At Law & Liberty, Robert Natelson: Are Popular Votes Unconstitutional? From the introduction:
Many state constitutions contain provisions restricting legislative authority over taxes, spending, or debt. Scholars call them “tax and expenditure limitations” or “TELs.” Do they violate the US Constitution?
At least 44 of the 100 Colorado state legislators seem to think so. They are sponsoring a proposal to sue in state court to void the Colorado Taxpayer’s Bill of Rights (TABOR). This is a provision in the state constitution that requires income taxes to be levied at a flat rate and requires that certain legislative fiscal decisions be subject to voter referendum.
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Those proposing to void TABOR argue that it violates the Guarantee Clause (Article IV, Section 4). The Guarantee Clause provides, in part, that “the United States shall guarantee to every State in this Union a Republican Form of Government.” The sponsors’ legislative preamble avers that “the drafters of the United States constitution envisioned the guarantee of a republican form of government entailing a representative democracy in which legislative bodies determine policy by enacting laws through deliberation and compromise.” It adds that TABOR “removed fundamental legislative authority and power in matters of revenue and expenditure from the institutions of representative democracy … and so deprived the state of a republican form of government.”
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This claim that requiring referenda for approving certain financial decisions violates the Guarantee Clause is based on a longstanding argument that to qualify as a “republic,” a government must be purely representative in nature. According to this argument, permitting voters to initiate or veto laws converts a state from a republic into a democracy, and (the claim is) the American Founders saw “democracies” and “republics” as mutually exclusive categories.
And from later on:
Although the “democracy vs. republic” trope is old, it is not as old as the Constitution. Aside from theoretical concerns about “pure democracy” (discussed below), the American Founders did not believe that republicanism excluded direct citizen lawmaking. Nor did they believe that republics and democracies are mutually exclusive categories. Thus, neither of those ideas inheres in the Constitution’s phrase “Republican Form of Government.”
Founding-era dictionaries defined a “republic” as a commonwealth, a popular government, or a “government of more than one.” No dictionary suggested that a democracy could not be a republic or that democracy was somehow inconsistent with republicanism. On the contrary, many of the Founders interchangeably described the American form of government as “republican” or “democratic.” Some, such as James Wilson and Charles Pinckney, explicitly defined republican government as government in which citizens made law either directly or indirectly.
Among the leading Founders, the dominant definition of a republic seems to have been any government that complies with the rule of law, is not a monarchy, and is ultimately responsible to the citizenry.
Posted at 6:04 AM