Opponents of popular government, such as those now challenging Colorado’s Taxpayer Bill of Rights (TABOR), argue that when a state allows the people to vote directly on laws or taxes it violates the U.S. Constitution’s mandate that every state have a “Republican Form of Government.”
They claim their view comes from the American Founders. In fact, it comes from those who opposed, and probably would have hanged, the Founders. In other words, from the Tories who opposed the creation of our country.
At the outset, please understand that the claim that initiatives and referenda are “unrepublican” is complete constitutional malarkey. When the words “Republican Form” were written, most of the republics in history had featured direct citizen lawmaking. Some Founders didn’t care for that sort of lawmaking, but none suggested it was unrepublican. On the contrary, several Founders spoke of a republic as a government in which the people made laws directly or through representatives—so long as they honored the rule of law. The Founders often referred to governments with direct citizen lawmaking as “republics”, among them ancient Athens and the Roman Republic.
Dictionaries of the time defined “republic” as a popular government or a non-monarchy. None excluded governments with direct citizen lawmaking. True, the Founding-Era record includes rare references to “pure democracy” (direct mob rule without magistrates) being unrepublican, but that was because it violated the rule of law. Technically, “democracy” was one of the two forms of republicanism (the other being aristocracy). Many Founders used the words “republic” and “democracy” interchangeably.
So where did the story arise that the people could not retain for themselves power to vote on laws directly?
Answer: In the months leading up to the American Revolution, it was part of the Tory attack on the patriot cause.
For example, in January, 1775, Samuel Seabury, a clergyman deeply opposed to the assertion of American rights, published a pamphlet called, “An Alarm to the Legislature of the Province of New-York.” On page 4, wrote:
It is the happiness of the British Government, and of all the British Colonies, that the people have a right to share in the legislature. This right they exercise by choosing representatives; and thereby constituting one branch of the legislative authority. But when they have chosen their representatives, that right, which was before diffused through the whole people, centers in their Representatives alone; and can legally be exercised by none but them.
In other words, when the people elect legislators, they can retain no lawmaking power for themselves. This argument was an integral part of the Tory message. (See Gordon Wood,The Creation of the American Republic, 1776-1787 [1969, 1998], pp. 314-15.)
The American Revolution discredited arguments like this for a while, but they re-surfaced in the 1840s. Early in that decade, a popular and generally peaceful uprising under the leadership of Thomas Wilson Dorr broke out in Rhode Island. The protesters elected their own state officials and demanded reform of Rhode Island’s archaic constitution.
Dorr’s opponents argued that his methods of direct democracy violated the republican form of government. This argument, although historically flawed, showed staying power. In 1847, the Delaware Supreme Court decided Rice v. Foster, the only significant case to rule that direct citizen lawmaking violated the republican form. Consciously or not, the court’s reasoning came straight from Samuel Seabury:
The sovereign power therefore, of this State, resides with the legislative, executive, and judicial departments. Having thus transferred the sovereign power, the people cannot resume or exercise any portion of it. To do so, would be an infraction of the constitution, and a dissolution of the government.
And just in case it might occur to the people of Delaware to amend the Constitution to reserve for themselves the right to vote on laws, the Delaware court warned them that it would strike down any such effort:
And although the people have the power, in conformity with its provisions, to alter the constitution; under no circumstances can they, so long as the Constitution of the United States remains the paramount law of the land, establish a democracy, or any other than a republican form of government.
To this day, Delaware remains the state where the people have the least direct lawmaking power—although even Delaware now permits the legislature to refer proposed statutes to the voters.
Those opposing TABOR claim their argument is based on the views of the American Founders. But it really derives from Tory zealots deeply opposed to the creation of the United States of America.