Many state constitutions contain provisions restricting legislative authority over taxes, spending, or debt. Scholars call them “tax and expenditure limitations” or “TELs.” Do they violate the US Constitution?
At least 44 of the 100 Colorado state legislators seem to think so. They are sponsoring a proposal to sue in state court to void the Colorado Taxpayer’s Bill of Rights (TABOR). This is a provision in the state constitution that requires income taxes to be levied at a flat rate and requires that certain legislative fiscal decisions be subject to voter referendum.
TELs tend to have a limited effective life span because “progressive” lawmakers and judges nibble at them whenever possible. TABOR, which the voters adopted in 1992, has lasted longer than most, but retains perhaps a third of its original force.
Arguably due in part to TABOR, in recent years Colorado has been one of the nation’s wealthiest and most prosperous states. Prosperity has flooded state and local governments with revenue. But several years of unbridled “progressive” governance have created a budget crunch. That’s why so many lawmakers want TABOR gone entirely.
But how could restrictions on state taxation contravene the US Constitution?
Those proposing to void TABOR argue that it violates the Guarantee Clause (Article IV, Section 4). The Guarantee Clause provides, in part, that “the United States shall guarantee to every State in this Union a Republican Form of Government.” The sponsors’ legislative preamble avers that “the drafters of the United States constitution envisioned the guarantee of a republican form of government entailing a representative democracy in which legislative bodies determine policy by enacting laws through deliberation and compromise.” It adds that TABOR “removed fundamental legislative authority and power in matters of revenue and expenditure from the institutions of representative democracy … and so deprived the state of a republican form of government.”
This is not the first time members of Colorado’s “progressive” establishment have sued to void TABOR for allegedly violating the Guarantee Clause. In 2011, a handful of Colorado officeholders and special interests brought a similar lawsuit, but in federal rather than state court. The case wandered up and down the federal judicial system for a decade before it was dismissed.
The current proposal to sue in state court apparently is based on the almost uniform hostility the Colorado judiciary has shown toward TABOR. The state courts—particularly the state supreme court—have almost invariably ruled against the parties seeking to enforce it, sometimes engaging implausible legal contortions to do so.
This claim that requiring referenda for approving certain financial decisions violates the Guarantee Clause is based on a longstanding argument that to qualify as a “republic,” a government must be purely representative in nature. According to this argument, permitting voters to initiate or veto laws converts a state from a republic into a democracy, and (the claim is) the American Founders saw “democracies” and “republics” as mutually exclusive categories.
It’s an odd position for those who claim to defend “our democracy.” But apparently, they are willing to take it—at least to get rid of limits on their power to raise taxes.
The legislative sponsors seem to have overlooked a few items bearing on their case. One is that the Guarantee Clause is a mandate and commission to the federal government—which the US Supreme Court has restricted to mean Congress. The Court therefore has concluded that Guarantee Clause claims are not justiciable. If you think a state has abandoned the republican form, you have to go to Congress, not to court.
They also overlook the history of Colorado’s admission to the Union. It is true that the congressional enabling act for Colorado (like the enabling acts of many other states) required Colorado to have a constitution in the republican form. But the federal government approved Colorado’s constitution when, in 1876, it admitted Colorado to the Union.
As originally ratified, that constitution featured numerous TELs. There were rules banning certain kinds of spending and debt, rules imposing fixed maxima on taxes and debt, and at least five different mandatory referenda on tax, spending, and debt proposals. Moreover, in subsequent years, Congress has approved the admission of states with even more extensive provisions for direct democracy. They include Arizona, New Mexico, and Oklahoma.
In other words, the Supreme Court says that Congress is the arbiter of whether state constitutions are “republican”—and direct democracy and TELs are fine with Congress. And as if that were not enough, in 2015 the court acknowledged that direct democracy can be part of a republican government.
Finally, the Colorado Supreme Court has already decided the issue of whether direct democracy is consistent with the republican form. A string of cases have held that initiatives, referenda, and recall are not merely constitutional, but “fundamental rights of a republican form of government.”
The American Founders did not believe that republics and democracies are mutually exclusive categories.
So what is the source of the notion that institutions of direct democracy violate the Guarantee Clause?
