Constructively Reasonable

A Law Student's Attempt to Understand It All.

Monday, March 16, 2009

Outrage at Our Sorry Court

The Colorado Supreme Court has marked itself again as the most partisan court in our nation. When it had the chance to choose the constitution or cash-- it chose the cash. I have not been this outraged at our court since last summer’s land-grabbing decision in the Telluride case. News coverage here and here. Mount Virtus also had an excellent post on this case.

Today’s case is Mesa County Board of County Commissioners v. Ritter (slip. op. 08SA216) (this was the first site to have the full opinion).

The Colorado Supreme Court was asked a simple question (paraphrased): Whether SB 07-199s constitutes a “tax policy change” resulting in more revenue for the government, and thereby requiring consent of the people under article X, section 20 of the Colorado Constitution (The “Taxpayer Bill Of Rights” or TABOR).

The Colorado Constitution is clear: when deciding if something is tax policy change, the presumption favors the lower taxes ("[i]ts preferred interpretation shall reasonably restrain most the growth of government." Colo. Const. art. X, § 20(1)).

The majority chose to ignore this mandate of the constitution and instead put one of the most onerous standards of proof on the tax payer: beyond a reasonable doubt. (See also Barber v. Ritter 196 P.3d 238 (Colo. 2008)). As you fans of Law & Order know, BRD is a very difficult hurdle to clear-- indeed it is easier for the state to take your children away (clear and convincing evidence) or make a corporation pay millions of dollars if their product kills people (preponderance of the evidence-- more likely than not).

The majority chose to presume that the tax change was constitutional. Justice Eid, the only rational voice on the court, put it best:

“In my view, the presumption of constitutionality cannot be used as a cover to excise article X, section 20 from our Constitution. The wisdom of that constitutional provision is a question for the voters, not this court, to decide.”

Now to the heart of the case: TABOR requires a vote of the people for any tax policy change that results in a net gain for the government. Put simply the government needs to ask before taxing more. (See Colo. Const. art. X, § 20(4)(a) and §20(7)). Attorney General Suthers, on behalf of the people, argued that the plain, easy meaning of the text be given full effect. If the government wants money, then it should ask, as our constitution requires.

But the Colorado Supreme Court did not want to read the plain meaning of the text-- they wanted the money for the state. The majority chose to not read the text with specificity (a shock to anyone who knows lawyers: what? Read a word loosely? What lawyer does that?). Further, the majority cared more about the “practical” effect on government-- that it would be difficult to raise taxes otherwise. That is precisely the point of TABOR!

Justice Eid’s final words on the case are perfect:
“The purpose of article X, section 20 "is to require that the voters decide for themselves the necessity for the imposition of new tax burdens." [. . .] Today the majority deprives the voters of this opportunity regarding SB 07-199. I therefore respectfully dissent.”
Except I do not respectfully dissent. I shake my head in shame that our highest court is so partisan as to ignore the constitution. They would make Justice Taney (who wrote Dread Scott) proud.

Monday, February 23, 2009

Song of the Times

Ever since the Great Pork Bill of 2009 was signed in the building where I learned about mummies, Pluto (when it was a planet), and dead wildlife, I have had the following song stuck in my head:

Uncle Sam
Julissa Neely

Yeah you're dying at my feet
I am dancing in this flame
I've got my piece of candy
I hear your sad refrain
America I love you
I'll bum the old red white and blue
I'll take what's yours
I'll get what's mine
I'll buy the party line

We will thrive we will survive
Technology will save our lives
Goodbye to mom and apple pie
We'll dish it up until we die
If I can keep my piece of candy
The government will save me
And Uncle Sam, he's my man
He's gonna raise my baby

The president feels my pain
He cried on TV today
He knows I'm not to blame
Those dollar signs will change me
I'm living in the land of shame
Where the paper work is in place
In a modern bureaucratic way
Lord It will be my saving grace

Democracy will save my soul
Hallelujah let those dollars roll
I'll hitch a ride on the gravy train
It'll be my resurrection day
As long as I can keep my piece of candy
The government will save me
Uncle Sam he's my man
He's gonna raise my baby

In the land of the free and the home of the brave
I'll be dancing on your grave
Goodbye to mom and apple pie
We'll dish it up until we die

If I can keep my piece of candy
The government will save me
And Uncle Sam, he's my man
He's gonna raise my baby

Sung by Julissa Neely, a Christian pop singer, the song appeared in 1999 on her sophomore (and best) album Higher Ground. Obviously, the song was about the Clinton administration ("the president feels my pain/he cried on TV today") but applies just as much to the infant Obama administration.

