Political Philosophy
Noting that "progressives have long lamented the fact that the Framers designed a Constitution replete with impediments to federal government activism," the eminent George Will reveals the latest twist of logic by which Colorado liberals are attempting to use the Constitution as an impediment to popular referendums (which would otherwise limit the power of the ruling classes in state legislatures).
Sextion IV, Article IV of the U.S. Constitution reads: "The United States shall guarantee to every State in this Union a Republican Form of Government."
The folks in Colorado argue (tellingly, before an unelected judiciary) that a Colorado initiative limiting the legislature's license to raise taxes (the progressive's golden calf) denies the state a republican form of government. That is, only elected bureaucrats can craft laws - not the people themselves. While direct democracy has many flaws (and was hence rejected by the Framers as an insecure means of safeguarding liberty), its outright prohibition is a novel reading of the Guarantee Clause. Without delving into the history of the clause, I deeply suspect this reading is flawed.
Politically, however, liberals continue to reveal the surprising degree to which they are willing to oppose the people and popular government in favor of a ruling class. On an elementary level, the left - with all of its liberal ideologies of radical freedom, individuality and nonconformity - is incredibly devoted to the system, bureaucratic institutions and ever-expanding government.
No one seriously invokes the "guarantee clause", it is dead letter and non justifiable.
But what does a Con Law professor say?30
There was a U,S, Supreme Court case from Oregon in which the Court held that the existence of direct democracy within a republican form of government did not violate Article IV's guarantee.
Absolutely, that is Pacific states telephone vs. Oregon, it is a rather old (1912), but the argument was again reinforced by New York v. United States, 505 U.S. 144.
I believe the oldest case and maybe the most interesting one involves a dispute between two factions in the wake of Dorr's rebelion, having to do with who should be governor of Rhode Island. Luther v. Borden. (1849)
On the other hand, the rather influential Laurence Tribe believes that courts should take a more active role and at least occationally enforce the guarantee clause.
Dr. Tribe's law review article builds off of Justice Harlan's dissent in Plessy v. Ferguson (which is essentially Brown v. Board of Education before its time).
"There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."
"In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case."
Of course the 14th ammendment ended up doing most of the work that the guarantee clause might have done.
Of course the most perculiar sentence in the Harlan dissent is this one:
"There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race."
"I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States."
So essentially the guarantee clause of a republican form of government, has all of its teeth in the 14th ammendment and 1983-1985 actions.
In some sense Madison was right, If you can't find a violation in the bill of rights, then the guarantee of a republican form of government will end up being non-justifiable.
On the other hand there is potentially an interesting Supreme Court case/problem if "liberals/democrats" force conservatives/republicans into invoking the guarantee clause.
Suppose the Colorado Dem's take an opionion poll and discover that 58% of voters would favor a limit upon the legistlature's ability to raise taxes. In response the Dems turn around and ammend the requirements for getting a referendum on the ballot (say from X amount of signatures to 2/3rds of eligible voters.)
As a result of this increase in the procedural mechanics, the ballot initiative fails to get enough support to make it unto the ballot.
You could argue that this change in the procedural mechanics essentially violates the guarantee of a republican form of government.
Technically howhever the mechanics for argueing this would probably involve section 42 U.S.C. § 1983+ § 1985, and you would probably go about it by making a political speech (1rst amendment challenge).
That is the Dems don't have an Article IV claim, but the republicans might have a quasi-article IV claim.
The context of the bill to change the ballot requirements, and the content of the speech "core political" speech should trigger strict scrutiny.
The Dem argument on the Article IV claim would really end up being the third prong, i.e. "Serve a significant governmental interest." (i.e., direct democracy is bad, leads to strange results and inflexibility). Democrats might even prevail here.
But Dems would lose on the 2nd prong. requirement of 2/3rd signatures for a ballot initiative is not narrowly tailored.
Arguably given the timming (and the poll showing 58% approval) it was not content neutral. Lose on the first prong.
It also does not leave open alternative channels for communication, because any innitiative that could get 2/3 of all signatures to appear on the ballot would as a practical matter automatically pass, or be adopted and ratified ahead of time. Lose on the 4th prong.
That is the field of ballot initiatives is itself an alternative channel of communication for political speech. (the primary being elections).
I think we shouldn't be too hasty in rejecting this latest effort from our Progressive friends. It might come in handy the next time a judge tells a legislature how to allocate money...
No way this suit will succeed. The Republican form of government clause has been dead for a hundred seventy years. This Supreme Court would not revive it to outlaw direct democratic initiatives. But once again liberals progressives and commies view the people as their enemy.