Who’s the Boss, Anyway? (Part 2)

by Tom Yamachika, President, Tax Foundation Hawaii

In November of last year, I wrote about a Colorado case that was before the U.S. Supreme Court. Colorado voters had limited the power of its legislature to enact taxing and spending bills, and some of its legislators sued, saying that the power of the legislature was being throttled unconstitutionally. The federal district court and the Tenth Circuit allowed the suit to go forward, and the governor appealed.

At the time, I said that the underlying question is: Who’s the Boss? Does the government exist to serve the people, or do the people exist to serve the government? The Supreme Court has now weighed in on the issue. To explain what happened I’ll need to review another case in Arizona.

In Arizona, the question was how to draw representative district boundaries. Over the years, the legislature had drawn the districts several times, lawsuits were filed claiming irregularities including Voting Rights Act violations, and the courts had to redraw the districts several times. Finally the voters were fed up and added a provision to the Arizona Constitution cutting the legislature out of the process entirely and leaving the process of district drawing to an independent commission. Not surprisingly, the legislature filed suit alleging that tasking the commission with redistricting was unconstitutional. On June 29, the U.S. Supreme Court upheld Arizona’s process by a 5-4 decision.

The Court’s majority opinion written by Justice Ginsburg quoted James Madison saying,

“The genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people.”

She next invoked John Locke, who stated in 1690:

[T]he Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supream Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them. For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security.

Justice Ginsburg then observed that the Declaration of Independence drew from Locke in stating: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” And that the U.S. Constitution derives its authority from “We the People.”

In other words: We the People are the boss. We the People give power to the legislature. We the People can take that power back or move it elsewhere if we don’t trust the legislature to use it correctly. You, the legislature, can’t come crying to the courts if We the People have clipped your wings.

Going back to our original Colorado case, the Supreme Court issued an order on June 30th voiding the Tenth Circuit’s decision and instructed them to reconsider the case in light of the Arizona decision the Supreme Court just issued. It’s probably fair to say that the Supreme Court expects the reconsidered decision to come out differently from the one that was appealed from. So it looks like we can chalk up another victory for We the People.

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Nov, 2014: Who’s the Boss, Anyway?