Closing Windows on Taxpayer's Rights

The Constitution of the United States of America.

What a powerful opening statement for a blog.  Embodied in that document is the reason the United States has led the world in progress, affluence, and compassion for over 200 years.  It is because of the Constitution’s limits on government and protection of individual rights that society has advanced more in the last 200 years than in the previous 5000 years. 

The Taxpayer’s Bill of Rights (TABOR). 

Not quite as captivating, is it?  It doesn’t really stir one’s emotions.  But while the Constitution enabled great achievements by limiting the federal government, TABOR has helped to protect progress in Colorado by limiting our state government.   

California, believe it or not, preceded Colorado in protecting taxpayer’s rights with the GANN amendment.  Like TABOR, it limited the growth of state revenue to inflation plus population growth.  In the late 1980’s California repealed GANN. How has that worked out for them?  They are currently struggling to reduce their budget deficit from $25 billion to $9.6 billion. Let’s compare that to Colorado.  This year, our legislature succeeded in closing a $600 million budget shortfall. While it’s a constitutional requirement that we have a balanced budget, it’s TABOR that kept the size of government in check and prevented us from having an impossibly large shortfall like in California. 

Now Herb Fenster, an attorney from Boulder, is suing the state over the constitutionality of TABOR.  Fenster is the German word for window, and you can see right through him.  He’s another elitist who would prefer that common people remain powerless. The lawsuit asks the courts to make new law and remove power from the people.  Both purposes are antithetical to the republican form. If successful, Fenster’s lawsuit would vest power in the hands of unelected judges, and lawmakers who are more concerned with re-election than with the rights of citizens. 

Fenster’s lawsuit hinges on the “guarantee clause” of the US Constitution: “The United States shall guarantee to every State in this Union a Republican Form of Government…” In Fenster’s view, this means that citizens have only the power to elect representatives, but no power to enact laws, vote on tax increases, or amend our state constitution.  Fenster is wrong. 

According to constitutional law scholar Robert G. Natelson, the Guarantee Clause “meant that the federal government was obligated to intervene if the rule of law broke down within a state, or if a state erected a monarchy or government immune from citizen control…Otherwise, the states had broad power to choose their own style of governance…Although most of the Founders were not devotees of direct democracy, they did make it clear that it was consistent with the republican form for the people to exercise the legislative power directly.” 

The Declaration of Independence has a recurring theme: that all men are created with unalienable rights. To put it another way, each individual has sovereign power.  The Constitution was crafted to protect the sovereign power of individuals. They wanted to avoid a monarchy.  Until the colonies declared themselves to be free, they were under the rule of King George.  In a monarchy, only the King has sovereign power.   

According to Natelson, there are three required elements of a republican form of government:  1. Rule by the majority [or plurality] of participants, 2. The absence of a monarch, and 3. The rule of law.  These three elements combine to ensure that individuals retain their sovereign power. 

The Founders also created a system of checks and balances.  They understood that democratic institutions were an effective check against excessive representative powers.  The republic of Rome was held out as an example.  James Monroe, quoting Polybius, said of Rome, “…there was a…mixture of aristocracy, democracy, and monarchy, each of which had a repellent quality which enabled it to preserve itself from being destroyed by the other two, so that the balance was continually maintained.” 

TABOR protects the rights of individuals against a rapacious government that will use your money to expand its power and rob you of yours.  Because it limits government, TABOR is very much in line with the wisdom of the Founding Fathers and the Constitution of the United States of America.