'76 Blog

  When Gov. John Hickenlooper announced that the state will appeal a Denver court’s ruling that the state inadequately funds education, he acknowledged what Judge Sheila Rappaport — and previously the Colorado Supreme Court — would not:  money is a finite resource, even when it’s spent on worthy causes and when it’s spent by government. The state legislature allocates $4.3 billion to educate more than 800,000 students — just under $6,500 each — in K-12 public schools.  According to the Colorado Department of Education, other sources bring that total to a statewide average of nearly $13,000, as of 2009-10. Over two years ago, the supreme court ruled, in a contentious 4-3 decision, that a lower court should entertain claims brought by a group of parents and school districts that the state constitution’s call for a “thorough and uniform” system of free public schools should be interpreted to require a specific funding amount. That lawsuit, Lobato vs. Colorado, reverted back to Rappaport’s courtroom, albeit with instructions that “the trial court must give substantial deference to the legislature’s fiscal and policy judgments.” Rappaport’s decision, however, offered no such deference.  Her ruling reads like a brief for the plaintiffs — not like a judgment that gives even a modicum of respect to the legislature’s constitutional authority to fund public schools or, more broadly, to adopt a state budget. She condescendingly dismissed the state’s arguments, while fawning over various creative claims and tendentious documents provided by the Lobato plaintiffs, leading to these incredible conclusions: * “[T]he entire system of public school finance . . . is not rationally related to the mandate of the Education Clause.” * “There is not one school district that is sufficiently funded.” * “Current economic conditions . . . have made an unworkable situation unconscionable.  But Colorado’s history of irrational and inadequate school funding goes back over two decades.” If irrationality is a disqualifier, then Rappaport’s decision is on thin ice. For example, she consults the dictionary to accurately define “rational,” “irrational” and “relationship” because the Supreme Court used those terms in remanding the case.  She does not, however, provide that same level of analysis to ascertain what Colorado’s founders intended when wrote, “[T]he general assembly shall . . . provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state . . .” (emphasis added). Because “thorough” and “uniform” appear in the state constitution — unlike “rational,” “irrational” and “relationship” — a judge seeking to objectively apply the law might want to know if those terms dictate a necessary and quantifiable level of spending.   Of course, they do not.  An earlier supreme court said, “We are unable to find any historical background to glean guidance regarding the intention of the framers.” Rappaport adopts the Lobato plaintiffs’ argument that, because lawmakers have implemented a means of measuring schools’ and students’ performance against quantifiable expectations, the state is obligated to radically increase funding, perhaps to nearly double current levels. Her ruling rests on the plaintiffs’ creative assertion that a specific funding mandate is created by the convergence of standards and assessments, the constitution’s “thorough and uniform” clause, and the constitutional stipulation that local school boards control instruction. She never mentions “emanations and penumbras,” but clearly Judge Rappaport, like judicial activists before her, is blessed with a rare talent entrusted to only a select cadre of law school graduates — the ability to interpret words that aren’t there. In a final flurry of irrationality, Rappaport strikes down the state’s school finance law and orders a new system of funding, but she concludes the order by allowing this “inadequate,” “irrational,” “unconscionable” finance system to continue, pending further action by the Supreme Court. In announcing the state’s appeal, Gov. Hickenlooper observed: “There are more appropriate venues (than a courtroom) for a vigorous and informed public debate about the state’s spending priorities.” Yes, and, more rational, too. Mark Hillman served as Colorado treasurer and senate majority leader. He is now a Centennial Institute Fellow and Colorado's Republican National Committeeman. To read more or comment, go to www.MarkHillman.com. 

