putting the cart before the horse. But consider the followingrnand then decide whether our solution to ending judicial taxahonrnis, under the circumstances, reasonable.rnFollowing the Court’s 1990 riding in ]enkins, Senator JohnrnDanforth of Missouri actually proposed our idea of amendingrnthe Constitution for the purposes discussed above. Congressrnheld hearings on the idea, and several members objected.rnThey indicated a preference for exercising Congress’s power,rnunder Article III of the Constitution, to end the taxing authorit}’rnof the federal judiciar,- by statute. There was a lot of talk, butrnno legislation materialized.rnhi May 1992,1 traveled to Washington to determine the seriousnessrnof Congress’s interest in this issue. CongressmanrnHenrv Hyde, a member of the House Judiciary Committee,rnwas quite candid with me: “While I am sympathetic to yourrnconcern, on this issue, quite frankly. Congress just doesn’t giverna damn.” He was right. It turns out that when the budgets ofrndie states are jeopardized by unfunded judicial mandates. Congressrncould not care less. But when Congress’s fiscal turf isrnfaced with such a threat, well, that is another story.rnIn 1994, while a balanced budget amendment was still in thernplanning stage. Senator John Danforth cautioned his colleagues:rn”A balanced budget amendment would be a disaster ifrnfederal courts were able to increase taxes or cut spending.” Thernfollowing year, during debate on the balanced budget amendment,rnmembers of Congress expressed concern that thernamendment might allow the judicial branch to inject itself intornthe federal budget process. Senator Paul Simon stated: “Irndon’t think that will happen in the immediate future. I’m notrnsure but that 30 or 40 years from now the Court might not be inrna position to order Congress to comply.” Others, includingrnSenator Robert Byrd, former Senator Tom Eagleton, and syndicatedrncolumnist James Kilpatrick expressed similar concerns,rnand Senator Sam Nunn admonished those who doubted thernjudiciar’s interest in expanding its power: “If you don’t thinkrnthis is a danger, look at the Missouri case.”rnLast year. Republican Congressman Jim Talent of Missourirnintroduced House Joint Resolution 167, which proposedrn”an amendment to the Constitution of the United States to limitrnthe judicial power of the United States.” He could find onlyrna handful of cosponsors. Senators Strom Thurmond and BobrnDole tried, with Senate Bill 17908, merely to preclude “thernlower Federal courts from issuing any order or decree requiringrnimposition of ‘any new tax or to increase any existing tax or taxrnrate.'” But this bill only addressed new taxes while letting currentrnjudicial tax orders stand. We believe judicial levying ofrnany tax is unconstitutional. Leaving current judicial tax ordersrnintact gies credibilit}’ to the Court’s assertion that it acted constitutionally.rnOthers members of Congress countered with legislationrn—such as House Resolution 3100 and Senate Billrn1817 — that woidd legitimize the judiciary’s authority to tax.rnBoth bills allow the federal courts to encroach on the legislativernbranch’s traditional and constitutionally mandated turf; bothrnpermit the judicial branch to add force and will to their judgments.rnBut in Federalist 78, Hamilton stated that the courtsrnwere “to have neither FORCE nor WILL, but merely judgment.”rnHe warned that there would be “no liberty, if the powerrnof judging be not separated from the legislative and executivernpowers.”rnI mentioned earlier that there are members of Congress whornhave expressed a preference for addressing grievances by statuternrather than by constitutional amendment. This would be finernif statutes worked, but the record shows otherwise. Congressrnhas repeatedly passed balanced budget acts (most notablyrnGramm-Rudman-Hollings) only to violate both the spirit andrnthe letter of the law. More importantiy, the Supreme Courtrncan declare statutes passed by Congress to be unconstitutional.rnIn Bowsher v. Synar, for example, the Court ruled that certainrnprovisions of Cramm-Rudman-Hollings called for specific budgetrncuts that were executive functions, and therefore vested anrnexecutive function in a legislative branch officer, thus violatingrnthe separation of powers. Despite having taken this position inrnBowsher, it took only four more years for the Court to tramplernseven centuries of history—from Magna Carta (1215) throughrnthe English Petition of Right (1628), the Fundamental Ordersrn(1639), the English Bill of Rights (1689), the Declaration of Independencern(1776), The FederaUst {7S7-88), France’s Declarationrnof the Rights of Man and of the Citizen (1789), the ConfederaternConstitution (1861), and the 50 state constitutions ofrnour union —and to usurp the power to tax, clearly a legislativernfunction, without the consent of the people.rnUnless circumstances change,rna constitutional amendmentrnis the only viable remedy tornjudicial taxation.rnMichigan State Senator Loren Bennett introduced SenaternCurrent Resolution 273, which calls upon Congress to send tornthe states an amendment to the Constitiition which would endrnjudicial taxation. “Wliat would be the point of our last 21 taxrncuts,” he said, “if we allowed the courts to indiscriminately raiserntaxes? This practice is dangerous and must stop now.” ArizonarnState Senator Marc Spitzer, sponsor of Arizona Senate ConcurrentrnResolution 1014, was just as emphatic: “We need tornsend a message that the people of this country do not approve ofrnFederal judges sitting as ‘Super Legislators.'” Spitzer understandsrnthat, unlike a statute, a constitutional amendment isrndefinitive and final. It is the only way to stay the judicial handrnwhen judges and Congress ignore the separation of powers.rnThe amendment we propose reads:rnNeither the Supreme Court, nor any inferior court of thernUnited States, shall have the Power to instruct or order arnState or political subdivision thereof, or an official ofrnsuch State or political subdivision, to levy or increaserntaxes.rnIt is an undeniable truth that taxation is a political power.rnThe Founders clearly intended that power to be exercised byrnthe branch of government closest to and directly accountable tornthe people, namely, the legislative branch. Unless circumstancesrnchange, a constitutional amendment is the only viablernremedy to judicial taxation. crnFEBRUARY 1998/23rnrnrn