Veteran Denver Post (and former Rocky Mountain News) columnist Vincent Carroll writes here about the overweaning ambition of those who support the anti-TABOR lawsuit. That lawsuit claims that because Colorado’s Taxpayer Bill of Rights (TABOR) imposes fiscal limits on the power of the state legislature—that is, restricts lawmakers’ power to tax, spend, and borrow— it violates the U.S. Constitution’s guarantee to each state of a “republican form of government.”
Mr. Carroll thereby indirectly supports a point made earlier in this blog, and supported by an II study: Because almost every state restricts the legislature’s financial powers in some way, the theory of the anti-TABOR lawsuit would threaten clauses in the constitutions of almost every state.
Mr. Carroll doesn’t say so, but if you were to take the batty anti-TABOR theory seriously, the U.S. Constitution isn’t “republican,” either, because it also limits the fiscal powers of the legislature. Specifically, the Constitution requires that Congress apportion most direct taxes, that it pass only uniform indirect taxes, and that Congress impose taxes only for “general Welfare” purposes. The Constitution also bans Congress from taxing exports.
So by the reasoning of the anti-TABOR folks, the Constitution itself did not set up a “republican form of government!”
Kudos to Vincent Carroll for a fine analysis.
II has filed an amicus curiae (”friend of the court”) brief with the U.S. Court of Appeals, shooting holes in the plaintiffs’ claim that allowing the people to check the state legislature’s financial powers is somehow “unrepublican.” The national think tank, the Cato Institute, also signed on.
In addition, the National Federation of Independent Business (NFIB) filed its own amicus brief utilizing the kind of information presented by II in its Issue Paper on the lawsuit, The Attack on Colorado’s TABOR: The Threat to Other States.
As regular readers of this site know, a group of plaintiffs representing government interests has sued the State of Colorado, claiming that the Taxpayer Bill of Rights (TABOR) in the state constitution violates the U.S. Constitution. Even though the claim is an exceptionally weak one, last year a federal district court allowed it to proceed.
That ruling is now on appeal to the U.S. Court of Appeals for the Tenth Circuit.
Although the plaintiffs’ immediate attack is on Colorado’s TABOR, the underlying theory of their lawsuit is far broader. Their theory is that in order for a state to comply with the U.S. Constitution’s requirement that a state have a “republican form of government,” its legislature must have unrestricted power to tax, spend, and borrow.
However, nearly every state constitution restricts its legislature’s power to tax, spend, or borrow. So the plaintiffs’ theory, if victorious, would lead to legal challenges to almost every state constitution. States like Oklahoma, Michigan, and South Dakota, which permit the people to vote on tax increases, would be vulnerable—but so would states like Montana and Texas, which permit the people to vote on new state debt. Even balanced budget rules, which restrict short-term debt, would be vulnerable. So also would be state constitutions that permit popular votes or impose other controls on purely local taxes.
In a new Independence Institute Issue Paper, I team up with former intern (and CU law student) Zak Kessler to document the extent of the potential damage. The title of the paper is The Attack on Colorado’s TABOR and the Threat to Other States.
If you are exposed to enough politics, sooner or later you’ll hear the old saw that the U.S. is “a republic and not a democracy.” Along with that saying goes the following claim: Allowing voter initiatives and referenda is unconstitutional: If a state lets voters enact laws or veto tax hikes, the state is too democratic to meet the Constitution’s mandate that it have a “republican form of government.”
A new Independence Institute Issue Paper, which I authored, examines those assertions in detail. The Paper shows that both are essentially myths.
The nation’s best-known measure requiring voter approval of most tax hikes is Colorado’s Taxpayer Bill of Rights (TABOR), adopted by the voters in 1992. This Issue Paper is published in response to a legal attack on TABOR: A group of government apologists has sued in federal court claiming that by limiting legislative control over fiscal measures, Colorado has violated the U.S. Constitution.
