A Follow-up on the Guarantee Clause

Regarding this post on the guarantee clause challenge to Colorado’s anti-tax initiative, Derek Muller writes:

I had two quick follow-ups, if you’re interested in exploring further. First, don’t you think that “the United States” might include the federal courts of the United States? That’s why I’m reluctant to peg nonjusticiability on the first Baker factor. Second, do you have any thoughts on Colorado’s claim that the Guarantee Clause cannot be enforced against the state governor, but must be enforced (if at all) against “the United States”?

My thoughts:  (1) In my initial post, I argued that the phrasing of the guarantee clause (“The United States shall guarantee to every State in the Union a Republican Form of Government”) indicates a textual commitment to the political branches, thus making the Colorado case a non-justiciable political question.  Professor Muller is right that the best response is that the federal courts are part of “the United States” and thus share the duty of enforcing the guarantee.  I’m not persuaded for several reasons.

First, the reference to “the United States” seems like a direction to the United States as a whole, in its sovereign capacity, not a direction to each individual component of the U.S. government.  That is similarly true of the word “guarantee”, which is not typically used to describe what courts do. And that conclusion seems particularly appropriate because the clause is potentially very intrusive on federalism; read broadly, it would make the federal courts overseers of the political systems of the states.  This is not likely a role the framers envisioned for the federal courts; rather, it is much more likely that they designed the guarantee as a mechanism that required the participation of the states collectively (through the Senate).

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Does Colorado Have a Republican Form of Government?

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):

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William Jacobson on Natural Born Citizens

From earlier this month, William A. Jacobson (Legal Insurrection) has this impressive post — actually a long scholarly essay — on the eligibility clause: natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz.  Short version: he thinks there is not a clear case for ineligibility of any of the three.  (Quite an impressive set of comments too, although the vitriol runs pretty high).

My thoughts are here (regarding Cruz).

As to Jindal and Rubio, I think there is no substantial textualist/originalist argument against their eligibility, as they were both both in the United States (although to non-citizen parents).  Whatever else it did, English law considered a “natural born subject” to be anyone (other than the child of a foreign ambassador or invader) born within English territory, without regard to the citizenship of the parents.  Absent evidence to the contrary, it seems appropriate to read the constitutional language in light of its English predecessor. 

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Nullification is no mere “Constitutional Right”

As Thomas Jefferson made clear when he wrote the Kentucky Resolutions in 1798, Nullification is not something that’s permitted to the people of the states by any document – it’s their natural right to resist oppressive power. From this, one could easily posit that this right is one that the federal government is barred from infringing under the 9th Amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

More on the 9th in a future power. Here’s Jefferson:

“that every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”

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From Drugs to Taxes, New Amendments Won’t Make a Difference

From talk show hosts to taxpayer defense organizations, a lot of people out there are justifiably sick over how our government is operating.  Many of them have proposed new Constitutional Amendments, either to reign in the power of the federal government, or to force it to exercise its constitutionally delegated powers and responsibilities.  It occurred to me while driving (I do a lot of thinking and praying behind the wheel), that the things these groups propose are why the Constitution was written in the first place – to define yet limit the powers of the federal government.

Congress, presidents past and present, and the Supreme Court have disregarded their Constitutional responsibilities and limitations on their authority for over a century.  If they fail to respect the Constitution and all the Amendments currently included in it, any proposed new Amendments, even if they got past 290 Representatives, 67 Senators and 38 state legislatures, will do nothing to restore one iota of our God-given freedoms.

In the year 1919, the 18th Amendment to the Constitution was ratified, which stated:

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David Barron and Martin Lederman on Congress’ Power to Limit War

In my post on Congress’ power to declare a limited war, I noted that the leading scholarship in support of Congress’ power is by Saikrishna Prakash (here).  I should also have added as well the outstanding two-part article “The Commander in Chief at the Lowest Ebb” by David Barron and Martin Lederman in the Harvard Law…

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The Original, Legal Meaning of the Constitution vs What They’ve Given us Today

Some people – including the former law instructor who now serves as President of the United States – believe that it is impossible to reconstruct the Constitution’s original meaning. As this book demonstrates, that view is substantially incorrect.

The Original Constitution fills a void that has existed for a long time—the need for a clear, complete, easy-to-read guide to what our Constitution really means.

Using evidence overlooked by nearly all other writers and assessing it with scrupulous objectivity, The Original Constitution tells you the truth about the Constitution. The Constitution the Founders gave us, that is, instead of the distorted version of it foisted upon us today.

In The Original Constitution you will learn:

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My First Constitution Day Post: September, 2007

Sometimes I enjoy re-reading old blog posts from the early days of the Tenth Amendment Center, which in our first year or so was little more than a quickly-growing blog.

The principles seem quite similar to what they are today, as evidenced by this Constitution-day post from 09-17-07:

Today is a day that’s not celebrated like many other “holidays” in American society. You see, September 17th is Constitution Day – a day that appears to be nearly forgotten in America.

Sadly, over the years, people have stopped paying attention to the Constitution. It’s rare to hear people talking about the rules for government when discussing current events. And, it’s even more rare to hear politicians refusing to pass legislation because it’s not authorized by the Constitution.

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Celebrating Constitution Day

Today is the government-mandated day to celebrate the document which is the set of rules for the federal government.  A bit of an odd situation, but the day exists, nonetheless. Here at the Tenth Amendment Center, we consider every day a “Constitution Day.”  And every day is a day which provides countless reasons to resist…

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