TABOR debate in court of appeals

The 10th Circuit Court of Appeals will hear oral arguments today on whether a lawsuit challenging the constitutionality of Colorado’s Taxpayer’s Bill of Rights should go forward.

The suit, filed in U.S. District Court in 2011 by several current and former state and local elected officials, argues that TABOR violates the U.S. Constitution because it usurps one of their most fundamental powers, the ability to impose taxes, and that prevents the officials from doing the jobs to which they were elected.

“TABOR violates a fundamental requirement of the U.S. Constitution, that each state maintain a republican form of government,” said former Colorado congressman David Skaggs, one of the attorneys representing plaintiffs in the case. “That means, at least, a state legislature that can fund state government.”

Lawyers with the Colorado Attorney General’s Office, however, say the matter is a political question, and the Constitution bars the courts from deciding such matters.

Passed by voters in 1992, TABOR’s most fundamental provision requires that any tax increase be approved by voters, rather than the Legislature or local governments. It also limits how much government budgets can increase, requiring that any revenue received above that amount must be refunded to taxpayers.

Last year, U.S. District Judge William Martinez rejected an argument from the attorney general’s office that the suit is a direct attack on the state’s initiative and referendum process.

In his ruling, Martinez said that while citizens have the right to pass ballot measures, including amending the state’s constitution, they do not have the right to approve unconstitutional provisions, if they prove to be so.

It is that ruling that the attorney general’s office is appealing, saying the republican form of government, also known as the guarantee clause of the U.S. Constitution, isn’t threatened by citizen initiatives.

“In plaintiffs’ view, direct democracy, at least as to revenue matters, is inconsistent with a ‘republican’ government because it amounts to an ‘arrogation’ of legislative powers,” the attorney general’s office wrote to the 10th Circuit in appealing Martinez’s ruling.

“No authority supports plaintiffs’ reading of the guarantee clause, however. Over a century ago, the (U.S.) Supreme Court dismissed a similar challenge to a voter initiative as nonjusticiable.”

A three-judge panel of the 10th Circuit will hear arguments from both sides, including from numerous “friends of the court” that have filed briefs in support and opposition to the suit.

Such groups range from the right-leaning Independence Institute, which opposes the suit, to the left-leaning Bell Policy Center, which supports it.


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The only real problem with TABOR is a general society-wide ignorance in Constitution 101 and history. We have allowed the legal profession to put one over on us. To understand the underlying philosophies, just read the opposing opinions of John Jay (patriot) and James Iredell (Tory) in Chisolm v. State of Georgia, 2 U.S. (2 Dallas) 419 (1793) (
In a 2008 speech by professor Edwin Vieira (who has four degrees from Harvard, including law, and a PhD in chemistry) at Faneuil Hall, he said, “Well the grave difficulty in that method — [the “case method” of teaching law] — from a scientific point of view is that whereas the constitution can neither be right nor wrong – it simply IS – a decision of a judge can be right, or it can be wrong. So, attempting to determine what the constitution means by reading a decision of the judge has the problem exactly backwards: you determine whether the decision of the judge is valid by understanding the constitution. I’ve always looked at this as not a method for a better grasp of the meaning of laws, but it was intellectual imperialism on behalf of the legal intelligentsia. Because the legal intelligentsia would then become the ones through whose interpretation of the law we would know what it was, instead of knowing it by reading it ourselves.”
Although the Founders didn’t intend for Americans to pay judges for ducking hard questions, in Luther v Borden, 48 U.S. (7 Howard) 1 (1849) (, the Supremes usurped the power to duck any issue simply by calling it a “political question.” That case had its roots in the Dorr Rebellion (1841-1842) ( where two different factions tried to get the Supremes to decide which of them was the constitutionally valid government of Rhode Island.
In the instant TABOR case, when the people of a state amend their constitution, that amendment, if made consistent with constitutionally mandated procedure, IS the constitution and, barring lawful repeal, that’s the end of story. Pursuant to the now-dead 10th Amendment, the feds have no authority to tell the people of a state what they can or can’t put in their constitution.
Here’s proof the anti-TABOR whiners have no case: if TABOR were passed at the national level, it would self-evidently BE part of the U.S. Constitution and not subject to judicial review for approval. The U.S. Supreme Court lacks constitutional authority to dictate what “the people” can or can’t put in their constitution. They only have authority to decide if the process complies with Article V. Therefore the idea that “the people” of Colorado can’t impose constitutional limits on legislatures to increase taxes at whim is a no brainer for anybody but manipulative sophists arguably interested in lining their benefactors’/clients’ pockets at taxpayer expense.

