A Proposed View of the Republican Guarantee Clause – Securing Political Participation

A Proposed View of the Republican Guarantee Clause – Securing Political Participation

For nearly 80 years jurists have searched “our scheme of ordered liberty” for fundamental rights. That search has born fruit, helping the Supreme Court identify numerous rights, both enumerated and unenumerated, which act as restraints against federal and state legislative authority. Though somewhat surprisingly, in all those years of jurisprudence, the Court has never actually defined what “our scheme of ordered liberty” is. This omission has undermined the Equal Protection Clause and Substantive Due Process jurisprudence of the Court, and left its decisions vulnerable to criticism.

For advocates of the justiciability of the Republican Guarantee Clause, these must be interesting times. Legal scholars have been advocating for decades that the Clause, which provides that “The United States shall guarantee to every State in this Union a Republican Form of Government,” should be justiciable. Now, after nearly a century of willful neglect, the Court is showing a willingness to consider controversies arising out of the Clause on their merits. Though the promise is still not completely fulfilled, it has been deemed to be an inevitability that the clause will eventually be subject to judicial review.

With considerable scholarship already devoted to the subject of justiciability, the principle purpose of this paper will be to forge ahead and consider the next fight. What type of controversies might the Clause lend itself too, and how might those be decided on the merits?

Part I of this paper will establish what the framers intended by a “republican form of government,” and whom they intended it to benefit. Part II will summarize the judicial treatment of the Clause up to the present time. Part III will summarize the adverse impact of the nonjusticiability doctrine as applied to the Clause. Finally, Part IV will suggest the Clause should be revived to protect political participation, and will establish a link between the Clause and the concept of “Due Process of Law Making.”

I. So What Did the Framers Think They Were Guaranteeing and to Whom?

Article IV of the United States Constitution provides that the “United States shall guarantee to every State in this Union a Republican Form of Government.” What was meant by “a republican form of government” was left undefined by the Article. Thus is it prudent to begin with an inquiry into other sources contemporary with the Constitution’s ratification, so that we may discover the original understanding.

A. What was the Guarantee?

First and foremost, the founding generation believed that in a republican form of government, sovereignty was vested in the people. As a consequence, it was only from the “consent of the governed” that a republican government could enjoy continued legitimacy. In the words of James Madison, “we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people.” Whatever else may the framers may have meant by “republican form,” there is consensus that it means at least this.

Second, the founding generation believed that the aim of government was the security of our “unalienable rights to life, liberty, and the pursuit of happiness.” It was “self evident” to the founding generation, that protection of these rights were the foremost aim of government, because they were derived from divine law and the law of nature, and so no act of government that violated these rights could be legitimate. The founders believed that “governments were instituted among men” to make the enjoyment of these rights more secure, but whatever liberties were surrendered in consideration for this social contract, the “unalienable” character of the right to life, liberty, and property left them beyond the reach of any legitimate government.

Other commentators have also established a link between the Guarantee Clause and fundamental rights. Some have gone so far as to suggest that the Clause imposes the Bill of Rights on the states. This line of thinking notes that many framers regarded the Bill of Rights as unnecessary; that the original unamended Constitution was itself a guarantor of rights, and that the Guarantee Clause was part of the framework that provided that guarantee. I think the argument is strengthened by the Guarantee Clause’s co-location with the Privileges and Immunities Clause in Article IV. Judge Washington’s early interpretation of the Privileges and Immunities Clause adds weight to the claim by echoing the themes the founders cited as elements of republican governments. As he stated:

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.

The argument can be made that the two sister clauses were intended to operate together to incorporate certain unenumerated yet fundamental rights. This interpretation could be derived from simple algebraic logic. Since republican governments are created to protect the fundamental rights of their citizens, and since the citizens in each state are entitled to the privileges and immunities of the citizens in the several states, and since all the states must have republican governments, than each state must protect the fundamental rights of all American citizens.

