Error Theory

As Senator McCain observed yesterday, President Bush is faced with a rogue intelligence agency. The CIA rebelled at his policies and tried to torpedo his re-election by illegally leaking its own biased intelligence assessments during the campaign. State is also a rogue agency, monopolized by officers who bitterly oppose to the president they are supposed to serve (as documented by Joel Mowbray in his book Dangerous Diplomacy).

The common thread is that, under current civil service laws, the president has very little power to fire or in any way punish members of these bureaucracies for even the most blatant insubordination. Only a tiny fraction of offices are filled by political appointees. The rest are near untouchable. The courts have even ruled that it is illegal for the secretary of state to fire a woman who pled guilty to felony charges. This is undemocratic. In a democracy, the people are supposed to choose who shall govern them. If they find their governors not to their liking, they are supposed to be able to “throw the bums out.” Our civil service laws contravene this fundamental principle, barring the people’s elected representative in the executive branch from throwing the bums out the bureaucracies. As a result, the people can only evict, through the electoral process, a tiny fraction of their governors.

It is undemocratic, but is it unconstitutional? Article IV section 4 of the Constitution guarantees to the states that they shall have “a republican form of government.” What is “a republican form of government?” Alexander Hamilton, in remarks before the New York Convention, declared “the true principle of republicanism” to be “that the people should choose whom they please to govern them.” (2 Debates on the Federal Constitution 257. J. Elliot ed. 1876.) Thus the principle of voter sovereignty is indirectly asserted in the Constitution, but the republican guarantee is only imposed as a requirement on the states, and it has never been interpreted by the Supreme Court to be enforceable by the courts.

Hamilton’s assertion of voter sovereignty has, however, been invoked by the Supreme Court to locate the political rights of the First and Fourteenth Amendments. In particular, it was used by the Court to strike down Congressional term limits (in Thornton v. Term Limits, 514 U. S. 779, 795 (1995)). Unfortunately, the Thornton precedent is not likely to support any broad recognition by the court of a constitutional interest in voter sovereignty because the Thornton ruling only applies to ballot access questions, while voter sovereignty has implications in at least three areas: ballot access (letting the people elect who they want to elect), civil service laws (letting the people fire, through their choice of executive officers, who they want to fire), and laws against lobbying by government.

When governments use the people’s money to tell them how to vote they are overturning the principle of voter sovereignty: that it is the people who are the master and government the slave. In the voting process, it is the people who tell the government what is right and what is wrong, not vice versa. We have laws now against government lobbying for legislation, but they are very weak, and are not recognized to be a matter of constitutional principle. What we need is a general recognition of voter sovereignty as a constitutional principle, and that means going to the source: the article IV section 4 guarantee to the states that they shall have a republican form of government.

The current failure of the courts to enforce the guarantee clause is an artifact of an unfortunate history. Very simply, no proper guarantee clause case was ever brought, until I filed suit in 2002 against a California requirement that candidates for sheriff must be members of law enforcement. The explicit justification for this law was to obstruct the will of the people. The sponsor of the law, the California Sheriff’s Association, complained that without the law, candidates from outside of law enforcement were liable to win elections (as they had indeed been doing). My main argument was on straight election law precedent, which is fully consistent with the principle of voter sovereignty. The only state interests that are recognized as legitimate in election law cases are interests in achieving free and fair elections that accurately express the will of the people. The state’s expressed interest in the California sheriff restriction—to ban would be winning candidates who do not have law enforcement background—was clearly illegitimate, but getting the courts to apply this election law precedent is another matter, as I found out, suing all the way to the Supreme Court to no avail.

My really interesting discovery in pursuing this case is the viability of a guarantee clause suit (again, providing our idiot judges will pay attention to what is important). All earlier guarantee clause suits tried to use the guarantee clause either to overturn election results (creating a non-justiciable conflict with the expressed will of the people) or to overturn laws that actually satisfy rather than violate republican principles. Still, through all of that history, the Court never completely shut the door on the possibility of a proper guarantee clause suit being brought, and I seem to have been the first to have met all the necessary conditions (suing only to overturn the offending law, not any election results, and suing on proper grounds of voter sovereignty). Unfortunately I ran into lower court judges who couldn't imagine how limiting candidacy to members of the government itself warranted any scrutiny whatsoever. To support the position that my case was a total nothing, California’s Sixth Appellate District Court actually cited pre-Civil-War state powers, without noting how they are checked by the Fourteenth Amendment. (See my Writ of Certiori to the Supreme Court.) That’s right. Thanks to my case, pre-Civil-War state powers are now standing precedent in California! Not quite what I had in mind.

At least I got the brief right. To see how guarantee clause precedent allows a valid guarantee clause case to be mounted, see my Writ, section II. If such a suit is ever won, it would open the door to recognizing voter sovereignty as a general constitutional requirement, at least at the state level. To extend the constitutional principle of voter sovereignty to the federal government, a constitutional amendment should ideally be passed. Alternatively, the Supreme Court could just do what it did in Korematsu v. United States (the internment case), where it extended the Fourteenth Amendment’s guarantee of equal protection to apply to federal government actions, even though the Fourteenth Amendment only applies it to the states. (My analysis of Korematsu here.) In the case of the guarantee clause, such a leap might even be tenable. Given the 14th Amendment, and the New Deal Court’s destruction of the system of limited enumerated federal powers, the states are now almost fully under the power of the federal government. Since the Constitution guarantees the states a republican form of government, this could be taken to require that the federal government itself must adhere to republican principles.