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Do Citizen Votes on Taxes and Laws Violate the Constitution’S Requirement of a “Republican Form of Government?”

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Do Citizen Votes on Taxes and Laws Violate the Constitution’S Requirement of a “Republican Form of Government?” DO CITIZEN VOTES ON TAXES AND LAWS VIOLATE THE CONSTITUTION’S REQUIREMENT OF A “REPUBLICAN FORM OF GOVERNMENT?” by Robert G. Natelson IP-12-2012 October 2012 727 East 16th Avenue • Denver, Colorado 80203 www.IndependenceInstitute.org • 303-279-6536 • 303-279-4176 fax EXECUTIVE SUMMARY Opponents of popular participation in government have long argued that when a state constitution or legislature permits the people to vote on revenue measures and other laws, this puts the state out of compliance with the U.S. Constitution’s Guarantee Clause: the requirement at all states have a “Republican Form of Government.” Traditionally, their argument has been that the Constitution draws a sharp distinction between a republic and a democracy, and that citizen initiatives and referenda are too democratic to be republican. Recently, a group of plaintiffs sued in federal court, challenging Colorado’s Taxpayer Bill of Rights (TABOR) relying on a variation of this theory. In this Issue Paper, Professor Rob Natelson, Senior Fellow in Constitutional Jurisprudence and the author of the most important scholarly article on the Guarantee Clause, sets the record straight. Marshaling evidence from Founding-Era sources and from the words of the Founders themselves, he shows that the phrase “Republican Form of Government” permits citizen lawmaking—and that, in fact, most of the governments on the Founders’ list of republics included far more citizen lawmaking than is permitted in Colorado or any other American state. He further shows that the principal purpose of the Guarantee Clause was not to restrict popular government, but to protect popular government by forestalling monarchy. 1 DO CITIZEN VOTES ON TAXES AND LAWS VIOLATE THE CONSTITUTION’S REQUIREMENT OF A “REPUBLICAN FORM OF GOVERNMENT?” by Robert G. Natelson* THE “DEMOCRACY V. REPUBLIC” STORY: case was Rice v. Foster,4 and the Delaware justices HOW IT GOT STARTED1 could have decided it on fairly narrow grounds. In 1841 a democratic uprising—massive but largely But Chief Justice Booth, reacting unfavorably to the 5 peaceful—erupted in Rhode Island.2 That state was Dorr Rebellion, decided to make a larger statement still operating, with some amendment, under the about what he considered the nature of republican royal charter that had governed the colony of Rhode government. Island prior to Independence. By the standards of the 1840s, this government was undemocratic. The When the people establish a republican form of rebels, led by Thomas Wilson Dorr, demanded a government, Justice Booth wrote, they delegate more widely-based government. When the state’s all their sovereign lawmaking authority to state ruling elite rejected their demands, the rebels held officials. They retain only the power to elect those their own elections, choosing Dorr as their governor. officials. “Having thus transferred the sovereign power, the people cannot resume or exercise any Conservatives across the country were horrified. portion of it. To do so would be an infraction They argued that the new government, even if of the constitution, and a dissolution of the 6 resting on popular support, was not a “republican” government.” Thus, to qualify as a “republic,” one. They further argued that because it was not the court ruled, a government must provide that republican, the United States should not recognize only the legislature, never the people, enacts laws. it in any way. They cited the Guarantee Clause of Any provision for direct citizen lawmaking was the United States Constitution—Article IV, Section unconstitutional. 4—which provides in part that, “[t]he United States shall guarantee to every State in this Union a Lest the people consider amending the Delaware Republican Form of Government. ” constitution to permit direct citizen lawmaking, Justice Booth added: The Supreme Court case of Luther v. Borden3 arose And although the people have the power, out of the Rhode Island controversy. The Court held in conformity with its provisions, that Congress, not the judiciary, was the proper to alter the [state] constitution; ...throughout venue for resolving Guarantee Clause issues. By the under no circumstances can they, the 19th and time of the Court’s ruling, Dorr’s uprising had been so long as the Constitution of 20th centuries, long suppressed. the United States remains the states under paramount law of the land, the influence of The controversy presented ruling elites with an establish a democracy, or any the Progressive opportunity to develop a congenial theory of what other than a republican form of Movement insert- 7 kinds of state governments did, and did not, comply government. ed provisions in with the republican form. The theory they adopted their constitu- was that to qualify as a “republic,” a government Despite this ruling, throughout the tions allowing could not be too democratic, because republics 19th and 20th centuries, states under for referenda and democracies were mutually-exclusive forms of the influence of the Progressive (electoral review government. Movement inserted provisions of legislative in their constitutions allowing decisions) and In 1847, the Delaware Supreme Court ruled on the for referenda (electoral review of initiatives (popu- validity of a state law permitting citizens in each legislative decisions) and initiatives lar votes on mea- county to vote on whether the sale of alcoholic (popular votes on measures initiated sures initiated by beverages would be permitted in their county. The by citizen petition). No major courts citizen petition). 