Colorado AG Suthers correct to appeal TABOR decision

By Rob Natelson

Guest Commentary

Attorney General John Suthers is correct to appeal a federal judge’s decision that allows the anti-TABOR lawsuit to continue.

The case arose when a group of government apologists sued in federal court to invalidate Colorado’s 20-year-old Taxpayers Bill of Rights (TABOR). That measure assures that voters have the final say over most state and local tax increases. The plaintiffs won an unexpected victory last month when Judge William J. Martinez found-despite U.S. Supreme Court precedent to the contrary-that most of their claims were “justiciable” (resolvable in court).

The plaintiffs contend that TABOR leaves Colorado without a “fully effective legislature”-a phrase apparently invented for the occasion. This, plaintiffs say, violates Article IV, Section 4 of the U.S. Constitution. That provision, known as the Guarantee Clause, guarantees to each state a “Republican Form of Government.”

The plaintiffs’ claim, however, is not well-researched. And the background of the Guarantee Clause reveals it to be absurd.

Consider first the Founding-Era meanings of “republican” and “republic.” Thanks to the Internet, dictionaries and encyclopedias from the time are now plentiful and easy to access. (If only the plaintiffs had consulted some of them!) These sources broadly define a republic as a commonwealth or popular government, and inconsistent with monarchy. No mention of a legislature, “fully effective” or otherwise.

In writing and debating the Constitution, the Founders examined and discussed in detail the history of prior republics. Among the “republics” they examined were ancient Athens, Sparta, and Carthage; pre-imperial Rome; and several Swiss cantons. They observed that all these governments relied heavily on institutions of direct democracy.
Typically, a magistrate or council proposed laws, and assemblies of all citizens accepted or rejected them. In some of these republics, the people could effectively initiate as well as approve laws.

Historically, in fact, purely representative lawmaking had been identified more with limited monarchy than with republics. That created a public relations problem for those Founders promoting a “republican” federal government without any direct democracy.

The Constitution’s advocates addressed the issue in several ways. James Madison (in Federalist No. 63) noted that former republics had featured some representative institutions along with direct democracy. Several Founders argued that republics could be purely representative as well as directly democratic. Some maintained that representation would be superior to gathering thousands of citizens together in the marketplace. James Wilson already had pointed out that control of taxes was rightfully vested in the people, and that representation was necessary only because 18th-century conditions rendered direct voting impractical. He and other Founders thus described a republic as one in which the people rule either directly or by representation.

But no one claimed that citizen voting on laws was inconsistent with republicanism. Given the historical record, how could they?

By distorting the Guarantee Clause to curb popular control, the plaintiffs turn the Clause on its head. It was targeted at monarchy, not at democracy. The idea was to prevent kings from ruling American states, because in prior federations local kings had sought to aggrandize themselves at the expense of their neighbors.

After finding this case justiciable, Judge Martinez should have dismissed its fundamental claim as groundless. But he has indicated that he will rule on the Guarantee Clause issues only if his justiciability ruling stands.

The attorney general was correct to appeal because the justiciability ruling also is erroneous. Judge Martinez based it on the
1962 Supreme Court case of Baker v. Carr, which lists six categories of disputes that are not justiciable. However, the judge erred in applying at least one of those categories.

Specifically, he found that Congress had not spoken on the issue of whether Colorado has a “republican Form.” That was a mistake, because the Supreme Court has ruled that when Congress seats a state’s Representatives and Senators-as Congress has seated those from Colorado-it accepts state government as republican.

The inherent difficulty with judges deciding questions that are essentially political in nature is one of the reasons the Supreme Court has long held “republican form of government” cases are for Congress, not the courts, to consider.

Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute, a former constitutional law professor at the University of Montana, and author of “The Original Constitution: What it Actually Said and Meant.”

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