At the Excess of Democracy blog, Derek Muller (Pepperdine Law) has an interesting post on Kerr v. Hickenlooper, the case claiming that Colorado lacks a republican form of government, as required by Article 4, Section 4 (the guarantee clause). As he explains:
In 1992, Colorado voters, by initiative, enacted a “Taxpayer Bill of Rights” (TABOR) that prohibits the legislature from raising tax rates or imposing new taxes without voter approval. Plaintiffs recently sued and claimed that the legislature had a kind of inherent right as a republican form of government to control tax increases.
The district court rejected defendant’s argument (at least as an initial matter) that claims under the guarantee clause are non-justiciable. The Tenth Circuit heard oral argument last Monday.
Professor Muller thinks that the case is a non-justiciable political question. I agree, but on somewhat different grounds. He argues:
The second prong [of Baker v. Carr, a key political question precedent] … is salient: “a lack of judicially discoverable and manageable standards for resolving it.” Defining a “Republican Form of Government” is not an easy task, and certainly not one the judiciary has undertaken in over 200 years.
Further, the narrowness of the question weighs against examining the definition. The defendants who appealed note in their briefs that there are limited sit[u]ations in which it might be justiciable–such as if a state instituted a tyranny or a monarchy. But here, the question is whether the legislature has a right to raise taxes absent the popular vote of the people-and, perhaps as a prior question, whether the people can remove a delegated task of certain kinds of taxation from their representatives by initiative and restore it to themselves.
I disagree. The fact that a question is hard should not make it non-justiciable. Muller quotes a law professors’ amicus brief (written by some people with whom I often don’t agree, including Erwin Chemerinsky):
The briefs submitted by the State and their amici, for example, present arguments about how to interpret the language of the Guarantee Clause. The Response brief provides a set of counterarguments on the same question. Both sides support their arguments with historical evidence and judicial precedent. These arguments are precisely the type that courts regularly consider in interpreting the Constitution.
That seems right to me, and it is reinforced by the Supreme Court’s opinion in Zivotofsky v. Clinton, which appeared to cut back on Baker quite a bit and emphasized the Court’s core role in resolving questions of constitutional meaning. The difficulty in finding the original meaning of “Republican” seems no different in kind from the difficulty in finding the original meaning of a host of clauses whose meaning is not apparent on their face. A non-justiciability claim cannot arise wherever a provision’s meaning is obscure — or else many clauses, including maybe the whole Fourteenth Amendment, would be non-justiciable. To be sure, if a clause is, upon close investigation, found to be completely meaningless (as in Robert Bork’s “ink blot” example) it would be rightly found non-justiciable. But where there are arguments over competing meanings, the court’s job is — ordinarily — to pick the best meaning, not to abdicate.
That, flatly, cannot be the test. The parties in Nixon [v. United States] disputed whether a court could interpret the word “try,” and the parties, of course, each had their own set of arguments about what it means to “try” a party for purposes of impeachment. The Court–while recognizing that the task was left “sole[ly]” to the House–refused to entertain a question of the definition and usurp the role of Congress, and this question of judicially-manageable standards “strengthen[ed] the conclusion” that the matter was left to another branch other than the judiciary.
Although I think the Chemerinsky brief is right in the general case, I think Muller is right here — and the key precedent is not Baker (a thoroughly non-originalist and ad hoc decision) but Nixon. A proper textually founded political question doctrine arises not from some vague idea that the case is too hard (or too embarrassing, or too controversial) but — as in Nixon — the idea that the decision is textually committed to another branch (that is, committed by the particular phrasing of the clause at issue).
That seems to be the case with the guarantee clause. It provides:
“The United States shall guarantee to every State in this Union a Republican Form of Government . . . .”
This reads like an obligation placed on the political branches of the U.S. government, not the judiciary. It would be a different matter if the clause had used language parallel to Article I, Section 10, whose prohibitions on the states, expressed as direct legal commands, are clearly justiciable; it might have said: “no State shall have anything but a republican form of government.” That would sound too like an ordinary legal command, and it would not become any less so simply because there might be some ambiguity in the word “republican.” But the awkward and indirect phrasing of the guarantee clause suggests that it is not an ordinary legal obligation placed on the states for the courts to enforce. Rather, it is a guarantee effectuated through political action of “the United States” as a whole — and a potentially powerful one: as a result of the clause, for example, Congress could overturn non-republican aspects of state governments (and courts would enforce such laws).
(On the merits, Rob Natelson argues powerfully that the Colorado initiative is consistent with a republican form of government as the founding generation understood that term.)
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.