GUARANTEE CLAUSE (Update)

The Constitution declares that "The United States shall guarantee to every State in this Union a Republican Form of Government" (Article IV, section 4). This guarantee clause has a rich political history, having been wielded as a potent legal and rhetorical weapon by various government reformers since the Constitution's framing. For example, abolitionists in the early nineteenth century invoked the republican guarantee when urging extension of the concept of United States citizenship, and later the franchise, to once-enslaved persons; and suffragists in the mid-nineteenth and early twentieth centuries invoked the republican guarantee when urging extension of the franchise to women. The guarantee clause proved an ineffective weapon in federal court litigation, however, because the courts generally steered clear of what they considered to be quintessentially political battles. In a series of cases stretching from the mid-1800s, starting with luther v. borden (1849), through the mid-1900s, the Supreme Court held that the questions whether a state government is republican in form, or which of two competing governments may properly claim the title, lack justiciability in federal court under the political question doctrine. State courts generally followed suit. From the perspective of judicially enforceable rights, therefore, the guarantee clause has long lain dormant. While occasionally a potent political weapon, the clause has not been deployed successfully as a legal one.

Recently, however, the guarantee clause has received renewed attention from both scholars and courts. Political theorists have revived the Founding Era's focus on ideals of republicanism, and this revival in turn has spurred legal scholars to focus once again on the legal content of the clause. And in new york v. united states (1992), the Supreme Court teasingly suggested that "perhaps not all claims under the guarantee clause present nonjusticiable political questions," though it found the particular legislative scheme under challenge in that case not to violate the clause.

Most of the recent legal scholarship considers whether the initiative and referendum forms of direct democracy used by states are consistent with the republican government guarantee. Modern scholars generally agree that the clause historically was designed to protect democratic states from both monarchy and mob rule. Some scholars argue that a republican form of government entails governance through elected agents. The concept of direct democracy was anathema to the Framers, they argue, and should be considered unconstitutional today. In contrast, other scholars argue that the Framers considered state government to be republican in form so long as the people ultimately retained sovereignty, whether they exercised their sovereignty directly or through elected agents. In other words, they argue, the Framers used the terms "democracy" and "republican government" as synonyms. For these latter scholars, widespread governance through plebiscites is not constitutionally infirm. Given the zeal with which numerous states have recently employed direct democracy techniques to resolve deeply controversial matters, it is unsurprising that the current debate among legal scholars as to the validity of those techniques is vigorous indeed. As yet, however, courts have not engaged in this debate. Federal courts still reject guarantee clause challenges to initiatives and referenda as nonjusticiable, and state courts either do so as well, or reject such challenges on the merits.

Evan H. Caminker
(2000)

(see also: Voting Rights.)

Bibliography

Linde, Hans A. 1989 When Is Initiative Lawmaking Not "Republican Government"? Hastings Constitutional Law Quarterly 17:159–173.

Symposium 1994 Guaranteeing a Republican Form of Government. University of Colorado Law Review 65:709–946.