An un-republican form of government

For an introduction to my lawsuit, read the article below. To see my briefs and pleadings, click here.

An Un-republican Form of Government

Imagine if the only people allowed to run for some top executive office were members of the government? Would government still be accountable to the people? Would we still have democracy? Would we still be a republic? These are not hypothetical questions. In 1987, the California Sheriffs Association sponsored a bill in the state legislature to ban its electoral competition. Since then, only current or recent members of the law enforcement establishment have been allowed to run for Sheriff in California. (1)

The two main viewpoints to be represented in a race for sheriff are the civilian and law-enforcement sides of the civilian/law-enforcement relationship. Thus California's restriction on candidates for sheriff effectively bars one of the main contending viewpoints from the ballot. Such exclusion is a bald violation of the republican principle of voter sovereignty: that it is for the people to choose who shall govern them. Neither is the gap between civilian and law enforcement viewpoints merely hypothetical. It is real and extreme, as be seen in the electoral war that has raged across the nation since 1987 over gun rights, with the people choosing in over half the states now to strip police chiefs and county sheriffs of the discretionary power to deny Concealed Carry Weapons permits to law abiding citizens. Americans are picking up law-enforcement by the ankles and shaking loose their right to bear arms. (2)

California is not yet a "shall-issue" state, which means that this epic battle between civilian and law enforcement views of proper law-enforcement policy devolves onto races for sheriff. Citizens can vote for their gun rights by voting for a "shall issue" candidate for sheriff, or rather, they would be able to, except that civilian viewpoints have been banned from the ballot for fifteen years. It is as if prosecutors had banned their main electoral opposition by getting the legislature to pass a law against defense attorneys running for District Attorney, requiring all candidates to be members of the prosecutor's office. Somebody ought to sue.

That somebody is me. When I saw that all the candidates for sheriff in Santa Clara County were anti-gun establishment types, I decided I had to give the people a chance to vote for their gun rights. When the registrar told me that only members of the government could qualify for the ballot, I pulled out some law books. Acting as my own attorney, I now have a chance, not just to take down one act of usurpation, but to restore one of our Constitution's most fundamental guarantees: the Article IV, §4 guarantee that each state shall have a republican form of government.

The Supreme Court has never yet upheld a guarantee clause claim, not due to any contempt for this guarantee, but because it is extraordinarily difficult to place a guarantee clause case properly before the Court. What is the guarantee clause? Is it an enumerated protection, for the courts to enforce, or is it an enumerated power, for the legislative and executive branches to act on? Supreme Court precedent on the guarantee clause is enormously tangled, but my case pulls the whole knot straight. California's attack on the first principle of republicanism—voter sovereignty—is so direct that every tangle comes undone.

Making a guarantee clause case

Two obstacles have kept the Supreme Court from yet protecting the republican guarantee. The first is that, with only one exception, every guarantee clause suit that has reached the Court has sought to overturn, not just an allegedly un-republican process, but also enactments or election results that have proceeded from the the allegedly un-republican process. At that juncture, the allegedly un-republican process has become entwined with political expression by the other branches of government and by the people, placing it beyond the purview of the courts.

No separation-of-powers type "political question" problem arises my case. I am not asking that any past election results be nullified, only that the restriction on candidates for sheriff be stricken from future election cycles. Since I am not asking that any result of the allegedly un-republican process be nullified, the problem of entanglement with political expression through that process never has a chance to come up.

The second obstacle to upholding a guarantee clause claim has been the failure of any plaintiff in a guarantee clause case to offer to the courts a "judicially manageable standard" for locating the requirements of republicanism. Separation of powers problems kept this question from even being reached in every case except for Baker v. Carr, a 1962 vote dilution suit. Baker only sought to overturn an apportionment law that allowed districts with fewer voters the same representation as districts with more voters. Because Baker did not seek to overturn any elections or enactments that proceeded from the unequal apportionment, those proceedings were not entangled and no political question problem arose.(3) What stymied Baker as a guarantee clause case was that it was not resolvable by any clear republican principle. Equal voting power is a valid equal protection issue, and the suit was upheld on that grounds, but it is not a clearly necessary republican principle. The United States Senate, after all, is based on unequal representation. Thus Baker failed to offer the judicially manageable standards that would have made it justiciable on guarantee clause grounds.

