The Attack on Colorado’s TABOR and the Threat to Other States

January 9th, 2013 by admin Categories: Issue Papers, Publications, Revenue, TABOR, budget, constitution, initiative, petition process, spending, state, tax, taxes, taxpayer No Responses

A lawsuit challenging the constitutionality of Colorado’s Taxpayer’s Bill of Rights (TABOR) has dire implications that extend far beyond the boundaries of Colorado. The theory of the lawsuit can be used to void well-founded safeguards in the constitutions of almost all other states.

In Independence Issue Paper 12-2012, Professor Rob Natelson, II’s Senior Fellow in Constitutional Jurisprudence, debunked the lawsuit’s claim that TABOR violates the requirement that each state have a “republican form of government.” In this Issue Paper, Professor Natelson and Institute intern Zak Kessler demonstrate the practical implications of the lawsuit.

If the plaintiffs win, the result will be legal and practical chaos, not just in Colorado but across the country. This is because the theory of the lawsuit is that any fiscal restraints on a state legislature render that legislature less than “fully effective” and therefore “unrepublican.” Special interests can employ this theory to destroy well-founded and long-standing safeguards against legislative fiscal abuse. Furthermore, they can use the same theory to attack the voter initiative and referendum process, and other constitutional limits on the power of state politicians.

Do Citizen Votes on Taxes and Laws Violate the Constitution’s Requirement of a “Republican Form of Government?”

October 26th, 2012 by admin Categories: Issue Papers, Publications, constitution, federal, government, petition process No Responses

Opponents of popular participation in government have long argued that when a state constitution or legislature permits the people to vote on revenue measures and other laws, this puts the state out of compliance with the U.S. Constitution’s Guarantee Clause: the requirement at all states have a “Republican Form of Government.” Traditionally, their argument has been that the Constitution draws a sharp distinction between a republic and a democracy, and that citizen initiatives and referenda are too democratic to be republican. Recently, a group of plaintiffs sued in federal court, challenging Colorado’s Taxpayer Bill of Rights (TABOR) relying on a variation of this theory.

In this Issue Paper, Professor Rob Natelson, Senior Fellow in Constitutional Jurisprudence and the author of the most important scholarly article on the Guarantee Clause, sets the record straight. Marshaling evidence from Founding-Era sources and from the words of the Founders themselves, he shows that the phrase “Republican Form of Government” permits citizen lawmaking—and that, in fact, most of the governments on the Founders’ list of republics included far more citizen lawmaking than is permitted in Colorado or any other American state. He further shows that the principal purpose of the Guarantee Clause was not to restrict popular government, but to protect popular government by forestalling monarchy.

Amending the Constitution by Convention: Practical Guidance for Citizens and Policymakers

May 26th, 2012 by admin Categories: Issue Papers, Publications, constitution No Responses

This third Issue Paper offers guidance and recommendations for those seeking to implement the state application and convention process. The guidance and recommendations are based on the findings of the two earlier Papers, additional Founding-Era evidence unearthed since the first Paper was published, and on authoritative court cases issued at all stages of our history.

Amending the Constitution by Convention: Lessons for Today From the Constitution’s First Century

July 8th, 2011 by admin Categories: Issue Papers, Publications, constitution No Responses

America is in crisis: The constitutional system of checks and balances is failing to keep government within its proper bounds. No matter who is elected, the federal government remains unable to balance its budget, to perform basic tasks efficiently, or to respect constitutional limits. In response, a movement is arising to amend the Constitution to clarify the scope of federal power and impose additional restrictions upon its exercise. An ultimate goal is to revive the Founders’ view of the federal government as a fiscally responsible entity that protects human freedom.

Amending the Constitution to promote Founding-Era principles is well precedented. Most of the twenty-seven amendments adopted thus far served this purpose. The first eleven amendments were designed largely to enforce on the federal government the terms of the Constitution as its advocates represented them during the ratification debates of 1787-1790. The Twenty-First Amendment restored the control of alcoholic beverages to the states. The Twenty-Second restored the two-term presidential tradition established by George Washington. The Twenty-Seventh, limiting congressional pay raises, had been drafted by James Madison and approved by the first session of the First Congress (1789). In addition, several other amendments that changed the Founders’ political settlement did so to advance Founding principles. An example is the Thirteenth Amendment, abolishing slavery.

Amending the Constitution by Convention: A More Complete View of the Founders’ Plan

December 3rd, 2010 by admin Categories: Issue Papers, Publications, constitution No Responses

Americans increasingly are realizing they have lost control of their federal government. Not only has that government broken nearly all constitutional restraint, but it
has saddled future generations with deficits and a debt of third-world proportions. Citizens have attempted various strategies to recover their government with only indifferent success. But they have not yet triggered the constitutional tool the Founders intended to be used in such crises: Amending the Constitution to save it, using the state-application-and- convention process.

The Founders included in the Constitution two methods of proposing amendments to the states for ratification: proposal by Congress and proposal by a “convention for proposing amendments”—essentially a drafting committee designed to put into acceptable form amendments suggested by the state legislatures. As this paper shows, the Founders included the latter method to enable the people to correct the system when Congress was unwilling or unable to do so.