Difference between revisions of "Guarantee Clause"

Latest revision as of 01:54, 5 July 2018

In Article IV, Section 4, the Constitution declares that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.” Although the Supreme Court has generally held the Guarantee Clause nonjusticiable, the Rehnquist Court has intimated that the pledge of “republican government” can be a textual source of enforceable principles of federalism. Thus, while historically the clause has been invoked by the executive and legislative branches at junctures of cataclysmic national moment, the clause may have substance for the judiciary as well.

The clause can be subdivided into three separate promises, each running from the federal government to the states. In guaranteeing a “republican” government, the initial portion incorporates by reference the political theory of republicanism. Whether its meaning is restricted to the founders’ conceptions or open to contemporary approaches depends on the theory of constitutional interpretation adopted. The provision’s other two promises concretely describe certain types of destabilizing violence within states that the federal government pledges to prevent. The first, invasion, imposes a mandatory obligation upon the federal government. The second, the federal quelling of “domestic violence” within a state, is stated as an option available in the discretionary judgment of the state’s branches that answer directly to the electorate—specifically the state’s legislature or, alternatively, its governor.

The clause originated as the eleventh Virginia Resolution at the Constitutional Convention of 1787. Edmund Randolph stated the resolution had “two objects: first, to secure a republican government; secondly to suppress domestic commotions.” Its final form can be traced primarily to James Madison and James Wilson. Although the extant writings of these men and their contemporaries during both drafting and ratification processes reveal discord as to the totality of meaning of “republican government,” one universally agreed-upon principle can be clearly discerned. As understood by this revolutionary generation, the principle sine qua non of republican government is that legitimate political power rests with, and legitimate government proceeds from, the people themselves. James Madison famously wrote in The Federalist No. 39 that the “republican form” denotes “a government which derives all its powers directly or indirectly from . . . the people.” As necessary corollaries of this principle of popular sovereignty, the founding generation broadly agreed that a republic is governed by representatives of the citizens’ choosing, and that the citizens must have specific mechanisms by which they can hold their government accountable and change their representatives without having to resort to violence. Further, republican citizens’ governing choices are properly inspired not by self-interest but by the “public welfare” or common good. By these essential differences, they distinguished republican government from monarchies and earlier democracies.

The Constitution offers no articulated set of requirements for “republican government.” The Convention delegates not only were aware of a great diversity in the structure of existing state governments but also declined to prescribe uniform state constitutions—whether because they were politically unachievable or because they affirmatively valued maintaining a diversity of state government structures. Preceding and during the Convention, delegates criticized states for their legislative policy choices and the impediments they interposed to national interests, but they far less frequently criticized states’ governmental structures for failing as republican. Thus, for the framers generally, a range of state government structures sufficed as republican.

Leaders of the founding generation differed sharply, however, as to which attributes other than popular sovereignty were essential to republican government. Madison argued that those vested with control over the government must be the “great body of the society” and not a privileged class. Thomas Jefferson agreed with Madison on this point, but by contrast, Alexander Hamilton advocated a life senate plus the vesting of other governing rights exclusively within an economically and socially privileged elite. As is well known, Jefferson vigorously advocated that republican government requires the protection of certain individual rights, such as freedom of religion and political association, and eventually won Madison’s support. Jefferson also argued that public education, including higher education for the most talented students from throughout a state despite any economic indigency, would lay the foundation for the people’s wise use of their republican freedoms and the continuation of republican government. In applying republican governing principles to the vast territory of the United States, Jefferson again contrasted sharply with Hamilton, for the Virginian considered the continuing vigor of state governments essential. Hamilton, however, envisioned the best republican government as an “entire subordination” of the states by “dividing the larger states” into administrative “districts” of the national government.

Recent scholarship critiques the founding generation’s practices of republican government while offering more inclusive approaches. The framers, for instance, accepted a highly restrictive franchise under which state governments barred all women from voting, plus men of various ethnic and racial groups despite their free status. Additionally, the common prerequisite of real estate ownership ensured that only those of a certain economic status possessed political participation rights. The framers accepted chattel slavery, institutionalizing the practice constitutionally. Contemporary republican theory, while not monolithic, focuses on achieving an expansive franchise, structural reforms that would promote broader public political participation, and restrictions on the centripetal movement of regulatory power to the nation. Consistent with the framers’ position, however, they emphasize that republican government must promote the “civic virtue” of citizens, specifically their active stewardship of the polity for the common good rather than use of the polity simply to further private ends.