('76 Editor) I believe that Colorado taxpayers and the federal government are spending enough, if not too much, on education.  I believe schooling would be more effective if competition, choice, market forces, and parental control were more prevalent.  And I believe we would be a freer and better-educated society if at some point, decades from now, government no longer operated or subsidized schools in any way.  Since the 1990s, in fact, I have been signatory on a vision statement to that effect.  I was summoned to a Colorado court to testify on the first of those three beliefs, and on nothing else, in connection with the Lobato lawsuit alleging that state aid to local school districts is unconstitutionally low.  While on the stand, I was asked about the Separation of School and State vision statement, and confirmed my adherence to it.  But I said not a word to suggest it has anything to do with who is right or wrong in the Lobato case - because it doesn't. For reasons known only to herself, however, the judge in this case, Sheila Rappaport, thundered against my "extreme" views in her Dec. 9 opinion holding for the plaintiffs.  At the bottom of this post is an excerpt from the Dec. 11 Denver Post story, giving the details. After musing on this bizarre outburst from the bench, I would observe the following: 1- Intellectually, Judge Rappaport missed the whole point of my testimony, which was to affirm the current school finance act, not to advocate change as any kind. 2- Judicially, the judge dropped her impartiality in ranting at me over a personal opinion unrelated to the case before her. 3- And historically, the judge seems oblivious to the massive evidence that our country's 1800s ideal of tax-supported common schools, woven into the local community and open to all, has worked ever less well as it became ever more politicized, centralized, bureaucratized, and unionized. While it may be disputable, as of 2011, to question the article of faith that higher spending is all we need to reach educational nirvana, to do so is hardly "extreme" as Sheila Rappaport indignantly alleges. How, I wonder, did she become so enraged at me on no provocation whatsoever?  You almost have to feel sorry for someone entrusted with the vast power of this judge on this case, who manages to be so wrong, so far off base, indeed so far off the reservation - intellectually, judicially, and historically - as Ms. Rappaport has shown herself to be with this gratuitous slam at someone who came before her to testify calmly, reasonably, mildly, and altogether on point. Here is an excerpt from the 12/11/11 Denver Post story: Denver judge's ruling on school funding levels blisters state's witnesses In declaring Colorado's school finance system "significantly underfunded," Denver District Judge Sheila Rappaport rejected virtually every argument presented by the state's star witnesses in a five-week trial this year over school funding levels. Rappaport's ruling, issued Friday, blasted the state's level of school funding as "unconscionable" and not meeting the requirement in the Education Clause of the Colorado Constitution of a "thorough and uniform" system of public education.  [snip] Rappaport saved her fiercest criticism for former state Senate president John Andrews, a Centennial Republican, who testified for the state, calling his views on education "extreme." "Sen. Andrews' vision for the future is a separation of schools and state similar to the separation of church and state in our nation," the judge said. "He has signed a pledge calling for the end of government involvement in education. He reveres the educational system we had in this country in the 1700s because there were few government-operated schools. He fails to mention that our schools did not educate whole segments of the population, including women and people of color, at that time."

Former Colorado Supreme Court Justice Jean Dubofsky, in her Oct. 24 Denver Post piece “Keep integrity of courts,” disappointingly banged on the political drum to draw attention away from the voters’ interest in finding out how three Colorado Supreme Court justices, who each want 10 more years on the bench, have been deciding constitutional cases.  The exaggerated commentary demonized Clear the Bench Colorado (“CTBC”) for taking to task three justices whose performance has been substandard.   Contrary to the political charges, CTBC is actually concerned with the three justices’ takeover of the Colorado Constitution.  The real issue that “Keep integrity” failed to mention is this: Are Colorado Supreme Court justices answerable to the voters of Colorado for failing to follow Colorado’s Constitution in cases that affect the lives of every citizen, or not?       While our merit selection and performance evaluation system is the right system for Colorado, experience has revealed a material weakness.  Our lower courts are answerable for their decisions to the higher courts, but our Supreme Court has not been held accountable for its unrestrained constitutional law decisions.  Increasingly, decisions are handed down that are contrary to the plain language and obvious intent of Colorado’s Constitution.  The result has been a progressive judicial takeover of the Colorado Constitution.  Despite the growing problem, the “Keep integrity” piece peddles the Blue Book state voter guide as the place to go for judicial recommendations.  The Blue Book recommendations in favor of the three justices are the product of the entity entrusted with evaluating supreme court performance; namely, the State Commission on Judicial Performance (“the Commission”) of which I was a member in 2005 and 2006.  (To my knowledge, there has never been a recommendation against retaining a Colorado Supreme Court justice!)    When one compares the Commission’s perfunctory recommendations to CTBC’s civics project, one sees that CTBC is intent on improving our judicial system at the top.  CTBC brings the most relevant job performance information to voters so they will have a basis upon which to judge the 3 justices for themselves. Instead of being diverted by the red herring of politics, we need to be mindful of the real issue.  Should voters in Colorado have anything to say about how their supreme court justices handle the Constitution?  Of course they should: the Constitution belongs to the people.    