There is, however, one clearly republican principle that has already been embraced as such by the Court: the principle of voter sovereignty. In 1995 the Court recognized voter sovereignty to be a fundamental interest under the "fundamental interests" strand of equal protection precedent, using it as one of its grounds for striking down term limits the state of Arkansas had imposed on its congressional candidates. (4) If the people want a fourth term representative, they have the sovereign power to make that choice. In striking a law partly on voter sovereignty grounds, the Court not only recognized voter sovereignty to be a manageable and justiciable standard, but found it to be protected as well. In addition, the court recognized voter sovereignty to be a fundamental principle of republicanism. In finding voter sovereignty to be a fundamental interest, the court cited as its source Alexander Hamilton's statement before the New York convention that: "The true principle of a republic is, that the people should choose whom they please to govern them." (5)

Does this mean that congressional term limits could have been struck down on guarantee clause grounds? Almost. There were no separation of powers problems. There was a judicially manageable republican principle. Yet there was also a complication that made the case ambiguous on guarantee clause grounds. There is a second republican principle that weighs in favor of term limits: namely, the "truly republican mode of forcing the Rulers or Sovereigns of the states to mix after stated Periods with the people again." (6)

This sets the table for my suit. The two republican principles that had been on opposite sides in the term limits case—voter sovereignty and the mixing of the governors with the people—are both on my side. California's requirement that candidates for sheriff be members of the law enforcement establishment both limits what the people are allowed to choose and it creates a governing group that "must of necessity lose their dependence and their attachments to the people." (7)

A third republican concern is also on my side. At the Philadelphia convention, James Madison spoke out against a proposal to give Congress the power to set candidate requirements on the grounds that such a power "might be made subservient to the views of one faction [against] another." This is exactly what has happened in California, where the legislature has given law enforcement, with its minority views about such things as gun-rights, a monopoly on the ballot. (8)

It has been a long time coming, but we finally have before the courts a case that presents no obstacles to upholding a guarantee clause claim. The last step is to note the founding principle of constitutional interpretation, as asserted by the Court in Marbury v. Madison:

It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it. (9)

Since neither words or logic requires vitiation of the guarantee clause in my suit, it must be adjudicated. If it is, not only will California's restriction on candidates for sheriff fall, but the guarantee clause will rise. A judicially manageable and justiciable republican criterion will be established which the courts can then begin to explore the implications of.

The implications of a restored guarantee clause

Suppose this happens. Suppose I win, the state appeals, and I kick its ass all the way to the Supreme Court. If the sovereignty of the people is in this way established as a judicially manageable standard for interpreting the guarantee clause, what would it protect us from? Beyond such bald acts of usurpation as law-enforcement has effected in California, where else does government improperly try to tell the people what they must choose? In the area of criminal law, we delegate to our representatives the power to decide what people are to be punished for choosing. At this extreme, it is the job of representative government to tell people what they must not choose. But some other exercises of government power clearly work to overturn the proper master-slave relation between the people and the government.

One example is the Civil Service regulations that effectively give tenure to 99.9% of the government. This is a direct violation of the most elemental republican principle: "That the people should choose whom they please to govern them." If the laws only only allow them to choose .1% of who governs them, while giving past representatives control over the rest, then in large degree the people are not being allowed to change their minds. When power changes hands, much of it does not change hands. Departments can be shot through with agents of rebellion against appointed department heads (as with the Clintonites who play obstructionist games throughout the Bush administration) and they cannot be fired, obstructing the will of the people.

Tenure is a corrupt institution in any case. It is an anti-competitive pact which, like labor unions, ought to be illegal, as all other forms of collusion by sellers of goods and services are. In the case of Civil Service workers, it is not monopoly per se that is the biggest problem, but the fact that monopoly in government is tyranny. In a republic the most basic right of the people is to "throw the bums out." Civil Service regulations undermine this right.