2 followed Delaware’s lead in voiding such provisions.8 Unfortunately for the Kerr plaintiffs, there are Nevertheless, political elites continued to contend virtually no decided cases, other than Rice v. Foster, that initiatives and referenda were unrepublican holding that popular limits on the legislature render and therefore unconstitutional.9 As in Rice v. Foster, a state “unrepublican.” For this reason, the Kerr the argument usually was framed by assertions that plaintiffs, like many before them, there was a sharp difference between a “republic” argue that the Founding-Era meaning ...Guarantee and a “democracy,” and that permitting citizen of “republican form,” as that term Clause challenges lawmaking converted a state into a democracy. is used in the U.S. Constitution, to direct popu- precluded or limited citizen lar lawmaking During the 19th and early 20th centuries, the lawmaking. invariably have elites making this argument usually represented cited materials conservative interests. That is no longer true. Since However, the historical basis for that that reveal little the 1970s, states have enacted and considered assertion is extremely slim. As a result, or nothing of numerous proposals for voter control of state taxing Guarantee Clause challenges to direct the Founding- and spending. Naturally, those who benefit from popular lawmaking invariably have Era meaning government spending—usually on the political cited materials that reveal little or of “Republican left—have resisted such proposals. One basis for nothing of the Founding-Era meaning Form of doing so has been the claim that permitting voter of “Republican Form of Government.” Government.” review of revenue measures violates the Guarantee Some of these statements refer only Clause.10 For example, the plaintiffs raised this to the Founders’ personal political argument in their 1999 suit to invalidate Montana’s preferences rather than to how they defined the Constitutional Initiative 75, although the state term “Republican Form”). Other statements were supreme court decided the case on other grounds.11 composed long after the Constitution was adopted. A more recent example is a current federal lawsuit, Still others are doctored or irrelevant.14 Kerr v. Hickenlooper,12 claiming that Colorado’s “Taxpayers Bill of Rights” (TABOR) violates the One passage on all challengers’ lists, including that republican form. of the plaintiffs in the Kerr case, is an excerpt from James Madison’s The Federalist No. 10: TABOR was adopted by initiative in 1992 as an amendment to the Colorado From this view of the subject it may be The plaintiffs in constitution.13 It requires popular concluded that a pure democracy, by the Kerr case are votes on most tax increases and which I mean a society consisting of a mostly present or some spending increases. Stated small number of citizens, who assemble former govern- in more technical language, and administer the government in ment lawmak- TABOR subjects certain legislative person, can admit of no cure for the ers, employees, revenue measures to mandatory mischiefs of faction. or officials. referendum. The plaintiffs in the They argue that Kerr case are mostly present or A republic, by which I mean a to qualify as former government lawmakers, government in which the scheme of “republican” employees, or officials. They argue representation takes place, opens a under the U.S. that to qualify as “republican” different prospect, and promises the Constitution, under the U.S. Constitution, each cure for which we are seeking. Let us each state govern- state government must have a “fully examine the points in which it varies ment must have effective legislative.” They further from pure democracy, and we shall a “fully effective contend that because TABOR gives comprehend both the nature of the legislative.” the people power to veto some cure and the efficacy which it must of the state legislature’s revenue derive from the Union. measures, the Colorado legislature is less than “fully effective.” The two great points of difference 3 between a democracy and a republic are: WHAT DID “REPUBLICAN FORM OF first, the delegation of the government, GOVERNMENT” MEAN TO THE FOUNDERS? in the latter, to a small number of citizens elected by the rest; secondly, WHAT DID HISTORY SAY? the greater number of citizens, and The Founders recognized that, although they greater sphere of country, over which personally had grown up under monarchy, the 15 the latter may be extended. new American government would have to be a republic.
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