The U. S. Court of Appeals for the Tenth Circuit recently refused to dismiss the suit by various public sector interests to invalidate Colorado’s Taxpayer Bill of Rights (TABOR). The plaintiffs claim that TABOR violates Article IV, Section 4 of the U.S. Constitution. That provision is called the Guarantee Clause because it guarantees that the states will have republican forms of government.
The Guarantee Clause was designed to prevent states from becoming monarchies, dictatorships, or anarchies. It is totally inapplicable to TABOR, which simply requires that certain conditions—such as popular votes or legislative supermajorities—be met before the legislature can make designated increases in taxes, spending and debt. Although it is common in Colorado to claim TABOR is “unique,” in fact, it is only one of the stronger fiscal-restraint provisions that appear in the constitutions of 49 states. (The exception is Vermont.)
Restraints of this kind are called “TELs”—tax and expenditure limitations. Even the U.S. Constitution imposes such restraints on Congress. For example, it requires direct taxes, other than the income tax, to be apportioned among states by population, and it imposes a flat ban against taxes on exports.
The Independence Institute filed amicus briefs (Friend of the Court briefs) at the trial and appeals levels. Our briefs did not focus on the standing or justiciability issues—only the question of whether the Guarantee Clause invalidated TABOR. We focused on the Guarantee Clause because at the trial court (district court) level, the attorney general, while defending TABOR, did so almost exclusively on standing and justiciability grounds, and did not address the merits—i.e., whether TABOR violates the U.S. Constitution.
The attorney general did address the merits at the appeals level, but the court held that this was too late. The “republican form of government” question, therefore, will have to be dealt with in further proceedings.
It is unfortunate that this case has gone so far, because the claim that TABOR violates the Guarantee Clause is truly absurd. There is simply no conflict between the “republican form” and fiscal restraints or popular votes. As noted above, nearly all republican constitutions in the U.S. impose fiscal restraints on their legislatures. And popular votes on laws have been a major feature of republican government for thousands of years.
Although our brief did not address the justiciability issue, it seems to me that there is at least one glaring weakness in the appeals court’s decision on that subject.
The Supreme Court says that for a case to be justiciable in federal court, there must be “judicially discoverable and manageable standards” for resolving the issues. Not only have the plaintiffs failed to enunciate any such standards, but their papers seem to shift positions without really settling on any of them. At different points, their papers imply that they think that (1) all voter initiatives violate the Guarantee Clause, or (2) only fiscal voter initiatives do so, or (3) the Guarantee Clause bans only voter initiatives that go too far (wherever that point may be), or (4) it bans only voter-approval requirements for new taxes, or (5) it bans only voter approval requirements for taxes and spending, or (6) it prohibits any voter approval requirements for taxes, spending, or debt.
No one really knows what they mean (including, I suspect, the plaintiffs) because their papers are largely incoherent on the subject. But there certainly are no manageable standards to apply to a case when not even the plaintiffs can enunciate any.
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.”
The Constitution was created in a special legal environment. The Founders were raised with a particular educational canon. They also had certain common experiences. During the 19th century, important details about those matters began to slip away. Constitutional law forgot them.
In other words, information crucial to understanding 18th century words was lost during the 19th century. I call this phenomenon “The Great Forgetting.”
I stress that the mistakes from the Great Forgetting were mostly innocent, well-intentioned errors by people who lacked the interpretive tools needed to recreate the Constitution’s true meaning. The Great Forgetting mistakes were not comparable to the willful distortions of the Constitution rampant in the 20th and 21st centuries.
Still, the Great Forgetting’s consequences for constitutional thought were enormous. Popular misconceptions about the Constitution arose that in some instances remain influential. People think some ideas were the Founders’, when in fact those ideas were invented after all or most of the Founders had gone.
The leaders who wrote the Constitution and led the fight for ratification were born and raised in the British Empire. Most were lawyers trained in English jurisprudence and legal vocabulary. When Alexander Hamilton and James Wilson argued a case or wrote a document (like the Constitution), they used mostly English court decisions and British books. Even leading non-lawyers like James Madison and George Washington were well grounded in English legal concepts.
When the Founders assigned constitutional meaning they also were influenced by the history of Europe. They were particularly immersed in the heritage of ancient Greece and Rome, which formed the backbone of their education. They further considered the history of the British America, which they and their forefathers had lived through.
In the 19th century, however, Americans quite naturally decided that they wanted to be Americans. They did not want to be merely children of Britannia. Noah Webster wrote a purely American dictionary. James Kent and Joseph Story produced American legal treatises. Mercy Otis Warren and George Bancroft wrote histories from a strongly American point of view.
As the individual Founders died out, their personal memories were lost. They left many documents recording their memories, but often those documents were inaccessible. For example, James Madison’s notes of the Constitutional Convention were not published until after his death in 1836. Even when critical materials were available at places like Harvard and Columbia, they might be unavailable in Missouri, Ohio, or at the Supreme Court in Washington, D.C.
Consider just a few popular misconceptions and how the Great Forgetting made them possible:
* In the early 19th century, the idea arose that the Commerce Clause granted to Congress exclusive (rather than merely concurrent with the states) jurisdiction over interstate commerce. As I pointed out in Part II(C) of an article on the Commerce Clause as it pertains to Indian tribes, Madison’s convention notes disprove that idea. But those notes were not yet published. The footprints of this misconception can be traced today in the Supreme Court’s Dormant Commerce Clause and Indian Commerce Clause cases.
* Political actors in the 19th century promoted the claim that an Article V “convention for proposing amendments” is an”constitutional convention” that cannot be limited. No Founder would have believed that, because within the lifetime of Benjamin Franklin, there had been nearly 20 inter-colonial or interstate conventions confined to limited subjects. The claim of unlimitability survived because the Founders’ vast convention experience had been forgotten.
* Throughout the 19th century, many argued that Congress had no power to issue paper money, or at least no power to make paper legal tender. The records of the Constitutional Convention are ambiguous on the subject, but the ratification records and other contemporaneous documents are clear: Congress has both powers. However, in the 19th century the full ratification records were no longer readily available. As a result, the Supreme Court struggled for years over a question that should have been answered easily.
* During the 1840s, lawyers for political disputants spun the idea that in guaranteeing each state a “republican form of government,” the Constitution forbids states from using methods of direct democracy, such as initiatives and/or referenda. The argument is absurd to anyone familiar with 18th century word usage, or with the Founders’ immersion in the history of ancient Greece and Rome. But such things had been largely forgotten.
* In 1823, a Supreme Court justice writing a trial-level opinion without his fellow justices added some unnecessary musings about what he thought the Privileges and Immunities Clause of Article IV might mean. His language was not well considered: Not only were there internal inconsistencies, but the language showed unfamiliarity with the background of the Clause. Yet this passage became the basis for continuing misconceptions among commentators and judges who had never learned what “privilege” or “immunity” had meant in 18th century law.
We are fortunate today in that the Internet enables us to reconstruct 18th century meanings. But technology is not enough. We must beware of the results of the Great Forgetting. And we must equip ourselves with the history and language skills necessary to recreate the message the Founders intended to give us.