Welcome to Jon Caldara

Jon Caldara's official blog! Caldara is the President of the Independence Institute, Colorado's free-market think tank in Denver, Colorado. Caldara also hosts a radio talk show every Sunday, from 5 to 8pm on 630 KHOW. His current affairs television program Devils Advocate, on Colorado Public Television Channel 12, airs on Fridays at 8:30 pm repeated the following Monday at 1:30pm. Be sure to follow Jon on Facebook and Twitter!

Some of the Colorado Supreme Court’s Mistakes in the Douglas County School Choice Case

Posted by on Oct 22 2015 | Constitutional Law, First Amendment, school choice

As people who follow education reform already know, the Colorado Supreme Court recently struck down the Douglas County school board’s school choice program. It did so based on Article IX, Section 7 of the state constitution. This is sometimes called Colorado’s “Blaine Amendment,” although that phrase is technically a misnomer.

Actually, the Blaine Amendment was an 1875 proposal to amend the U.S. Constitution. The amendment was promoted by James G. Blaine (1830-1893), who served as Speaker of the U.S. House of Representatives (1869-75), Senator from Maine (1876-1881), the 1884 Republican nominee for President against Democrat Grover Cleveland, and Secretary of State (1881 and again, 1889-92).

When Blaine was politically active, there was strong anti-Catholic sentiment in America, largely due to animus against mostly-Catholic immigrants from Ireland and Italy. Blaine’s mother was Catholic, which might have rendered him politically suspect to many. So to improve his political viability, he promoted his amendment to ensure that state money never flowed to Catholic schools.

Blaine’s amendment didn’t pass, but he and others who shared his bias used their political clout in Congress to require new states to place similar measures in their own state constitutions. Technically these provisions are not amendments, but parts of their original documents.

Congress passed Colorado’s enabling act (law authorizing statehood) in 1875. Colorado entered the Union the following year. The people of Colorado knew that Blaine and his allies would review their proposed state constitution, and that if Blaine & Co. didn’t like what they saw they might block Colorado’s admission as a state.

The drafters of the Colorado constitution therefore inserted Article XI, Section 7:

Neither the general assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or monies whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever . . .

The term “sectarian” was primarily a code word for “Catholic,” although as explained below it could refer to any unpopular religious denomination. “Sectarian” did not include inter-denominational Protestantism, which then dominated American public schools.

If you read Article XI, Section 7 carefully, you realize that it cannot mean what it literally says. Literally read, it would render it unconstitutional for a city fire department to extinguish a blaze at a Catholic church. Many “anti-sectarian” provisions in other state constitutions present the same difficulty, so state courts have had to interpret them.

One way courts do so is to divide state assistance into three categories: (1) direct, (2) indirect, and (3) incidental. Direct aid is a grant program from the state to a school. An example of indirect aid is a voucher plan, such as the federal Pell Grant program for higher education. It is designed to benefit students, but the government sends money directly to the school chosen by the student or family. An illustration of incidental aid is the fire department scenario. Another example comes from a Montana case where that state’s highest court upheld a program that reimbursed expenses for a mother using a church adoption agency. The state paid the money to the mother, not to the agency.

Courts in Blaine states generally invalidate programs of direct aid to “sectarian” institutions. They sustain incidental aid. Opinions are split on indirect aid.

The Colorado decision is troubling for several reasons. Here are three that I don’t think have been sufficiently discussed:

First: The majority held that the Blaine provision did not violate the First Amendment’s Establishment Clause because the word “sectarian” was merely synonymous with “religious.” That is, the provision did not single out any particular religion or religions for discriminatory treatment. Incredibly, the majority’s sole source for treating “sectarian” as a synonym for “religious” was a law dictionary published—not in the 19th century when the Colorado constitution was adopted—but in 2014!

Nineteenth century dictionaries tell a very different story. A quick Internet search yielded three of them, and they all defined “sectarian” in a way that disparaged minority religions compared to others. Here are their definitions:

Webster (1828): “SECTARIAN, adjective. . . . Pertaining to a sect or sects; as sectarian principles or prejudices. . . . SECTARIAN, noun. One of a sect; one of a party in religion which has separated itself from the established church, or which holds tenets different from those of the prevailing denomination in a kingdom or state.”

Webster & Walker (1864) “adj: “Pertaining or peculiar to a sect. n. One of a sect, or one devoted to the interest of a sect; one of a party in religion which has separated itself from the established church. See Heretic.

Webster’s Academic Dictionary (1895): “Pertaining to a sect or to sects; bigotted attachedly to the tenets of a denomination. n. One of a sect.”

Obviously, the word “sectarian” in an 1876 document doesn’t mean merely “religious.” As the definitions suggest, it has connotations of “prejudice,” “bigot,” and “heretic.”

Under modern U.S. Supreme Court doctrine, this official disparagement of some religions as compared to others is a clear violation of the Establishment Clause.

Second: The Colorado court’s majority relied heavily on an earlier decision, Americans United for Separation of Church and State v. State. That holding was based on an inquiry into how “pervasively sectarian” funding recipients were. Yet later case authority holds that the approach in Americans United—advantaging some institutions because they are less religious than others—itself violates the Establishment Clause.

