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 Since TABOR covers such a wide area of revenue policy, it thus can no longer be repealed except by a laborious string of statewide referenda.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.
Briefs in the case were filed with the Tenth Circuit this spring. If constitutional law is a matter of consulting the Framers, then the plaintiffs in this case have by far the better argument. Their briefs are richly loaded with quotes from the country's founding era emphasizing that a republic must have a sovereign legislature with authority to govern -- and tax -- independent of transient popular majorities. In Federalist 63, they point out, Madison was at pains to make clear that "republican government" meant government by elected representatives, with "the total exclusion of the people, in their collective capacity," from the power of individual decisions. In Federalist 30, Hamilton explained that a complete power of taxation was required for the survival of republican government: "How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can ... support the reputation of the commonwealth? ... How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity?"
The state's brief, by contrast, suggests that a "republican" government means virtually nothing. At most, they conceded, it means that a state can't have a king, a dictator, or permanent rule by martial law. I think that's pretty thin gruel as a definition. The state's argument is stronger when it suggests that citizens, even members of the legislature, have no standing to bring a Guaranty Clause challenge, because "[t]he Guarantee Clause ... create[s] rights and obligations between the United States and the State of Colorado."
The standing argument is undercut, however, by a brief filed on behalf of the Colorado General Assembly. After Democrats took over both houses in last year's election, the legislature voted to urge the Tenth Circuit to allow its individual members to sue. "TABOR infringes the legislator-plaintiffs' interests directly, concretely, and in a way that is particularized to them," the assembly's brief argues. Their injuries can only be redressed judicially. There is no legislative solution."
Even if the state wins on standing, its argument ought to disquiet advocates of "state's rights" and an aggressive reading of the Tenth Amendment. If the Guaranty Clause is a promise to the federal government, then nothing would stop the Justice Department from bringing a suit to void all or part of a state's constitution as not "republican" -- or, for that matter, stop a majority in Congress from repealing a state's constitution that displeased it. In our time, as in the years before the Civil War, we hear voices insisting that the "true" meaning of the Constitution involves state sovereignty and state dominance over federal power. It's a curious notion. What sort of "sovereign" can be overthrown at will by its "creature?"
Such a "sovereign" isn't sovereign at all. And a "republic" that has no government isn't "republican." The control-mashing "friends" of state government are fighting for the states' "right" to commit suicide. It's a bleak quest, and one that bodes ill for the future of the country.
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