OUR VIEW: Sue the people, empower the state (vote in poll)
Boulder lawyer favors government rights
Boulder lawyer Herb Fenster is at it again, generating headlines this week with a threat to sue the citizens of Colorado in federal court to undo the Taxpayer’s Bill of Rights and uphold the “rights” of government over the people.
Fenster believes TABOR, added to the Colorado Constitution by citizens, violates Article IV, Section 4 of the United States Consitution. It’s a bizarre view, to say the least.
“It is our view that, if the state Legislature is deprived of the power to tax, it is not an effective legislative branch,” said Fenster, speaking in August to the state government’s Long-Term Fiscal Stability Commission. Fenster says TABOR has moved Colorado toward direct democracy, a form of tyranny in which majorities have authority to greatly empower government and violate even the most fundamental rights of individuals. If TABOR did that, Fenster’s planned lawsuit would have merit and constitutional orginalists would be wise to wish him success. But it’s not true. While direct democracy empowers a mob to assault individuals with intrusive government, TABOR performs the opposite task. At most, it reduces the relative size and scope of government.
Here’s what this column said about Fenster’s lawsuit threat last August, when he announced it the first time:
Article IV, Section 4 of the Constitution states: “The United States shall guarantee to every state in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
Definitions of “republican,” in the context of a governing model, vary greatly. Nearly every reputable definition begins with an explanation that republican government involves participation by the governed. In the United States, our republican form of government, greatly constrained by constitutional law, was formed as an entity “of the people, by the people and for the people,” as eloquently explained by Abraham Lincoln in the Gettysburg Address.
The word “republic," derived from Latin, means a thing of the public. In a constitutional republic, laws are in place to confine the powers and authority of government in order that individuals and individual rights reign supreme over the wants and needs of a ruling class or the collective. In a constitutional republic, a majority may vote to silence a radical and unpopular individual, but the law will not allow the decision to stand. The majority sentiment will be constrained by the First Amendment, which protects the rights of an individual to speak and worship without interference from authority, even if a majority wants it. We are not a nation of men, but a nation of laws.
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In a constitutional republic, a great majority may win an election to outlaw guns. But the law, in the form of the Second Amendment, allows the individual to keep and bear arms regardless of what an authority or majority thinks about it. In a republic, the law does not allow a majority the right to constrain individuals. It does allow the majority to constrain government. A majority vote cannot close a church, though it may close City Hall or any branch of state government.
Anyone familiar with the United States Constitution knows that it limits the powers of government in the interest of vesting authority in the individual. Governments have no rights protected by the laws that govern our republic. Only individuals have rights. The Preamble doesn’t say “We the government.” It says we the governed, written like this: “We the people.”
Citizens in Colorado, “we the people,” took to the voting booths in 1992 and approved a plan to restrict state government’s ability to unilaterally tax and spend. By approving TABOR, citizens said they would determine the scope of taxing and spending by the governments they pay to serve them. In doing so, the people made Colorado’s Legislature a textbook example of republican government, controlled by citizens. Did they drive Colorado toward pure democracy, as Fenster claims? Not even close. They merely made law that empowered the governed to determine the basic size and scope of the government that serves them.
In a direct democracy, majorities impose their will on individuals with more government, not less. TABOR only moves us more in the direction of republican governance. The Legislature has no rights. The “public,” as spelled out in the word “republic,” has rights to constrain the Legislature. That is what Fenster, a seasoned legal scholar, will learn when he loses this fight. — Wayne Laugesen, editorial page editor, for the editorial board