Although rarely proffered as a basis for judicial action, the Guarantee Clause has been claimed to support federal judicial relief in some crucial cases. In the 1840's, Rhode Island’s operative colonial charter restricted voter qualifications to real property owners, thereby continuing to disenfranchise large numbers of male citizens. The state legislature, elected by citizens who refused to share the franchise, rejected efforts to adopt a more democratic state constitution. A citizens’ constitutional convention was held in which a new constitution was adopted, and under which a new state government was elected under exercise of a far broader franchise. In the wake of Dorr’s Rebellion, with each side claiming to have been the state’s legitimate “republican government,” the Supreme Court held that determining which putative state government was legitimate and properly recognized federally rested not with the federal courts but exclusively with the federal political branches, that is, Congress and the president. As Congress had seated the representatives of the more restrictive state government, the Court held Congress had resolved the issue and was not to be second-guessed by the Court (Luther v. Borden 1849). Thus sprang the principle that “[v]iolation of the great guaranty of a republican form of government in States cannot be challenged in the courts” (Colegrove v. Green 1946). Continuing this approach, in landmark decisions midcentury the Supreme Court explicitly sidestepped the clause as authority for invalidating state legislatures whose structures diluted the right to vote, choosing instead to rely upon the Equal Protection Clause (Baker v. Carr 1962; Reynolds v. Sims 1964).

In New York v. United States (1992), however, the Court cited four cases in which “before the holding of Luther was elevated into a general rule of nonjusticiability,” the Court had addressed the merits of claims founded on the Guarantee Clause “without any suggestion that the claims were not justiciable.” New York did not, however, overturn the nonjusticiability of the clause but ruled rather that the state had failed to state a Guarantee Clause claim. Because the federal legislation had offered states a “legitimate choice” rather than issuing an “unavoidable command,” the states retained the ability to set their legislative agendas, and state government officials remained accountable to the local electorate. The federal legislation therefore did not pose any realistic threat that it altered New York’s governmental form or method of functioning.

Although largely uncharted in the federal judiciary, the Guarantee Clause has been invoked by federal political branches at critical historical junctures. In 1861, for instance, President Lincoln identified the Guarantee Clause as the authority by which he ordered military actions to force the confederate states’ return to the Union. The Reconstruction Congress claimed the clause justified various legislation and prerequisites for readmission to the Union. The Court’s opinion in Texas v. White (1869) can be read as implicitly approving the clause’s invocation for unprecedented federal intrusion into state government policies. These Civil War–era legislative actions and the executive actions serve as precedents for scholars who argue that the clause properly functions as a mighty sword in the hands of the national government to force state compliance with republican political norms then current.

Since 1980, legal scholars have argued the Court should revisit its equivocal rulings that the Guarantee Clause is not a source of judicially enforceable rights. Scholarly arguments can be divided into two groups: those who advocate use of the clause as a shield protecting state governments from federal encroachments, and those who contend that the clause mandates aggressive federal action against states to force them into fuller realization of the “republican government” commitment. Scholars such as Deborah Merritt (1994) argue that the Rehnquist Court’s principles protective of state governments are not well grounded in the Tenth Amendment, and would find greater textual support in the Guarantee Clause. She maintains that “the true animating principle” of established legal principles protecting states’ decisional autonomy and sovereignty lies in the clause, specifically its concept of republican government. Merritt envisions four roles for a justiciable Guarantee Clause: preventing the federal government from interfering with a state’s definition of the franchise for state and local elections; allowing the states to determine their own governmental structure, operations, and processes of election; protecting states’ authority to set qualifications for state and local offices; and forbidding the national government from commandeering the processes for state government by compelling states to enact or administer particular laws. None of these constitutional principles is novel. Rather, Merritt seeks to position them as judicially enforceable principles tethered to the federal guarantee of republican state government.

The Supreme Court has thus far not expressly ruled the clause to be justiciable federally, but the Court has recently listed it as one of the constitutional provisions establishing the principle that national power vis-à-vis states is not unlimited (Printz v. United States 1997). Even justices not allied with the New Federalism movement have cited the clause as authority to restrict federal incursion into state government activities (e.g., Bush v. Gore 2000).

The Guarantee Clause, however, also threatens to support a nationalistic route the federal government has generally not pursued thus far. Some scholars have argued the clause provides a specific grant of affirmative federal power over state governmental structure and processes that authorizes Congress to create judicially enforceable standards for determining whether state governments are sufficiently republican. Acceptance of this principle undergirds the scholarly proposals for congressional legislative reform of state laws permitting ballot initiative lawmaking, for federally mandated campaign finance reforms for state elections (even though some of these reforms are arguably constitutionally impermissible at the national level), for legislating the abolition of state and local government patronage systems for staffing government jobs, and for aggressive federal prosecution of alleged public corruption at state and local levels of government. These changes in state government practices are advocated as essential to the contemporary realization of “republican government.”

Given that the clause has historically been invoked as both a shield for state governments and a federal sword for eliminating state governmental structural choices, no assurances can be offered that the Guarantee Clause will function exclusively as an effective tool for federalism and serve as an impediment to the trajectory of greater nationalization of governmental reform. If state courts should adjudicate and apply the clause to force reforms of their own state governmental processes and structure, as has sometimes been argued, the judicial precedents might ultimately be used federally to force greater uniformity among state governments. With its dormancy period likely ending, it is too soon to know whether the Guarantee Clause will be used to justify new federal intrusions into state governments or to protect against them.

Candice Hoke

Last updated: 2006

SEE ALSO: Bush v. Gore