(Denver Post, Feb. 21) Mobilize the militia. Fire up the Humvee. Get down the musket off the mantelpiece. Boulder is preparing to invade Colorado. Yes, a lawyer from up in the progressive paradise says that your right to vote on taxes violates his constitutional entitlement to ever-increasing teacher salaries and NEA indoctrination of our kids. The invasion is no joke, because Herbert Fenster is a legal heavyweight and his intended enforcer is a robed priesthood answerable to no one. TABOR could be in trouble. Fenster will ask the courts to strike down the Taxpayer’s Bill of Rights in our state constitution, whereby citizens have the last word on taxes and debt, under his theory that taxation by elected legislators, not you and me, is essential to “a republican form of government” as guaranteed to each state by the U.S. Constitution.
Some theory. Major premise: “The power to tax is the power to destroy,” as John Marshall warned Americans two centuries ago. Minor premise: Colorado’s people, explicitly sovereign under our 1876 constitution, have limited the taxing power with a 1992 amendment. Conclusion, according to Fenster: The General Assembly must be given unlimited power to destroy.
Who is to ax TABOR? Not the ordinary working Coloradans who sweat the jobs that bring the paychecks that yield the taxes that reduce the take-home that feeds the family. That would call for a ballot issue and a campaign, you see. It would require persuading too many selfish folks who don’t realize that others know what’s best for them. Fenster of Boulder would rather just persuade a few enlightened judges.
We could try to antidote this poison cocktail of elitism and illogic with facts. We could bring data to show that tax limitation over the past two decades has helped Colorado’s economy to thrive competitively, while buffering public budgets from the nightmare imbalance of states like California. We could cite studies tracing the dysfunction of public education to structural, not fiscal, causes. But that’s not the real issue.
The issue is whether we’re fit to be free – we the self-assertive and self-reliant Westerners, we the people. Herb Fenster and his liberal posse, decent Americans as best I know, don’t think so. They want the unelected judiciary to take our votes away from us because we’re uncaring toward children. What’s scary is that they may succeed, unless we raise the kind of hell that free men raise when liberty is threatened.
I don’t just mean filing legal briefs. A defense in court will be needed, and TABOR advocates will mount one. Nor do I just mean winning the debate. Montana's Robert Natelson and many other law professors could school Fenster in the constitutional acceptability of “direct citizen lawmaking” in both the Founders’ intent and case law.
But along with all that, we need the tea-party spirit. Absent an aroused and determined citizenry, neither law nor logic nor the majesty of the Supreme Court nor even the powers of Congress are now enough to safeguard limited government, so far gone is the old American republic with its “Don’t tread on me” ethos.
In the Reynolds case of 1964, the US Supreme Court imperially banned state senates from being districted as the U.S. Senate is. Constitutionally unwarranted and outrageous, but we swallowed it. Will the Fenster case tempt the Supremes to a similar tyrannical ban on tax limits? It could – and even if it does not, this should be a wakeup call for patriots.
Those seeking to simply gavel TABOR down will try something else if this fails. They are emboldened and shameless. They evidently believe Dostoevsky was right when he predicted mankind will trade “the ill-fated gift of freedom” for bread and lies. They assume that Tocqueville’s prophecy of “soft despotism” gradually making Americans a nation of sheep has come true. Has it?