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« NPR's Paula Poundstone on Gay Republicans | Main | Who Is Brad Galt? »

Our Postmodern Judiciary

For decades, conservatives have been claiming that liberals only like judicial activism out of expediancy, not out of principle. Today's Colorado Supreme Court ruling on Defend Colorado Now's ballot initiative to deny non-essential services to illegal aliens is the new Exhibit A in that debate.

In a 4-2 opinion, which (sic) one justice abstaining, the court ruled the proposed constitutional amendment violates a requirement that ballot questions deal only with one subject.

The ruling brought sharp words from members of Defend Colorado Now, the group pushing the measure.

"This is outrageous judicial activism, Exhibit A in how courts disregard precedent to reach a political result," former Democratic Gov. Richard Lamm said in a statement. "This isn’t law, it is raw, naked politics."

Dick Lamm appointed most of these jokers in the first place, and the number of judicially active rulings he's applauded over the years is countless.

Here's the operative part of the amendment, lifted from its complete text:

Except as mandated by federal law, the provision of non-emergency services by the state of Colorado, or any county, city, or other political subdivision thereof, is restricted to citizens of and aliens lawfully present in the United States of America.

And here is the Court's reasoning:

The ruling said Defend Colorado Now touts the possibility of reducing taxpayer expenditures by restricting illegal immigrants’ access to services, as well as the goal of restricting access to services.

"Because we determine these purposes are unrelated, we conclude they comprise multiple subjects connected only by a broad and overarching theme," the ruling said.

Note that the text of the amendment says nothing at all about revenues, it only speaks of spending. In fact, it doesn't even speak of spending, it speaks of services to be provided or denied. The fact that these services cost money is, while an unfortunate fact of life and governance, completely incidental to the language of the amendment. Were Marx to be proven triumphant, and the State be able to provide services without paying for them, the text of the amendment would still be operative. The idea that arguments used in the advocacy of any amendment actually have any force of law is bizarre to say the least, especially for a Court that has a pronounced distaste for the actual legislative histories of bills.

In fact, it's hard to conceive of any ballot initiative which would pass this test. Measures directly related to revenue by definition potentially affect the tax burden in a state with a balanced budget law and TABOR spending restrictions. That's reading the decision narrowly. Reading it broadly, any sentence containing more than one word necessarily encompasses two things.

A cynic would suggest that the four justices involved are unrelated, comprising multiple intelligences connected only by a broad and overarching need for remedial logic and English instruction.

Such cynicism would mask the truly dangerous, indeed dictatorial nature of this ruling. In effect, it opens the door for the Court to overturn any checks on its powers. Try, just try, to imagine any restraint on judicial authority which can't be separated into multiple purposes. And then remember who the final arbiter in such matters is.

UPDATE: It gets better. The Court, in arguing an agenda hidden in plain view on DCN's website, notes:

Because “emergency services” are commonly defined, as Defend Colorado Now does, as including police and fire protection and emergency room medical services, a voter might well assume that the converse of “emergency” would pertain to the single subject of nonemergency medical or social services. In the absence of a definition for “services” or a description of the purposes effected by restricting nonemergency services, the unrelated purpose of restricting access to administrative services is hidden from the voter.

And yet, isn't that exactly the first thing that public debate would illuminate? The Court want to both discount the usefulness of political debate and to use that debate (i.e., DCN's stated arguments in favor of their amendment) as a reason for disqualifying the initiative.

Nathan Coats's dissent is worth reading in its entirety, but here's the money paragraph:

Of course, the majority might just as easily have found that the proposal was motivated by a host of other reasons, including the deterrence of unlawful presence in the state, it’s clear and expressed ultimate objective. The susceptibility of any group motivation or objective to being thinly sliced is limited only by the ingenuity (and desire) of the court doing the slicing. And according to the majority’s logic, each such “purpose,” apparently constitutes a “subject” of the initiative. The constitutional limitation itself, however, does not purport to examine the hearts of those advancing an initiative but merely prescribes the form an initiative must take for it to be considered by the electorate.


Well thought out and written analysis. I think the next step to check the Men (and Women) In Black is a state Constitutional Amendment term-limitting Supreme Court Justices to 10 year terms.

If they've served 10 or more years before this amendment is passed, they can only serve two more years. Enough is enough, Coloradoans and Americans need to rein in these "judges gone wild."


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