Third: The court treated the Douglas County program as a voucher plan. It had some justification for doing so, because even its friends sometimes refer to it as such. But in fact, the Douglas Count program is not a voucher plan. The school district does not write the check directly to the school of choice, but to the parent. The parent then independently endorses the check to the school. One can argue about whether this difference is sufficient to render the program one of “incidental” rather than “indirect” assistance. But the majority did not even address the issue.

There were some shortcomings in the dissent, also. It failed to reference any 19th century dictionaries, for example; and it failed to distinguish incidental from indirect aid.

Keep tuned: This case is going to the U.S. Supreme Court, so we have not yet heard the last word.

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The thoughts that come with losing my child

Posted by on Jul 15 2015 | Purely Personal

It is horrific what ugliness and hate can spring forward from one’s mind. If we could be jailed for our thoughts, I should have a life sentence.

It was a short, sad, news item that came over the radio some 13 years ago. I remember it perfectly to this day. It delighted me then. It shames me now.

Along I-70 in the mountains a boulder came loose, fell from a cliff, and struck the passenger side of a pickup truck. The father driving the truck was uninjured. His young son was killed.

When I heard the news report my mind, on even a chemical level, released a one-word, satisfied response – “Good.” It gave me immense pleasure.

Out of nowhere, expecting nothing, simply living their lives, a figurative bolt of lightning reached down to make this innocent boy suffer and die, and torture his father for the rest of his wrecked life. It comforted me when nothing else did.

It wasn’t just that I didn’t want to be alone. It wasn’t just that I wanted others to experience losing their child. I wanted everyone to lose their child. Everyone. I hated that anyone else still had their children. I hated that others could watch their kids sleeping safe and warm. This falling boulder could be the start of making the world right again. And I grabbed on to that awful thought and celebrated it.

To the loved ones of that little boy who died on I-70, whoever you are, I beg forgiveness for my hateful feelings at the time.

A week earlier my daughter, Parker, died of a rare and cruel from of cancer. It was our own figurative lightning bolt. Our only child at the time died just days before her first birthday.

Her death sentence was delivered at the old, cramped and dingy Children’s Hospital, one of the most horrific sites on earth.

Up to that point in my life, those awful things that you hear about, those tragedies and illnesses, well, they happen to other people. After that point I realized WE are those other people. I came to realize we are all those people, and just don’t know it.

However, there are brave people who can stare right into that kind of ugliness, and unlike me not run away. They can experience a child suffering and give instead of take. I’m speaking of the courageous people who work at Children’s Hospital.

They choose to fight the ugliness, not let it grow, or as I did in my madness and grief, wish it on others.

And those people have saved me from losing another child. My son, Chance, has Down Syndrome and endured 13 operations at Children’s, including delicate open-heart surgery at only three weeks old to save his life. These procedures now take place in the sunny, airy and comforting new Children’s Hospital at the Anschutz Medical Campus.

And because of the strong people there, my son is thriving, loud, troublesome, naughty, and loving life. I am so grateful. Very tired, but grateful.

If the people of Children’s Hospital shut down, the way that I shut down after losing my little girl, my son would not be with me. If they for a moment had the weakness and felt the ill will I had, they’d give up on the children that need them most.

Their skill, dedication, care, and love compensate and overcome the anger, pain, and desolation I had. They humble me.

I still feel a need to connect my children with that poor little boy who lost his life on I-70 so many years ago. But I no longer do it in pain and anger and hate, buy with joy. Those very same mountain passes where he lost his life become alive this weekend with the purpose of saving more lives.

A few years back, Tracy Smith, our gifted graphic artist, rode the “Courage Classic,” a bike ride over the Colorado Rockies that raises money for Children’s Hospital. She named her team, “Team Parker,” after my little girl.

Please, please, for my lost daughter Parker, for my son with Downs, Chance, and in memory of that little boy, will you right now give to Children’s Hospital?

Last year “Team Parker” raised over $14,000 for Children’s Hospital. I am asking you to help Tracy and her team of Independence Institute employees and friends raise one dollar more this year.

Choose any Team Parker member and contribute right now. Please help me honor my children in this powerful way. Thank you.

Support Team Parker here.

Straight on,


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2015 Founders’ Night VIDEO Invitation

Posted by on Feb 27 2015 | Events, Video

Julie Mallon cordially invites you to attend our 30th anniversary Founders’ Night dinner on Thursday, April 9th! Our keynote this year is comedian, actor, author, magician, and Cato Institute H.L. Mencken Fellow Penn Jillette! To purchase your ticket on the phone, call us at 303-279-6536. If you’d like to purchase them online, visit our webpage here.

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Urban Renewal and Littleton’s Ballot Measure 300

Posted by on Feb 13 2015 | debt, Economics, Regulation, Taxes, Video

Mike Krause intro’s former Littleton mayor Doug Clark’s explanation of why gambling with taxpayer money on real estate is almost always a bad idea in this short 1 minute video.

