Browsed by
Category: Guarantee Clause

Colorado and Its Famous “Taxpayer’s Bill of Rights”

Colorado and Its Famous “Taxpayer’s Bill of Rights”

Rules limiting the legislature’s ability to tax, spend, and/or incur debt appear in the U.S. Constitution and in the constitutions of almost all states. But probably the most famous and most controversial is Colorado’s “Taxpayer’s Bill of Rights,” or TABOR.  TABOR gives the people, voting in referenda, the final say on most state and local government tax and debt increases and on some spending increases. It became part of the Colorado constitution in 1992.

TABOR has been roundly praised and roundly vilified. It also has been roundly misunderstood—by its friends, its foes, the media, and the courts.

Early last year I wrote a book-length issue paper on TABOR. It guides you through:

  • TABOR’s history
  • The history of measures like TABOR
  • The constitutionality of TABOR under the U.S. Constitution
  • Why it was adopted
  • What TABOR meant originally
  • What it means today, after many court decisions and subsequent laws and constitutional amendments
  • How Colorado has fared under TABOR
  • Suggestions for reform

The Independence Institute has just published my work. It is called The Colorado Taxpayer’s Bill of Rights. You can download it here.

Although Chief Justice Roberts' Dissent in the Arizona Legislature Case Cited My Research, I Actually Agree With the Majority!

Although Chief Justice Roberts' Dissent in the Arizona Legislature Case Cited My Research, I Actually Agree With the Majority!

041410 Rob Natelson-2

In my last post, I discussed the effect on Colorado’s Taxpayer’s Bill of Rights (TABOR) of the Supreme Court’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Comm’n. In this post, I explain why the Arizona case was decided correctly.

Some people may be surprised that I think the holding was correct. I’m politically conservative and the case was brought by a Republican state legislature. The decision was 5-4, with the more liberal justices on the winning side and the more conservative justices dissenting. In his own dissent, Chief Justice Roberts was kind enough to cite one of my own works (although on a point only distantly related to the result). And conservative complaints about the case have been strenuous.

But in this column I try to tell it as it is, and in this instance I think the liberal justices clearly had it right.

The basic issue was the meaning of “Legislature” in the clause of the Constitution that provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . . ” (Article I, Section 4, Clause 4; abbreviated I-4-1) That provision is sometimes called the Election Clause. A better name for it is the Times, Places and Manner Clause. We’ll use the latter term here.

Now, it is well established—based on case law and on the Constitution’s original legal force—that part of prescribing the “Places. . . of Elections for . . . Representatives” is drawing the congressional districts within a state.

For many years, the Arizona state legislature drew Arizona congressional districts, and many people claimed those districts often were gerrymandered. The state’s voters, therefore, opted to transfer the job to an independent redistricting commission, a decision made by voters in several other states as well.

Arizona state lawmakers sued, claiming that the term “Legislature” in the Constitution always means the specific representative assembly of a state. They claimed, in other words, that the people had acted unconstitutionally, and that they could not move congressional district-drawing from the state legislature to a commission.

The Arizona Independent Redistricting Commission responded by arguing that sometimes the Constitution uses the word “Legislature” to mean the general legislative power of the state. In this case, the commission argued, the people, through the initiative and referendum process, had acted as the “Legislature.” Just as the people could deputize one assembly to do the job, the people could deputize another (the commission).

The Supreme Court held that in this case the term “Legislature” meant the general legislative power of the state: Arizona voters, as the supreme state legislative power, had acted constitutionally.

The Court had case precedent on its side. Earlier cases had ruled that, although in some parts of the Constitution (e.g., Article V), the term “Legislature” means only the representative assembly, in the Times, Places and Manner Clause it meant the general legislative power, however the people of a state wish to exercise it.

Of course, the Supreme Court’s precedents do not always reflect the true, original meaning of the Constitution. In this instance, though, they do. Here’s why:

* Although there is a presumption that the same word in different parts of the Constitution means the same thing, there are important exceptions. For example, in my book, The Original Constitution, I show how the word “property” in Article IV means “real estate” while same word in the Fifth Amendment means both real estate and personal property.

* Similarly, the Constitution uses the term “Congress” in a dual sense. Sometimes it means only a specific assembly. (Examples include I-1; I-4-2; and Article V.) But on other occasions the Constitution employs the word “Congress” to mean the general legislative power. (See, for instance, I-8 and III-3-2). When “Congress” acts as a specific assembly rather than as the legislature per se, it acts by an ad hoc resolution, not by a law, and without any need for presidential signature. When Congress acts as the federal legislature, it enacts laws, which generally have to be signed by the President.

The fact that the Constitution employs this double usage for the federal legislature implies the same double usage for state legislatures.