As the confirmation hearings for nominee Elena Kagan begin this week, we again return to the question of how Supreme Court justices should interpret the Constitution.  Central to this inquiry is the approach that justices take towards both the text and the fundamental principles which undergird our Constitution.  There has been a long-running debate concerning this among varying judicial philosophies, one that in many ways mirrors current tensions among the Christian church.  The recent phenomenon of the emergent church movement provides us with a striking similarity to the approach taken by many of our nation’s modern/activist judges. A very attractive approach in our modern culture comes to the following conclusion: When I no longer like the orthodoxy, I’m in favor of changing it.  The temptation to question and challenge orthodoxy is indeed strong; in fact, our nature drives us to it.  The history of religion finds numerous cases when those who were dissatisfied sought to overturn longstanding truths in favor of new ideas that “better suited” the circumstances of the day.  Typically, what happens is that when we find orthodoxy no longer convenient, we seek to replace it by crafting something new, rather than align ourselves with it.  More often, this is done through clever reinterpretations of the original. In recent years, such a group has been increasing in their influence among the church.  This group, commonly referred as the “emergent church” has intentionally remained elusive in declaring their doctrine.  Yet among many in the movement, there are significant challenges to the fundamental orthodoxy of Christianity: through faith in Christ alone is the sole means of salvation.   These revisionists are denying the doctrine of substitutionary atonement, the reality of Hell, and the very nature of the Gospel.  The emergent movement comes out of frustration that the 21st Century church doesn’t fit well within a 21st Century mindset.  For instance, it is indeed uncomfortable to think about eternal damnation in Hell.  What to do? Remove this threat from religion.  Or, it does indeed seem arrogant that Christ is the sole route to salvation.  What to do? Open it up to other alternatives.  Many in the emergent church movement are doing just these things. Of course, this tendency to contradict the orthodoxy is not limited to religion.  There are great similarities in the causes, methods, and desired ends of the “emergent” movement toward a “living Constitution.” Justice William Brennan, in a 1985 speech at the Georgetown University School of Law, laid out his view of constitutional interpretation.  “Like every text worth reading, it is not crystalline.  The phrasing is broad and the limitations of its provisions are not clearly marked.  It majestic generalities and ennobling pronouncements are both luminous and obscure.  This ambiguity of course calls forth interpretation, the interaction of reader and text.”  Brennan concluded that the text of the Constitution was less important than his own desired ends of “justice.”  When discussing the issue of capital punishment, Brennan, a longtime opponent, concluded that the Constitution was incompatible with state-sanctioned executions.  Where did he find this?  He certainly could not have concluded that capital punishment conflicted with the 8th Amendment concerning cruel and unusual punishment, as the authors of the amendment certainly had no such opinion.  Looking to other portions of the Constitution, there is clear evidence that execution is permissible.  Both the 5th and 14th Amendments permit its usage.  The requirement that no person “be deprived of life, liberty, or property, without due process of law” presupposes that when a person has been guaranteed due process, then capital punishment may indeed be used. Brennan is forced to ignore both the mind of the authors and the clear meaning of the text.  Simply to state that the text is ambiguous, Brennan seeks to give himself permission to interpret it however he sees fit.  What Brennan challenged is the very concept of rule of law and the principles of limited government.  He does this through the activist and “living constitution” approach to judicial review.  The Supreme Court Justice, under our model of constitutionalism, is not entitled to “make the law what they want it to be.”  Rather, they are to apply the law as it was intended.  It is fine that Justice Brennan disliked the usage of capital punishment.  It is absurd to conclude that it violates the text and/or the fundamental precepts of the Constitution. What we need are justices who recognize the truth and value of the orthodoxy and who have a commitment to uphold it.

('76 Contributor) The many ways in which Supreme Court Justice John Paul Stevens has weakened our Constitution were outlined in David Harsanyi's recent Denver Post column.  However, Harsanyi left out the "penumbra," which not only softened the Constitution, but also killed many people, which is far worse than any examples the column detailed. In the fateful Roe v. Wade decision of 1973, Justice Stevens found a "penumbra" or a shadow in the 14th Amendment and constructed an "abortion right" that has killed 50,000,000 babies in the womb.  President Obama said that Justice Steven "applied the Constitution and the laws of the land with fidelity and restraint."   If that is restraint, how many more babies will be killed with the next appointee?

