framers."

That's the important distinction between originalist judges — who believe their job is to apply the laws as written and to seek guidance from those who authored them — and activist judges — who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration.

Ironically, Bender, Mullarkey and Martinez stand for retention in November 2010. Perhaps then voters will exercise their own "checks and balances."

Mark Hillman served as senate majority leader and state treasurer. To read more or comment, go to www.MarkHillman.com.

Constitution Day 2009

Perpetuation of Our Political InstitutionsBy Greg Schaller

On September 17, 1787, thirty-nine of the delegates at the Constitutional Convention, having met for four long, hot, and humid summer months in Philadelphia, had finally completed their task. On that day, they lined up and signed their names to the completed document. The debates had often been heated and the disagreements significant, concerning the powers of the national government, the representation of the states, and, of course, slavery. Yet in the end, the final version was a Constitution that has endured for over 221 years. It is the longest surviving, working constitution in the world today. The Constitution is indeed worthy of respect and honor because of its long survival. But survival of a regime and survival of a constitution is not good in and of itself; just as survival of a tradition isn’t good for its own sake. The perpetuation of a tradition or a Constitution must be judged on what it is, not simply on its endurance. We can all think of many examples of governments around the world that are surviving, but that we (as well as its citizens) would certainly prefer to see fail.

Abraham Lincoln delivered the eulogy for a man he admired greatly: Henry Clay. Clay was an early leader of the Whig party, to which Lincoln was a member before the Republican Party emerged. In his eulogy, Lincoln said of Clay: “He loved his country partly because it was his own country, and mostly because it was a free country; and he burned with a zeal for its advancement, prosperity, and glory, because he saw in such the advancement, prosperity, and glory of human liberty, human right, and human nature. He desired the prosperity of his countrymen, partly because they were his countrymen, but chiefly to show to the world that free men could be prosperous.”

Henry Clay was patriotic toward his country. But his patriotism was not a blind faith loyalty based simply on the fact that he resided here. It was a loyalty to both the principles of the founding and the Constitution crafted from those principles. Lincoln shared this loyalty and dedicated his presidency to the preservation of the Union and its Constitution. However, Lincoln would have been the first to admit that had the Union not been worth preserving (because of what it was about), it certainly wouldn’t have been worth the loss of over 600,000 lives in the Civil War in order to preserve it. So what was and is so significant about our Constitution that Lincoln was convinced that waging a lengthy war at the cost of so many lives was indeed worthwhile.

When we discuss the significance of the struggle to preserve the Constitution, we need to be clear on two things: first, what exactly are we preserving; and second, what is the nature of the attack that is being made against it.

Be clear, our Constitution is under attack. The center of the attack is made against the two things Lincoln thought were so important to save: the Constitution and the concept of the “rule of law” that is essential to the Constitution’s preservation. The method of attack is two-pronged. The first is to debunk the text and original meaning of the Constitution. The second line of attack argues that we can re-interpret the text whenever we deem it necessary and when it suits our purposes.

Today there are two primary and competing schools of thought when it comes to Constitutional interpretation. The first school is described well by former United States Supreme Court Justice William Brennan.

In a speech delivered at Georgetown University in 1985, Brennan claimed that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

What Brennan was in fact saying was that the text of the Constitution really has no meaning, or a least no meaning other than what we happen to decide to give it today, regardless of whether our modern interpretation has any resemblance to the intent of its authors. This perspective is also unconcerned as to whether or not our interpretation will be completely different in 50 years, 20 years, 1 year, or even tomorrow. What Brennan describes is a school of constitutional interpretation that favors a “living” or “evolving” constitution. The meaning of the text is no more than what we choose to give it, and we grant ourselves great latitude to change our interpretation any time public opinion has changed.

It is this school of interpretation that has given us the remarkable constitutional “reasoning” in several recent cases of, “the evolving standards of decency.” This argument has been put forth most notably in recent capital punishment cases. To see how this works, considering two recent cases will suffice. In 1989 the Supreme Court concluded that it was constitutional to execute individuals with low I.Q.s. The majority concluded this because there did not exist at the time a consensus among the states as to whether or not such practice would offend the 8th Amendment. However, just a few years later in 2002, the Supreme Court concluded that we could no longer continue this practice. Why? Because of the “evolving standards of decency.” According to this interpretation of the Constitution, the 8th Amendment prohibition of cruel and unusual punishment is completely dependent upon public opinion! Thus the rightness or wrongness is not determined by the text of the constitution, the principles behind it, or the intent of its authors. Rather, it is simply the adaptive interpretation as exhibited through public opinion. This understanding assumes that constitutional interpretation is simply majority will and that this will determines the rightness or wrongness of something. Of course, if we follow this argument to its logical conclusion, the institution of slavery was right, as long as it had popular support!