Littleton voters will be able to have a say on whether government uses their money to get into the land speculation business with Ballot Measure 300.

To learn more about tax increment financing (TIFs), urban renewal authorities (URAs), and Littleton Ballot Measure 300, watch the full Devils Advocate episode below.

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Freedom Minute | Obamacare and the Rule of Law

Posted by on Feb 04 2015 | Health Care, health control law, obama, obamacare, Video

In our latest Freedom Minute, Health Care Policy Center Director Linda Gorman questions whether government officials in charge of implementing are attempting to follow the law or just making it up as they go along.

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“Progressive” States Have the Greatest Income Inequality

Posted by on Feb 03 2015 | Economic LIberties, Economics, Politics

The percentage of total income received by the top one percent of income earners is a commonly-used measure of income inequality.

The Wall Street Journal recently published a list showing how each state, together with the District of Columbia ranks on this index.

Funny thing: Deep blue states—those dominated by Democrats and liberal Republicans—make up a disproportionate share of the states with the greatest inequality.

In order, the top “income inequality” jurisdictions are:

New York
New Jersey.

It’s easy to explain why Wyoming, Florida, and Nevada are on the list: Those three are among the relatively few states without a personal income tax, so the wealthy might be expected to shelter income there.

But all the rest are solidly “progressive” jurisdictions.

If “progressives” have the answer to income inequality, then how come there is so much income inequality where they are in charge?

The answer, of course, is that “progressive” policies really don’t cure inequality. They aggravate inequality. Policies of government control and and crony capitalism benefit those rich enough to buy influence in the political system and use it to smother the rest of us.

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Freedom Minute: Obamacare helps the poor?

Posted by on Feb 02 2015 | Health Care, health control law, obamacare, Video

In our latest Freedom Minute, Health Care Policy Center Director Linda Gorman questions the idea that Obamacare is actually helping the poor – on net.

To see all the Freedom Minutes we have online, visit our IITV YouTube page here.

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Do you have a minute? For our Freedom Minute?

Posted by on Jan 29 2015 | Economics, education, Regulation, Taxes, Video

We just got a cool new green screen here at the Independence Institute offices so…. we decided to make one minute, editorial videos. Cause why not?

You can find all of our Freedom Minute’s on our YouTube channel, IITV.

Here are the first few that we’ve done:

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Now HERE’s a worthy charity

Posted by on Jan 16 2015 | Media, TABOR, Taxes

As you know, we here at the Independence Institute sometimes fundraise for charities with whom we feel a special connection, like our work supporting Children’s Hospital. Well, there’s another charity that needs your help. Badly.

I’m proud to announce our goal of helping the Denver Post, Colorado’s newspaper of record, hire an actual copy editor.

If you are unaware, a copy editor is the person at a newspaper that not only checks an article’s spelling, grammar, and style before it is published, he or she also checks that the story is factually correct to certain standards. In other words, they’re the poor slob who has to make a liberal’s article seem at least plausibly objective.

And the poor Denver Post, well, they must not have even one.

We all know the Post has issued a fatwa against the Taxpayer’s Bill of Rights, but they really let their anti-TABOR Freudian slip show when they labeled it the “so called” Taxpayer’s Bill of Rights, even though that’s exactly what it is called in the state constitution. Funny, when slobbering over the Affordable Care Act, they never reported it as the “so-called Affordable Care Act.”

The conservative blog, ColoradoPeakPolitics.com, beat us to the punch skewering a poorly-written, typo-filled Post hit piece on the new Republican senate president. Any veneer of professional journalism the paper tried to project was wiped clean. Check it out.

Anyway, we’re thinking maybe of starting a 10-mile “Copy Editor Fun Run,” or something like that. A blind newspaper reader could be the poster-child. Won’t you help one of “Dean’s Kids”?

Let me say, I might disagree with most of the Denver Post’s editorial stances. However, they have every right to have them. But for the sake of honesty, shouldn’t they replace their front-page masthead with the simple words, “Editorial Section”?

Speaking of editorials, we do a number of them, including some in video form. We call them the Freedom Minute.

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Colorado (you) Gives!

Posted by on Dec 09 2014 | Purely Personal

Today is Colorado Gives Day. Great charities in Colorado will be asking you to give because giving today gets leveraged by the Colorado Gives Foundation, and credit card fees are waived as well. This makes it a great day for end-of-year gifts in Colorado.

But the greatest gift you can give to our state is Liberty. From Freedom and Free Enterprise, all other gifts come.

And there is only one organization out of the 1,500 participating in Colorado Gives Day whose mission is to fight to free Coloradans from the overreach of government. In fact, many of the groups participating today actively work for the Left, working against Free Markets. The money they raise today gets matched proportionally by the million-dollar Colorado Gives Fund.

So investing in the Independence Institute today not only counters that, but it means your investment in Freedom goes even further. But you have to give today for that proportional match.

Please take a moment right now (yes, please stop what you are doing for just a minute right now) and help us fight for a freer Colorado.

Click here to donate!

Thank you so very much!

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