A Rarely Discussed Constitutional Guarantee
The U.S. Constitution's Guarantee of Republican Government can be a Check Against Current and Future State-Level Executive Overreach
The United States Constitution’s Article IV, Section 4 states:
The 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.
The republican guarantee made in the Constitution, on behalf of the federal government and to the people of the separate states, means that it is the obligation of the United States government not only to preserve itself as a republic, but to also guarantee that the people in the individual states will also live under republican state governments. While this little-discussed guarantee was motivated over concerns that some states may fall back into monarchy (though at a smaller and more localized level), the combination of the intent of the clause and the long tradition of what republican means in the American tradition thus prescribes that it is the duty of the federal government to preserve American republicanism in the separate states. This only became more true over the course of U.S. history, as will be explained.
According to the Annotated Constitution at constitution.congress.gov, “In light of its text and framing, the Guarantee Clause was intended to be more than an authorization for the federal government to protect states against foreign invasion or internal insurrection, a power already conferred elsewhere in the Constitution. While the precise contours of what constitutes a ‘republican form of government’ are debatable, an additional object of the Guarantee Clause was to prevent states from establishing monarchical or despotic governments.”1
In the American tradition, of course, a republican government has long meant more than simply a system that is not a monarchy. The term republican, since the earliest days of the nation’s founding, has meant a representative government made up of limited express powers that subscribes to the existence of unalienable individual rights among its citizens.
The Supreme Court, with some notable exceptions following the Civil War during Reconstruction, has avoided articulating the meaning and intent of the Guarantee Clause. Though the Court should always be careful not to step unnecessarily onto ground it need not tread, the Guarantee Clause seems of particular importance in a time when executive branch office-holders (both elected and unelected) exercised powers—in some cases at the level of making law—that clearly violated the values enshrined in the Constitution generally and in the Guarantee Clause specifically.
There are those who argue that the Court has been prudent to not see judicial power within the Guarantee Clause, as it was derived from a quasi-diplomatic intent to signal the republican aims of both the separate state governments and the new federal government. Ryan C. Williams, for example, in his 2018 Harvard Law Review article, asserts:
“Viewing the Guarantee Clause through the lens of eighteenth-century treaty practice casts significant doubt on claims by modern scholars that the provision should be understood as a repository of judicially enforceable individual rights. Rather, both the text of the provision and contextual evidence regarding its original understanding strongly suggest that the provision more likely reflected a quasi-diplomatic, treaty-like commitment on the part of the federal government to its quasi-sovereign component states.”2
If the Constitution of 1787 were the one empowered today, this writer would be in agreement with Williams. The Constitution, however, must be considered holistically, including its various amendments.
For those familiar with previous work by yours truly, it is understood that conclusions between intellectual and legal historians like myself and conclusions among lawyers often diverge. Intellectual historians are often as concerned with the spirit of the law as with the letter. Lawyers generally lean in the opposite direction, and indeed many in the legal profession are trained to get around the Constitution, rather than respect and abide by it.
Is a monarchy not historically a body or individual who is able to make law unilaterally and out of thin air? Is this not what Americans saw mayors and governors do in 2020 and 2021?How is this not a violation of republican government?
The fact is that the U.S. Constitution was dramatically transformed as a result of the ratification of the Fourteenth Amendment (as is explored in more detail in my book, Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court). The Fourteenth Amendment armed the federal government to enforce the Bill of Rights against the separate states, granting it much more authority to assure that the separate states would abide by essential values not previously enforceable. It can be argued that the federal government, and the United States Supreme Court in particular, are similarly obligated to enforce the Guarantee Clause for similar reasons. Because the scope of the Guarantee Clause was supposedly a nod to diplomacy and the quasi-sovereign status of the individual states during the pre-Civil War era, and because the states lost that level of sovereignty as a result of the Civil War and the Fourteenth Amendment (though—it should be stated—not all of its sovereignty, as the limits of express powers and the authority of the Tenth Amendment remain in effect), an argument in favor of the judicial enforcement of the Guarantee Clause (or, as some have appropriately called it: the Republican Guarantee Clause) is valid.
Imagine how judicial recognition and enforcement of the Guarantee Clause might have kept city officials from closing businesses against their will in recent years. How it could have prevented governors from making law, violating separation of powers and infringing upon the law-making powers of legislatures (is a monarchy not historically a body or individual who is able to make law unilaterally and out of thin air? Is this not what Americans saw mayors and governors do in 2020 and 2021? How is this not a violation of republican government?), from shutting down schools, closing public spaces, causing people to lose their livelihoods and sacrifice their mental health, and forcing people to stay inside and wallow in their stress, disappointment, and fear.
Imagine if free individuals had been given the choice to go to work or not, to go outside and into population centers or not, and to let their children physically attend school or not. Imagine an America that enforced the security of these liberties through a republican guarantee outlined in the Constitution and bolstered by the Fourteenth Amendment.
For those who continue to be apologists for undue government power that was exercised in the wake of a public health emergency (which, let us not forget, was a bipartisan affair), even as the level of emergency continued to calibrate downward over time, questioning excessive actions and overreach is an uncomfortable enterprise. Those concerned with the rights of the people, however, should remain ever-focused and regularly assert that the United States and the separate states, are required—yes, required—to guarantee republican governance. That is the very source of their constitutional legitimacy.
[James M. Masnov is a writer, historian, and lecturer. His book, Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court, published by McFarland Books, is available here. His first book, History Killers and Other Essays by an Intellectual Historian, is available here.]
https://constitution.congress.gov/browse/essay/artIV-S4-1/ALDE_00013635/
https://harvardlawreview.org/2018/12/the-guarantee-clause/