For liberals who believe in elastic, “living” laws, reacting to a court decision is a simple matter: They either like the result or they do not.
For conservatives, who believe judges should apply the original intent of laws to the circumstances before them, the reaction can be more difficult – or should be.
Rarely is that more clearly, or painfully, demonstrated than with the recent decision by the Arizona Court of Appeals striking down two education voucher laws.
Conservatives have tended to denounce the decision. To me, however, it seems that the justices were simply doing what conservatives say they want judges to do.
I say that as an ardent supporter of vouchers.
Education vouchers are fair. Parents who choose to send their kids to private schools shouldn’t be deprived of their share of the common resources government involuntarily collects through taxation for the education of children.
Vouchers promote equality of opportunity, giving poor parents access to many of the same educational choices affluent parents have.
And there has been enough experience with vouchers now to conclude that they provide measurable benefits without any detrimental effects.
Parental satisfaction with the schools voucher students attend goes way up. Both voucher students and students in public schools experiencing voucher competition show modest academic gains.
So, as a matter of public policy, I support the two voucher programs at issue – one for foster kids and the other for disabled kids.
However, there is a provision of the state Constitution, there from the beginning, that reads: “No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school.”
The historical context involves efforts to cope with a wave of Catholic immigration around the end of the 19th century. Public schools at the time often had a Protestant orientation. In some parts of the country, Catholics agitated for public support for their own schools.
In part to preclude that, Arizona and many other states adopted constitutional provisions such as this.
The broadness of the language in Arizona’s Constitution, and the historical context, make the intent fairly clear: The framers wanted public expenditures on education limited to government schools.
In 1999, the Arizona Supreme Court did uphold Arizona’s tuition tax credit law, which gives a tax credit for donations to organizations that provide scholarships to private schools. However, the court based the decision on the fact that the money never got to the state and hence wasn’t a public expenditure.
This might seem a dodge, and in part it is.
But, as the majority opinion pointed out, the only alternative is to contend that all money belongs to the state and thus a decision not to tax is the same as a decision to spend.
Since the state’s original Constitution also exempted church property from taxation, the framers obviously didn’t agree that a decision not to tax was a decision to spend.
Vouchers, however, are appropriated money from taxes received. Nevertheless, voucher supporters have some decent arguments based upon finely parsing the specific language of the constitutional ban.
I deplore where this leaves public policy. Vouchers are much preferable to tax credits. Good tax policy involves low rates on broad bases.
Tax credits erode the tax base and depreciate in value as tax rates are lowered. So, reliance on tax credits puts good education policy at odds with good tax policy.
However, the maintenance of a free society depends on laws having a fixed meaning. Government cannot be limited if judges feel free to lift or change the limitations.
I think the framers were wrong to limit public expenditures for education to government schools. But that’s pretty clearly what they intended.
E-mail Arizona Republic political columnist Robert Robb at firstname.lastname@example.org