Fighting the Progressive Takeover of State Courts

by Matt Arnold


“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”—Abraham Lincoln

The demand for a return to constitutional limits on government power, exemplified by millions of citizens across the country joining in rallies, events, and civic groups loosely under the banner of the Tea Party movement, is not limited to the executive and legislative branches.

As more and more citizens have come to understand that “progressive” courts and judges have aided and abetted the growth of government power and the erosion of individual rights, they are pursuing the opportunity — and the right—to hold our judicial officeholders accountable at the ballot box.

In several states—most prominently, in Iowa, Kansas, and Colorado—the normally sleepy judicial elections are turning into some of the hottest issues on the ballot in this already critical election year.

Recently, the New York Times dedicated two lead editorials to attacking the right of citizens to vote out anti-constitutional state supreme court justices via the “retention vote” process (a simple yes/no, “should they stay or should they go” process that many states have adopted as an alternative to directly contested elections for judges). The NYT editorials, citing a legal academic, decried citizen exercise of the right to vote ‘NO’ as “extreme.”

It has long been an open secret that the “progressive” movement—unable to persuade the public with the substance of their arguments—has exploited the courts to advance their agenda. Unelected judges—particularly those at the highest level, the state supreme courts—have invented rights that don’t exist in law (in Iowa, the issue is court-invented rights to “gay marriage;” in Kansas, the issue is abortion) or serially violated constitutional rights that do exist in law—including the state constitution.

In Colorado, the incumbent majority has repeatedly violated the rights of Colorado voters to constrain the growth of government, particularly government power to tax and spend without approval. In 1992, Colorado voters approved a Taxpayer’s Bill of Rights (TABOR) amendment to the state constitution that secured the right of voters to have a say on tax increases. Yet not once in some 15 challenges and despite the clear language of the Constitution directing that its “preferred interpretation shall reasonably restrain most the growth of government” has the Colorado Supreme Court upheld this section of the state constitution.

With an 0-15 record of upholding the Constitution, they’re the 2008 Detroit Lions of jurisprudence!

Over the last couple of years, the incumbent majority’s assaults on the Constitution have become increasingly bold. In 2009, they held that a massive property tax increase didn’t count as such by the semantic shenanigan of calling it a “rate freeze” (the notorious 2009 “Mill Levy Tax Freeze” case).

As part of the same ruling, the court inserted language enabling the legislature to raise more taxes under the pretense of “eliminating tax credits or exemptions.” Any way you slice it, this is a “tax policy change … resulting in a net revenue gain” and therefore should be subject to voter approval under the Constitution. An earlier ruling likewise held that tax increases could be imposed under the guise of “fees”—once again circumventing that pesky constitutional requirement to ask first before taking people’s money.

Other constitutional violations perpetrated by the court include assaults on property rights (expanding the opportunity for governmental abuse of eminent domain), gun rights (a pending challenge before the Colorado Supreme Court seeks to overturn state law on concealed-carry permits), even overturning the death penalty for a convicted kidnapper/rapist/murderer because a pair of jurors were alleged to have quoted biblical passages in sentencing deliberations.

Even more importantly from a political and policy standpoint, the incumbent majority has usurped the political decision-making authority of the legislative branch in key areas. Last year, the Colorado Supreme Court ruled that judges, not elected legislators or school boards, have the ultimate authority to decide what constitutes “appropriate” levels of funding for schools (the “Lobato” case). This decision not only grossly violates constitutional separation of powers, it is a looming fiscal train wreck.

On the political front, the Colorado Supreme Court in 2003 grabbed the power to draw up Colorado’s congressional districts from the legislature, where it belongs under clear constitutional language (Colorado Constitution Article V, Section 44: “the General Assembly shall divide the state into congressional districts”). How did they accomplish this, despite clear constitutional limits?

Simple; they re-defined themselves as part of the General Assembly:

“In sum, the term ‘General Assembly’ in the first sentence of Article V, Section 44, broadly encompasses the legislative process, the voter initiative, and judicial redistricting. Regardless of which body creates the congressional districts, these districts are equally valid.”

In her dissent, then-Justice Rebecca Love Kourlis summed up the judicial power grab:

“With its holding today, the court significantly alters our form of government.”

The Colorado Supreme Court recognizes no limits on its power. This majority has arrogated to itself the ultimate power to decide all questions—legislative, executive, or judicial. They believe their word to be literally “supreme”; the Constitution is what they say it is. When they rule from the bench—they really mean to RULE from the bench.

It is time for the voters of Colorado—indeed, for voters across the country—to reclaim our heritage:

Be a Citizen, not a subject.

Defend your constitutional rights—your freedom depends on it. Hold officials in ALL THREE BRANCHES of government accountable; this year, vote NO on unjust justices, and Clear The Bench, Colorado!

Matt Arnold is a Citizen (and a Citizen-Soldier, serving as a Captain in the Colorado Army National Guard) leading the state�s judicial accountability movement as founder and director of Clear The Bench Colorado.