Thank you for the opportunity to speak with you here today. I want to begin by reminding everyone that this is no ordinary political rally. As a legislator I see many groups come to the capital, asking for money for some program, seeking a subsidy or a tax break. These are important thing and it is always good to see citizens coming to the capital for whatever purpose.

But today is unique because we are not here asking for anything. Rather we are here to remind each other of something. We are here to remind each other that the very freedom that allows us to gather here today owes much to the genius of our forefathers. That genius expressed itself in many ways, some dramatic and some mundane. And indeed much of what the founders of this nation left behind for us has become so common place in our experience, so much a part of those presuppositions upon which we operate as a people that we scarcely pay any attention to them at all. We simply assume that these things have always been as they are and that as such they always will be. We think that way about the many freedoms we enjoy and we think that way about the form of government that we live under.

But we would do well to remember that our system of government has not always been in existence, and that the only assurance that our system of government will persist is, the eternal vigilance of the people. So we are here today to remind each other, and our fellow citizens, of the need for vigilance. Especially at this moment when the basic principles of representative democracy are at stake.

I do not need to review for you the immediate cause of this gathering. The Supreme Court has issued an order directing the legislature to appropriate hundreds of millions of dollars to public schools. To spend these funds in this way may or may not be good public policy. Analyzing that question is not the purpose of my remarks. Rather I ask you to consider such action by any court in the light of the wisdom of our forefathers, and to think of how very far we have come from Alexander Hamilton’s sentiments in Federalist # 78 that:

“Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The Legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, 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.”

Now in thinking about these words it is particularly striking to recall that a mere 5 months ago in its initial school finance decision the Kansas Supreme Court wrote, “We do not dictate the precise way in which the Legislature must fulfill its constitutional duty. That is for the legislators to decide.” The Court has now apparently reversed itself on this point, determining that it does in fact have the power to “dictate the precise way in which the Legislature must fulfill its constitutional duty.”

Indeed, by ordering the legislature to spend a specific amount of money, and threatening drastic remedies for noncompliance, the Court is attempting to compel individual legislators to vote a particular way on appropriations bills. As U.S. Supreme Court Justice Anthony Kennedy once noted in a similar situation, a legislative vote taken under such circumstances clearly blurs the lines of legislative accountability by making it appear that a decision was reached by elected representatives when the reality is otherwise.

Such a circumstance is contrary to the basis tenants of representative democracy. In our system the Legislature alone may spend the peoples’ money, because it is the Legislature that is accountable to them. The confinement of appropriations to the legislative branch under our system of government was not random. It reflected our national ideal that the power of appropriation must be under the control of those whose money is being spent. This basic idea was at the very core of why our country came into being in the first place.

It important to remember in this regard the uniqueness of the founding of our nation. As historian Gordon Wood of Brown University has written; before the American Revolution, “the colonists knew they were freer, more equal, more prosperous, and less burdened with cumbersome feudal and monarchical restraints than any other part of mankind in the 18th century.” Yet they rebelled anyway, but why? We all know the basic story of how the colonists detested the stamp act tax. But was the stamp act really that unfair was the tax too high, was it imposed in a particularly draconian fashion, or for an illegitimate purpose. Well, no it was not, as another historian has written, “Viewing the matter calmly from a distance, it must be confessed that no better or more equitable method of taxing the colonies could have been found, that is if it be conceded that England has the right to tax them at all.” But it was to this very point that the colonists would not concede, for to them taxation without representation was tyranny.

And it was for this very reason that the founders gave control of the purse, of appropriations, to the representative branches alone. To have done otherwise would have been a betrayal of the very principles they fought for and that some died for. And I think, if this is not to bold to say, that for us to bow to the idea of appropriations without representation in our day would be a betrayal of those same principles. Simply put, we must not do so.

Allow me to conclude by saying that, all this having been said, it is comforting to remember that in our system of government it is the people, not the legislature or the courts who are ultimately sovereign. And it is with this in mind I believe that the wisest course for the legislature is to take the high road in this dispute, remembering that despite all appearances to the contrary the path of principle is indeed the safer path.

As such I believe our legislature must work within our constitutional framework by presenting to the people a constitutional amendment to reign in the judiciary and restore the basic principles of representative democracy.

By this method a constitutional crisis can be avoided, balance can be restored among the branches of government, and we can look back to the sacrifices of our forefathers with a clear conscience saying we too have done our part to defend the principle of representative democracy for which so many have sacrificed so much. Thank you.