Difference between revisions of "Guarantee Clause"
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| − | The Guarantee Clause of the [[U.S. Constitution]] ensures certain protections to each and every state: | + | The '''Guarantee Clause''' of the [[U.S. Constitution]] ensures certain protections to each and every state: |
| − | :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 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. |
| − | Article IV, Section 4. | + | U.S. Const. Article IV, Section 4 (emphasis added). |
It has been suggested that the Founders wanted state governments to be parliamentary republics rather than democracies, but others have suggested that this clause was intended to protect not against pure democracies but against monarchies. | It has been suggested that the Founders wanted state governments to be parliamentary republics rather than democracies, but others have suggested that this clause was intended to protect not against pure democracies but against monarchies. | ||
| − | There is relatively little case law interpreting this Guarantee Clause. | + | There is relatively little case law interpreting this Guarantee Clause. Only about 700 decisions cite to it in any way. and some feel strongly that legal claims based on this Clause should not be allowed: |
| + | {{cquote|The Plaintiffs' claims based on the Guarantee Clause and the Enabling Act are nonjusticiable political questions beyond the purview of this court and should have been dismissed at the outset. Supreme Court precedent requires this conclusion. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377 (1912), precludes a merits review of the Plaintiffs' Guarantee Clause claim, and Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), precludes review of their Enabling Act claim.}} | ||
| + | Kerr v. Polis, 20 F.4th 686, 704 (10th Cir. 2021) (TYMKOVICH, Chief Judge, concurring). He found no case since 1912 allowing a challenge based on this clause, and wrote with respect to a direct democracy: | ||
| + | {{cquote|See Kerr v. Hickenlooper, 759 F.3d 1186, 1195 & n.2 (10th Cir. 2014) (Gorsuch, J., dissenting from denial of rehearing en banc) ("[M]uch of [the scholarship] suggests that the Clause may rule out a state monarchy, a smaller amount . . . suggests the Clause may rule out a complete direct democracy, but none . . . credibly suggests a limited dose of direct democracy of the sort at issue here is constitutionally problematic." (citing Robert Natelson, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution's Guarantee Clause, 80 Tex. L. Rev. 807, 811 n.19 (2002)); G. Edward White, Reading the Guarantee Clause, 65 U. Colo. L. Rev. 787, 803-06 (1994); Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. Colo. L. Rev. 749, 749-52, 761-73 (1994); Jonathan Toren, Protecting Republican Government from Itself: The Guarantee Clause of Article IV, Section 4, 2 N.Y.U. J.L. & Liberty 371, 374-92, 392-99 (2007))).}} | ||
| + | Kerr v. Polis, 20 F.4th 686, 710 n.5 (10th Cir. 2021) (Tymkovich, Chief Judge, concurring). | ||
| − | [[ | + | But in ''Dobbs v. Jackson Women's Health Org.'', 142 S. Ct. 2228, 2354 (2022), the [[U.S. Supreme Court]] observed in its citation to Baker v. Carr: "Baker v. Carr, 369 U. S. 186, 202, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) (clarifying that the 'political question' passage of the minority opinion in ''Colegrove v. Green'', 328 U. S. 549, 66 S. Ct. 1198, 90 L. Ed. 1432 (1946), was not controlling law)." |
| + | |||
| + | Legal scholars, including Prof. Erin Hawley (the wife of Sen. [[Josh Hawley]] (R-MO)), observed that "More recently, however, the Supreme Court has left the door open to a Guarantee Clause challenge, intimating that the justiciability of such a claim must be decided on a case-by-case basis."<ref>https://constitutioncenter.org/the-constitution/articles/article-iv/clauses/42#:~:text=The%20Guarantee%20Clause%20requires%20the,consensus%20on%20what%20it%20means.</ref> | ||
| + | |||
| + | == History == | ||
| + | |||
| + | This clause was introduced at the [[Constitutional Convention]] as part of the [[Virginia Plan]], which provided “that a Republican Government & the territory of each State, except in the instance of a voluntary junction of Government & territory, ought to be guaranteed by the [[United States]] to each State.”<ref>Ryan C. Williams, The 'Guarantee' Clause, [https://harvardlawreview.org/print/vol-132/the-guarantee-clause/ 132 Harv. L. Rev. 602] (Dec. 2018) (quoting James Madison, Notes on the Constitutional Convention (May 29, 1787), in 1 FARRAND’S RECORDS, supra note 118, at 22)</ref> | ||
| + | |||
| + | == Founders == | ||
| + | |||
| + | [[James Madison]]'s Federalist No. 10 (the most prominent of all the [[Federalist Papers]]): | ||
| + | {{cquote|a pure democracy [is] a society consisting of a small number of citizens, who assemble and administer the government in person .... A republic [is] a government in which the scheme of representation takes place .... Let us examine the points in which it varies from pure democracy .... The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter to a small number of citizens elected by the rest; secondly, the greater number of citizens and greater sphere of country over which the latter may be extended.<ref>https://founders.archives.gov/documents/Madison/01-10-02-0178</ref>}} | ||
| + | |||
| + | [[John Adams]]: | ||
| + | {{cquote|Remember Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.<ref>[https://founders.archives.gov/documents/Adams/99-02-02-6371 Letter from John Adams to John Taylor, December 17, 1814]</ref>}} | ||
| + | |||
| + | [[Patrick Henry]] at the Virginia ratifying convention: | ||
| + | {{cquote|The delegation of power to an adequate number of representatives, and an unimpeded reversion of it back to the people, at short periods, form the principal traits of a republican government.<ref>3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, at 396 (Jonathan Elliot ed., 2d ed., J.B. Lippincott 1941) (1836)</ref>}} | ||
| + | |||
| + | == See also == | ||
| + | *[https://www.heritage.org/constitution/#!/articles/4/essays/128/guarantee-clause Heritage Guide] | ||
| + | *[https://www.law.cornell.edu/constitution-conan/article-4/section-4/justiciability-of-guarantee-clause-issues Cornell legal analysis with references] | ||
| + | == References == | ||
| + | {{reflist}} | ||
| + | [[Category:United States Law]] | ||
| + | [[Category:United States Constitution]] | ||
Latest revision as of 05:13, July 13, 2025
The Guarantee Clause of the U.S. Constitution ensures certain protections to each and every state:
- 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.
