The Forgotten Guarantee

Introduction

The Constitution includes a fascinating guarantee that remains far less known than the First Amendment or the doctrine of separation of powers: Article IV requires the United States to "guarantee to every State in this Union a Republican Form of Government."

• Does this guarantee mean that the federal government has a responsibility when a state's government becomes nonrepublican?

• Can an aggrieved state bring suit against another state or the federal government?

• Should federal courts determine whether a state has been sufficiently democratic?

For over two centuries, the Supreme Court has treated these as political questions rather than justiciable disputes, producing one of the most unusual features of our constitutional order: a provision whose boundaries have never been defined by courts.

What does "Republican" mean, exactly? The framers did not specify, but at the time of the Revolution, a republican form of government was contrasted with direct democracy or monarchy.

James Maddison's description of government "in which the scheme of representation takes place" seems to reflect the thinking. This formulation clearly imposes a structural requirement on the states.

Elections may take place but must every voter have an equally effective franchise? Do not elections necessarily create a republic, even if a small subset of the population effectively enjoys power?

The framers did not clarify, and it is this ambiguity that would ultimately give rise to today's debates over the application of the Guarantee Clause.

Luther v. Borden

Luther v. Borden , decided in 1849, provides an excellent introduction to the issue. During a heated struggle for control of the government of Rhode Island described in the decision as the Dorr Rebellion , competing factions claimed to represent the legitimate government. The dispute involved, among other things, a conflict over Rhode Island's highly restrictive early nineteenth century voting system and efforts to adopt a new state constitution. Martyr Luther sided with the rebel government, and the Supreme Court was faced with an awkward question: Which government was really the legitimate government of Rhode Island.

Chief Justice Roger Taney's decision avoided the issue. Declaring the question one properly left to Congress, the Court stated that "the settlement of this question belongs exclusively to the political departments of the government, and not to the judicial." By the terms of Article IV itself, claimed the Court, the responsibility for establishing guarantees of republicanism rested exclusively with the political branches, and a judicial determination would raise a host of troubling institutionalist doubts.

The case established one of the key doctrines for interpreting the Guarantee Clause for the next century and a half. The Constitution provides states a guarantee of Republican Government, but it is a guarantee not likely to be reviewed by federal courts.

Political Questions & The Guarantee Clause

Luther v. Bordon was perhaps an early cornerstone in the development of the political question doctrine. While the Court may not have declared the Guarantee Clause one of those political questions for which there is no judicially manageable standard of review, it did confirm that such doctrines do exist. For example, Justice Harlan's 1962 Baker v. Carr decision delineated several characteristics that might convert a justiciable question into a political question, including "textually demonstrable commitment to another decision making body" and "absence of judicially discoverable and manageable standards for deciding them."

Baker v. Carr did not resolve the ambiguity of the Clause, but rather reinforced it by observing that the Clause had long been regarded by the judiciary as a political question, though not necessarily "a matter in which the courts can never take any action."

In other words, not all controversies under the Guarantee Clause fall under the political question doctrine. Perhaps Baker v. Carr's most intriguing implication is the suggestion that enforcement of the Guarantee Clause might actually be possible in certain cases - the Court simply has not found itself in such a case yet.

Why Should We Care about the Guarantee At All?

There are several reasons why this clause, despite its ambiguities, remains one of the Constitution's most intriguing aspects. First, during the era of Reconstruction, Congress often made reference to the constitutional obligation to maintain a republican form of government in its efforts to restructure the governments of the defeated southern states in order to protect the rights of newly elected citizens.

The most obvious example comes just after the Civil War, when Congress attached certain restrictions conditionally to readmission of members of the rebellious states into the Union. These conditions included alterations in the political structure of a state designed, among other things, to ensure that the state's government was considered republican.

Thus the Guarantee Clause provides a convenient starting point for examining broader implications of the tension between judicial review and political enforcement of constitutional requirements.

Could Courts Enforce The Guarantee Clause?

The most intriguing test of its ability to stand as an independent constitutional restraint, however, may still lie ahead, because the underlying dilemma haunts all constitutional law: When can the federal government be compelled to act, and what happens when it is unwilling?

Supposing conditions were to arise where a federal court was required to determine whether a given state's government was really republican or not. Could the federal court determine this? Would it be proper for a federal court to do so?

Perhaps most fundamentally, under what circumstances would a court find that the preservation of a state's republican form of government was more important than any other consideration?

If the answer is, "Under some circumstances," then it is a good guess that the courts will soon have to deal with those circumstances one way or the other.

If the answer is, "Under no circumstances," courts may be forced to adopt one of the many unsatisfactory solutions discussed later. This uncertainty has important implications for debates over federalism.

Republican Government Today

While it is possible that this clause may seem largely historical in its application, its implications have not lost any of their relevance to today's states. As mentioned at the outset, recent years have seen numerous challenges to states' emergency powers, election procedures, and redistricting practices.

Moreover, as we discussed earlier, many of these disputes can be classified under other constitutional authorities, giving courts additional options for remedial relief. Because the Equal Protection and Due Prcess clauses, the First Amendment, and other provisions of the Constitution contain more explicit language and thus offer judges more easily applied standards for adjudicating disputes over elections, representation, and other issues, it is perhaps not surprising that the Guarantee Clause has taken a backseat in the constitutional review process.

This does not detract from the importance of the Guarantee Clause, which serves as an interesting reminder that the Constitution protects not merely individual liberties but also the structure of government itself.

Why It Matters

The Forgotten Guarantee matters because it poses a fascinating question in constitutional law: What standards apply to a state government before any consideration of individual rights? The guarantees of the Bill of Rights are concerned, directly and solely, with the rights of individuals vis-a-vis government power; by contrast, Article IV's Guarantee Clause addresses government's responsibility to the people who create it. In addition, the Guarantee Clause's history reveals that not all constitutional enforcement responsibilities belong solely to the federal judiciary - Congress, states, voters, and political institutions also play a role in this enforcement.

This, however, is also the source of the problem. A constitutional guarantee for which courts are not the primary enforcement mechanism, while simultaneously vague and ambiguous enough that it could be justiciable, proves to be a difficult issue to resolve under current constitutional law.

Conclusion

The Guarantee Clause is one of the most intriguing because it is amongst the most rarely enforced provisions of the Constitution. For reasons detailed above, its application has generally proved to be a political question rather than a justiciable issue, though its scope has been debated nonetheless. Specifically, Luther v. Borden , through its contribution to the development of the political question doctrine, established the foundation for the Court's subsequent analyses of republicanism in the states, and this precedent has been reinforced, if not altogether ignored, by Baker v. Carr . In addition, Congress itself has often played a primary role in assuring itself of a state's republican nature.

The Guarantee Clause therefore takes on a unique role in American constitutional law. Though its application may seem a distant question these days, it still presents difficult issues of its own: Just what does a state have to do to qualify as a republic? And maybe more importantly, who gets to decide when a state has stopped being one?