The same conclusion has been reached elsewhere, though through slightly different reasoning. Douglas Smith posits that the Privileges and Immunities referenced in Article IV refer to the residual sovereignty retained by the people. For Smith, these are the Lockean fundamental rights which the people were either unwilling or powerless to delegate. Because the nature of republican governments is the retention of sovereignty with the people, the guarantee of a republican form of government to each state is a vesting of power in the federal government to enforce those privileges and immunities retained by the people when they formed political communities within the states against their respective state governments.

Third, to properly secure these rights and prevent the government from devolving into tyranny, a republican form of government should divide power into the legislative, judicial, and executive functions, so as to prevent them from becoming consolidated in one person or a group of people. John Adams believed that:

A people cannot be long free, nor ever happy, whose government is in one assembly. A single assembly is liable to all the vices, follies, and frailties of an individual; subject to fits of humor, starts of passion, flights of enthusiasm, partialities, or prejudice, and consequently productive of hasty results and absurd judgments. And all these errors ought to be corrected and defects supplied by some controlling power.

Thomas Jefferson agreed, noting that “the concentration of government power into a single body is the definition of despotic government, even if it be a legislature.” Alexander Hamilton expounded upon the principle in Federalist #9:
The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: These are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.

These concepts help us to ascertain what the founders believed a republican form of government was, but it is also helpful to take note of those forms of government which they did not believe were of a republican character. To determine that they did not believe a monarchy was republican in form we only need to take note of history, but the words of the founding generation help to explain the rationale. In his extensive writings on the subject, Thomas Paine declared that monarchy by its nature was “tyrannical,” and “that the thirst for absolute power is the natural disease of monarchy.” The “sin” of monarchy was believed to be compounded by the nature of hereditary succession. Hereditary succession “operates to preclude the consent of succeeding generations, and the preclusion of consent is despotism.” It was with these evils the framers believed a republican form of government defended against. As the Republican Guarantee Clause was debated at the Constitutional Convention, one of the delegates, Edmund Randolph, defended the Clause by stating that “a republican government must be the basis of our national union; and no state in it ought to have it in their power to change its government into a monarchy.” Subsequent speakers alluded to the danger of monarchies arising peacefully within the states as a motivation for adopting the provision.

The framers also believed that direct democracy was antithetical to the republican form. Their study of political science as well as natural law informed that belief. As Madison wrote, “Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Furthermore, “In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.”
And so the framers, regarding both the monarchal and pure democratic forms of government as inherently dangerous to individual rights, sought to perfect the republican form of governance. In the words of Alexander Hamilton at the Convention, “We are now forming a republican government. Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments – if we incline too much democracy we shall shoot into monarchy.” But in seeking to form a republican government that met these criteria, the framers still faced a novel challenge; how to reconcile the concept of popular sovereignty with a form of government that prevented majority will from manifesting itself as a “tyranny of the majority?” The challenge of securing “the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and form of popular government” was at the forefront of the framers’ minds.

To accomplish this end, the framers adopted the institution of representative democracy. It was deemed that one of the great differences between a democracy and a republic was “the delegation of the government, in the latter, to a small number of citizens elected by the rest.” And so “the representation of the people in the legislature by deputies of their own election” was chosen as “a means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.” Jefferson agreed with this development, remarking that “government by the people, acting not in person, but by representatives chose by themselves” was the only means of securing “the equal rights of man.”

From all of this considerable authority we have the framework for the framer’s conception of a republican form of government. A republican form of government was one where:
1) Sovereignty is derived from the people, 2) is limited in power so not to encroach upon individual fundamental rights, 3) power is not consolidated, but dispersed among different departments, 4) and the people exercise their will through elected representatives.

B. To whom was the Guarantee made?

Having defined what the Clause guaranteed, it’s important to briefly note whom the founders intended to be the beneficiary, particularly since the plain text of the Clause is misleading. The Clause states that the “United States shall guarantee to every State in this Union a Republican Form of Government.” A literal reading of the Clause might suggest that the guarantee is being made to the state governments. But with more thoughtful consideration it becomes self evident that this could not have been true, for a state government that had been degraded could not have been expected to appeal to the federal government in a challenge of its own legitimacy. Therefore, it must be that the guarantee was being made to the people generally, that the federal government would ensure that their respective state governments always remained republican in form. The Court itself has accepted this interpretation, noting that in the context of the Guarantee Clause the word “state” refers to “a people or political community, as distinguished from a government.”

