- The Washington Times - Thursday, January 13, 2005

The American Constitution may be vague on many things, but on one thing, it is clearer than Georgia dew: taxation. Even as schoolchildren, we are taught the American Revolution was, as much as anything, spurred by excessive and oppressive taxation by the King without means of redress.

Consequently, our Constitution leaves no room for dispute when it comes to who has the authority to divest us of our hard-earned wages through taxation.

Our cherished Guiding Document places the sole power of the purse in Congress. Indeed, when for the introduction of revenue-raising bills, only the House of Representatives — the chamber supposed to best and most closely represent the popular will — is permitted that dubious honor.

Sequestering this particular power thusly, was done for a very simple reason. If the government wants to stick its hands in our pocketbooks, it better be legitimate and be democratic, or there’s going to be trouble — of the Boston Tea Party variety.

However, recent developments in America’s very heartland — in Kansas — suggest the gathering glow of a disturbing trend in the states: taxation by judicial fiat. The Kansas Supreme Court has just ruled the state’s democratically established level of education funding was inadequate, constitutionally inadequate, and ordered the legislature to cough up more dough.

Though members of the state legislature argue the court decision may not mean increased taxes, the mandated increase could total up to $1 billion, requiring significant offsets. Public schools in Kansas now receive about $2.7 billion from the state — about half its budget. But concentrating on the economic aspect alone misses the point.

Although I am not one for shortchanging schools, this is clearly a wrongheaded way to go about fixing any budget inadequacies, and should be resisted forcefully by the legislature and the governor. There are clear and fundamental reasons such an order would be anathema on the federal level, and similarly unacceptable in the states.

One of the gravest responsibilities we grant our respective representative governments is the ability to “conscript” our money and spend it for the public good (or, as the Constitution puts it, for the “general welfare”).

For a limited government conservative such as me, tax time is like letting your teenage son, who you know has a yen for drag racing, take the family car out for a spin. The only thing keeping an ulcer at bay is knowing he can be held accountable by taking away the keys if he indulges his passion. Similarly, the only thing that makes taxation at all acceptable is taxpayers’ power to take away offenders’ legislative “keys” by kicking the bums out if they mis- or overspend our money.

It follows that allowing a government official, largely insulated from the political process (as are Kansas Supreme Court justices), to override the legislature in setting tax rates is a fundamental abrogation of the very democratic features that make taxation in America tolerable. Granted, in Kansas, justices are subject to “retention” votes every six years in the general election, but they are still selected by the governor and can serve an unlimited number of terms.

In addition to clear separation-of-powers issues, there are other important reasons judges should not be permitted to raise (or lower) tax rates. In this case, the court partly based its decision on a finding that funding was set based on “political and other factors not relevant to education.” I find this troubling.

While it might seem to make intuitive sense that education funding should not be held hostage to partisanship or crass politics, at the end of the day the back and forth of the legislative process is inherently political, and indeed is what we as Americans have chosen as the basis of our lawmaking.

Taxation policy is by its very nature, political; set in the deliberative but adversarial forum of the legislature. It should ever remain so. I may from time to time disagree with a particular legislative decision; just as individual judges may do. But that gives neither of us the right to impose our view outside the legitimate political process.

When the courts start upholding and striking down government spending priorities based on which are “political” and which are grounded in the interests of “sound public policy,” we have a problem. The courts actually should recognize the opposite duty: They should ignore the wisdom or stupidity of duly enacted laws, and only look at their constitutionality.

In the Kansas case, the court found the current funding rate unconstitutional largely because they deemed it overly “political.” That’s not an appropriate constitutional approach.

Perhaps the scariest part of this story, however, is that it may not be an isolated case. According to the Access Project, a liberal group in New York that supports higher education funding, 24 states — including my own state of Georgia — have pending lawsuits challenging levels of education funding.

State legislators across the country need to mobilize against this particular form of judicial activism. Frankly, I find this stuff worse than any same-sex “marriage” decision in Massachusetts or 9th Circuit church-state debacle. These types of decisions directly affect the bottom line of the American family. They force workers to part with more of their earnings without the deliberation and legitimacy of the legislative process. Such judicial tyranny endangers our very way of life.

I would hope state legislatures in Kansas and elsewhere would fight this with at least as much fervor as they have taken on the same-sex “marriage” issue.

Bob Barr, a former Republican member of the U.S. House of Representatives from Georgia, is a columnist for United Press International.

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