If
I was writing an opinion piece (which I
am) I would use all information which supports
my opinion and discard that which does
not. If I was reporting the news
I would provide as much information as
possible to allow the readers to decide
what is the truth. I submit that
the December 1, 2003 redistricting
decision handed
down by the five Democrats on the Colorado
Supreme Court has about
as little to do with the Texas Congressional
Redistricting as the mainstream media has
to do with the truth.
Having
said that there are some lessons to be
learned from the opinion, but most of the
lessons the left-of-center media missed
are in the dissenting opinion (page 64
of the decision) by two of the Justices. The
other major lesson learned is the mistake
of entrusting an omnipotent Supreme Court
with such far reaching powers. Far
reaching powers without accountability
to the people tends to create aristocracies
at the expense of democracy.
The
decision which has been gleefully reported
by the media states that the legislature
relinquished it's authority to redistrict
when it failed to redistrict in a specific
time period. What the media failed
to report is that their decision is based
on one word of one sentence from the Colorado
Constitution that states: “ When
a new apportionment shall be made by congress,
the general assembly shall divide the state
into congressional districts accordingly.” The
word “when” is then interpreted by the
majority in a Clintonesque manner (“Whatever
the meaning of IS is”) to mean a specific
time period between census receipt and
the next General Election.
Quoting
from the majority opinion, which also points
fingers at other public servants, “The
Secretary of State and the General Assembly
interpret the state constitution as an
unlimited grant of power from the People
of Colorado to the General Assembly to
draw and redraw congressional district
boundaries.” This in-your-face statement
from the majority seems to be designed
to evoke emotion rather than rule on matters
of law. It is easily refuted since
no one is requesting to redraw districts. The
effort is to draw them is consistent with
the constitution which gives the legislature,
and not the judiciary, the authority to
draw the districts.
While
the democrats hang their hat on “when”,
the dissenting opinion points out that
the constitutional sentence previously
quoted also specifies who shall perform
the act -- the “General Assembly”. The
plan developed in 2003 was the first plan
developed by the General Assembly. The
other plan was developed by the judiciary
and NOT a legislative body. This
begs the question, “How can one word (When) be
held to be so persuasive, while other words
(general assembly) hold
no meaning.”
The
far reach of this decision, as pointed
out by the dissent, is that the majority
has determined the courts are part of the “general
assembly” (legislative process). This
giant leap violates every separation of
powers clause in every document in the
United States from the U.S. Constitution
to all 50 of the state constitutions. In
the Texas Constitution Article 2, Section
1 is very clear in the definition of three “distinct
departments” of legislative, executive,
and judicial, and further states that , “… no
person, or collection of persons, being
of one of these departments, shall exercise
any power properly attached to either of
the others, except in the instances herein
expressly permitted.” Simply stated
no powers given to one body will we used
by any other unless the Texas Constitution
expressly permits it.
Except
for slight wording differences the Colorado
Constitution basically states what Texas
does. The dissenters do point out
an area of the Constitution that might
be worth noting for future Texas efforts
to amend our Constitution. The Colorado
Constitution inserts the judiciary into
an aspect of the legislative process of
state redistricting. This may not
have been a good idea. The constitution
directs that the Reapportionment Commission
will have appointed members as noted: four
(4) members by the legislative branch,
three (3) by the executive branch, and
four (4) by the judicial branch. While
this commission is only concerned with state legislative
redistricting , some might argue that there
is an intent is to invite the judiciary
into the process. This is not done
and should never be done in the State of
Texas.
Finally,
the power of the judiciary appears to be
out of balance with the other two branches
of government. The Colorado Constitution
was amended in 1967 to repeal Article VI,
Section 6, which mandated election of judges. This
has been recently recommended by the Chief
Justice of the Texas Supreme Court, so
the experience of Colorado should raise
red flags for Texans. Since then
the supreme court justices have been selected
by a Judicial Nominating Commission, headed
by the Chief Justice of the Supreme Court. The
governor submits a list of three nominees
and the Nominating Commission then selects
one for a ten (10) YES TEN year
term. After that a justice can have
a thumbs up or down vote of the people
for retention for ten more years. This
is not a democratic process. It
might more aptly be described as an Aristocratic
process. A body selected by itself,
nurtured by itself, and perpetuated by
itself can only breed an opinion that there
is no limit to its bounds whether executive,
legislative, or judicial and this must
never be done with our State Justices. The substantial
powers which followed the change in
Colorado's Constitution should be carefully
considered before Texans accept such changes
to our Constitution.
Stay
tuned for more aristocratic judicial follies
... the U.S. Supremes are still legislating. Is
it time for some control there?
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