Friday, February 20, 2009

AntiGun Legislation

This bill has been largely ignored lately, so I would like to bring the topic back up again.

HR 45 would radically increase the regulation of firearms and firearm sales. The highlights include:
  • A written examination requirement for buying firearms (yes, this works so well for driver's licenses)
  • A purchaser must release all of his medical records to the federal government (so much for privacy)
  • A two day waiting period
  • Creates a national database of firearms owners
Now, I will refrain from examining the merits of such silly gun regulation. What is more important, as Rocky Mountain Gun Owners points out, is the idea of compromise. Be also weary of less visible means of regulation. The anti-gunners (this bill was brought by an Illinois representative, big surprise) know that this level of regulation will not pass Congress. So what are their options?

I. Be Wary of Compromise

They can hope for compromise. The NRA has not exactly been the sentries they claim to be on gun rights. Sometimes, in the name of political pragmatism, the NRA has compromised when faced with extremist anti-gun legislation. Rather than hold the Congress' accountable to the voters (who would, in large part, be against such a measure), the NRA has backed down.

Are no-compromise groups like the Gun Owners of America the answer? Possibly. The no-compromise stance is proper whenever the anti-gunners out there seek to restrain the right to bear arms. Thus, there should be no compromise on HR 45. However, when seeking to expand (or, rather, retake) the right to bear arms, the NRA's style of incremental steps works better. Learn the lesson from the left: little steps lead to big changes over time. Our country did not turn semi-socialist overnight-- it took years of dedication from the political left.

So, stand firm when facing restrictions, be willing to compromise to get the territory back.

II. Be Wary of Regulatory Agencies and State Action

Where else can the anti-gunners hope to find more restrictions on our 2d Amendment rights? They can look to regulatory agencies and the states.

Ever since the election of an anti-gun president and legislature, the fear in the gun stores has been a return of Assault Weapons Ban. HR 45 would seem to be the start of such action. However, the same could be accomplished by simply giving the BATFE and others the ability to further regulate.

Here is an example. Currently, the BATFE must pass on every single gun model proposed to be offered for sale in the US by a foreign manufacturer. One of the most popular gun makers is Glock (from Austria). Many models of Glocks are available in the US, but some are difficult to obtain (i.e. the 25 and 28) because they do not fit the "sporting purpose" mathematical formula of the BATFE. If the BATFE chose to make the requirements more stringent, then they could ban more guns (note that Glocks, XDs, Taurus guns, and many Springfields and Smith & Wessons are imported).

California, Illinois, and Maryland have instituted similar back door bans via regulation. The most onerous examples are requiring every gun to be test fired and the bullet kept at the state's investigative bureau, requiring "microstamping" of every case fired in a gun, requiring "smart guns,"adding CCW permit holders to be registered in the state's crime information center (similar to the federal "NCIC"),high registration fees, "waiting periods" (like a sociopath cannot be patient), etc. Further, home rule cities often have even more restrictions (think Chicago, and, until recently, DC).

Thus, the danger of gun regulation lies beyond the visible actions of Congress. Indeed, the Assault Weapons Ban was a terrible political move for the Democrats last time. Therefore look for extreme positions followed by offers for compromise. Also, we must be watchful of BATFE, US Customs, FBI, and other regulatory agencies. We must fight in the state houses and city halls. Pay attention to what the Second Amendment Foundation, GOA, NRA-ILA, and locally RMGO have to say about coming gun legislation.

Tuesday, February 17, 2009

Turning Pork into Bacon

It is official: the Anointed One and his tax and spend buddies just put America in a massive amount of debt. The “stimulus plan” gives us a lot of tasty pork. Even assuming that Keynesian economic theory works (it does not), most of the spending will not kick in for twelve to twenty-four months, and who knows what the economic situation will look like then. Really, the voters placed their trust in those who promise free money and give the siren call that regulation will solve problems. This is a dark time for freedom.

However, good can come from this.

Let each person use his $13 dollars per week to educate himself. Some suggestions to start your reading list:

By reading these books, each citizen will recognize the lies of the collectivists. Perhaps then, and only then, we will resist future calls for free money and government solutions.

Thursday, February 5, 2009

Property Rights Redacted

The Rocky Mountain News (soon to be a memory) reported what is a quite affront to property rights.