* Founding era legislative practice also supports this view. The Constitution provides that presidential electors for each state are appointed “in such Manner as the Legislature thereof may direct.” When the legislature of South Carolina, for instance, first provided for selection of presidential electors, it did not do so by an ad hoc resolution. It did so by formal legislation.

* in fact, Founding Era election rules universally were established by acts of ordinary legislation, not by ad hoc resolution. The Times, Places and Manner Clause was written against a long background of formal election legislation, both in America and in Britain.

* How the people choose to allocate the legislative power of the state is entirely up to them, as James Madison and other Founders recognized. Indeed, at the time the Constitution was adopted, several states provided for slices of the legislative power to be exercised by entities other than legislature—by the governor, by executive councils, and by the people themselves.

Finally, here’s a political point: As this case illustrates, in Arizona and some other states, pro-freedom citizens sometimes attack the initiative and referendum process and demand curbs on it. This is a mistake.

It is politically foolish (you don’t please the voters by attacking them), but it is also wrong as a matter of principle.

In our country, the people are the rightful source of all political power. A “republic,” as the Constitution uses the term, is a government based on the people’s will. Instead of attacking the people’s right to decide, our time is best spent persuading them to make the best decisions possible.

The Anti-U.S. Origins of a Key Argument Against Letting the People Vote on Laws and Taxes

The Anti-U.S. Origins of a Key Argument Against Letting the People Vote on Laws and Taxes

RGNStPauls Opponents of popular government, such as those now challenging Colorado’s Taxpayer Bill of Rights (TABOR), argue that when a state allows the people to vote directly on laws or taxes it violates the U.S. Constitution’s mandate that every state have a “Republican Form of Government.”

They claim their view comes from the American Founders. In fact, it comes from those who opposed, and probably would have hanged, the Founders. In other words, from the Tories who opposed the creation of our country.

At the outset, please understand that the claim that initiatives and referenda are “unrepublican” is complete constitutional malarkey. When the words “Republican Form” were written, most of the republics in history had featured direct citizen lawmaking. Some Founders didn’t care for that sort of lawmaking, but none suggested it was unrepublican. On the contrary, several Founders spoke of a republic as a government in which the people made laws directly or through representatives—so long as they honored the rule of law. The Founders often referred to governments with direct citizen lawmaking as “republics”, among them ancient Athens and the Roman Republic.

Dictionaries of the time defined “republic” as a popular government or a non-monarchy. None excluded governments with direct citizen lawmaking. True, the Founding-Era record includes rare references to “pure democracy” (direct mob rule without magistrates) being unrepublican, but that was because it violated the rule of law. Technically, “democracy” was one of the two forms of republicanism (the other being aristocracy). Many Founders used the words “republic” and “democracy” interchangeably.

So where did the story arise that the people could not retain for themselves power to vote on laws directly?

Answer: In the months leading up to the American Revolution, it was part of the Tory attack on the patriot cause.

For example, in January, 1775, Samuel Seabury, a clergyman deeply opposed to the assertion of American rights, published a pamphlet called, “An Alarm to the Legislature of the Province of New-York.” On page 4, wrote:

It is the happiness of the British Government, and of all the British Colonies, that the people have a right to share in the legislature. This right they exercise by choosing representatives; and thereby constituting one branch of the legislative authority. But when they have chosen their representatives, that right, which was before diffused through the whole people, centers in their Representatives alone; and can legally be exercised by none but them.

In other words, when the people elect legislators, they can retain no lawmaking power for themselves. This argument was an integral part of the Tory message. (See Gordon Wood, The Creation of the American Republic, 1776-1787 [1969, 1998], pp. 314-15.)

The American Revolution discredited arguments like this for a while, but they re-surfaced in the 1840s. Early in that decade, a popular and generally peaceful uprising under the leadership of Thomas Wilson Dorr broke out in Rhode Island. The protesters elected their own state officials and demanded reform of Rhode Island’s archaic constitution.

Dorr’s opponents argued that his methods of direct democracy violated the republican form of government. This argument, although historically flawed, showed staying power. In 1847, the Delaware Supreme Court decided Rice v. Foster, the only significant case to rule that direct citizen lawmaking violated the republican form. Consciously or not, the court’s reasoning came straight from Samuel Seabury:

The sovereign power therefore, of this State, resides with the legislative, executive, and judicial departments. Having thus transferred the sovereign power, the people cannot resume or exercise any portion of it. To do so, would be an infraction of the constitution, and a dissolution of the government.