The sophistic anti-TABOR whiners act as if the beginning of ARTICLE II of the Colorado Constitution, immediately followed by Section 1, doesn’t say: “In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare: SECTION I. That all political power is vested in and derived from the people; that all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.” But it does say exactly that.
The people of Colorado, via the referendum process, absolutely DO have the constitutional authority to limit the authority of their legislature to simply raise taxes at whim without getting voter consent. I consider the contrary position to constitute treason against the Colorado Constitution as the “Supreme Law of Colorado”, subject only to the U.S. Constitution as the “Supreme Law of the Land”.
In my opinion, any federal judges in the District of Colorado who disagree and dare to rule against the right of “the people” to amend their constitution are traitors to the social contract and should be impeached for malfeasance in office. At the very least, they should quit their judge jobs and work to repeal or amend whatever part of the state constitution they happen to dislike.
Based on what the 10th Circuit Court of Appeal decides about this case, “we the people” of Colorado will know what has to be done to uphold the rule of constitutional law. If the 10th CCA rules in favor of the anti-TABOR whiners, that decision should be immediately appealed to the U.S. Supreme Court.
If, at the end of the day, TABOR has to be passed at the federal level to settle rogue judiciaries’ arrogant hash, so be it. The inviolate principles of governance by written constitutions (aka specific-performance two-party social contracts) remain the same.

It is entirely appropriate to the cite the on-point controlling U.S. Supreme Court’s decision on the TABOR issue: Pacific States Tel. & Tel. Co. v. Oregon - 223 U.S. 118 (1912). In that decision, the Supremes held as follows:
“The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts.
“The provisions of § 4 of Art. IV of the Constitution do not authorize the judiciary to substitute its judgment as to a matter purely political for the judgment of Congress on a subject committed to Congress.
“Under § 4 of Art. IV of the Constitution, it rests with Congress to decide what government is the established one in a State, and its decision is binding on every other department of the Government, and cannot be questioned by the judiciary. Luther v. Borden, 7 How. 1.
“A statute otherwise constitutional cannot be attacked in the courts on the ground that it was adopted in pursuance of provisions in the constitution of the State which render the form of government of the State unrepublican in form within the meaning of § 4 of Art. IV of the Constitution. The courts have no jurisdiction of the question; it is for Congress to determine.
“Where the claim that one taxed under a state statute is deprived of property without due process of law is not based on any inherent defect in the law, or infirmity of power of State to levy it, but on the ground that the government of the State is not republican in form, the question is not within the jurisdiction of the courts.
“The judicial power of the United States will not be extended so as to interfere with the authority of Congress or of the Executive so as to make the guarantee contained in § 4 of Art. IV of the Constitution one of anarchy, instead of order. Luther v. Borden, 7 How. 1.
“Whether the adoption of provisions for the initiative and referendum in the constitution of a State, such as those adopted in Oregon in 1902, so alter the form of government of the State as to make it no longer republican within the meaning of § 4 of Art. IV of the Constitution, is a purely political question over which this court has no jurisdiction. Writ of error to review 53 Oregon 162, dismissed.”
In my opinion, U.S. District Court Judge William Martinez should be impeached for incompetence or sheer willful arrogance. I believe the Plaintiff’s attorneys should have to pay Colorado’s court costs and attorney fees out of their own pockets for bringing a prima facie frivolous case.

The part of this story I find the most offensive is that the manipulative and sophistic anti-TABOR plaintiffs obviously couldn’t care less about the rule of law and the U.S. Constitution in any way other than how they might be allowed by some activist judge (who was probably strategically “shopped for”) to manipulate § 4 of Art. IV to get what they want in spite of the will of Colorado’s voters.
In the words of Denver Post columnist, Vincent Carroll (, the anti-TABOR whiners’ “claim is, in fact, a radical insult to our fundamental rights.”
I wanted at least one Colorado voter (me) to public express moral outrage commensurate to the anti-TABOR whiners’ tyrant-minded intellectual dishonesty and chutzpah.

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