The issue is complicated because there is a compelling state interest in avoiding mass turnover of civil service jobs from one set of political hacks to another every election cycle, undermining institutional memory and stability. But to pass constitutional muster on guarantee clause grounds (if the guarantee clause is activated) any remedy must at the very least be narrowly targeted to address this problem. In particular, anti-patronage regulations cannot be about justice to individual employees, as they are now. Such justice is not a compelling state interest.

Everyone else in the economy (outside of the union sector) can be fired "at will," with no justification whatsoever, and this is the way it should be. Liberty is a better guarantor of justice then government, and since government annihilates liberty, we have to choose between the two. When talking about government itself, the same considerations apply. Justice for individuals is better served by letting government employers hire who they think is best for the job, instead of subjecting these decisions to legal oversight. The only state interest in treating civil service employees differently than private employees in this respect is to protect the institutional memory and competence of government bureaucracies from mere political cronyism.

If there is going to be legal review of government employment decisions it has to be in terms of a balancing of the republican interest in regime change vs. compelling state interests in stability. The current system does not undertake this balancing because the constitutional guarantee that would be balanced (the republican guarantee) is yet to be recognized by the courts. How such balancing would work out is a complicated question, but it would surely not protect ideological obstructionism and plain incompetence the way that our present focus on justice for employees does.

A less complicated example of un-republican government is government lobbying for the passage of particular policies and laws. As with California's requirement that candidates for sheriff be members of law enforcement, government lobbying is government telling We the People what we should choose through the election process. Instead of being the slave, government is trying to be the master, telling us what we should tell it to do. We all know this is an improper role of government, and there have long been laws against it. (10) If the guarantee clause is restored to its proper place, the prohibition on such government activity will be much stronger. Instead of being a political football, subject to the whims of Congress and the executive, it will be the supreme law of the land, to which all levels of government are beholden and which all courts are charged to enforce. (11)

Another example is the public monopoly on education. Even without the guarantee clause this monopoly is inherently incompatible with neutrality towards religion and ought to be disallowed on First Amendment grounds. Allowing God into the schools violates neutrality. So does forcing people to turn their children over to the government for their education, then extirpating all religion from that education. Since government cannot be neutral, it cannot make the choice about how children are to be educated. Thus the Constitution requires school choice. (12)

That's a strong argument, but it only refers to one aspect of education: how it treats religion. The guarantee clause allows a similar argument to be made on a much more sweeping foundation. It is not for the government to tell the people what constitutes right thinking on any subject, never mind every subject. Even in the area of criminal law, people are punished for their actions, not for their thoughts (at least until the recent abomination of hate-crimes laws). When the government confiscates children's tuition from their parents, allowing it to be recovered only at public schools, where the government assumes the power to teach the nation's children the bulk of what they are to learn about sense and right, republicanism is violated as thoroughly as under the old Soviet Union, whose most horrific crime was to take and indoctrinate the children of its subject peoples.

A public monopoly on education is simply a long term and extraordinarily foul means by which representatives of the people dictate to the people themselves what they must choose through the election process. You will choose what we have taught you from childhood to choose: a pacifist Democrat psycho-babble that hates guns, is cynical about economic liberty and sees expansionary government power as mother's milk, all of which reminds us why republicanism is so crucial.

Only liberty can make progress in the discovery of sense and right. Progress comes from people following their own best judgment, together with dissemination of, and competition between, different people's methods and discoveries. The result is a kind of society-wide scientific process where diversity and competition sort sense from non-sense. Not only do we learn natural science from each other, we also learn how to work together, structuring contracts and laws that enable liberty while promoting cooperation. Liberty is the source both of our economic progress, and of our moral and political progress.

If, on the other hand, we let force become the master, if we let government tell us what we must choose, we might as well be asking a car to steer itself. In place of diversity and competition, force substitutes one blind stab, necessarily wrong. Smash-up is inevitable… the future lost… not just to chaos, but to usurpation, which always strives for eternity.

