The People Are Guaranteed to Lose

I came across an interesting, yet disturbing article in the Atlantic today about a U.S. District Court case in the District of Colorado, Kerr v. Hickenlooper, that deals with the constitutionality of a Colorado law. On the surface, it all appears rather mundane and somewhat trivial, but I think it shows just how vulnerable the “sovereignty” of states and localities can be in a so-called federal system, especially during times of extreme desperation on the part of central authorities. Here are the opening sentences of the article:

If a Government Can’t Tax, Is It Really a Government?

Could Congress invalidate your state’s constitution and demand it be rewritten?

 

The answer — disconcertingly enough for those who regard the states as “sovereign,” as against the federal government — is almost certainly yes. It won’t happen, of course. But last month, a related question emerged that may have more practical importance: Could a federal court do the same thing?

I’m not as confident as Gary Epps that “it won’t happen”, but we can get back to that later. The plaintiffs in this case, Colorado state legislators, are alleging that a unique Colorado initiative enacted in 1992, called the Taxpayer’s Bill of Rights (“TABOR”), is unconstitutional because it disallows state and local governments from levying any taxes without prior approval from Colorado citizens via popular vote. One of their primary arguments in support of this complaint is that TABOR prevents Colorado from having a functional legislature and therefore from having a “republican form of government”, which is in violation of this obscure part of the Constitution:

Article IV, §4 – “The United States shall guarantee to every State in this Union a Republican Form of Government…”

Essentially, the plaintiffs are asking a federal court to interpret the above clause in a way that defines “republican form of government” as one in which legislatures can raise taxes without popular approval. In addition, the court must interpret “shall guarantee to every State in this Union” as giving federal courts the authority to override any State Constitution that fails to provide for a “republican form of government”. Gary Epps explains why these types of questions aren’t usually even considered by federal courts:

Guaranty Clause cases are routinely tossed on the grounds that they raise a “political question” that courts should not decide. Last week, however, Judge William Martinez rejected that argument and ruled that this case can proceed. The ruling breaks new ground.

 

Courts steer clear of the Guaranty Clause because no one quite agrees what a “republican form of government” is. Even today, we can rule out governments with kings, but Saddam Hussein’s Iraq was a “republic,” as is Kim Jong-un’s North Korea. James Madison, that font of wisdom, defined a republic in Federalist 10 as “a government in which the scheme of representation takes place,” as distinct from “a society consisting of a small number of citizens, who assemble and administer the government in person.” Direct democracy, by this definition, would be anti-republican. Sounds good, but it was Madison’s own notion, rather than a standard definition.

 

In 1849, when Rhode Island was in the middle of a small civil war, the Supreme Court refused to use the Clause to decide which of the two warring governments was valid. That duty, it said, fell to Congress, which would seat the representatives of the government it found legitimate. At the dawn of the twentieth century, many scholars argued that the so-called “Oregon system” of initiative, referendum, and recall was anti-republican. In 1911, the Supreme Court rejected a challenge to Oregon’s initiative system by a corporation that objected to paying taxes adopted by popular vote. The tax itself was a perfectly ordinary tax, the Court pointed out; the company’s argument was simply that it had to be adopted by a different mechanism. Congress might have a right to outlaw the initiative, the Court said, but the courts did not. “It follows that the case presented is not within our jurisdiction.”

continue at The Automatic Earth:

http://theautomaticearth.com/Finance/the-people-are-guaranteed-to-lose.html

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