What is more, the framers would have presumed that individual citizens would have standing for redress if the Guarantee were violated. At the time of ratification and for the duration of the 19th century, a “metaphorical” understanding of legal injury prevailed, in which an injury was synonymous with the violation of a right, and a plaintiff was entitled to relief at law for violations of public rights, even in the absence of a literal injury in fact to the plaintiff. In the past century, the Court has maintained a much more narrow view of standing, restraining plaintiffs from privately prosecuting public rights, and requiring that they incur a literal injury that is particular to them.

Still, even under these more restrictive conditions, the modern Court has generally maintained a permissive approach to standing in cases and controversies where our republican form of government is at issue. For example, the Court has found the issue of legislative apportionment to create sufficiently particularized injury for voters belonging to particular minority groups. And on at least one occasion, mere citizenship in a state was sufficient to establish standing. One recent exception to this permissive trend is Hollingsworth v. Perry (2013), in which the Court ruled that citizen supporters of California’s anti-gay marriage amendment lacked standing to defend the constitutionality of the amendment in federal courts.

If one were to broadly generalize these holdings, it might be said that the Court has a permissive approach to establishing standing where disadvantaged groups are acting to restrain government action, but a more skeptical approach of citizens comprising members of a voting majority who wish to maintain a government action or power. The subject merits much more discussion in its own right, but for the purposes of this paper it is sufficient to say that were the Guarantee Clause to be deemed justiciable, neither the framer’s original intent nor the Court’s existing precedents would bar individuals or groups from establishing standing to enforce the Clause if they were citizens of the jurisdiction and could show they had suffered some remote harm.

II. From Guarantee to Obscurity – A Survey of the History of Judicial Interpretation

Litigation surrounding the Guarantee Clause has always been rare, but for most of the 19th century jurists did not hesitate to adjudicate claims based on their understanding of the Clause. Adding weight to the original conception of the republican form of government discussed above, the decisions that were handed down in those early cases echoed these very themes.

In Calder v. Bull (1798), the Supreme Court did not expressly reference the clause, but it did adjudicate the constitutionality of a state law based on an understanding of natural rights, which “limits the exercise of legislative power,” and the principles of which “flow from the fundamental nature of our free republican governments.” Finding that a state legislative act that violated natural law could not stand, even if the power or right were not addressed in the Constitution, the Court stated, “To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.”

This principle of imposing natural law upon the states continued in subsequent decisions during this period. Twelve years after Calder, in Fletcher v. Peck (1810), the Court said:

Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the states are obviously founded in this sentiment; and the constitution of the United States contains what may be deemed a bill of rights for the people of each state.

Likewise, in Terrett v. Taylor (1815), the Court overturned a Virginia legislative act, finding that “the right of the citizens to the free enjoyment of their property was a great and fundamental principle of republican government.” In Terrett, the legislature had sought divest the Episcopal Church of land it had acquired as the official religion of the state during the colonial period. Virginia claimed that the property had been acquired at the pleasure of the state, and was only held by the church durante bene placito, revocable at the legislature’s discretion. The Court rejected this theory, stating that “such a doctrine…is utterly inconsistent with the principles of republican government, the right of the citizens in the free enjoyment of their property.” In so deciding, the Court thought it was “standing upon the principles of natural justice, upon the fundamental laws of every free government, [and] upon the spirit and the letter of the Constitution of the United States.”

Perhaps the most famous case in the field was McCulloch v. Maryland (1819), though admittedly it is not immediately obvious that McCulloch is in the field at all. The case is famous for its holding that the state of Maryland could not institute a tax on the Bank of the United States. The Court reasoned because the Bank of the United States was enacted consistent with the Necessary and Proper Clause, and because federal law enjoys supremacy over state law, and because “the power to tax is the power to destroy,” a state levy against a federal institution like the Bank of the United States must be constitutionally impermissible. The case is less famous for the qualification that the Court placed on its holding, specifically that the ruling “does not extend to a tax paid by the real property of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state.” What distinguished taxes on real property and interest held by other Maryland citizens from the object of the legislation at issue? Though the opinion does not expressly say so, one key distinction was that all Marylanders would have been subject to the same taxes. Thus, the Bank could be assured that its interests were represented through the concept of “virtual representation.” Under this theory, one of the factors that made the levy unconstitutional was that it was passed in a manner that was antithetical to our concept of representative democracy, because it discriminated against an interest that was not empowered with a vote in the legislative process.