(CCU Faculty) In 2008, in the case of District of Columbia v. Heller, the Supreme Court decided that the highly restrictive gun control laws of Washington, D.C. were in violation of the 2nd Amendment of the Constitution.  In so deciding, the Court issued a somewhat narrow opinion stating that the 2nd Amendment was offended by the decision of the federally-administered District of Columbia.  What went unanswered was the extent to which the 2nd Amendment applies to all state and local government ordinances. Immediately following the Heller decision, opponents of two very restrictive laws in Chicago and its neighboring suburb Oak Park, Illinois were challenged. The case, which will be argued on Tuesday before the Supreme Court, will focus on this very straightforward question: does the Second Amendment apply to state and local laws, or just to those passed by Congress or the federal establishment of Washington, D.C.? To many, this may seem like a silly question.  When most people consider the Bill of Rights, which includes our protections concerning speech, press, religion, speedy trials, jury of peers, etc., we have great confidence that each item listed in the Bill of Rights is secure, regardless of whether we are operating under federal, state or local ordinances.  This interpretation was not, for much of our nation’s history, the understanding of our Bill of Rights..  In 1833, the U.S. Supreme Court issued an opinion in the case of Barron v. Baltimore, in which it established a precedent of “dual citizenship.”  Briefly, the case had to do with a local wharf in the Baltimore Harbor where Mr. Barron co-owned land.  The wharf had been open to ships docking and loading/unloading goods.  In the process of constructing roads, the city of Baltimore diverted local streams which led to a buildup of sand and debris, making Mr. Barron’s wharf unusable by many ships.  In response, Barron sued the mayor of Baltimore, arguing that a “taking” of his rights had occurred, in violation of the 5th Amendment protection concerning eminent domain, and that he must be given compensation for this.  In a unanimous opinion, the Supreme Court rejected Mr. Barron’s argument, stating that the Bill of Rights applied to Federal Government actions and not the states: "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them." Based upon this ruling, states need not guarantee Bill of Rights protections unless their individual state constitutions included such protections.  All of this began to gradually change following the passage of the 14th Amendment to the Constitution, specifically Section 1 which states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Following this amendment’s addition to the Constitution, the Supreme Court began the gradual process of “selective incorporation.”  By this, the Court has interpreted the phrases concerning “privileges and immunities” and “due process of law” to require that specific components of the Bill of Rights be protected not just by the Federal government, but also by state and local officials.  Gradually, over the course of more than one hundred years, the Supreme Court accepted individual cases and “selectively incorporated” the protection.  Cases familiar to many include Gitlow v. New York (1925, Free Speech), Near v. Minnesota (1931, Free Press), Mapp v. Ohio (1961, Search and Seizure) and Miranda v. Arizona (1966, Access to Counsel). These have all been cases where the Supreme Court has “incorporated” Bill of Rights protections using the 14th Amendment to require state and local governments to protect these liberties. What to this day has not been incorporated, even with the Heller opinion, is the 2nd Amendment.  In fact, lower court rulings, including some from the 7th Circuit Court of Appeals in which the current Illinois cases originate, have found the opposite: that the 2nd Amendment does not speak to state and local ordinances concerning gun control.  Rather, it applies exclusively to the Federal Government. The Case of McDonald v. Chicago presents the Supreme Court with the opportunity to correct these lower court decisions and to ensure that the 2nd Amendment protection of “keeping” arms should not be infringed by any level of government.

(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?  

(CCU Faculty) The other day, Vincent Carroll of the Denver Post took Congressman Jared Polis to task for his hypocrisy regarding free speech.  Polis has strongly criticized the recent Supreme Court decision rolling back restrictions on corporate speech accusing the latter of using their resources to “confuse and trick people.”  Carroll pointed out that Polis is fine with using his considerable private wealth to, I assume, “confuse and trick people” since that’s what money is for. Carroll points out the buckets of money Polis has poured out to buy allies and elections—especially his own.  Par for the course—lots of politicians buy their way into office.  But today Polis rebutted Carroll’s accusation.  I guess it was a rebuttal, if by rebuttal we mean using hypocrisy to defend hypocrisy. Polis’ defense was this: corporations aren’t “human beings.”  They aren’t “alive.”  That’s it.  As a result they don’t have the same free speech rights as plutocrats like Polis.  He can spend his money any way he wants because he is a live human being. Is it lost on Polis that labor unions aren’t “human beings?”  What about 527s?  What about political parties?  What about newspapers?  They are afforded exceptions to campaign laws but last time I looked the New York Times was not a human being—just a propaganda arm for the left wing elite.  If Polis is so worried about the role of money in politics he could have started with the last presidential election.  His candidate outspent his opponent by 300 million dollars after pledging to only feed at the public trough.  Or he could have gone after trial lawyers who do more than anyone else to “confuse and trick people.” Jared Polis is proof-in-person of one iron law I have observed over the past thirty years.  I have never met a single Leftist who believed in unrestricted political speech.  Like Jared Polis they all have one standard—free speech for me and not for thee.  Polis’ problem with corporations is not that they are not human beings but they might spend their money to support causes he opposes.  And that’s the rub.  It’s always the rub.  The Leftist vision cannot be implemented if people are allowed to freely choose from equally represented alternatives.  Because the Left will be rejected every time just as their vision of healthcare and economics is being rejected by the American people at this very moment.  Tricking and confusing people is what the Jared Polises of the world are all about.  And they don’t want anyone else to have the opportunity to do it.

