A version of this article was first published in the April 20, 2025 Colorado Gazette.

Forty-four lawmakers are sponsoring HJR 25-1023 to authorize the legislature to sue in state court to void the Colorado Taxpayer’s Bill of Rights (TABOR) as a breach of the U.S. Constitution.

But the sponsors must have been asleep at the switch. Their basis for the suit has no legal or historical validity whatsoever. What is sad is that the sponsors of HJR 25-1023 could have learned this if they had performed even a minimum of investigation. But apparently they did not.

HJR 25-1023 claims TABOR contravenes the U.S. Constitution’s Guarantee Clause (Article IV, Section 4), which imposes a duty on the federal government to ensure that each state maintains a “Republican Form of Government.” The idea is that TABOR’s voter-approval requirement for certain tax, spending, and debt increases violates the “republican form” because it doesn’t allow the lawmakers free rein.

The courts have rejected similar claims again and again. In Colorado, the federal courts dismissed similar litigation a few years ago.

The Many Mistakes Behind HJR 25-1023

There are so many problems with the sponsors’ theory that it is difficult to know where to begin. One problem is that they misread the Guarantee Clause. The Guarantee Clause doesn’t give any power to state legislatures or state courts to decide whether a governmental institution is or isn’t republican. The Guarantee Clause imposes a mandate and grants corresponding power only to the federal government.

And the U.S. Supreme Court says Guarantee Clause complaints must be directed to Congress, not the judiciary.

The sponsors also rely on three false premises:

• The American Founders believed a government must be wholly representative to be a republic;
• There is a sharp distinction between a republic and a democracy; and
• Popular votes on financial and other issues convert a state into a democracy and therefore prevent it from being a republic.

Each of these premises is historical and legal compost. Let’s turn to the first one.

Although it is true that some of the American Founders warned against too much democracy, they did not view democracy and republicanism as inherently inconsistent. In fact, they regularly used both the word “republic” and the word “democracy” to describe American government.

The correctness of this usage is confirmed by contemporaneous political writings (such as Montesquieu’s Spirit of the Laws) and by Founding-era dictionaries. In fact, those dictionaries usually defined “republic” as meaning merely “popular government” or “a government of more than one”—that is, a government other than a monarchy.

The only kind of democracy the Founders saw as inconsistent with republicanism was a theoretical form posited by Aristotle, which he called “pure democracy” or “ultimate democracy.” That was a system (if it could be called that) where all decisions were made directly by the mob, without the rule of law and without any public officials at all. Obviously, that is unrelated to the situation of Colorado under TABOR.

You may wonder where the sponsors got their second premise—that there is a sharp distinction between republics and democracies. The answer is that this is a historical falsehood that has been kicking around for many years. It was part of a legal argument invented in the 1840s during litigation between two rival governments in Rhode Island. But it had nothing to do with the Founding, or the meaning of the Constitution’s term “republican form.”

The third assumption—that plebiscites (initiative, referendum, and recall) are “unrepublican”—is perversely mistaken. In fact, plebiscites were invented in ancient governments universally acknowledged to be republican.  The plebis scitum was a central institution in the Roman Republic, the longest-lived major republic in the history of the world. Plebiscites assumed their current form in Switzerland, a country also universally acknowledged as republican.

Popular Votes in the American Republican Tradition

It is true that the framers of the U.S. Constitution opted for a purely representative republic at the federal level. But at the time it was an oddity, because in prior democratic republics citizens generally voted on all laws.

At the state level, plebiscites have been part of republican government since the Founding. The 1780 Massachusetts state constitution (drafted primarily by John Adams) was ratified by plebiscite. Rhode Island decided important policy issues by plebiscite, and local issues in New England were resolved in town meetings where all male citizens voted.

Our Colorado Constitution was ratified by plebiscite in 1876. As explained below, it made extensive use of referenda. Today, the amended state constitution recognizes all three kinds of plebiscite—initiative, referendum, and recall. And not just in the Taxpayer’s Bill of Rights.

Among the other states, 48 of the 49 employ one, two, or all three forms of plebiscite. Only Delaware does not.

Did the sponsors of HJR 25-1023 bother to check into any of this before they proposed suing us to take away our tax refunds and trample on our rights?

How the Courts Have Ruled

Considering the history, it is not surprising that the courts almost uniformly reject the kind of claims the sponsors of HB 25-1023 make. The Colorado Supreme Court in particular has issued several decisions defending plebiscites as components of republican government. In fact, it has ruled that plebiscites are “fundamental rights of a republican form of government.”

The U.S. Supreme Court usually refuses to hear Guarantee Clause cases such as the one proposed by the sponsors of HJR 25-1023. But in 2015, the justices issued a decision that celebrated direct citizen lawmaking as a part of American republicanism.

Again: Did the sponsors of HJR 25-1023 bother to undertake any investigation at all?

What Colorado History Tells Us

But there’s still more: The history of the Colorado Constitution specifically contradicts the assumptions behind HJR 25-1023. Here’s why:

In 1875, Congress passed the Colorado Enabling Act. That law laid down the conditions by which the territory of Colorado could become a state. It required that the people of Colorado draft and ratify a proposed state constitution. The President would review the proposed constitution to ensure that it was consistent with the republican form.

Accordingly, the voters elected a constitutional convention. It proposed a state constitution and the people ratified it. On August 1, 1876, President Ulysses S. Grant certified that all of Congress’s conditions had been met.

So as a matter of federal law, the state constitution as written in 1876 was “republican.”

Yet as I have detailed at length in another column, that document contained far more limits on the legislature’s financial powers than the limits imposed by TABOR.

For example, the Colorado Constitution as originally ratified restricted the legislature to property taxes only, not income or sales levies. Property taxes were capped at a continuing rate of decrease. The cap could be lifted only by voter referendum.

The constitution mandated similar rules at the local level.

It also imposed severe limits on the ability of state and local legislative authorities to incur debt. And it added a long list of restrictions on the state legislature’s ability to appropriate.

The Constitution constrained state fiscal policy in this way due to experience in other states, where overspending had led to severe fiscal problems, including default on public debt.

In other words, this 1876 constitution—admitted by all to be republican in form—imposed far more limits on the legislature’s financial powers than TABOR does.

It is dismaying that so many members of the Colorado General Assembly want to strip our citizens of their tax refunds and of important constitutional rights. But also dismaying is the ignorance that has led them to do so.