Judge Clark's Tax Hike

TWO fundamental principles of American government clashed in a case decided by the United States Supreme Court last week: the right of taxpayers to control the amounts they are obligated to shell out for government services (``No taxation without representation!''), and the power of government to remedy wrongs, especially violations of the Constitution itself. Despite the Supreme Court's increasingly conservative bent, it correctly gave government's power to enforce the Constitution the nod over taxpayers' rights.

The case involved a long-running battle to desegregate the Kansas City, Mo., school district. Once segregated by state law, the school district has preserved its separate-and-unequal complexion because of white-flight housing patterns. After nearly a decade of litigation that began in 1977, US District Court Judge Russell G. Clark approved a plan devised by the school board to attract white students to predominantly black schools through ``magnet'' programs and specialized facilities.

The only trouble was, the school district couldn't pay for the expensive (some critics say ``gold plated'') program, and state law prohibited it from raising property taxes without voter approval - approval that was repeatedly withheld. So Judge Clark ordered the increase himself, nearly doubling local property taxes.

Can an unelected judge order people to pay for a program they don't want? It's a basic tenet of democratic government that the power to tax belongs to the people's elected representatives.

But there's a countervailing principle. Without funds, government often would be powerless to enforce constitutional rights.

In a 5-4 decision, the Supreme Court strengthened the federal judiciary's power to implement - and fund - remedies to unconstitutional conditions in schools, and by implication in prisons, state hospitals, and other tax-supported institutions. (Following the lead of the Eighth Circuit Court of Appeals, though, the high court ruled that Judge Clark should not have ordered the tax increase himself, but should have directed the school board to raise the property tax while blocking enforcement of the state tax cap.)

The dissent protests against judicial overreaching. Yet the court's decision is strictly limited to the righting of constitutional wrongs; it doesn't empower judges to order tax increases for other purposes, however worthy.

Taxpayers' rights, important as they are, don't inevitably trump other societal rights and interests. In the interest of extending constitutional rights to people long denied them, the court made the right decision.

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