The Guarantee Clause

JAMELLE BOUIE explains how the Guarantee Clause of the Constitution could be the ultimate authority in the fight against gerrymandering. It says Congress is obligated to guarantee that state governments are republican and representative of people.  This clause was the basis for the federal government to take apart Jim Crow.

It is not too much to say that the Republican Party has cleared itself a path to nullifying the votes of millions of Americans. What, if anything, is there to do about it?

Here, I think it is worth looking at one rarely discussed section of the Constitution.

In Article IV, Section 4, the Constitution says, “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.”

Much of this is straightforward. The federal government is obligated to protect each state from foreign invasion — a legitimate threat in the early days of the United States, when the nation faced foreign powers on its northern, southern and western borders (as well as British naval power) — and is obligated to quell domestic uprisings, from the rebellions that rocked the United States as it existed under the Articles of Confederation to the slave revolts that struck terror into the hearts of the Southern planter class.

But what, exactly, does it mean for the federal government to “guarantee to every State in this Union a Republican Form of Government”?

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As James Madison explains it in Federalist No. 43, it means that “In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations.”

He goes on: “The more intimate the nature of such a Union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained.”

Of course, there’s no real chance in the modern era that any state will become a “monarchy” or “aristocracy” in the 18th-century sense. So why does the Guarantee Clause matter, and what does it mean? How does one determine whether a state has maintained a “republican form of government”?

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In his famous dissent in Plessy v. Ferguson in 1896, Justice John Marshall Harlan cited the Guarantee Clause in his brief against Louisiana’s Jim Crow segregation law. If allowed to stand, he wrote,

there would remain a power in the States, by sinister legislation, to interfere with the blessings of freedom; to regulate civil rights common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the people of the United States, for whom and by whom, through representatives, our government is administrated. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding.

In this vision of the Guarantee Clause, the touchstone for “a republican form of government” is political equality, and when a state imposes political inequality beyond a certain point, Congress or the federal courts step in to restore the balance.