To counter this ultimate threat we have the most elemental manifestation of republicanism: the Second Amendment, directly leaving ultimate power (the power to overthrow oppressive government) in the hands of the people. This brings us back to California's un-republican law enforcement establishment, whose idea of well-regulating the militia is to annihilate it by systematically denying the right to bear arms. It is perfectly in character for this establishment to sponsor an un-republican law banning its electoral opposition. Has the legislature actually given the sheriffs enough rope to hang themselves? Maybe, since they threw it right over Article IV, §4.

It is a great loss to the nation that the Court has never found how to uphold the guarantee of a republican form of government. My case gives the courts a chance to undo this neglect. No previous election law has so blatantly told the people what they must choose that it could not at least be presented as an attempt to facilitate the accurate expression of the will of the voters (the only state election law interest that has ever been recognized by the Supreme Court). (13) The requirement that candidates for sheriff be drawn from the incumbent regime is unique in that its usurpation is completely overt. Indeed, the sheriffs stated their un-republican purpose right in the legislative record. Their great expressed fear was that the people might actually elect a candidate from outside of law enforcement.

By claiming the power to tell the people what they must choose, the State of California has directly challenged the guarantee clause. If that slap wakes up two judges, it may be the eyes of the eagle blinking open.

Alec Rawls is a columnist for the Stanford Review. Contact him at alec@rawls.org. This article was written for Liberty magazine.

To go to briefs and pleadings, click here

Addendum: Right and wrong in Baker v. Carr

For those who are interested in additional detail about the terrain of guarantee clause precedent, everything that the Court gets right and wrong on the guarantee clause is encapsulated in Justice Brennan's majority opinion in Baker v. Carr. Brennan got almost everything right (including the decision in the case) then introduced a terrible mistake. Baker was summarized briefly above, but to understand the hurdles it creates, it is necessary to put the twists and turns back in.

On the surface, Brennan's opinion in Baker looks like a death knell for the guarantee clause. First he held the only reason the guarantee clause has ever been held nonjusticiable is because of the presence of "political question" problems (at 218). Then he found that there were no political-question problems in Baker (at 226). Then he still insisted (at 227) that "any reliance on [the guarantee] clause would be futile." What??? The guarantee clause must be annihilated, even when the sole reason for eschewing it is not present?

The explanation for this seeming contradiction is described in the body of the essay above. The need for a suit to invoke a "judicially manageable standard" (one of the requirements for avoiding a political question problem) was met in Baker because the case had been brought on equal protection grounds, and equal protection standards had already been embraced by precedent, meaning the Court had already found them judicially manageable. This equal protection standard was removed from the equation when the Court in Baker considered a hypothetical guarantee clause claim. Here the Court needed to find in its possession a judicially manageable standard for interpreting the concept of republicanism itself. At this point, the fact that this thought experiment was hypothetical tainted it fatally.

Because the plaintiff had not made a guarantee clause claim, he had offered no candidate republican principle for the Court to consider. Neither had he examined guarantee clause precedent, never mind with an eye towards finding that it left room for the discovery of a manageable justiciable standard, as a proper adversary process would have brought forth. Yet Brennan still acted like a judge, considering only what was placed before him. He did not himself undertake the advocate's role of constructing what case could be constructed.

Why was the Court pondering a guarantee clause claim if the plaintiff had not raised one? Because the guarantee clause had been raised by the District Court, which ruled that, since the suit involved a "political question," and since guarantee clause precedent made political question cases nonjusticiable, the suit must fail. Brennan did a nice piece of work dispensing with this theory (the case did not involve a political question) but then he was brought to this unfortunate pass of considering a hypothetical guarantee clause claim when none of the reasoning that such a suit would entail had been placed before the Court.

Not only had the Plaintiff not offered any candidate republican principle, but none was available from precedent either, for the simple reason that, until Baker, separation of powers problems had always kept the Court from even reaching the question of whether judicially manageable standards for interpreting the republican guarantee were available. Baker was the first case where the guarantee clause was considered in the context of a suit that only challenged a possibly un-republican process itself, without trying to overturn any results of that process. (14) Thus it was the first guarantee clause case where the question of judicially manageable standards was not moot and could actually be taken up.