It seems that Denver's 16th Street Mall is "at-risk." Apparently, the Mall will start smoking weed and dropping out of high school-- to hang out at the mall.

The self-appointed Historic Denver, Inc., and it's kissing cousin Colorado Preservation, Inc., fret that the 16th Street Mall is in danger of destruction. For those who have lived or worked near the mall, we know that the RTD bus shuttles, while they may be eco-friendly, will damage the Mall's granite tiles. Now Historic Denver, Inc. wants to stop any attempts by RTD to change the Mall's pavement.

What is more disturbing in the file are these lines:
"Historic preservation is moving away from a lone iconic structure," [Jonas Landes, coordinator of the Endangered Places program for Colorado Preservation, Inc.] said. "Our list is an example of where it is going, including a design landscape that is not even 30 years old but an important part of our recent history."
So, instead of taking single buildings by regulation (i.e. putting such onerous restrictions that make a property unusable and therefore greatly devalued), now the "historic preservation" societies are taking entire neighborhoods? Remember, the Mall isn't even 30 years old.

Note too that the restrictions would not only be on RTD but also the properties that line the 16th Street Mall. The "historic" status would make any renovation to the properties very expensive. Imagine if/when they turn their attention to "historic" neighborhoods like Highlands, Globeville, or even Highlands Ranch (hey, if a 30 year old mall, why not a suburb?).

Later in the story, the Rocky notes:
Meanwhile, far from this urban landmark...

* The Fourth Street Commercial District of the town of Saguache is really "main street," but like other rural towns in the West, it is seeing stores shutter as population drops. Mayor Milton Jones, a fourth-generation resident of Saguache, says he wants his hometown to "become a place where people want to live again."
How exactly will a designation which severely limits what an owner can do to a building "become a place where people want to live again"? If the problem for Saguache, Colorado is a troubled economic situation, then the last thing "main street" needs is for the historic preservation districts to make life difficult for any incoming entrepreneurs to bring business and jobs to the city though burdensome historic preservation codes.

We need to stand up and say, "No!" to the nannyists who worry more about a modern mall or decrepit old building than they do about bus carrier safety and business revitalization.

Wednesday, January 28, 2009


I have an emergency project that just came up, and I expect it to take up most of my time and writing energy. Therefore, I may be dormant for a few days, but I'll be back, I promise.

Now, go put in the Bob Seger CD and rock out!

Sunday, January 25, 2009

Student Indoctrination

The nannyists now want to ban plastic bags from grocery stores and big box retailers. The Denver Post and Colorado Television Channel 2 are reporting the story of a new attempt at the state capitol. Those who are familiar with the enviro-fanaticism know this is nothing new from the greens. The bill would tax each bag used (six cents per bag) and split the revenue between the vendor and an “education” program to raise environmental awareness. The end goal is to eliminate the use of the bags within three years.

What is disturbing about this story is who came up with the current bill: Kent Denver High School students. Wait… scratch that. The idea was programmed into the heads of the students from a teacher. What has been lost in the text stories linked above is a quick statement from one of the students (at the press conference) that this bill was part of a class project.

Such political action is inappropriate within the school structure. Although Kent is an independent school, students in K-12 programs face laws of compulsory education meaning that they must attend and complete school. Even assuming for argument that Kent is within its powers to hold such programs (as an opt-in school), the use of class time for political action is still inappropriate for a teacher has power over the students.

This law is another example of political action in the class room For example, remember the letters mandated by teachers telling President Bush to ban torture? Some students are sending letters to the anointed one now to end the Iraq war. All are the results of a teacher indoctrinating the class.

The classroom is a place to learn math, science, history, philosophy, and the other tools needed to be an intelligent citizen able to participate in our republic. The classroom is not a church in which the teacher preaches her political philosophies in coercion for the students to adopt the same.

The bill will most likely fail. The grocery stores are too big and employ too many people for state to add a tax and eventual elimination of the bags. The law would add a high cost to the average grocery store order (six cents per bag adds up quickly) and start to annoy customers. Of course, as a state law, the clientele of the stores would have little recourse. The bill does carve out an exception for small retailers, but small retailers rarely adequately service customers for everyday items.

If the grocery stores choose to charge for the bags, that is fine. I will not buy from their stores. That is the free market. When the government chooses to charge for the bags, that is a tax and a restraint on freedom for the sake of a very small but loud interest group. When teachers make my children to be political operatives, that is indoctrination.

