By Rob Natelson, Independence Institute
In 2011, a group of politicians and special interests sued in federal court to void Colorado’s Taxpayer’s Bill of Rights (TABOR). The case was Kerr v. Hickenlooper.
The plaintiffs’ primary argument was that TABOR violated the U.S. Constitution’s Guarantee Clause (Article IV, Section 4), which says in part, “The United States shall guarantee to every State in this Union a Republican Form of Government.”
The plaintiffs contended that to be a “republic,” a state must make taxing and spending decisions through elected representatives only. They based this on a misreading of James Madison’s Federalist No. 10 essay—while ignoring everything else Madison and other Founders said about republican and democratic governance.
The plaintiffs pointed out that because TABOR allows the people to vote on some tax and spending issues, it had converted Colorado from a “republic” to a “democracy.” This, they said, caused Colorado to violate the U.S. Constitution.