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Jewish World Review Oct 20, 2011 / 22 Tishrei, 5772 A Republic, guaranteed By George Will
http://www.JewishWorldReview.com |
The United States shall guarantee to every state in this
union a republican form of government …
-- U.S. Constitution
DENVER --- Progressives have long lamented the fact that the Framers
designed a Constitution replete with impediments to federal government
activism -- fetters such as federalism itself, enumerated powers, three
branches of government, two rivalrous wings of the legislative branch,
supermajorities, judicial review, presidential vetoes. Colorado
progressives, however, have decided the Constitution has a redeeming
feature -- the infrequently invoked Guarantee Clause (see above).
Their argument, which some conservatives here embrace, is that when
Colorado voters passed an initiative circumscribing their Legislature's
ability to increase taxes, they violated this clause. The plaintiffs in
their lawsuit -- state legislators, local government and education
officials -- want a judge to resolve "the contest between direct democracy
and representative democracy."
In saying that the former attenuates the latter, progressives are not
entirely mistaken. They may, however, be mistaken in thinking this is a
justiciable issue.
In 1992, voters passed the Taxpayer's Bill of Rights (TABOR), which
stipulates that spending in a given year cannot increase faster than
population growth plus inflation -- if both are, say, 2 percent, spending
can increase only 4 percent. And any revenue exceeding permissible spending
must be rebated to taxpayers, who must approve any tax increase.
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But in 2000, voters, encouraged in their cognitive dissonance by
teachers unions, passed an initiative requiring spending on education in
grades K through 12 to increase significantly faster than overall spending.
This, combined with the inexorable growth of federally mandated Medicaid
spending, meant that as the portion of the budget devoted to primary and
secondary education expands, spending cuts must come from a small and
steadily shrinking fraction of the state's budget.
Furthermore, in spite of the privileged status of education spending,
critics of TABOR, but not the anti-TABOR lawsuit, say TABOR is incompatible
with the state Constitution's requirement of a "thorough and uniform"
education system. What do those two adjectives mean? That is a matter of
opinion -- of political, not judicial, opinion.
The suit challenging TABOR blames it for "a slow, inexorable slide
into fiscal dysfunction." But what constitutes "dysfunction" also is a
political judgment, not a justiciable issue. As is the related charge that
TABOR has rendered the Legislature "unable to raise and appropriate funds"
sufficient to "meet its primary constitutional obligations or provide
services that are essential for a state." What funds are "sufficient" and
what public services are "essential for a state" are perennial questions of
political debate, unsuited to judicial resolution.
So what has the Guarantee Clause got to say about TABOR? Not much.
To the Framers, the noun "republic" was a compound of meanings. The
primary one proscribed monarchs and titled aristocracies (Article I,
Section 10 says "no state shall … grant any title of nobility"). James
Madison, aka the Father of the Constitution, said the purpose of the
Guarantee Clause was to "defend the system against aristocratic or
monarchical innovations." The Framers, according to historian Forrest
McDonald, "were far from agreed as to what republicanism meant, apart from
the absence of hereditary monarchy and hereditary aristocracy."
Still, a secondary but hardly insignificant meaning was that a
republic must have the rule of law, a concept that then implied
disparagement of direct democracy in which "the people" make all decisions
-- legislative, executive and judicial. Hence, a republic has
representative government.
So progressives have a portion of a point: One principle of
representation is that the people do not generally decide issues, they
decide who will decide. Unfortunately for progressives, the achievement of
which they once were very proud was that of getting initiative and
referenda provisions into many state constitutions. It is an old story: Be
careful what you wish for.
One of the "great" differences between "a democracy and a republic,"
said the sainted Madison in America's Scripture (The Federalist Papers, No.
10), is "the delegation of the government, in the latter, to a small number
of citizens elected by the rest." This does not, however, mean that "the
rest" cannot place, even by direct democracy, restrictions on the "small
number." Surely "republic" and "democracy" are not so antagonistic as to be
mutually exclusive categories.
The anti-TABOR brief quotes this from Madison: "A republic, by which I
mean a government in which the scheme of representation takes place. … "
Well. "The devil can cite Scripture for his purpose" ("The Merchant of
Venice") and progressives can quote Madison (again, Federalist 10) for
theirs, even while generally regretting his constitutional architecture.
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