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Kerr v. Hickenlooper

Kerr v. Hickenlooper

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Published by Cato Institute
As the story goes, when Benjamin Franklin left the Constitutional Convention in 1787, he was approached by a woman who wanted to know what type of government the delegates created. Franklin responded, "A republic, madam, if you can keep it." Since the Founding, the Supreme Court has never directly defined what this "Republican Form of Government" is that Article IV of the Constitution guarantees to every state in the union -- but cases come up every now and then invoking this provision (also known as the Guarantee Clause). The latest such case comes out of Colorado and involves the ability of voters, protected in nearly every state constitution, to make law through various forms of direct democracy, such as voter initiatives. In 1992, Centennial State voters enacted a Taxpayers Bill of Rights (TABOR) to restrict the legislature's ability to raise tax rates or increase spending, in a formula tied to the rate of inflation and population growth, unless otherwise approved by voters. In Kerr v. Hickenlooper, the plaintiffs wish to remove this barrier and provide the Colorado legislature, municipalities, and school boards with full discretionary authority to tax, spend, and borrow, without voter approval. State Senator Andy Kerr and other government officials are seeking to redefine a "republic" as an institution whereby all legislation is solely the duty and privilege of the legislatures, and voter referenda are impermissible. The outcome of this revised interpretation could invalidate centuries of voter decisions at the ballots, abolish future voter input aside from the election of representatives, and give politicians carte blanche to tax, spend, and borrow. Surprisingly, and despite any showing that voter initiatives are somehow incompatible with "republican government," the federal district court allowed the lawsuit to proceed. Now before the U.S. Court of Appeals for the Tenth Circuit, Cato has joined the Independence Institute on an amicus brief arguing that, absent controlling legal precedent, the phrase "Republican Form of Government" should be defined by the standard sources the Supreme Court uses to decipher constitutional language: Eighteenth century political works, contemporaneous dictionaries, and official records and commentary from the Constitutional Convention, which for our purposes here all define "republic" in a way fully consistent with direct citizen lawmaking. The most popular example of voter participation at the time of the Founding was through the town meeting, employed to this day throughout much of New England. Moreover, Massachusetts ratified its state constitution of 1780 by referendum, and Rhode Island even used a referendum to ratify the U.S. Constitution itself. Entry of those states into the union entailed recognition that those existing states had a republican form of government. Based on all available evidence, the Guarantee Clause doesn't require Colorado to dismantle its TABOR system of checks and balances. We urge the Tenth Circuit to reverse the district court's denial of Colorado's motion to dismiss and allow the state to preserve its model of self-governance.
As the story goes, when Benjamin Franklin left the Constitutional Convention in 1787, he was approached by a woman who wanted to know what type of government the delegates created. Franklin responded, "A republic, madam, if you can keep it." Since the Founding, the Supreme Court has never directly defined what this "Republican Form of Government" is that Article IV of the Constitution guarantees to every state in the union -- but cases come up every now and then invoking this provision (also known as the Guarantee Clause). The latest such case comes out of Colorado and involves the ability of voters, protected in nearly every state constitution, to make law through various forms of direct democracy, such as voter initiatives. In 1992, Centennial State voters enacted a Taxpayers Bill of Rights (TABOR) to restrict the legislature's ability to raise tax rates or increase spending, in a formula tied to the rate of inflation and population growth, unless otherwise approved by voters. In Kerr v. Hickenlooper, the plaintiffs wish to remove this barrier and provide the Colorado legislature, municipalities, and school boards with full discretionary authority to tax, spend, and borrow, without voter approval. State Senator Andy Kerr and other government officials are seeking to redefine a "republic" as an institution whereby all legislation is solely the duty and privilege of the legislatures, and voter referenda are impermissible. The outcome of this revised interpretation could invalidate centuries of voter decisions at the ballots, abolish future voter input aside from the election of representatives, and give politicians carte blanche to tax, spend, and borrow. Surprisingly, and despite any showing that voter initiatives are somehow incompatible with "republican government," the federal district court allowed the lawsuit to proceed. Now before the U.S. Court of Appeals for the Tenth Circuit, Cato has joined the Independence Institute on an amicus brief arguing that, absent controlling legal precedent, the phrase "Republican Form of Government" should be defined by the standard sources the Supreme Court uses to decipher constitutional language: Eighteenth century political works, contemporaneous dictionaries, and official records and commentary from the Constitutional Convention, which for our purposes here all define "republic" in a way fully consistent with direct citizen lawmaking. The most popular example of voter participation at the time of the Founding was through the town meeting, employed to this day throughout much of New England. Moreover, Massachusetts ratified its state constitution of 1780 by referendum, and Rhode Island even used a referendum to ratify the U.S. Constitution itself. Entry of those states into the union entailed recognition that those existing states had a republican form of government. Based on all available evidence, the Guarantee Clause doesn't require Colorado to dismantle its TABOR system of checks and balances. We urge the Tenth Circuit to reverse the district court's denial of Colorado's motion to dismiss and allow the state to preserve its model of self-governance.