U.S. Const. Article IV, Section 4 (emphasis added).
It has been suggested that the Founders wanted state governments to be parliamentary republics rather than democracies, but others have suggested that this clause was intended to protect not against pure democracies but against monarchies.
There is relatively little case law interpreting this Guarantee Clause. Only about 700 decisions cite to it in any way. and some feel strongly that legal claims based on this Clause should not be allowed:
| â | The Plaintiffs' claims based on the Guarantee Clause and the Enabling Act are nonjusticiable political questions beyond the purview of this court and should have been dismissed at the outset. Supreme Court precedent requires this conclusion. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377 (1912), precludes a merits review of the Plaintiffs' Guarantee Clause claim, and Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), precludes review of their Enabling Act claim. | â |
Kerr v. Polis, 20 F.4th 686, 704 (10th Cir. 2021) (TYMKOVICH, Chief Judge, concurring). He found no case since 1912 allowing a challenge based on this clause, and wrote with respect to a direct democracy:
| â | See Kerr v. Hickenlooper, 759 F.3d 1186, 1195 & n.2 (10th Cir. 2014) (Gorsuch, J., dissenting from denial of rehearing en banc) ("[M]uch of [the scholarship] suggests that the Clause may rule out a state monarchy, a smaller amount . . . suggests the Clause may rule out a complete direct democracy, but none . . . credibly suggests a limited dose of direct democracy of the sort at issue here is constitutionally problematic." (citing Robert Natelson, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution's Guarantee Clause, 80 Tex. L. Rev. 807, 811 n.19 (2002)); G. Edward White, Reading the Guarantee Clause, 65 U. Colo. L. Rev. 787, 803-06 (1994); Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. Colo. L. Rev. 749, 749-52, 761-73 (1994); Jonathan Toren, Protecting Republican Government from Itself: The Guarantee Clause of Article IV, Section 4, 2 N.Y.U. J.L. & Liberty 371, 374-92, 392-99 (2007))). | â |
Kerr v. Polis, 20 F.4th 686, 710 n.5 (10th Cir. 2021) (Tymkovich, Chief Judge, concurring).
But in Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2354 (2022), the U.S. Supreme Court observed in its citation to Baker v. Carr: "Baker v. Carr, 369 U. S. 186, 202, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) (clarifying that the 'political question' passage of the minority opinion in Colegrove v. Green, 328 U. S. 549, 66 S. Ct. 1198, 90 L. Ed. 1432 (1946), was not controlling law)."
Legal scholars, including Prof. Erin Hawley (the wife of Sen. Josh Hawley (R-MO)), observed that "More recently, however, the Supreme Court has left the door open to a Guarantee Clause challenge, intimating that the justiciability of such a claim must be decided on a case-by-case basis."[1]
History
This clause was introduced at the Constitutional Convention as part of the Virginia Plan, which provided âthat a Republican Government & the territory of each State, except in the instance of a voluntary junction of Government & territory, ought to be guaranteed by the United States to each State.â[2]
Founders
James Madison's Federalist No. 10 (the most prominent of all the Federalist Papers):
| â | a pure democracy [is] a society consisting of a small number of citizens, who assemble and administer the government in person .... A republic [is] a government in which the scheme of representation takes place .... Let us examine the points in which it varies from pure democracy .... The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter to a small number of citizens elected by the rest; secondly, the greater number of citizens and greater sphere of country over which the latter may be extended.[3] | â |
| â | Remember Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.[4] | â |
Patrick Henry at the Virginia ratifying convention:
| â | The delegation of power to an adequate number of representatives, and an unimpeded reversion of it back to the people, at short periods, form the principal traits of a republican government.[5] | â |
See also
References
- â https://constitutioncenter.org/the-constitution/articles/article-iv/clauses/42#:~:text=The%20Guarantee%20Clause%20requires%20the,consensus%20on%20what%20it%20means.
- â Ryan C. Williams, The 'Guarantee' Clause, 132 Harv. L. Rev. 602 (Dec. 2018) (quoting James Madison, Notes on the Constitutional Convention (May 29, 1787), in 1 FARRANDâS RECORDS, supra note 118, at 22)
- â https://founders.archives.gov/documents/Madison/01-10-02-0178
- â Letter from John Adams to John Taylor, December 17, 1814
- â 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, at 396 (Jonathan Elliot ed., 2d ed., J.B. Lippincott 1941) (1836)