Boulder Lawyer exploits Federal courts to assault TABOR, undermine constitutional rights of Colorado citizens

As usual, it’s “for the children.”

Boulder lawyer Herb Fenster has declared that he intends to file a lawsuit against the people and state of Colorado to nullify a section of the Colorado Constitution (Article X, Section 20 – colloquially known as TABOR, the Taxpayer’s Bill of Rights) in Federal court “by the end of the month,” under the flimsy pretext that it violates the U.S. Constitution “guarantee that states have a republican form of government.”

“TABOR, he argues, violates Article IV Section 4 of the U.S. Constitution.”

Fenster’s pretextual argument is curious (at best), given the definition of “Republic” or “republican form of government” in common use by legal and constitutional scholars:

republic n 1 : a government having a chief of state who is not a monarch and is usually a president; also : a nation or other political unit having such a government 2 : a government in which supreme power is held by the citizens entitled to vote [Ed.: emphasis added] and is exercised by elected officers and representatives governing according to law; also : a nation or other political unit having such a form of government Source: NMW

In the context of the United States, both definitions apply.

Rumors of Fenster’s plans to sue the state have been circulating since his testimony before the legislature’s Long-term Fiscal Stability Commission last Summer; indeed, he then stated his plans were to “file [the lawsuit] in the fall and which he said would include several state lawmakers as plaintiffs.”

Given the generally supportive stance of most Republican lawmakers towards TABOR and the generally more hostile attitude of many Democrat lawmakers toward TABOR’s fiscal constraints (as evidenced by the nearly lock-step, party-line support of the TABOR-evading “Dirty Dozen” tax increase bills recently rammed through the Colorado Legislature), it might be assumed that the “several state lawmakers as plaintiffs” might be found among the Democrat caucus.

“However, several Democrats said the lawsuit doesn’t represent a viable solution…

Rep. Lois Court, D-Denver, said the lawsuit would ironically attack the one part of TABOR most lawmakers are in favor of: the right of voters to approve tax increases.”

“I don’t think that part of TABOR is what the people of Colorado are interested in fixing,” she said. “I think it’s why people voted for TABOR.”

(Ironically, Rep. Lois Court voted Yes on ALL of the “Dirty Dozen” tax increase bills before the House, bypassing that “one part of TABOR most lawmakers are in favor of: the right of voters to approve tax increases”).

So why is Fenster – after months of rumors – pressing forward with his lawsuit now?

Criticism of the “Dirty Dozen” tax increase bills on constitutional grounds – citing the bills’ blatant violation of the letter and intent of the Taxpayer’s Bill of Rights, whatever the pretext afforded for the bills by last year’s Colorado Supreme Court ruling in the “Mill Levy Tax Freeze” case – has highlighted the role of TABOR in affording constitutional protections for the rights of Colorado citizens (yes, including employees and owners of small businesses – even big businesses – in the state).

Many advocates for the tax increase bills – either within the Legislature or among the many special-interest lobbyist groups testifying in favor of passage – claimed that they were necessary to “preserve funding for education” and “save teachers’ jobs” irrespective of the rights of the remainder of Colorado citizens.  Constitution be damned – “we need the money NOW!” (Rep. Jack Pommer, House Finance Committee, comments during witness testimony)

Herb Fenster is a self-described “unrelenting advocate for public education, from early childhood learning through higher education.”  Apparently he, too, believes they “need the money NOW!”

So, you see – it’s “for the children.”

However, even a child can see that bypassing TABOR – and TABOR’s protection of their rights – is NOT “the right thing to do.”

 A recent editorial in the Colorado Springs Gazette (“Sue the people, empower the state“) eloquently defends the right of the People over the power of the state – and underlines the importance of constitutional limits on government power (including “the power to tax and spend”) as a much-needed safeguard for individual rights:

“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.”

The editorial concludes:

“Anyone familiar with the United States Constitution knows that it 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. [emphasis added] The Preamble doesn’t say “We the government.” It says we the governed, written like this: “We the people.”

Citizens in Colorado, “we the people,” took to the voting booths in 1992 and approved a plan to restrict state government’s ability to unilaterally tax and spend. By approving TABOR, citizens said they would determine the scope of taxing and spending by the governments they pay to serve them. In doing so, the people made Colorado’s Legislature a textbook example of republican government, controlled by citizens. …

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 legal scholar, will learn when he loses this fight.”

Defend your constitutional rights against assaults in the courts – exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, instead of rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and vote “NO” on retaining these unjust justices!

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