Does TABOR Violate the U.S. Constitution?

As the Denver Post reports, a Colorado group is suing to invalidate the Taxpayer’s Bill of Rights [TABOR], on the grounds that it violates “the U.S. Constitution guarantee that states have a ‘republican’ government.”

I think the lawsuit is complete bunk, basically a PR stunt, and I predict it will be quickly tossed out of court.

As Professor Robert Natelson concludes in a 1999 paper, “[T]he Framers clearly acknowledged that republican government need not be purely representative[;] that it may contain significant elements of direct democracy. … The continued pressing of Guarantee Clause arguments against I&R [initiative and referendum] in defiance of unanimous historical and legal authority results in delay, vexation, and a waste of judicial and other resources. The courts should put those arguments to rest forthwith by classifying them as frivolous and imposing appropriate sanctions on the parties who raise them.”

But it is worth looking a bit more into the arguments surrounding the suit.

First I want to point out three bad arguments against the suit. One goes something like this: “Because TABOR is itself a state constitutional provision, it cannot violate the federal constitution.” Obviously that’s wrong. Originally the U.S. Constitution prevented the states from doing all sorts of things, such as putting up trade barriers. Indeed, restraining state governments was a major motivation for creating the U.S. Constitution. The Fourteenth Amendment restricts state governments even more severely (and thank goodness). I have argued that the Colorado campaign laws — also part of the state constitution — violate the First Amendment.

Others have pointed out that several state governments permit citizen initiatives and referendums and have done so for a long time. But that by itself does not justify the citizen initiative; many governments have done the wrong thing for long periods of time. If something is wrong or unjust, it hardly becomes justified merely by being compounded.

Another bad argument against the suit is that “the people” have the right to impose whatever they want through law. Obviously that’s inconsistent with the principle of individual rights. The Founders rightly feared mob rule and tried to protect against it.

Clearly Article IV, Section 4 of the federal constitution restrains state government in important ways, stating, “The United States shall guarantee to every State in this Union a Republican Form of Government…” Clearly, then, Colorado voters could not pass a constitutional amendment imposing a state-level hereditary dictator.

The question, then, is whether the citizen vote on law is compatible with a “republican” form of government. I think the Colorado Senate Republicans explained the point nicely in a release: “The plaintiffs in this lawsuit display a profound misunderstanding of what the founders of our nation and authors of the US Constitution meant by guaranteeing a ‘republican form of government.’ A republican form of government is above all a government with lawmakers bound by a constitution.”

Another question entirely is whether direct citizen vote is a good idea, though compatible with the U.S. Constitution. I can think of no good reason why citizens should not be allowed to vote on some statutory matters. I see no inherent problem with raising the bar for citizen votes to change the state constitution. Even advocates of the current rules must admit that the voters have at times made a mess of things. The unfortunate incentive is for groups to run unalterable constitutional amendments even for issues best left to the statutes. A constitution is supposed to be the most basic and fundamental law, not a repository of special-interest group finagling. Regardless of the rules of our state and era, we as individual voters should take revisions of the the constitution with utmost seriousness.