The claim that republics and democracies are mutually exclusive seems to have originated in the 1840s—specifically, during the “Dorr War,” a contest between two rival governments in Rhode Island. Proponents of the more conservative government claimed the other violated the Guarantee Clause because that other government was too democratic to be republican.
The trope resurfaced later in the nineteenth and twentieth centuries, when opponents of initiatives and referenda alleged that direct citizen lawmaking violated the republican form by converting a state into an impermissible “democracy.” The Colorado Supreme Court was one of many tribunals that ruled otherwise.
Although the “democracy vs. republic” trope is old, it is not as old as the Constitution. Aside from theoretical concerns about “pure democracy” (discussed below), the American Founders did not believe that republicanism excluded direct citizen lawmaking. Nor did they believe that republics and democracies are mutually exclusive categories. Thus, neither of those ideas inheres in the Constitution’s phrase “Republican Form of Government.”
Founding-era dictionaries defined a “republic” as a commonwealth, a popular government, or a “government of more than one.” No dictionary suggested that a democracy could not be a republic or that democracy was somehow inconsistent with republicanism. On the contrary, many of the Founders interchangeably described the American form of government as “republican” or “democratic.” Some, such as James Wilson and Charles Pinckney, explicitly defined republican government as government in which citizens made law either directly or indirectly.
Among the leading Founders, the dominant definition of a republic seems to have been any government that complies with the rule of law, is not a monarchy, and is ultimately responsible to the citizenry.
Contemporaneous political thought divided republics into aristocratic (such as the one then prevailing in the Netherlands) and democratic. Aristocratic republics had a narrow citizen base; democratic republics had a wide one.
Before the American Founding, direct citizen lawmaking was the dominant form of lawmaking in democratic republics. Typically, a magistrate or council proposed laws to one or more assemblies in which all citizens could vote. This was the system in the Roman Republic, in Carthage, in Athens and other Greek city states, and in eighteenth century Switzerland.
To be sure, some Founders disapproved of direct citizen lawmaking—or thought representative lawmaking was better—but they still labeled governments featuring direct democracy as “republics” (e.g., Federalist #9).
In fact, before American independence, lawmaking exclusively through representative assemblies was more closely associated with limited monarchies than with republics. Thus, the Constitution’s advocates had to convince the public that the new central government could be wholly representative and still be republican.
The large size of most of the early American states and the conditions of travel and technology inhibited direct citizen lawmaking, but did not eliminate it. Massachusetts, for example, submitted its proposed constitutions to referenda, New England states held town meetings, and Rhode Island sponsored direct votes on important topics, including the Constitution’s ratification. Admittedly, Rhode Island’s Founding-era government was unpopular among most of the Constitution’s advocates. But none suggested it was unrepublican.
Many Founders did, it is true, warn of the dangers of too much democracy. But a government could have an excess of democracy and still qualify as a republic. The only kind of democracy seen as inconsistent with republicanism was a theoretical form of mob rule identified by Aristotle as “ultimate” or “pure democracy” (teleutaia demokratia). This was a form in which there were no magistrates at all and in which the rule of law did not prevail.
It was teleutaia demokratia that James Madison was referring to in Federalist #10 when he distinguished between republics and democracies. That is why, in Federalist #63, he could refer to ancient Sparta, Rome, and Carthage—all of which featured direct citizen lawmaking—as “republics.”
The drafting history of the Guarantee Clause shows that it was directed not against democracy but against monarchy or tyranny. The Founders were aware that after joining a confederacy of Greek states, King Phillip II of Macedonia began to expand his power at the expense of the league. The Founders feared that other monarchical states might pursue the same course.
A lawsuit to void TABOR on the grounds stated in the proposed Colorado resolution would be utterly without merit. Yet there is the stubborn fact that the Colorado courts have shown such hostility to TABOR that they might be tempted to rule for the legislature. Such a result could be disastrous, not just for Colorado but for other states.
A flat ruling that citizen lawmaking is inconsistent with the republican form would cast doubt on provisions in 49 state constitutions (only Delaware excludes referenda entirely). A more likely ruling would be that a certain amount of direct democracy is republican, so long as there is not “too much.” The unclear issue of how much is “too much” would invite litigation against TELs throughout the country.
May sounder heads prevail.
