Guest Commentary

Why not enforce the law against government handouts to big business?

Few things thrill me more than finding common ground with fellow citizens who do not share my enlightened political perspective. Recently, a constitutional issue came to my attention that may become the biggest unifying force against government malfeasance since the federal immigration bill.

There are few things that aggravate laissez-faire economists more than government giveaways to private business interests. Not only is the practice morally repugnant, but it really screws up the free market by injecting artificial revenue into business that is not based on the choices of the people, but rather ... well, I'm not sure on what it is based, but I have observed that these gifts tend to end up in the hands of large, national, wealthy corporations, as opposed to the small, local, struggling family businesses. The reason for this escapes me, but I'm sure that the city council members from Tucson, Oro Valley and Marana can provide one.

Our friends on the political left dislike it because they hate anything independent of the government in general--big corporations in particular--and they sure as heck don't like large sums of government money going to private entities without overwhelming control attached to the deal.

Bottom line: No one likes to see tax money ending up as gifts to big business. There ought to be a law!

Well, as luck would have it, there is a law! Our friends at the Goldwater Institute--focus on the message, not the messenger--recently reminded us that there is a "gift clause" in the Constitution of the state of Arizona. The gift clause bars government at any level from giving grants, subsidies, property or lending its credit to private concerns. There are no exceptions. There is no test for "public benefit" or "general welfare"--just don't effin' do it. As the Goldwater Institute guys put it, "The Arizona Constitution erects a solid wall of separation between business and government." This clause has been in the constitution since the get-go, and was pretty much respected for the first 50 years. It is in Article 9, Section 7 of the Arizona Constitution. You can look it up.

So there's no need to pass a new law. It is already there--in the constitution, no less! No more exemptions from impact fees or permit fees, and no more sales-tax giveaways, right? Well, that would be true had we a functioning judiciary. Alas, the courts have essentially rendered the clause moot with bizarre case law dating back to the '50s. Near the middle of the last century, judges began to view constitutional law not as the foundation of the government--the immutable rulebook--but as some quaint suggestions from dead white guys. They became above the law. The Supremes (members of the highest appellate court, not the Motown singing group) are the best examples of this.

If I were to make an analogy, I would imagine Justice Anthony Kennedy, or Stephen Breyer, as a chief of police. He would be charged with enforcing the law, and limit himself to that duty. Eventually, he may expand the scope of his vision. He may see the laws as guidelines, but realize that serving the greater good was his higher calling. He might, as a gesture of international goodwill, adopt some of the police methods used in South Africa--to honor their progress. If he were to be criticized, he could whine about the importance of respect for his position and the importance of his unfettered rule, with the knowledge that his was a lifetime appointment, from which he could not be removed, just like a king.

With councilmen flouting the law, and the judges flouting the law, there is a whole lot of flouting going on. What can we do? Can we demand that government officials obey the law--regardless of their branch of government? I don't know. It seems like a tall order. Perhaps we should attend council meetings and start chanting "rule of law!" when they endeavor to violate it. Maybe we could do the same in the courtroom, or at least at the judges as they walk to their cars.

I preferred the separate branches of government when they kept each other in check, as opposed to coming together as a team. Hey, if they are a team, who is their opponent?

About The Author

Jonathan Hoffman

Jonathan Hoffman moved to Tucson from Connecticut in 1977 and never looked back. He attended the UA, ran for City Council Ward III in 2001, and made regular contributions to the Guest Commentary section of the Tucson Weekly for over five years. He helped launch the Southern Arizona News Examiner. He is a former...
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