The Calder-Fletcher-Terrett-McCulloch line of cases illustrates that in the immediate post ratification and antebellum period, the Court consistently used the principles imbued in the Guarantee Clause as support for enforcing unenumerated fundamental rights on the states. That the Guarantee Clause was a vehicle for enforcement of fundamental rights sixty years before the adoption of the Fourteenth Amendment, and over a century before the judicial process of incorporating the Bill of Rights against the states began, portends the potential utility of the Clause in our time.

In 1874 the Clause was still displaying some potential for this purpose, as the Court applied it in adjudicating the issue of women’s suffrage. The Court was on the wrong side of history in that case, ultimately deciding that the Clause did not compel states to grant women the right to vote. While that result was lamentable, it is nonetheless interesting that it was to the Guarantee Clause that the Court looked when trying discern the extent of fundamental rights to political participation. The nadir of the Clause may perhaps be found in Justice Harlan’s lone dissent in Plessy v. Ferguson (1896), where he argued that the separate but equal doctrine “is inconsistent with the guarantee given by the constitution to each state of a republican form of government.”

Several state courts also weighed in on the sovereignty and institutional components of the Clause during this period. The Delaware Supreme Court in Rice v. Foster (1847) was asked to decide the validity of a local county referendum. In doing so, the Rice court expounded upon its conception of the Clause, saying that “the powers of government in the United States are derived from the people, who are the origin and source of sovereign authority.” What made our republic unique from other republics was that “none of the powers of sovereignty are exercised by the people; but all of them by separate, co-ordinate branches of government.” The reason for this separation of power was to protect against the “rash, precipotory [sic], and misguided zeal of the majority” at the expense of the minority.

Thus the Delaware court in Rice overturned the referendum, ruling that direct democracy was incompatible with a republican form of government. Rejecting the state’s argument that the written Constitution did not bar the legislature from delegating power back to the people, the Court said:

The proposition that an act of the legislature is not unconstitutional unless it contravenes some express provision of the constitution is, in the opinion of this court, untenable. The nature and spirit of our republican form of government; the purpose for which the constitution was formed, which is to protect life, liberty, reputation and property, and the right of all men to attain objects suitable to their condition without injury by one to another; to secure the impartial administration of justice; and generally, the peace, safety and happiness of society, have established limits to the exercise of legislative power, beyond which it cannot constitutionally pass. An act of the legislature directly repugnant to the nature and spirit of our form of government or destructive of any of the great ends of the constitution, is contrary to its true intent and meaning; and can have no more obligatory force.

Against this backdrop, the Supreme Court handed down a ruling that would ultimately set the precedent for the nonjusticiability of the Clause. Luther v. Borden (1849) presented the Court with a very unique set of facts. During the Dorr Rebellion in Rhode Island, animosity about restrictive suffrage in the state led to hostilities against the government of Rhode Island, which at the time was still operating under its original colonial charter. The rebels convened a Constitution Convention for the state, and formed an alternate government. Ultimately the rebellion was suppressed and the rebel government was never seated, but in the course of these events, one of the rebels, Martin Luther, was arrested by a Rhode Island official acting under the color of the existing state charter. In his defense, which Luther appealed all the way to the Supreme Court, Luther claimed that he should escape criminal liability and be entitled to relief for damage suffered to his property due to the Rhode Island government of the time not being of a republican character. The Court, in deciding against Luther ruled that:

It rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.