Colorado Christian University is committed to developing the next generation of leaders.  One of the Strategic Objectives of the school is "To impact our culture in support of traditional family values, sanctity of life, compassion for the poor, Biblical view of human nature, limited government, personal freedom, free markets, natural law, original intent of the Constitution and Western civilization." As a means of furthering this objective, from January 4-8, eight students participated in a winter session class devoted to learning more about state and local government.  A major portion of the class was dedicated to guest speakers, some of whom came to the Lakewood campus. The class also spent two days at the Colorado State Capitol.  The guest speakers afforded the students a unique opportunity to hear from and question leading state officials.  Listed below are the speakers who addressed the class, as well as the topics discussed. Attorney General John SuthersTopic: Role of the Attorney General, current issues facing the state including the potential suit against the federal healthcare initiative State Representative Glenn VaadTopic: Discussion on theories of representation, discussion on legislation being proposed in the current session concerning privatization of state maximum security prisons State Senator Mike KoppTopic: Legislative procedures.  Mock legislative session:  how senate committees work on bills State Supreme Court Justice Allison EidTopic: Role of the court, court administration, judicial philosophy, rules of Colorado courts: appointment and retention elections State Representative Amy StephensTopic:  Running for office, work of state legislators, role of faith in legislative duties Colorado Appellate Court Judge Dennis GrahamTopic: History of Colorado’s judiciary, discussion of court procedures John Andrews, Centennial Institute Director; former President of the Colorado SenateTopic: running for office, importance of serving, significance of state government, importance of states reasserting their Constitutional authority.  Mark Barrington: Candidate for Colorado State Representative, 26th DistrictTopic: Process of running for state office Matt Arnold: Director of Clear the Bench ColoradoTopic: problem of judicial activism, process of removing state judges through retention elections, Jeff Crank: Director of Americans for Prosperity: Colorado & talk radio hostTopic: becoming active in the political process & the work of Americans for Prosperity    

(CCU Faculty) The United States Supreme Court has agreed to hear the case of Christian Legal Society v. Martinez (UC Hastings).  This case concerns the claim by the Christian Legal Society, a national group of Christian lawyers and law students, that they have been denied their First Amendment guarantees of freedom of association and free exercise of religious faith. The Christian Legal Society had an organized chapter on the University of California’s Hastings College of the Law campus in San Francisco.  In 2004, the group was told by school administrators that they would no longer be recognized as an official campus group, thereby losing their eligibility for school funding and other benefits, including the ability to reserve campus space to hold meetings.  The reason for this decision: the Christian Legal Society required that voting members and club officers sign a statement of faith and agree to a personal conduct code.  This code includes the statement that “Christians should not engage in sexual conduct outside of a marriage between a man and a woman.” The law school argued that all campus groups must not discriminate against people because of their religious faith or sexual orientation.  Groups that exclude individuals from membership are denied official recognition and school funding. In Federal District Court, as well as in the 9th Circuit Court of Appeals, the Christian Legal Society was unsuccessful in their claim that the school’s decision violated their First Amendment rights.  Attorneys for the Christian Legal Society argued that the First Amendment guarantees a right of “expressive association.”  As such, a group must be able to adhere to their core religious views and make governing decisions based upon them.   The denial of this by the lower courts allows for the school’s ban on discrimination to trump a religious group’s right to exercise their faith freely. We must hope that the US Supreme Court will overturn these lower court decisions and recognize the significant right of religious groups to maintain the central tenets and teachings of their faith.