In a nutshell, the new Issue Paper finds:
* The American Founders did not firmly distinguish between a “republic” and a “democracy.” Some used the two words as if they were synonymous. Some adopted the view of Montesquieu that there were two kinds of republics: (1) Those controlled by a few (aristocracies) and (2) those controlled by the many (democracies).
* Dictionaries of the time defined “republic” as merely a popular government, as opposed to a monarchy. One encyclopedia-type dictionary included an article tracking Montesquieu’s definitions.
* In drafting and debating the Constitution, the Founders talked a lot about republics. In most of the governments they identified as republics (like the Athenian and Roman), citizens voted on all laws.
* Various Founders stated explicitly that in republics the people could make laws directly as well as through representatives.
* The only kind of democracy the Founders thought “unrepublican” was what Madison (following Aristotle) labeled “pure democracy.” This was a theoretical form of government without officials, and where the mob ran everything in defiance of the rule of law. Other terms for the same thing are “mob rule,” “mobocracy” and “ochlocracy.”
* The dominant purpose of the Constitution’s mandate that states have republican forms of government was not to prevent popular votes at the state and local level. (In fact, referenda already were being used in some states.) The dominant purpose was to prevent any state from becoming a monarchy.
* The twin myths—that the Founders drew a sharp line between “republics” and “democracies” and that citizen lawmaking is unrepublican—did not arise until the 1840s, when conservatives invented and promoted them in response to disturbances in Rhode Island. In fact, until about 40 years ago, it was mostly conservatives who made such arguments. Beginning in the 1970s, liberals adopted them while opposing measures that give the voters “a say in what they pay.”
Opponents of popular government, such as those now challenging Colorado’s Taxpayer Bill of Rights (TABOR), argue that when a state allows the people to vote directly on laws or taxes it violates the U.S. Constitution’s mandate that every state have a “Republican Form of Government.”
They claim their view comes from the American Founders. In fact, it comes from those who opposed, and probably would have hanged, the Founders. In other words, from the Tories who opposed the creation of our country.
At the outset, please understand that the claim that initiatives and referenda are “unrepublican” is complete constitutional malarkey. When the words “Republican Form” were written, most of the republics in history had featured direct citizen lawmaking. Some Founders didn’t care for that sort of lawmaking, but none suggested it was unrepublican. On the contrary, several Founders spoke of a republic as a government in which the people made laws directly or through representatives—so long as they honored the rule of law. The Founders often referred to governments with direct citizen lawmaking as “republics”, among them ancient Athens and the Roman Republic.
Dictionaries of the time defined “republic” as a popular government or a non-monarchy. None excluded governments with direct citizen lawmaking. True, the Founding-Era record includes rare references to “pure democracy” (direct mob rule without magistrates) being unrepublican, but that was because it violated the rule of law. Technically, “democracy” was one of the two forms of republicanism (the other being aristocracy). Many Founders used the words “republic” and “democracy” interchangeably.
So where did the story arise that the people could not retain for themselves power to vote on laws directly?
Answer: In the months leading up to the American Revolution, it was part of the Tory attack on the patriot cause.
For example, in January, 1775, Samuel Seabury, a clergyman deeply opposed to the assertion of American rights, published a pamphlet called, “An Alarm to the Legislature of the Province of New-York.” On page 4, wrote:
It is the happiness of the British Government, and of all the British Colonies, that the people have a right to share in the legislature. This right they exercise by choosing representatives; and thereby constituting one branch of the legislative authority. But when they have chosen their representatives, that right, which was before diffused through the whole people, centers in their Representatives alone; and can legally be exercised by none but them.
In other words, when the people elect legislators, they can retain no lawmaking power for themselves. This argument was an integral part of the Tory message. (See Gordon Wood, The Creation of the American Republic, 1776-1787 [1969, 1998], pp. 314-15.)
