Independence Institute Writers In The News

Posted by on May 31 2011 | Constitutional History, Constitutional Law, criminal justice, Health Care, PPC

Recently published works by Independence Institute writers cover a wide variety of topics, from taxpayer subsidized health coverage for kids and the dreaded “Amazon” tax to the cost of recidivism and the true meaning of a “republican” form of government. Let’s get to to it.

Over at the Health Policy Solutions website, health care blogger and research associate Brian Schwartz makes the case that parents of kids covered under Colorado’s Child Health Plan Plus (CHP+) should value their children’s health more than they value booze, candy and cigarettes.

Then in the Salida Mountain Mail newspaper, guest writer Ari Armstrong wonders how many inadvertent tax scofflaws have been created by Colorado’s “use tax.” As Ari writes, “By the very nature of the use tax, there is no good way to enforce it. It is a nuisance tax that turns otherwise good residents into tax criminals.”

Also check out the Denver Business Journal, where I explain why “Colorado taxpayers should want parolees to succeed.” From back in April, but only recently moved out from behind the DBJ’s subscriber wall.

And over at the Colorado Springs Gazette, Independence Institute constitutional scholar Rob Natelson utterly destroys the myth that Colorado’s Taxpayer Bill of Rights (TABOR) violates the U.S. Constitution. So devastatingly good, that it is re-printed here in its entirety:

Some old myths never die.

One of the most durable, although demonstrably false, is the claim that citizen initiatives and referenda violate the U.S. Constitution’s requirement that states retain a “republican form of government.” This myth is the basis for an ill-advised lawsuit against Colorado’s Taxpayer Bill of Rights (TABOR).

While serving as a law professor at the University of Montana, I spent several years trying to run down evidence supporting this claim. I published my findings in three major articles. In a nutshell, what I found is that there’s no “there” there.

We have a great deal of evidence about what the Constitution’s adopters meant by the “republican form of government.” But virtually all of it tells us that state-level initiatives and referenda are constitutional.

Among the evidence are dictionaries from the Founding Era. None of their definitions of “republic” excludes direct citizen lawmaking. The same is true of usages in the written works the Founders relied on and cited.

When drafting and debating the Constitution, leading Founders did extensive historical research. They learned that most prior republics featured extensive direct citizen lawmaking. These included, for example, ancient Sparta, Carthage, pre-imperial Rome, various Swiss cantons, and ultra-democratic Athens. Leading Founders regularly called all those governments “republics.” Founders such as James Wilson and Charles Pinckney specifically stated that in a republic the legislative power can be either in the people directly OR in their representatives.

Indeed, when the Constitution was being debated, it was the purely representative republic, not the directly-democratic republic, that was the novelty. Purely representative forms had existed more often in limited monarchies than in republics.

Many of the Founders were cautious about democracy, and for this and other reasons they opted for a purely representative form at the federal level. But they did not impose that system on the states. Founders such as James Madison assured the people that states were free to experiment with different republican forms. Direct democracy remained a prominent feature of American government, most notably the New England town meetings, and most states eventually adopted additional forms of citizen lawmaking.

The section of the Constitution relied on by the anti-TABOR lawsuit, Article IV, Section 4, certainly was not targeted at citizen democracy. It was targeted at monarchy—and perhaps at the kind of aristocratic elitism epitomized by this very lawsuit.

So where did the myth arise? It apparently was invented in the 1840s, when two rival governments in Rhode Island each charged that the other was not “republican.” Advocates for one government claimed the other was not republican because it was too democratic. The myth was developed further in the late 1800s by conservatives opposed to initiative and referendum, and more recently by liberals opposed to tax-limiting measures.

Those propounding the myth usually rely on two Madison quotations from the Federalist Papers. The quotations invariably are wrenched out of context, and sometimes selectively edited, to suggest that Madison believed republics had to be purely representative. If true, Madison would have contradicted all other Founders addressing the issue. Yet it is not true. What Madison actually was saying was that a type of mob rule identified by Aristotle (and called, in English translation, “pure democracy”) was not republican. Madison clearly thought a republic could feature direct citizen lawmaking, since in Federalist No. 63 he referred to ancient Athens, Sparta, and Carthage as “republics.”

The anti-TABOR lawsuit has been filed in federal court. It should be dismissed summarily, because the U.S. Supreme Court repeatedly has re-affirmed that whether a state is “republican” is for Congress, not the federal judiciary, to decide. But the merits are equally straightforward: Under our Constitution, the people of each state may allocate the state legislative power between themselves and their legislative representatives as they please. Indeed,

Colorado could adopt much more direct democracy than it has in TABOR, and still qualify fully as “republican.”

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