The court had earlier gotten to what Brennan described as the "judicially discoverable manageable standards" criterion in political question cases that were not guarantee clause cases. (15) Unfortunately, Brennan failed to recognize that he was the first to consider manageable standards in a guarantee clause case. Faced with a vacuum of candidates for judicially manageable republican principles, Brennan jumped to the conclusion that appeal to the guarantee clause would be futile, and in the particular case he was right. Equal voting power is not a clearly necessary republican principle, given that it is violated by the U. S. Senate, so the issue in Baker was not ultimately susceptible to guarantee clause resolution. Brennan's great mistake was to make a sweeping declaration of guarantee clause futility.

He based this assertion on the claim that precedent had found the guarantee clause not to be a repository of judicially manageable republican principles. But precedent had done no such thing. In every previous guarantee clause case that question had been rendered moot by separation of powers problems. The saving grace may be that Brennan's error is perfectly overt. It was the Court's opinion in Luther v. Borden (1849) that he cited as having found "that the guarantee clause is not a repository of judicially manageable standards." (16) But the Court's actual holding in Luther, the most important early guarantee clause case, clearly excluded any such conclusion.

The court in Luther had been asked to decide which was the legitimate government of Rhode Island. Was it the originally established "Charter Government," or was it the proclaimed government of the Dorr rebellionists? Far from ruling "that the guarantee clause is not a repository of judicially manageable standards,"the Court in Luther insisted most emphatically that, because of separation of powers problems, it could not reach that question.It could not, in any case, overturn elections and laws that had resulted from allegedly un-republican processes, so the question of whether processes actually were un-republican (and whether there were standards for judging them un-republican) was moot.

How Brennan missed that is hard to fathom, because he had done such a high quality job of parsing the "political question" problem in the first place. Following the Court's opinion in Coleman v. Miller, he had sorted out the two essential elements of the problem: separation of powers and the need for manageable, judicial standards. (17) Then at the final moment, when called upon to summarize the viability of guarantee clause claims, he conflated the two, describing a case that, due to separation of powers problems, never reached the question of manageable standards, as a manageable standards case.

That ought to be a recoverable error. In my briefs I don't even mention it. The fact is, the question of manageable republican standards has yet to be reached in a guarantee clause case (Brennan having whiffed on the issue), yet republican standards themselves, as articulated by Hamilton and Madison, have been embraced by the Court in First and Fourteenth Amendment cases. Thus if Brennan's claim that Luther rejected the possibility of such standards arises, there is a two pronged answer waiting. Not only is Brennan's interpretation of Luther blatantly in error, but judicially manageable republican standards are already embraced by precedent. The people are sovereign. Their representatives in government cannot tell them what they must choose through the election process.

End addendum To to go briefs and pleadings, click here

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Endnotes

1. The offending statutes are California Government Code §24004.3 (candidates for sheriff must be current or recent members of law enforcement) and California Elections Code §13.5 (candidates for sheriff must meet the requirements of Gov. Code §24004.3). There is even a requirement that candidates for sheriff reside in the county where they are running for office (California Elections Code §201), virtually guaranteeing that candidates will not only be drawn from the existing establishment, but will be members of the same Sheriff's department that they are seeking to head. California statutes can be searched online at <http://www.leginfo.ca.gov/calaw.html>. Return to text.

2. For data on the sequence of "shall issue" victories (and on the efficacy of "shall issue" laws for reducing crime) see John Lott's book More Guns Less Crime, University of Chicago Press, 1998/2000. Return to text.

3. The lack of separation of powers problems in Baker is noted at 226: "We have no question decided, or to be decided, by a political branch of government coequal with this Court." If the plaintiff had sought to nullify any election results produced by the challenged electoral process, this condition would not have been met. The verification of the election results by the executive would have constituted a question decided by a political branch coequal with the Court. Return to text.

4. U. S. Term Limits v. Thornton, 514 U. S. 779, 795 (1995). Return to text.

5. Powell v. McCormack, 395 U. S. 486, 541 (1973). For Hamilton's remarks, the Court cites "2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)." Return to text.

