Does a State Have the Right to Self-Destruct?

Colorado has crippled its own ability to tax. And now some citizens say that's depriving them of their right to a republican government.
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The dome of the Capitol in Denver, Colorado (Ed Andrieski/AP)

There's a divide in contemporary constitutional theory today: one side sees the Constitution as a tool for self-government, the other as a means of preventing it.

One skirmish in that long war is being fought out in the Tenth Circuit Court of Appeals in Denver. It presents the question of whether a state's voters can amend its constitution to deprive the legislature permanently of the power to tax. That we are even debating this issue teaches us something about the state of American law and politics; the way it is being debated teaches some interesting lessons about the states, their supposed "rights," and the true scheme of the U.S. Constitution.

Though the far right often talks about their reverence for state governments, another part of their program is disabling state governments from stepping into the void left by the gradual starvation of the federal government.

That's where Kerr v. Hickenlooper comes in. It raises the question of whether a state whose government has no power to tax is a "state" at all within the meaning of the U.S. Constitution. The case is a challenge by a group of taxpayers and state legislators to Colorado's so-called "Taxpayer Bill of Rights," approved by initiative in 1992. TABOR, as it is called, bars any level of state government from raising taxes or tax rates without a referendum. Beyond that, government can't even spend the money it collects under existing taxes if tax collections rise faster than the rate of inflation or population growth. The "excess" revenue must be returned to taxpayers, no matter how dire the state's needs, unless a referendum approves the "tax hike."

As public policy, TABOR is bad enough. The legislature, though, could always ask the people to repeal it. However, in 1994, another initiative limited future constitutional amendments to a "single subject." Since TABOR covers such a wide area of revenue policy, it thus can no longer be repealed except by a laborious string of statewide referenda.

In other words, the controls are now smashed. Colorado's legislature can no longer effectively govern, and can't even effectively ask for authority to do so. This is the most radical limitation on state taxing authority anywhere in the country.

The plaintiffs in Kerr, a group of present and former legislators and officials, argue that this radical change violates the Guaranty Clause of the U.S. Constitution, Article IV § 4. The Clause requires the United States to "guarantee to every state in this union a republican form of government." Whatever a "republic" is, the plaintiffs argue, it must have power to tax and spend funds for the public benefit. TABOR, in effect, takes Colorado out of its status as a state.

Guaranty Clause cases are rare; even more rare, Kerr survived the state's motion to dismiss in district court. Colorado argues that these plaintiffs have no business suing and that the federal courts have no business deciding the issue. The result could have important implications for future cases under the clause.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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