The American Revolution discredited arguments like this for a while, but they re-surfaced in the 1840s. Early in that decade, a popular and generally peaceful uprising under the leadership of Thomas Wilson Dorr broke out in Rhode Island. The protesters elected their own state officials and demanded reform of Rhode Island’s archaic constitution.
Dorr’s opponents argued that his methods of direct democracy violated the republican form of government. This argument, although historically flawed, showed staying power. In 1847, the Delaware Supreme Court decided Rice v. Foster, the only significant case to rule that direct citizen lawmaking violated the republican form. Consciously or not, the court’s reasoning came straight from Samuel Seabury:
The sovereign power therefore, of this State, resides with the legislative, executive, and judicial departments. Having thus transferred the sovereign power, the people cannot resume or exercise any portion of it. To do so, would be an infraction of the constitution, and a dissolution of the government.
And just in case it might occur to the people of Delaware to amend the Constitution to reserve for themselves the right to vote on laws, the Delaware court warned them that it would strike down any such effort:
And although the people have the power, in conformity with its provisions, to alter the constitution; under no circumstances can they, so long as the Constitution of the United States remains the paramount law of the land, establish a democracy, or any other than a republican form of government.
To this day, Delaware remains the state where the people have the least direct lawmaking power—although even Delaware now permits the legislature to refer proposed statutes to the voters.
Those opposing TABOR claim their argument is based on the views of the American Founders. But it really derives from Tory zealots deeply opposed to the creation of the United States of America.
Die-hards attacking Coloradans’ constitutional right to personally vote on tax increases won an unexpected victory in federal court when Judge William J. Martinez found that their lawsuit is justiciable. That means the case can proceed to the merits.
Colorado’s Taxpayer Bill of Rights (TABOR) was adopted in 1992, and has been tattered by hostile lawsuit after hostile lawsuit. Yet the core of the measure still stands, and a group of government apologists have decided to take out the rest. Their claim is that by limiting the state legislature’s power to raise taxes, TABOR violates Article IV, Section 4 of the U.S. Constitution, the “Guarantee Clause.” That’s the clause by which the United States guarantees to every state a “Republican Form of Government.”
There are four things wrong with the lawsuit—besides, of course, its elitist arrogance. The first is that the Supreme Court already has told us that such suits are not justiciable because “Republican Form of Government” cases are for Congress, not the states. In working around this precedent, Judge Martinez relied on the 1962 Supreme Court case of Baker v. Carr, which listed six categories of non-justiciable disputes and found that none of the categories applied. However, Judge Martinez erred in handling two of those categories. He found that Congress had not spoken on the issue of whether Colorado has a “republican Form”—a mistake, since the Supreme Court has told us that when Congress admits a state’s representatives and Senators Congress is approving its form of government. The judge also held that upending TABOR would not require re-visiting established law because TABOR is used to block, not create, taxes. This was a mistake because upending TABOR could resurrect all the tax increases blocked under it.
The second thing wrong with this lawsuit is the way it turns the Guarantee Clause on its head. The Clause was established to uphold popular government—to ensure that no American state became a monarchy that might seek to aggrandize itself at the expense of the other states and of the federal government. The plaintiffs are trying to use the Clause to undermine popular government.
The third problem with this lawsuit is its claim that to be “republican” a state must have a legislature with the unchecked ability to raise money.
But that is not the Constitution’s definition of “republican.” Founding-Era dictionaries all described a “republic” as a commonwealth, a “government of more than one” (i.e., not a monarchy), or a government where the people rule. There is no hint that there even need be a legislature other than the people themselves. Consistently with these definitions, the Founders repeatedly referred to past governments as “republics” in which (as the Founders remarked) the people made laws, including tax laws, directly (i.e, ancient Athens, ancient Rome, various Swiss cantons, and others). For a survey of the evidence, including the single-out-of-context Madison quotation cited by the Plaintiffs, see my article on the constitutional meaning of “republic.”
