June 07, 2013 11:35 AM UTC

The Right to Destroy Ourselves?

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• by: Colorado Pols

Garrett Epps has an interesting column in The Atlantic about Colorado's TABOR battles and the legal effort to overturn it, specifically Kerr v. Hickenlooper. The issue is laid bare in the headline: "Does a State Have the Right to Self-Destruct?"

As public policy, TABOR is bad enough. The legislature, though, could always ask the people to repeal it. However, in 1994, another initiative limited future constitutional amendments to a "single subject." Since TABOR covers such a wide area of revenue policy, it thus can no longer be repealed except by a laborious string of statewide referenda. In other words, the controls are now smashed. Colorado's legislature can no longer effectively govern, and can't even effectively ask for authority to do so. This is the most radical limitation on state taxing authority anywhere in the country.

The plaintiffs in Kerr, a group of present and former legislators and officials, argue that this radical change violates the Guaranty Clause of the U.S. Constitution, Article IV § 4. The Clause requires the United States to "guarantee to every state in this union a republican form of government." Whatever a "republic" is, the plaintiffs argue, it must have power to tax and spend funds for the public benefit. TABOR, in effect, takes Colorado out of its status as a state…

…Even if the state wins on standing, its argument ought to disquiet advocates of "state's rights" and an aggressive reading of the Tenth Amendment. If the Guaranty Clause is a promise to the federal government, then nothing would stop the Justice Department from bringing a suit to void all or part of a state's constitution as not "republican" — or, for that matter, stop a majority in Congress from repealing a state's constitution that displeased it. In our time, as in the years before the Civil War, we hear voices insisting that the "true" meaning of the Constitution involves state sovereignty and state dominance over federal power. It's a curious notion. What sort of "sovereign" can be overthrown at will by its "creature?" [Pols emphasis]

Such a "sovereign" isn't sovereign at all. And a "republic" that has no government isn't "republican." The control-mashing "friends" of state government are fighting for the states' "right" to commit suicide. It's a bleak quest, and one that bodes ill for the future of the country.

The ins and outs of TABOR are certainly difficult to understand, and some parts are worse than others, but it's hard to argue that TABOR has been a benefit to Colorado overall. That's what makes this legal case so fascinating, as Epps explains brilliantly. Whatever your opinion on TABOR, it's curious to consider whether the Founding Fathers would have wanted to a system of government that could essentially destroy itself.