The Independence Institute, through Dave Kopel as legal counsel, has submitted anamicus curiae (“friend of the court”) brief opposing the lawsuit to overturn Colorado’s Taxpayer Bill of Rights. The brief destroys the plaintiffs’ claim that by allowing citizens to vote on tax increases, Colorado is violating the U.S. Constitution’s requirement that all states have a “republican form of government.”
In accordance with his obligation, the state Attorney General has asked the court to dismiss the case. He did so on the (correct) grounds that the Supreme Court has held that “republican form of government” cases are for Congress, not the Supreme Court, to decide. But he failed to point out that the suit is also ridiculous on the merits.
The II brief shows that the Founders directly and indirectly acknowledged many times that citizen voting on policy was permitted in a republic. Indeed, most of the governments the Founders identified as “republics” (such as the Roman res publica and the Athenian demokratia) featured direct citizen voting—a fact both known to and discussed by the Founders.
The brief shows that the evidence is so overwhelming that even if the court rejects the Attorney General’s argument, it still should dismiss the case as wrong on both the facts and the law.
The canard that any sort of direct democracy is inconsistent with the “republican form”—a canard unfortunately repeated by some conservatives and libertarians as well as leftists— has nothing to do with how that term is used in the Constitution. Rather, it is a product of mid-19th century political battles, particularly the “Dore Rebellion” in Rhode Island during 1841-1842. During the lawsuits that followed the Dore Rebellion, one side began to misconstrue a passage in Madison’s Federalist No. 10—and an enduring myth was born.
The brief also points out that the Supreme Court has held that admission of a state by Congress is conclusive evidence that the state’s form of government is “republican,” and that Congress has admitted several states (e.g., Oklahoma) with strong initiative and referendum provisions in their constitutions.
The amicus brief recites only a portion of the massive amount of historical evidence on the subject. It relies, among other sources, on my 2001 study—published in one of the nation’s premier law journals—which includes even more.
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