Legislators should read the constitution, too

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By Rob Witwer

I remember Michael McConnell, my constitutional law professor at the University of Chicago, opening a textbook with a picture of the members of the Supreme Court on the inside cover. “What’s wrong with this?” he asked.

At first blush, it makes sense that a book on the Constitution would have a picture of the highest judges in the land. But to McConnell, the photo represented a fundamental misunderstanding about the constitution: namely, only courts have the ability to read and interpret our greatest law.

Instead, McConnell pointed out, our Founders contemplated that all three branches of government would follow the text of the constitution as they executed their respective duties. While courts are often the final arbiters of constitutional principles as they referee cases before them, the chief executive and legislators also take an oath to uphold the Constitution.

The same is true at the state level. The governor and state legislators have a duty to ask at every juncture whether their actions and decisions adhere to the federal and state constitutions.

Yet in my time of service at the Capitol, I’ve often seen legislators shy away from reading and debating the constitution, reasoning that the legislature is supposed to make policy decisions — constitutional analysis, on the other hand, is “up to the courts.” As a result of this kind of thinking, legislators sometimes ignore the constitution completely.

A case in point is the so-called “mill levy freeze,” a controversial amendment tacked onto the School Finance Act in the 2007 legislative session. It was clear at the time that the “freeze” (a mischievously misleading way to describe it) resulted in significant new revenue for government. In other words, it’s a property tax increase.

Under Article X, Section 20 of the Colorado Constitution, voter approval is required for “a tax policy change directly causing a net tax revenue gain to any district.” Here was a fairly simple constitutional analysis: Government would collect new revenue; therefore a vote of the people was required.

But a funny thing happened. The General Assembly failed to give adequate weight to its duty to follow the language in the constitution, even though the attorney general warned that the “freeze” was unconstitutional. There wasn’t much debate about the language of the constitution itself; most discussion centered on why it was a such good thing to pass this bill because it gave more money to schools.

Recently, a Denver district judge sided with the attorney general and a minority of the legislature in holding that the “freeze” is, in fact, unconstitutional. While the decision seems obvious in light of the plain language of the constitution, it would have been totally unnecessary if members of the General Assembly had taken more seriously their role as constitutional officers of the state. Instead, it was punted to the courts.

I’m with Professor (now judge) McConnell. As a legislator, I feel the same duty to rigorously analyze my votes in light of the constitution as if I were a judge. These rules mean something, we took an oath to uphold them, and we ought to follow them to the letter. Of course, if you don’t like them you can always try to use the political process to change them.

Rob Witwer is the outgoingstate representative for House District 25, which encompasses the Evergreen area and most of western Jefferson County.