The United States shall guarantee to every state in this union a republican form of government . . .
— U.S. Constitution
Progressives have long lamented the fact that the Framers designed a Constitution replete with impediments to federal government activism — fetters such as federalism itself, enumerated powers, three branches of government, two rivalrous wings of the legislative branch, supermajorities, judicial review and presidential vetoes.
Colorado progressives, however, have decided the Constitution has a redeeming feature — the infrequently invoked Guarantee Clause (see above).
Their argument, which some conservatives here embrace, is that when Colorado voters passed an initiative circumscribing their legislature’s ability to increase taxes, they violated this clause. The plaintiffs in their lawsuit — state legislators, local government and education officials — want a judge to resolve “the contest between direct democracy and representative democracy.”
In saying that the former attenuates the latter, progressives are not entirely mistaken. They may, however, be mistaken in thinking this is a justiciable issue.
In 1992, Colorado voters passed the Taxpayer’s Bill of Rights (TABOR), which stipulates that spending in a given year cannot increase faster than population growth plus inflation — if both are, say, 2 percent, spending can increase only 4 percent. Any revenue exceeding permissible spending must be rebated to taxpayers, who must approve any tax increase.
But in 2000, voters, encouraged in their cognitive dissonance by teachers unions, passed an initiative requiring spending on education in grades K through 12 to increase significantly faster than overall spending. This, combined with the inexorable growth of federally mandated Medicaid spending, meant that, as the portion of the budget devoted to primary and secondary education expands, spending cuts must come from a small and steadily shrinking fraction of the state’s budget.
Furthermore, in spite of the privileged status of education spending, critics of TABOR, but not the anti-TABOR lawsuit, say TABOR is incompatible with the state Constitution’s requirement of a “thorough and uniform” education system. What do those two adjectives mean? That is a matter of opinion — of political, not judicial, opinion.
The suit challenging TABOR blames it for “a slow, inexorable slide into fiscal dysfunction.” But what constitutes “dysfunction” also is a political judgment, not a justiciable issue. As is the related charge that TABOR has rendered the legislature “unable to raise and appropriate funds” sufficient to “meet its primary constitutional obligations or provide services that are essential for a state.” What funds are “sufficient” and what public services are “essential for a state” are perennial questions of political debate, unsuited to judicial resolution.
So what has the Guarantee Clause got to say about TABOR? Not much.
To the Framers, the noun “republic” was a compound of meanings. The primary one proscribed monarchs and titled aristocracies (Article 1, Section 10 says, “No state shall . . . grant any title of nobility”). James Madison, aka the Father of the Constitution, said the purpose of the Guarantee Clause was to “defend the system against aristocratic or monarchical innovations.” The Framers, according to historian Forrest McDonald, “were far from agreed as to what republicanism meant, apart from the absence of hereditary monarchy and hereditary aristocracy.”
Still, a secondary but hardly insignificant meaning was that a republic must have the rule of law, a concept that then implied disparagement of direct democracy in which “the people” make all decisions — legislative, executive and judicial. Hence, a republic has representative government.
So progressives have a portion of a point: One principle of representation is that the people do not generally decide issues, they decide who will decide. Unfortunately for progressives, the achievement of which they once were very proud was that of getting initiative and referendum provisions into many state constitutions. It is an old story: Be careful what you wish for.
One of the “great” differences between “a democracy and a republic,” said the sainted Madison in America’s Scripture (The Federalist Papers, No. 10), is “the delegation of the government, in the latter, to a small number of citizens elected by the rest.” This does not, however, mean that “the rest” cannot place, even by direct democracy, restrictions on the “small number.” Surely “republic” and “democracy” are not so antagonistic as to be mutually exclusive categories.
The anti-TABOR brief quotes this from Madison: “A republic, by which I mean a government in which the scheme of representation takes place. ...” Well. “The devil can cite Scripture for his purpose” (”The Merchant of Venice”) and progressives can quote Madison (again, Federalist 10) for theirs, even while generally regretting his constitutional architecture.
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