The competing school of interpretation argues that rather than having a living and evolving meaning, the Constitution has an “original intent”, and that American jurisprudence is based upon it. With this understanding, our application of the laws, and interpretation of the Constitution is bound by the intentions of those who ratified it. Obviously, this interpretation is in stark contrast to the constitution of Brennan that has no “static meaning”, and is forever adaptable.

If we view our Constitution as meaning only what we want it to mean, when we want it to mean that, we are violating the principles of rule of law and constitutionalism. Rule of law is based upon the need to have consistency of law, equal treatment of the law and everyone being “under” the law. Central to the need for consistency of law is that the law, and more importantly, the Constitution from which our laws are crafted, has a sense of permanence that is not easily altered. I am, of course, not making the argument that our Constitution is perfect, nor am I saying that improvements to it are impossible. The point is that there is a proper and deliberate method of changing the Constitution through amendments. The answer to changing the Constitution is not to have five Supreme Court justices simply redefine the terms for us, nor for we as the citizens of the Constitution to be disinterested or apathetic and idly watch as infringements on our Constitution take place through executive and legislative fiat.

Lincoln warned us that the greatest threat to the Union would not come from an outside force, but instead, from within. In his famous Lyceum Address, he stated: “At what point, then, is the approach of danger to be expected? I answer, if it ever reach us it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher.”

The title of Lincoln’s Lyceum address was: “The Perpetuation of Our Political Institutions.” His audience was somewhat stunned that he would question the survival of the Union and her constitution. When he delivered his speech in 1838, most of his audience had concluded that the country was a well-oiled machine with no chance of faltering. Of course, it was not long after that speech that the Union did face its crisis of survival. Lincoln believed that the seeds of the movement toward secession, when the South refused to accept the results of the constitutionally held election of 1860, were sown decades earlier, when a growing mindset of disobedience to law and a weakening of the loyalty to the Constitution was growing.

My point is not to be an alarmist. Rather, it is to have us return to Lincoln’s concern for the nation: does she reverently hold to the hard work laid out by the founding fathers, the principles of the Declaration, and the Constitution created in order to establish a More Perfect Union? Failing that devotion, a breakdown of constitutionalism and rule of law are certain to take place.

Greg Schaller (gregory.a.schaller@gmail.com) teaches political science at Colorado Christian University and serves as a Centennial Institute Fellow.

Constitution? What's that?

We all know that Barack Obama doesn't think much of the Constitution.  And he certainly won't let it get in the way of the government takeover of health care.Courtesy of  Kim Strassel at the WSJ today comes some insightful commentary about what we can now expect from Obama and the merry leftists in Congress. The Baucus Bill has been subject to Congress' death panel and is DOA. Baucus attempted to craft a bipartisan bill that would enjoy a modicum of Republican support, but he ultimately caved to enough liberal demands that it got sufficiently watered down to appeal to precisely nobody. The Republicans find it too costly and pernicious in its penalties and taxes, and the left finds it far to soft on the insurance companies and other villains of the health care industry. Max tried, but in the end he truly made "mischief of one kind...or another" and got promptly "eaten up".

In any event, Strassel makes the very good point that we should all prepare ourselves for a renewed leftward turn in the health care debate as our President caves to the demands of his leftist base:

...Our bipartisan White House grew weary of the bipartisan process and pressured Mr. Baucus to produce. He jettisoned his colleagues and pushed out a product that Messrs. Grassley and Enzi promptly condemned. The White House did such a good job of suggesting that Ms. Snowe was its GOP patsy—a Republican who'd vote for a ham sandwich, if only they asked—that even the miffed Maine senator has stepped back.

The result is two-fold. With no, or little, GOP support, the only way Mr. Baucus can pry his bill out of committee is to allow the left to have its way. The White House knows this, which is why the president—despite seizing on the Baucus legislation in his speech last week—is already abandoning the finance chief and his bill to the tender mercies of West Virginia's Jay Rockefeller and New York's Chuck Schumer. The White House wants a bill, any bill, and this bloc now holds all the votes in committee. Pity Mr. Baucus, who just got used.

Into the hands of Rockefeller and Schumer we fall. And you can bet that what comes now is a highly partisan bill that will attempt the "public option" in one form or another, and a price tag that will be (conservatively) in the Trillion Dollar range. Worse yet, it will be couched in all sorts of creative accounting and political double speak that the public will think its getting steak when it is really horse meat with lots of sauce on it. Those who were gullible enough to elect Mr. Obama may likely be gullible enough to take his latest sleight of hand at face value.

Worse yet, it is apparent that Obama wants a bill -- any bill -- and will do whatever is necessary to force it through, even if it involves using the reconciliation tool that requires just 51 votes instead of the 60 needed to overcome an inevitable Republican filibuster.