The final nail was placed in the coffin of the Clause in 1912, when the Court in Pacific States Tel. & Telegraph Co. v. State of Oregon, using Luther as precedent, ruled that all claims under the Guarantee Clause were nonjusticiable. The case arose when an Oregon corporation brought suit to prevent enforcement of a corporate tax increase that was enacted by statewide referendum. The corporation claimed that because the law was enacted by democratic means rather than through the legislative process, it was inconsistent with the Guarantee Clause. It seems the Court found the prior state level decisions unpersuasive, or perhaps it was reluctant to condemn the statewide referendum process amid the height of the progressive movement’s efforts to make government more democratic. Whatever the motivation, the Court issued a sweeping ruling, and in deciding against PST&T reasoned that “it is the [state] government, the political entity, which is called to the bar of this court, not for the purpose of testing judicially some exercise of power, assailed on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the state that it establish its right to exist as a state, republican in form.”
The facts in Pacific States Telegraph should have been easily distinguishable from Luther. There was no open rebellion in Oregon, nor was there an alternative government competing for legitimacy. Nevertheless, the Court chose to construe PST&T’s claim as an attack on the legitimacy of the Oregon government generally, rather than an attack on the referendum specifically. In so doing, the Court was able to analogize to Luther, and ruled that any claims brought under the Guarantee Clause are necessarily political questions, are nonjusticiable, and are left to Congress to resolve.

III. The Consequences of Nonjusticiability

The effect of the ruling in Pacific States Telegraph was predictable. It ended over a century of rich, though limited judicial review of the Guarantee Clause, and banished the Clause to complete irrelevance. This had two negative consequences for constitutional jurisprudence.

First, it effectively eliminated any prospect of relief under the Guarantee Clause. It is an ancient legal maxim that for every right there is a remedy, and where there is no remedy, there is no right. By declaring that adjudication of the Clause is assigned to Congress, the Court placed the decision with an institution ill-suited to offer relief. The types of relief available to Congress are too draconian and too distantly removed from those wronged by state action under the Clause to be of any utility. In Luther, the Court suggested that Congress could choose to not seat the Rhode Island congressional delegation if the state’s government was not of a republican character. Setting aside the complete political infeasibility of such a harsh measure, it is also clear that result would have done nothing to provide relief to Luther for the harms he had suffered at the hands of the charter government. There is also the question of institutional competence. Congress is adept at providing legislative solutions that have systemic and generalizable impact across a large group of people. It is ill-suited to offer solutions to specific individuals, whatever injustice they may have suffered.

A second impact has been to neuter a potential interpretive tool in evaluating fundamental rights that has a clearer textual reference point within the Constitution than does the prevailing theories of equal protection or substantive due process. This paper has established that the framers and early courts believed there were certain fundamental rights, unenumerated though they may have be, which government was powerless to encroach upon. They chose a republican form of government because they believed that was the best instrument of protecting those rights. Amid much criticism, the Court’s substantive due process and equal protection decisions have identified numerous fundamental rights that are “of the very essence of a scheme of ordered liberty.” The “scheme” by which our liberty is ordered under the Constitution is a republican one. The Court has done itself a disservice, and opened its decisions up to criticism, by failing to allow the Guarantee Clause to serve as an aid to judgment on determinations of fundamental rights. If it were to consider the Guarantee Clause in light of its original intent it might help the judiciary further its understanding of fundamental rights, and if not overcome, at least mitigate some originalist concerns with rights arising out of the equal protection and substantive due process doctrines.

The substantive due process and equal protection cases dealing with voting rights and other democratic processes have been particularly handicapped by the failure to consider the arguments in light of the Guarantee Clause, or alternatively, they could have been completely adjudicated on that basis alone. The first of the reapportionment cases, Colegrove v. Green (1946), was deemed not justiciable by the court as a political question, in part because “violation of the great guaranty of a republican form of government in States cannot be challenged in the courts.” That Colegrove was wrongly decided would seem obvious to us now, and indeed the Court arrived at completely different result 18 years later in Reynolds v. Sims (1964). Apparently in a deliberate effort to avoid appearing to overrule Colegrove, the Court based its decision upon the Equal Protection Clause. In Reynolds, the Court reviewed the constitutionality of Alabama state senate districts that were allocated by county rather than proportional representation, creating variances in the population of each district that resulted in a 14:1 disparity between the most populous and least populous district. The Court found the scheme unconstitutional on equal protection grounds, finding that voting was a “fundamental right.” In reaching that result the Court said that “legislators represent people, not trees or acres” and “the one man one vote” principle should be applied to all legislatures. The Court concluded:

Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.