6. This quote (cited in U.S. Term Limits v. Thornton, at 812, footnote 23), is from a letter from George Lee Tuberville to James Madison (Dec. 11, 1787) lamenting the failure to incorporate this republican principle into the Constitution. The Court cited as its source "1 Bailyn 477, 479." Return to text.

7. U.S. Term Limits v. Thornton, at 812, citing "2 Elliot's Debates 309-310 (N.Y., Smith)." Return to text.

8. Cited by the Court in Powell, supra, at 534. Civilian viewpoints are not entirely barred. A civilian, such as myself, can qualify for the ballot by dropping his other pursuits for the number of years required to gain the necessary law enforcement background, but absolute bar is not the criterion of constitutional harms. According to Court precedent (e.g. Anderson v. Celebrezze, 460 U.S. 780, 788 (1982)) harms are created when hurdles to candidacy discriminate against some serious candidates as compared to others. Since those serious candidates who come from a law enforcement background do not have to dump their lives upside down just to run for sheriff, while those from outside of law enforcement do (all candidates declare their willingness to dump their lives upside down in the event they win) the restriction is grossly discriminatory against those serious candidates who do not have law enforcement background. Of course, any presumption that only those with law enforcement background can be serious candidates again constitutes an illegitimate telling of the people by their representatives what they must favor in the election process. If the people want to vote for a candidate who lacks law enforcement background, that makes the candidate serious in election law terms, which, consistent with the principle of voter sovereignty, are only concerned with facilitating the will of the voters. (See Anderson, at 788 footnote 9, where the Court reviews a state's legitimate election law interests. All are interests in facilitating the accurate expression of the will of the voters.) Return to text.

9. Marbury v. Madison, 5 U. S. 137, 174 (1803). Return to text.

10. The main federal law that bans lobbying activities by government employees is Title 18 from the U. S. Code collection, part I, chapter 93, section 1913, available on-line at < http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+18USC1913>. Return to text.

11. As an example of politicization, the Clinton administration held back on enforcement of the anti-lobbying law to allow the EPA, under Carol Browner, to extensively fund lobbying by the Sierra Club and other environmental groups on legislative issues. To stop this, Representative William Clinger (R-PA) and others tried to pass a more stringent "Federal Anti-lobbying Act," but their efforts got run over by the "Lobbying Disclosure Act of 1995," which regulated ex-government employees, not government employees. Clinger's saga can be traced by searching the following page for "lobbying": <http://www.nationalcenter.org/npa160.html>. Return to text.

12. See my article, "The Constitution REQUIRES school choice," available on-line at: <http://www.opinioneditorials.com/contributors/rawls_20020816.html>. Return to text.

13. In Lubin v. Panish, 415 U.S. 709, 714 (1973) the Court noted the state's interest in promoting "the will of the majority." In Anderson v. Celebrezze, 460 U.S. 780, 788 (1982), footnote 9 surveys the state election law interests that the Court had previously recognized, such things as "protecting the integrity and reliability of the electoral process," and to keep "frivolous candidates" from crowding the ballot, along with several other interests, all of which can be interpreted as pursuant to the accurate expression of the will of the majority. Return to text.

14. Brennan lists the entire history of guarantee clause cases leading up to Baker (at 223-4). Examination of these cases reveals them all to involve political entanglements. Return to text.

15. Brennan notes the "judicially discoverable manageable standards" criterion for justiciability in Baker at 217. The case that established the need for manageable standards was Coleman v. Miller, 307 U.S. 433, 453-454 (1939). Return to text.

16. The quote is from Brennan's opinion in Baker, at 223. The citation for Luther is: Luther v. Borden, 7 How. 1 (1849). Return to text.

17. Brennan cited the opinion of the Court in Coleman, 307 U. S. 433, 454-455 (1939): "In determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations." After a review of other "political question" rulings by the Court, Brennan offered his own more thorough parsing of the political question problem (Baker, at 217). Return to text.

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