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Published by: Cato Institute on May 08, 2013
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Case No.12-1445 IN THE UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT ANDY KERR, et al.Plaintiffs-Appellees,v.JOHN HICKENLOOPER,Governor of Colorado, in his official capacity,Defendant-Appellant.On Appeal from the United States District Court for the District of ColoradoCivil Action No. 1:11-cv-01350-WJM-BNBJudge William J. Martinez
BRIEF FOR
 AMICI 
INDEPENDENCE INSTITUTE ANDCATO INSTITUTE
David B. Kopel
Counsel of Record
Independence Institute727 E. 16th Ave.Denver, CO 80203(303) 279-6536 ext. 112Ilya ShapiroCato Institute1000 Mass. Ave., N.W.Washington, DC 20001(202) 842-0200(admission to 10th Circuit pending)
 
ii
CORPORATE DISCLOSURE STATEMENT, INDEPENDENCEINSTITUTE
Only one form needs to be completed for a party even if the party isrepresented by more than one attorney. Disclosures must be filed onbehalf of all parties to a civil, agency, bankruptcy, or mandamus case.Corporate defendants in a criminal or post-conviction case andcorporate
amici
are also required to file disclosure statements. Counselhas a continuing duty to update this information.
 
No. 12-1445 Caption: Kerr v. HickenlooperPursuant to Fed. R. App. P. 26.1, the Independence Institute, a501(c)(3) nonprofit corporation (Colorado), who is an
amicus curiae
,makes the following disclosure:1. Is party/
amicus
a publicly held corporation or other publicly heldentity? NO2. Does party/amicus have any parent corporations? NO3. Is 10% or more of the stock of a parent/
amicus
owned by a publiclyheld corporation or other publicly held entity? NO4. Is there any other publicly held corporation or other publicly heldentity that has a direct financial interest in the outcome of thislitigation? NO5. Is party a trade association? (
amici curiae
do not complete thisquestion) N/A 6. Does this case arise out of a bankruptcy proceeding? NO/s/
 David B. Kopel
 Dated: February 8, 2013
 
iii
CORPORATE DISCLOSURE STATEMENT, CATO INSTITUTE
Only one form needs to be completed for a party even if the party isrepresented by more than one attorney. Disclosures must be filed onbehalf of all parties to a civil, agency, bankruptcy, or mandamus case.Corporate defendants in a criminal or post-conviction case andcorporate
amici
are also required to file disclosure statements. Counselhas a continuing duty to update this information.
 
No. 12-1445 Caption: Kerr v. HickenlooperPursuant to Fed. R. App. P. 26.1, Cato Institute, a 501(c)(3) nonprofitcorporation (Kansas), which is an
amicus curiae
, makes the followingdisclosure:1. Is party/
amicus
a publicly held corporation or other publicly heldentity? NO2. Does party/
amicus
have any parent corporations? NO3. Is 10% or more of the stock of a parent/amicus owned by a publiclyheld corporation or other publicly held entity? NO4. Is there any other publicly held corporation or other publicly heldentity that has a direct financial interest in the outcome of thislitigation? NO5. Is party a trade association? (
amici curiae
do not complete thisquestion) N/A 6. Does this case arise out of a bankruptcy proceeding? NO/s/
 David B. Kopel
 Dated: February. 8, 2013

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