Earlier this year a Federal Appeals Court upheld the Alabama constitution’s limits on taxation.  The plaintiffs in Lynch v. Alabama claimed that taxes in the state do not adequately fund constitutionally guaranteed public education and requested the court to impose taxes sufficient to fund an education consistent with the right.  The clash in Lynch reflects divergent views on the role of government and constitutions.
The American Revolution was fought over and the United States founded on the principle of limited government.  The Founders maintained that citizens have rights prior to the establishment of government, which is created to help secure citizens’ rights.  Citizens impose limits through a constitution to prevent government from abusing these rights.
The twin concerns of a constitution reflect the best and worst of government.  Protecting the rights of free people is perhaps the noblest human activity, especially when this involves personal risk.  And yet using the enormous power of government for theft or to take away peoples’ rights is perhaps the greatest moral outrage.  Throughout most of human history, governments have posed the greatest threat to freedom.
Constitutional limits on government reflect the potential for abuse.  James Madison wrote in Federalist #51, “If angels were to government, neither external nor internal controls on government would be necessary.”  A constitution limits both the good and harmful things government officials might do.  We would not wish to limit angels, yet angels are rarely found serving in Montgomery or Washington.  A well-designed constitution improves governance by living and breathing people.
Elections are the most fundamental constraint on government, yet most constitutions impose further limits because even elected representatives can make bad laws.  Modern scholarship by public choice economists, pioneered by Nobel Prize winner James Buchanan and continued by many of us at the Johnson Center, confirms the wisdom of Madison’s “auxiliary precautions.”  The Bill of Rights historically and term limits today illustrate the types of extra constraints that help protect citizens.
The tax limits in Alabama’s constitution reflect this wisdom.  If politicians tend to impose excessive taxes or spend money wastefully, our constitutional limits on property and income tax rates are prudent.
What about the right to education?  This is very different than the rights protected by the U.S. Constitution and the Bill of Rights.  A right to education is a claim on government to provide something.  Of course, government can only provide education (or anything else) by taking money from taxpayers, who must work and pay taxes to secure this right.
Alabama’s constitution alternatively mixes limits and claims on government.  The purpose of a constitution is to limit government, so only rights against government deserve constitutional protection.  Lawmakers may want to ensure provision of education, but because the details of what to provide may change (does online education count?), this should not be protected in the constitution.
Colorado illustrates the problems of mixing limits and claims on government in a state constitution.  In 1992, voters approved a Taxpayer’s Bill of Rights, or TABOR, limiting increases in taxes and mandating that excess revenue be returned to taxpayers.  Colorado’s TABOR brought spending under control, helped the state grow faster than the national average, returned $3 billion in extra tax revenues to citizens in a decade, and served as a model for other states.
But Colorado voters also approved Amendment 23, which mandated annual spending increases to K-12 public schools.  Since Amendment 23’s rate of increase exceeded the TABOR limit, other items of state spending, like highways, were squeezed.  Eventually voters agreed to substantially weaken the TABOR limits.
Constitutions representing two radically different views of the relation between the citizen and the state will often produce such train wrecks.  It may be futile to hope for enactment of a more consistent constitution to limit government in Alabama, although I really try to avoid venturing into prognostication.  The clash in Lynch offers the opportunity to reflect on the important protection against government excess our constitutions still provide today.
Daniel Sutter is the Charles G. Koch Professor of Economics with the Manuel H. Johnson Center for Political Economy at Troy University and host of Econversations on TrojanVision.  Respond to him at dsutter@troy.edu and like the Johnson Center on Facebook.