The fourth thing wrong with the lawsuit is that the plaintiffs offered no measurable standard for their novel definition of republic. Their “fully effective legislature” phrase raises a host of unanswered and unanswerable questions: Is a legislature less than “fully effective” if the the people can vote on any measures at all? Does that purported standard ban all voter initiatives? All referenda? If not, which ones? Must the executive be “fully effective,” too? If so, then how many checks and balances are permissible? Etc. Etc.
Judge Martinez’s decision is wrong, but when you read his opinion you come away with the impression that one reason he decided as he did was the state attorney-general’s weak defense of the case. For example, the A-G’s brief simply blew off the “Republican Form” issue by refusing to address it and falsely suggesting that this issue was a topic for serious debate.
The A-G’s omission forced us at the Independence Institute to file an amicus curiae (friend of the court) brief on what the Constitution actually means when it refers to the “Republican Form.”
That issue now becomes the next focus of the case.
True, there are serious moral and political issues inherent in requiring religious institutions to offer “treatments” they find theologically offensive. But, despite the claims of many Catholic and conservative commentators, the U.S. Department of Health and Human Services (HHS) rule probably doesn’t violate the freedom of religion clauses of the First Amendment, at least as currently interpreted.
[By the way, when claiming a First Amendment violation, some commentators also have said the First Amendment is “first” because of its primary importance. Actually it is first by historical accident: It was originally the third amendment, but became the first when the states failed to ratify the original first and second; the original second later became the 27th.]
The HHS rule applies to employers as a class (except churches per se). It does not single out institutions affiliated with religion. In the words of the Supreme Court, it is a “neutral and generally applicable” rule.
In the 1990 case of Employment Division v. Smith, the Supreme Court upheld “neutral and generally applicable” rules, even when they substantially burden religious practice. As the Court said in that case, “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Note that both prohibitions and mandates are included in the court’s language.
This year, the Court issued Hosannah-Tabor v. Equal Employment Opp’y Comm’n, which blocked the Obama administration from interfering with how a church staffed its own ministry. Some might cite Hosannah-Tabor as evidencing a more friendly judicial attitude toward religion. Unlike Smith (and unlike the latest HHS rule), however, Hosannah-Tabor dealt with ministers in churches, not lay personnel in non-church institutions such as hospitals.
Hosannah-Tabor did include some language that might give hope to those claiming the HHS regulation violates the First Amendment:
“It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”
You can argue that forcing a Catholic hospital to offer abortifacients is “government interference with an internal church decision that affects the faith and mission of the church itself.” But since hospitals are not churches and insurance policies are not ministers, chances are the Hosannah-Tabor holding would not void the HHS rule.
Another possible source of hope for religious groups is the federal Religious Freedom Restoration Act, passed in the wake of the Smith decision. It provides that even neutral and generally-applicable rules substantially burdening religion are valid only if “the least restrictive means of furthering [a] compelling governmental interest.” But that statute is useful only if not contradicted by Obamacare. And last year, in Mead v. Holder, a federal district judge held that Obamacare does serve the “compelling governmental interest” of “reforming the health care market by increasing coverage.”
So the real legal problem here is Obamacare and the mindset behind it. Obamacare’s profound interference into American life has already triggered many thorny constitutional and moral problems, and will trigger more.
As for the mindset, consider:
* A recent Fox News poll shows that “By a 61-34 percent margin, those surveyed this week approve of the Obama administration requiring all employee health plans to provide birth control coverage as part of health care for women.”
* The D.C. federal judge’s conclusion that increasing third party payments is a “compelling governmental interest”—when the third party payment system is actually the primary culprit in the health care crisis.
* Those in the Catholic hierarchy who actively supported Obamacare, thereby throwing the beliefs of other religious sects (such as Christian Scientists) under the bus.
Too late, liberal Catholics are learning that when you lie down with snakes, you get bitten.
