OUR VIEW: A suit that favors legislative rights

A Denver lawyer plans to sue Colorado in federal court, in the latest and most colorful attempt yet to undo the Taxpayer’s Bill of Rights and uphold the “rights” of government over the people.

Lawyer Herbert Fenster told the state’s Long-term Fiscal Stability Commission last week that TABOR may violate Article IV, Section 4 of the United States Constitution.

“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, who worked as litigation counsel for the Reagan-Bush Campaign committee. He says TABOR has moved Colorado in the direction of direct democracy, a tyrannical form of government in which majorities are allowed to greatly empower government and violate even the most fundamental rights of individuals.

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 any definition, however, 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 so eloquently explained by Abraham Lincoln in the Gettysburg Address.

The word “republic” is derived from Latin, and it 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.

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 in Colorado Springs, yet it may close City Hall.

Anyone familiar with the United States Constitution knows that every word 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 politicians.” It says “We the people.”

Citizens in Colorado, “we the people,” took to the voting booths in 1992 and approved a plan to impose restrictions on government. By approving TABOR, citizens said they would determine the scope of taxing and spending by the governments they pay for. In doing so, the people made Colorado a textbook example of a republican form of government, in which citizens control government but not individuals.

If Fenster sees this as a move in the direction of direct democracy, he is confused. In a direct democracy, majorities would be empowered to impose their will on individuals. Majorities would have the power to elect dictators and to empower government to violate the fundamental rights of citizens. Direct democracy is mob rule that inevitably leads to more government, not less. Republican government, by contrast, involves public participation in decisions that regulate the size and scope of government. TABOR epitomizes the essence 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 and highly educated legal scholar, will learn if he files this unwinnable lawsuit.