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Archive for Wednesday, June 15, 2005

State Supreme Court oversteps powers with school ruling

School finance ruling raises constitutional issues

June 15, 2005

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On June 3, the Kansas Supreme Court did something truly astonishing. In its decision in Montoy v. Kansas, it ordered the Kansas Legislature to appropriate an additional $143 million for K-12 education this year.

In doing so, the court has moved Kansas one step closer to krytocracy-rule by unelected judges. According to the court, our elected representatives no longer control the amount of money that is spent on schools.

The court claimed that it was merely interpreting Article VI, Section 6 of the Kansas Constitution, which requires the Legislature to "make suitable provision for finance of the educational interests of the state." What the court failed to recognize is that the word suitable modifies "provision for finance," not "amount of money." In other words, the Legislature is only obliged by the Constitution to create a suitable system for financing the schools. The Constitution is silent on the amount of money to be spent. And "suitable" is a very flexible adjective. In my dictionary, suitable is defined as "appropriate to a given purpose."

However, the Court did not devote a single sentence of its 24-page opinion to determining what the framers of Article VI, Section 6 of the Kansas Constitution intended when they drafted this text. Instead, the Court issued a rambling opinion that reads like a legislative speech-interpreting studies and making policy judgments about how education dollars should be spent.

The court's opinion is a stunningly poor example of constitutional interpretation.

But that flaw pales in comparison to the more fundamental problem with the opinion: The court was unwilling to observe two fundamental, constitutional limits on its own power.

First, the court broke the constitutional rule that the judiciary must be a passive branch of government, not an active one.

Courts routinely judge the constitutionality of past legislation. However, that is as far as the judicial power extends: Courts lack the authority to compel a co-equal branch of government to pass specific statutes in the future. In other words, courts can create a void in the law by striking down particular statutes; but they cannot seize the reins of legislative power and attempt to fill that void. That is why the Supreme Court of the United States has never ordered Congress to pass a law.

It is precisely for this reason that Alexander Hamilton considered the judiciary to be the "least dangerous" branch of government: "The judiciary ... has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever."

Unfortunately, the Kansas Supreme Court did not acquaint itself with the writings of Hamilton. Instead, it ignored this fundamental limit on judicial power and boldly ordered that "the legislature shall implement a minimum increase of $285 million...."

This raises the second constitutional violation committed by the court. It violated the separation of powers by commandeering what is a quintessentially legislative authority: the power to tax and spend.

It is a fundamental principle of American constitutional law the appropriation power is held solely by the legislative branch. The framers of the Kansas Constitution were so determined that this principle be followed that they included Article II, Section 24 in the Kansas Constitution, which states explicitly that the appropriation power is vested in the Legislature.

This principle dates back to the American Revolution. The Founding Fathers declared independence from Britain because they could not tolerate "taxation without representation." After independence, the new state and federal constitutions deliberately placed the power to tax and spend solely in the hands of the people's elected representatives.

But that principle is shattered by the Kansas Supreme Court's opinion, which commands that a specific amount of money must be spent on K-12 education in the coming year. Then the court reveals its possible plans for future spending: "we will consider ordering that, at a minimum ... $568 million ... in increased funding ... be implemented for the 2006-07 school year." Hold on to your wallets.

The willingness of government officials to tax is inversely proportional to their electoral accountability. And the justices of the Kansas Supreme Court have absolutely no such accountability, because they are not elected. This is not the branch of government that you want in charge of the purse.

This dispute is not a mere tempest in a teapot. It is the greatest constitutional conflict that the state of Kansas has witnessed in several generations. And it is essential that we the people of Kansas understand what is at stake.

An unelected court has seized the power of the purse, breaching constitutional rules that date back to this nation's founding. We can look the other way if we so choose, but living in this Kansas krytocracy is going to be very expensive.

Kris Kobach, who lives in Overland Park, is a professor of constitutional law at the University of Missouri-Kansas City. He served as counsel to U.S. Attorney General John Ashcroft in 2001-2003 and, in 2004, was the Republican candidate for Congress in the 3rd District of Kansas.

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