When we look back at history, we often find ourselves asking, “What the hell were they thinking back then?”
When society is scared, principle quickly gets forgotten and the law gets overlooked.
The fear of negroes being protected by the U.S. Constitution and legally recognized as full citizens was reflected in the Supreme Court decision over Dred Scott in 1857.
During the terror of the Civil War a fearful nation tolerated Lincoln suspending habeas corpus, allowing him to do what we condemn of all tyrants, incarcerating citizens without a trial.
Franklin Roosevelt said there is nothing to fear but fear itself. Yet after Pearl Harbor he put 120,000 Americans in concentration camps, including in Colorado, because they were of Japanese descent, because fear permitted it.
We look back at these embarrassments and wonder how courts could allow such perversions of law. The answer is simple. Politics, including our courts, is a lagging indicator of culture. The culture of the time didn’t see African Americans as equals. They saw Japanese Americans as enemy collaborators. Courts merely reflected the collective attitude.
The plain words of our Constitution became malleable in the crucible of fear.
We comfort ourselves with the fantasy that we have evolved since our forebearers twisted the clear protections of our Constitution. We are shamed by our history, arrogant that, today, we would never be, could never be like that.
Yet today we compliantly sit under house arrest, often ordered by un-elected county technocrats, stripped of our right to freely associate, travel and worship without question or complaint.
Let me be clear for some will misconstrue my intent. In no way am I suggesting folks recklessly run out of their homes, pack bars, restaurants, offices and concerts. Please choose to stay home and social distance when you must go out. We will beat COVID-19 by choosing to act together by staying apart.
But I am fool enough to believe the Constitution means what is says, and that we must adhere to it even more so in crisis when fear clouds our collective judgement. This includes adhering to our Colorado state constitution.
Our state Supreme Court is what is euphemistically called an “activist” court. They have a way of re-defining words to mean what they wish to fit their political desires. The historic example is their revulsion to our Taxpayer’s Bill of Rights.
TABOR clearly says governments in Colorado must ask for voter approval for tax and debt increases. So, the Colorado Supreme Court ruled if government labels a tax as a “fee” or debt as a “certificate of participation,” it doesn’t have to ask for your consent. So now only about a third of what the state spends comes from “taxes.”
TABOR says government can keep excess tax surpluses, above population growth and inflation, with voter approval for only four years. The state Supreme Court re-imaged four years to mean forever. Now over 80% of Colorado municipalities keep our excess taxes forever, never needing to ask our permission again. Ever.
The Colorado Supreme Court this week decided to upend simple arithmetic to accommodate COVID. They changed how we count to 120.
In 1988 we the people of Colorado changed the state constitution to limit the state legislative session to 120 calendar days to ensure our tradition of a civilian-run legislature, guaranteeing legislators time away from the Capitol to earn a living so as not to become a ruling class.
Instead of implementing emergency video conferencing so they could work at home, as many of us are, the legislature voted itself into recess due to COVID-19. The progressives in control of the state then ran to the courts to re-define “calendar days” so they could extend the session.
The court was happy to oblige ruling that “calendar days” was, and wrap your mind around this, “ambiguous.” So the legislature can extend the session.
Ambiguous? I guess you don’t have to pay your calendar-day-based mortgage if you were out of town for part of the month, too. It’s ambiguous.
Why would the progressives take advantage of this crisis to re-write our constitution by fiat? After all, if the legislature has un-finished business, the governor can always call a special session.
This ruling is a huge step toward a year-round, full-time legislature, not one of citizen lawmakers.
Future generations will look back and ask, “what the hell were they thinking?”
Jon Caldara is president of the Independence Institute, a free market think tank in Denver.
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