What has changed is Mr. Obama's determination to push a bill through, regardless of what his party, or the public, thinks. The White House will make the case to waverers that the political fallout of a health-care failure will be worse than backlash that comes with voting for a bill. Maybe. Behind that is the further threat that Dems will go this alone, via 50-vote reconciliation, if necessary.

Reconciliation was meant to be used only for finance bills, not for momentous, life-altering legislation like major health care reform. The Framers of the Constitution created a system where major political initiatives such as this would be subject to the normal process of debate, with the rights of the minority (in the form of the filibuster) in place. The system of checks and balances was put into place for a reason -- to slow down the system so that radical change would be difficult and would require the support of the minority party.

But no matter. In the power play now going on in Washington, the left wants its way no matter who gets trampled. Obama is already on record as saying that the Constitution "is an imperfect document", and this might as well apply to the rules around health care legislation as well. He, Pelosi, Reid, Schumer and the others know best, after all -- and they clearly don't care what the people think or want.

We are in for a rough ride. Keep up the pressure on your local Congressional delegation. The only chance we have is that those in Congress will care more about getting elected than actually reforming health care.

Let's make it clear that an "aye" will result in a "nay" next November.

Remembering our landmark Constitution

Today we celebrate the 222nd anniversary of the completion of the United States Constitution by a hardy assemblage of patriots in 1787, meeting for four months in Philadelphia’s Independence Hall. They produced the world’s first written constitution, which has turned out to be the longest continuing constitution as well. While we revere our Constitution we must also be mindful of the obligation that we, the people, imposed upon ourselves so that we can enjoy its benefits in the future for at least as long as we have already. The Constitution has numerous virtues, each one of which merits praise in our public discourse. It is widely understood and appreciated (excepting certain political parties) that the virtue that underlies all the others is limited government. Martin Diamond, who coauthored what was doubtless the best American government textbook ever written, and who was also one of my mentors, spelled out the various ways in which the American government is limited, and each is in its own way, remarkable.

The Constitution limits the scope, the jurisdiction, the powers and the operation of all levels of government. First, it carries out the fundamental principle of the Declaration of Independence that limits government to the security of everyone’s liberty. It is emphatically a movement away from ancient governments, which subordinated liberty to the goals of the ruling class, and from medieval governments, which sought to guarantee eternal salvation.

This is also not a government that attempts to guarantee everyone’s satisfaction but leaves them free to make the decisions that promote their happiness. It rejected in advance the totalitarian regimes that cursed so much of the world in the 20^th century, such as fascism, communism and nazism. We must add to that list radical Islam which invades human freedom for the sake of jihad.

Second, the Constitution limits the jurisdiction of both federal and state governments, by broadening that of the former and restricting that of the latter. Before the national government was instituted by nine states’ ratification of the Constitution in 1788 and the first national elections in 1789, we were governed by a loose alliance of sovereign states. It was essentially a military alliance for winning and keeping our independence, but it was incompetent to accomplish even that very well, not to mention the equally important object of promoting commerce among the states and securing adequate revenue.

The Constitution was written mainly to secure a powerful government for the limited purposes of common defense and general welfare through granting it authority to make decisions by the consent of the people, rather than by consent of the state governments. Thus, the Constitution deprived the states of the power to govern the Union, but left with them the vast bulk of domestic powers relating to the safety, welfare, health and education of persons in their jurisdiction.

Liberals today are prone to imagine that the broad authority of the federal government in certain areas somehow justifies any scheme that can be financed by federal revenues. Conservatives, on the other hand, sometimes have difficulty granting the federal government the broad authority over limited objects which it actually possesses. No one stated the matter more clearly than James Madison, known as the Father of the Constitution:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected." (The Federalist, No. 62)

Third, the federal government is limited to those enumerated powers, particularly in Article I, Section 8, wherein the powers of Congress are set forth. The last clause of that section, known as the necessary and proper clause, does not grant any additional powers but leaves it to the discretion of federal officers the means for "carry[ing all] powers into execution."

The Tenth Amendment to the Constitution, adopted out of an abundance of caution, reminds us that powers not granted to the federal government, nor prohibited to the states, are left with the states or the people. It does not deny any powers that the original Constitution did not already deny.

Fourth, the Constitution limits the operation of the federal government by distributing powers among three separate and distinct departments with an eye to preventing tyranny by either the government or the people, as well as providing the most competent government possible. Congress has the power to make laws, but it requires the assent of two legislative branches and the approval of the President. The President’s veto power is not absolute, as two thirds of both houses of Congress may override it.

The Supreme Court and other federal courts established by Congress have jurisdiction over cases arising under the law and hear challenges from lower courts to federal authority. The power to declare either state or federal laws null and void was not explicitly stated in the Constitution but was thought to be implied by the fact that a limited government required such a check on legislative authority.