Wednesday, January 21, 2009

Department of Interior Decorating

The Senate confirmed Ken Salazar as the new Secretary of the Interior.

I am still perplexed as to why Salazar, an up-and-comer in the Senate chose to work in the administration at such a sub-par job. Whenever Republicans control the administration, DoI is not well respected-- mostly due to the negative press garnered by lawsuits filed by environmental groups demanding the protection of some rodent. Conversely, when Democrats control the DoI, the courts sometimes feel bound to reign in the extremist environmentalist policies which hurt the property and liberty rights of businesses as well as average people. Basically, no matter who heads up the DoI, someone is angry with him.

All of that said, perhaps I won't have to look at that silly hat he wears anymore.
"Ken Salazar promised a more ethical, scientific Department of the Interior."

This is code for more active work on Global Warming. The Anointed One has already stated his belief in and desire to combat Global Warming (as, incidentally, did John McCain), despite the fact that there is no consensus on the issue, whether it is man-made, or how to combat it.

Therefore, expect more restrictions on the use of our supposed "public lands"-- heavy restrictions on motor vehicle use in the parks, limitations on hunting and fishing, more aggressive bans on logging, and heavy restrictions on oil and gas development.

(Because, really, this guy and these guys need more of our money).

Tuesday, January 20, 2009

Oath Flub

Apparently, two Harvard Law Review editors cannot perform a simple task-- like reciting a one sentence oath.

What is truly odd is that I was making jokes about this very possibility yesterday. Last night, my Facebook status read: “Tyler will not watch the inauguration: he has already memorized the oath of office that he will take in 20 years. 9:44pm.” Then, this morning, I joked with a fellow student that it would be funny if, after all this work, Obama messed up the oath. What then we asked? Would he not be president if he said something like “I do solemnly afflirmered…”?

Of course, after seeing the Oath That Will Live in Infamy (and YouTube), I quickly updated my Facebook status to: “Tyler re: my last status: Apparently, Obama missed the note to memorize the oath. Not even in office and I already out shine him! 1:11pm.”

Already the Obamaites are blaming Roberts for missing the wording because he did not use notes. In reality, both were at fault, but this “historic” oath was the first of such importance for both men. In reality, the flub does not really matter. In reality, this moment will end up on gag reels and have little consequence.

I suppose that the highly paranoid elements of the government will or have arranged for the President to retake the oath to make sure everything is constitutional.

Perhaps the Anointed One is really just a man after all.

Monday, January 19, 2009

Hopey Changeyness

To the last day of liberty!

We will now have hope and change and other platitudes. But with this hopey changyness, we may also see an end to many freedoms. Of course, chief on the list of the Chicago democrat is the end of guns in America. I seriously doubt that there will be another assault weapons ban. Instead, the BATFE will be free to "regulate" guns until only the elite (i.e. well-connected) few can own them legally. This gives the same effects as a ban, without a Congressional vote or a signature from the annotated one. Political plausible denaiablity.

But look too to other things. We will see a return of censorship in the form of the "fairness doctrine" that would practically ban talk radio as we know it. So too with "required service"-- if not in the military, then in another form (peace corps, city year, etc.). Finally, look for a radical change in our economic structure: he will likely introduce regulations that make everyday investment difficult (in the name of "stability") that will result in a net increase in the costs of investment as the costs of regulations get passed along.

Listen to what the chosen has said and will say in the first few weeks. Already, he has spoken of his comming "rule" and the taking of power. These are dangerous words. Combined with the personality cult that has arisen around him, these words could come true. As you have likely seen, Obama is on a "historic" whistle-stop tour on the way to inauguration day. He has been doing eveything Lincoln likely could have done. Obama has not even taken office and he is already setting up his "legacy" as a great president. Well, we as Americans need to remind him that it is actions and results that determine who good a president is. It is only then, after the presidency, that it can properly be judged.

When a victorious general came back from conquest to the city of Rome, the citizens would hold a great parade called a triumph. The general would ride a chariot and a man would hold a wreath-crown of gold olive leaves over his head. The man would never put the crown on the general's head, for Rome had no kings. The man would also whisper continually, "Remember, you are only a man. Remember, you are only a man."

When those traditions became lost, and the crown finally hit the victorious general's head, it was the beginning of the empire-- and the end of liberty.

Let us chant to Obama, "Remember, you are only a man."