Despite what you may have heard, allowing people to vote on taxes and other laws is completely consistent with the “republican form of government.”
There is an old, and bogus, claim that to the contrary: that the U.S. Constitution requires states to lock citizens out from direct lawmaking. The argument is that only a system in which the politicians decide everything is permitted by Article IV, Section 4 of the U.S. Constitution. In that clause, the United States guarantees to each state a “republican Form of Government.”
Among those who have studied the issue, this argument has been discredited for some time. Yet it surfaced again recently when a group of plaintiffs, nearly all of them present or former government workers, sued to overturn Colorado’s Taxpayer Bill of Rights (TABOR). TABOR is the part of the state constitution that requires tax increases to be approved by the people. TABOR has been in effect since 1992, and its economic benefits for Colorado have been nothing short of astounding. Yet government insiders don’t like it, because they think it reduces their revenue, so they have attacked it again and again.
Colorado is not alone in allowing the people to vote directly on certain laws. In forty-nine states (all but Delaware) certain kinds of measures must be approved or rejected by the electorate. That system is called “referendum.” In about half the states, the people may initiate and approve laws themselves. This is called “initiative.” TABOR was added to the state constitution by initiative, and requires referenda on tax hikes. Although the plaintiffs say they “only” want to destroy TABOR, the theory in their legal complaint, if accepted, would cripple both initiatives and referenda nationwide, and enable federal judges to rewrite other portions of any state constitution that, in their essentially unguided discretion they consider insufficiently “republican.”
The truth is that the Founders repeatedly recognized direct citizen lawmaking as consistent with republican government. As Founders such as Charles Pinckney and James Wilson said, in a republic laws are made either by representatives or by the people directly. In fact, most of the prior governments the Founders called “republics” required that the people approve ALL laws. Examples were the Roman Republic and ultra-democratic Athens, as well as more modern states, such as the cantons (provinces) in the Swiss Confederation. In America, some of the smaller states already made wide use of direct citizen lawmaking. Examples include the New England town meeting and referenda in Massachusetts and Rhode Island.
Dictionaries of the time also defined “republic” in ways that permitted direct voting on issues by the electorate.
The idea that popular tax votes are “unrepublican” is particularly bizarre. In the Anglo-American tradition, tax revenue was seen as a gift from the people themselves. The people imposed taxes through representatives in the eighteenth century only because the large size of the country rendered assemblies of all citizens impractical. With modern technology, of course, regular referenda on taxes have become practical.
True, for a number of reasons the Founders did not provide for direct citizen lawmaking at the federal level. Instead, just as the people checked their state legislatures, state legislatures were to do much of the job of checking Congress. Article V’s state application-and-convention process is the federal analogue to state-level initiative and referendum.
Moreover, the Founders made it clear that states could adopt any republican system they chose. The Constitution simply barred them from jettisoning the rule of law or setting up monarchies or dictatorships. For more information and direct quotations, see my 2002 Texas Law Review article on the subject or my entry on the Guarantee Clause in the Heritage Guide to the Constitution.
So where did the plaintiffs get the perverse idea that you can’t have direct citizen lawmaking in a republic?
The theory appears to be a product of what historians disparagingly call “law office legal history.” This is when lawyers advance one-sided, often poorly-researched, historical claims they think will help them in court. The roots of the “republican form of government” claim go back to the 1840s, when each of two rival governments in Rhode Island was accusing the other of being “unrepublican.” Usually a passage from James Madison’s Federalist No. 10 is trotted out in support—read out of context and without necessary background knowledge. Those advancing this claim overlook that in Federalist No. 63, Madison himself cites several examples of republics with direct citizen lawmaking.
As if all this weren’t enough, the anti-TABOR suit was filed in defiance of a long-standing Supreme Court rule that whether a state is “republican” is a question for Congress, not the courts. But it illustrates the lengths to which some government insiders will go to take away from the people a treasured constitutional right.