The Guarantee Clause, also known as the Republican Form of Government Clause, is in
Article IV,
Section 4 of the
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
, and requires the United States to guarantee every state a republican form of government and provide protection from foreign invasion and domestic violence.
Text
Article IV, Section 4:
History
The original substance of the clause was first proposed at the Constitutional Convention as part of the
Virginia Plan
The ''Virginia Plan'' (also known as the Randolph Plan, after its sponsor, or the Large-State Plan) was a proposal to the United States Constitutional Convention for the creation of a supreme national government with three branches and a bicam ...
, presented by
Edmund Randolph
Edmund Jennings Randolph (August 10, 1753 September 12, 1813) was a Founding Father of the United States, attorney, and the 7th Governor of Virginia. As a delegate from Virginia, he attended the Constitutional Convention and helped to create ...
.
The Guarantee Clause reflects a founding understanding of republicanism, which entails governments based on majority rule.
As written in the
Federalist No. 57: “The elective mode of obtaining rulers is the characteristic policy of republican government.” Quoting
Montesquieu
Charles Louis de Secondat, Baron de La Brède et de Montesquieu (; ; 18 January 168910 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, historian, and political philosopher.
He is the princi ...
,
James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for h ...
wrote in Federalist No. 43 that "should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound."
At the time of the founding, however, states restricted the right to vote based on race, sex, and property ownership.
Madison suggested that these existing practices in the states, which he called "existing republican forms", may be continued.
Article I, Section 2 of the Constitution explicitly gave the states power to decide voting qualifications,
although
Article I, Section 4 gives Congress authority to regulate the time, place, and manner of federal elections.
Beginning in the aftermath of the Civil War, subsequent amendments broadened the right to vote and restricted discriminatory state laws. These include the
Fifteenth
In music, a fifteenth or double octave, abbreviated ''15ma'', is the interval between one musical note and another with one-quarter the wavelength or quadruple the frequency. It has also been referred to as the bisdiapason. The fourth harmonic, ...
(no denial of right to vote based on race),
Nineteenth (no denial of right to vote based on sex),
Twenty-Fourth (no poll tax), and the
Twenty-Sixth Amendment (reducing the voting age to eighteen).
Interpretation
It is understood that the Guarantee Clause requires states to produce governments by electoral processes, as opposed to inherited monarchies, dictatorships, or military rule.
Judicial interpretation
In cases such as ''
Luther v. Borden
''Luther v. Borden'', 48 U.S. (7 How.) 1 (1849), was a case in which the Supreme Court of the United States established the political question doctrine in controversies arising under the Guarantee Clause of Article Four of the United States Constit ...
'' (1849) and ''
Pacific States Telephone and Telegraph Co. v. Oregon'' (1912), the Supreme Court held that the enforcement of the Guarantee Clause is a
nonjusticiable
Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party ...
political question
In United States constitutional law, the political question doctrine holds that a constitutional dispute that requires knowledge of a non-legal character or the use of techniques not suitable for a court or explicitly assigned by the Constitution ...
, to be decided by Congress or the President instead of the courts.
[Thomas A. Smith, ''The Rule of Law and the States: A New Interpretation of the Guarantee Clause'', 93 Yale L.J. 561 (1984).]
At the time of ''Luther'', Rhode Island was the last state that did not adopt a
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these pr ...
. Instead, it continued to rely on the
1663 royal charter issued by
King
King is the title given to a male monarch in a variety of contexts. The female equivalent is queen regnant, queen, which title is also given to the queen consort, consort of a king.
*In the context of prehistory, antiquity and contempora ...
Charles II, and restricted the franchise to men who owned more than $134 in land.
A
rival government attempted to adopt a constitution by convention but was quashed by the existing charter government.
In ''Luther'', the Supreme Court refused to decide whether Rhode Island's charter government was illegitimate because of its limitations on voting rights.
In ''
Pacific States Telephone & Telegraph Co. v. Oregon'', the Supreme Court was asked to invalidate
referendum
A referendum (plural: referendums or less commonly referenda) is a Direct democracy, direct vote by the Constituency, electorate on a proposal, law, or political issue. This is in contrast to an issue being voted on by a Representative democr ...
s (a form of
direct democracy
Direct democracy or pure democracy is a form of democracy in which the electorate decides on policy initiatives without elected representatives as proxies. This differs from the majority of currently established democracies, which are repres ...
rather than
representative democracy
Representative democracy, also known as indirect democracy, is a type of democracy where elected people represent a group of people, in contrast to direct democracy. Nearly all modern Western-style democracies function as some type of represe ...
) permitted by state law, on the ground that they violate the Guarantee Clause's republican form of government requirement. The court refused to invalidate referendums.
Scholars have commented that these decisions are consistent with the statement in
Federalist No. 43
Federalist No. 43 is an essay by James Madison, the forty-third of ''The Federalist Papers''. It was published on January 23, 1788, under the pseudonym Publius, the name under which all ''The Federalist'' papers were published. This paper conti ...
that “States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter.”
In ''
Colegrove v. Green'' (1946), a challenge of state legislative apportionments, the Supreme Court declared that the republican form of government clause cannot be used as a basis to challenge state electoral
malapportionment
Apportionment is the process by which seats in a legislative body are distributed among administrative divisions, such as states or parties, entitled to representation. This page presents the general principles and issues related to apportionmen ...
in court.
However, the court clarified in ''
Baker v. Carr'' (1962) that legislature malapportionment claims can be decided in court under the
Equal Protection Clause
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
of the
Fourteenth Amendment, as the equal protection issue was separate from the Guarantee Clause challenge.
In 2019, the Supreme Court reiterated in
''Rucho'' v. ''Common Cause'' (a case about political
gerrymandering
In representative democracies, gerrymandering (, originally ) is the political manipulation of electoral district boundaries with the intent to create undue advantage for a party, group, or socioeconomic class within the constituency. The m ...
) that the Guarantee Clause is not a justiciable issue capable of being litigated in court.
Congressional interpretation
Cases such as ''Luther v. Borden'' held the Guarantee Clause to be a political question to be resolved by Congress. Relying on that understanding, the
Reconstruction era
The Reconstruction era was a period in American history following the American Civil War (1861–1865) and lasting until approximately the Compromise of 1877. During Reconstruction, attempts were made to rebuild the country after the bloo ...
Congress disestablished ten state governments during peacetime and placed them under military rule. The law, known as the
First Reconstruction Act, found those states to be unrepublican under the Guarantee Clause.
[Akhil Reed Amar, ''The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem'', 65 U. Colo. L. Rev. 749, 753 (1994).] The Supreme Court acquiesced to the disestablishment in ''
Georgia v. Stanton
''Georgia v. Stanton aka The Library Case'', 73 U.S. (6 Wall.) 50 (1868), was a case in which the Supreme Court of the United States held that the court does not hold jurisdiction over the ''political'' question of enforcement of the Reconstruction ...
'' (1868).
[Cormac H. Broeg, ''Waking the Giant: A Role for the Guarantee Clause Exclusion Power in the Twenty-First Century'', 105 Iowa L. Rev. 1319 (2019).] Later, Congress also excluded elected legislators (a power recognized in ''Luther'') when it faced "an election dispute created by state measures to suppress black voter turnout."
References
External links
The "Guarantee Clause"at harvardlawreview.org
{{US Constitution
Federalism in the United States
Article Four of the United States Constitution
Clauses of the United States Constitution