The checks on Congress derive from the fact that the lawmaking power is the greatest of all powers in a republic, which includes regulating the executive and judicial branches, funding them and approving their personnel. It is misleading to speak of some sort of "deadlock of democracy" between three equally frustrated branches as liberals often lament and conservatives sometimes imagine.

Congress can deliberate but it cannot provide leadership when circumstances call for it. Only the president is so constituted by its unity, duration and powers. Congress can make laws but it cannot fairly judge violators. Only an independent judiciary can do that.

The Constitution is also noteworthy for its brevity. It consists of only seven sections, the first of which is as long as the rest combined. This enables persons of average intelligence to read and understand its provisions without resort to voluminous interpretations or obeisance to Platonic guardians. Unfortunately, that has not prevented our states from devising exceedingly long constitutions. (For example, California has amended its constitution more than 500 times!) Nor has it prevented virtual canonization of those wearing judicial robes with their unfathomable interpretations.

Again, it is Madison who has the best criticism of the first corruption and, by implication, of the second:

"It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? (The Federalist, No. 45)

The Constitution could not have been adopted without compromising with slavery which, sad to say, took a bloody Civil War to extinguish. And it is only as good as we, the people, make it by our continued adherence to its fundamental strictures. Nevertheless, it has continually frustrated the tyrannical ambitions or grandiose schemes of its enemies or confused friends, and God willing it will continue to do so.

Democrats socialistic? Of course they are

The greatest single weapon in the Democratic Party’s arsenal has been its ability to confuse the voters. Even though it has practically defined itself since the 1930s as the party of Big Government, with high taxes and spending, massive regulation and intervention, and continual encroachment on private property, its leaders and spokesmen have vehemently denied that their policies amount to socialism. But why? Is socialism such a bad thing? Maybe not if you advocate socialistic policies, but maybe so if calling something by its right name will antagonize the voters and lose their support. That’s been the predicament of the Democrats as they consistently seek to solve real or imaginary problems with government programs and income redistribution, rather than abiding by the Constitution’s protections for free trade and commerce.

There’s no point in trying to pin the socialistic tail on the Democratic donkey when the donkey disowns it. Better to define our terms and decide the question based on the relevant principles and salient facts, rather than accusations or denials.

The Merriam Webster Dictionary defines socialism as follows: 1 : any of various economic and political theories advocating collective or governmental ownership and administration of the means of production and distribution of goods2 a : a system of society or group living in which there is no private property b : a system or condition of society in which the means of production are owned and controlled by the state 

Governmental ownership of production and distribution of goods rather than private property, then, is the essence of socialism. This contrasts with the limited government and largely unfettered trade and commerce by individuals and corporations that have distinguished the United States of America.

How then do we understand the Obama Administration’s takeover of banks and other financial institutions, automobile companies and the current proposal to take over the health insurance industry? Plainly, these are all socialistic measures, not just because Republicans say so but because they are examples of what socialism is.

In Europe, where nationalized health care has long been in effect, along with nationalized heavy industry and mining, socialism is more "advanced" than in the United States. When President Obama says that he wants to "transform" America, following the European model is what he has in mind.

Socialists here and in Europe are not enemies of government by the people, or at least they have no intention of replacing it with any sort of dictatorship. During the many decades that they have promoted socialism, they have been at great pains to distinguish themselves from Marxists, who have advocated violent overthrow of so-called "bourgeois" (middle class) democracies and replacement by the "dictatorship of the proletariat."

The difference has turned on very different evaluations of modern democratic government. The Marxists believe that western democracies are a sham, allegedly dominated by the evil capitalists who manipulate the people by money and influence. These corporate chieftains will not, Marxists say, willingly give up their rule, so the only way to change things is through violent revolution.

Marxists have as much scorn for democratic socialists as they do capitalists for their supposedly naive belief that peaceful change is possible, if not their covert cooperation with the enemies of the people. But the democratic socialists believe that, through persuasion and effective politics, the majority can be brought around to socialism without violent revolution, and they now have several decades of success here and in other Western countries to prove it.

However, in spite of two great waves of socialism in America via the New Deal (NRA, AAA, social security) and the Great Society (war on poverty, medicare, racial quotas), and the wave now being stirred up by the Obama Administration, a majority of Americans still prefer limited government and free trade and commerce. If there is one overriding reason for this, I would maintain it is their firm belief that they retain the capacity to govern themselves.

That is why, according to recent public opinion polls, a.majority now views unfavorably the President they elected last fall. They have been shown by their harsh, bitter experience with the first few months of the new administration that the Democrats are not the political party of the little guy but of Big Government.

This emerging majority for a restoration of fundamental American principles of government may or may not be put off by Democratic denials of the party’s commitment to socialism, but they know that party stands for policies that threaten their health care, their contracts and their private property. Truly, socialism is the right name for those policies.