And just in case it might occur to the people of Delaware to amend the Constitution to reserve for themselves the right to vote on laws, the Delaware court warned them that it would strike down any such effort:

And although the people have the power, in conformity with its provisions, to alter the constitution; under no circumstances can they, so long as the Constitution of the United States remains the paramount law of the land, establish a democracy, or any other than a republican form of government.

To this day, Delaware remains the state where the people have the least direct lawmaking power—although even Delaware now permits the legislature to refer proposed statutes to the voters.

Those opposing TABOR claim their argument is based on the views of the American Founders. But it really derives from Tory zealots deeply opposed to the creation of the United States of America.

Yes, you can vote on taxes and laws in a republic!

Yes, you can vote on taxes and laws in a republic!

Rob Natelson, atop St. Paul's Cathedral, London
Rob Natelson, atop St. Paul's Cathedral, London

Despite what you may have heard, allowing people to vote on taxes and other laws is completely consistent with the “republican form of government.”

There is an old, and bogus, claim that to the contrary: that the U.S. Constitution requires states to lock citizens out from direct lawmaking.  The argument is that only a system in which the politicians decide everything is permitted by Article IV, Section 4 of the U.S. Constitution.  In that clause, the United States guarantees to each state a “republican Form of Government.”

Among those who have studied the issue, this argument has been discredited for some time.  Yet it surfaced again recently when a group of plaintiffs, nearly all of them present or former government workers, sued to overturn Colorado’s Taxpayer Bill of Rights (TABOR).  TABOR is the part of the state constitution that requires tax increases to be approved by the people.  TABOR has been in effect since 1992, and its economic benefits for Colorado have been nothing short of astounding.  Yet government insiders don’t like it, because they think it reduces their revenue, so they have attacked it again and again.

Colorado is not alone in allowing the people to vote directly on certain laws.  In forty-nine states (all but Delaware) certain kinds of measures must be approved or rejected by the electorate.  That system is called “referendum.”  In about half the states, the people may initiate and approve laws themselves.  This is called “initiative.”  TABOR was added to the state constitution by initiative, and requires referenda on tax hikes.  Although the plaintiffs say they “only” want to destroy TABOR, the theory in their legal complaint, if accepted, would cripple both initiatives and referenda nationwide, and enable federal judges to rewrite other portions of any state constitution that, in their essentially unguided discretion they consider insufficiently “republican.”

The truth is that the Founders repeatedly recognized direct citizen lawmaking as consistent with republican government.  As Founders such as Charles Pinckney and James Wilson said, in a republic laws are made either by representatives or by the people directly.  In fact, most of the prior governments the Founders called “republics” required that the people approve ALL laws.  Examples were the Roman Republic and ultra-democratic Athens, as well as more modern states, such as the cantons (provinces) in the Swiss Confederation.  In America, some of the smaller states already made wide use of direct citizen lawmaking. Examples include the New England town meeting and referenda in Massachusetts and Rhode Island.

Dictionaries of the time also defined “republic” in ways that permitted direct voting on issues by the electorate.

The idea that popular tax votes are “unrepublican” is particularly bizarre.  In the Anglo-American tradition, tax revenue was seen as a gift from the people themselves. The people imposed taxes through representatives in the eighteenth century only because the large size of the country rendered assemblies of all citizens impractical.  With modern technology, of course, regular referenda on taxes have become practical.

True, for a number of reasons the Founders did not provide for direct citizen lawmaking at the federal level.  Instead, just as the people checked their state legislatures, state legislatures were to do much of the job of checking Congress.  Article V’s state application-and-convention process is the federal analogue to state-level initiative and referendum.

Moreover, the Founders made it clear that states could adopt any republican system they chose.  The Constitution simply barred them from jettisoning the rule of law or setting up monarchies or dictatorships.  For more information and direct quotations, see my 2002 Texas Law Review article on the subject or my entry on the Guarantee Clause in the Heritage Guide to the Constitution.

So where did the plaintiffs get the perverse idea that you can’t have direct citizen lawmaking in a republic?

The theory appears to be a product of what historians disparagingly call “law office legal history.” This is when lawyers advance one-sided, often poorly-researched, historical claims they think will help them in court.  The roots of the “republican form of government” claim go back to the 1840s, when each of two rival governments in Rhode Island was accusing the other of being “unrepublican.”  Usually a passage from James Madison’s Federalist No. 10 is trotted out in support—read out of context and without necessary background knowledge.  Those advancing this claim overlook that in Federalist No. 63, Madison himself cites several examples of republics with direct citizen lawmaking.

As if all this weren’t enough, the anti-TABOR suit was filed in defiance of a long-standing Supreme Court rule that  whether a state is “republican” is a question for Congress, not the courts.  But it illustrates the lengths to which some government insiders will go to take away from the people a treasured constitutional right.