The Court seems to have contorted itself to avoid overruling Colegrove by maintaining the nonjusticiability of the Guarantee Clause, but in making a determination as to a “bedrock principle of our political system,” without reference to what specifically that system was, makes the analysis incomplete. If the court had allowed itself to reconsider the Guarantee Clause, it may have gone a long way to mute the criticism expressed by Justice Harlan in his dissent, that the Court was erroneously extending the Equal Protection Clause to cover voting rights and imposing its own concept of “good government” upon the states. Harlan seemed to concede the point, saying,

Since it can, I think, be shown beyond doubt that state legislative apportionments, as such, are wholly free of constitutional limitations, save such as may be imposed by the Republican Form of Government Clause, the Court’s action now bringing them within the purview of the Fourteenth Amendment amounts to nothing less than an exercise of the amending power by this Court.

This paper’s contention is not that Reynolds was wrongly decided, but rather that its reasoning could have been strengthened by looking to the Guarantee Clause for support. The defective apportionment schemes present in both Coleman and Reynolds ran afoul of the Guarantee Clause’s protections for individual rights and the ability of the people to exercise their will through representative democracy. The Reynolds Court did address both of these concepts, stating:

Representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies. Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.

On its face this does not seem like a particularly controversial assertion, particularly with the benefit of our modern understanding of democratic legitimacy. However, the problem is that at the time of Reynolds support for this assertion could not be found in the contemporary understanding of the Equal Protection Clause. As Harlan again makes clear:

The Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures. This is shown by the language of the Fourteenth Amendment taken as a whole, by the understanding of those who proposed and ratified it, and by the political practices of the States at the time the Amendment was adopted. It is confirmed by numerous state and congressional actions since the adoption of the Fourteenth Amendment, and by the common understanding of the Amendment as evidenced by subsequent constitutional amendments and decisions of this Court before Baker v. Carr, supra, made an abrupt break with the past in 1962.

As this paper has attempted to demonstrate, the Reynolds Court would have been on firmer ground if it had based its conclusion on the elements of the Guarantee Clause. The Clause operates to secure the equality of all people and their inalienable rights through a representative form of government. As John Adams noted about republics:

The greatest care should be employed, in constituting this representative assembly. It should be in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them. That it may be the interest of this assembly to do strict justice at all times, it should be an equal representation, or, in other words, equal interests among the people should have equal interests in it.

The founding generation, concerned though they were with majoritarian factionalism, believed that “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. Further, they believed that “It is essential to [a republican government] that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it. If the Reynolds Court had allowed itself to consider how the Guarantee Clause might resolve the controversy at issue in Reynolds, these arguments could have been brought to bear to add legitimacy and grounding in originalism to the decision. Other commentators have agreed, noting that the attempt to adjudicate deficiencies in state governments on equal protection or substantive due process grounds is “awkward pigeonholing.”

The example of the reapportionment cases with Coleman and Reynolds shows the potential of the Guarantee Clause to aid the adjudication of a wide variety of cases within the “political thicket.” Unaided by this Clause, the Court has meandered through the political thicket without a firm textual reference point in the Constitution, deciding cases regarding the regulation of political parties, the regulation of primary elections, ballot access, minority vote dilution, campaign finance, and even the proper procedures for vote counting. These types of controversies could all be ripe for Guarantee Clause claims were it justiciable.

The Court’s reflexive unwillingness to consider cases under the Guarantee Clause has been met with widespread condemnation. Among the more common criticisms, is that the Guarantee Clause has judicially discoverable and enforceable principles. Another critique is that in finding claims under the Clause nonjusticiable, courts are overestimating the degree to which the questions are political. Finally and perhaps most convincingly, there is the argument that the nonjusticiability of the Guarantee Clause is alone among the “political questions” cases which shows deference to state governments, rather than co-equal federal departments. This deference is characterized as being misplaced.

In recent years, perhaps in response to this criticism, the Court has seemed to crack the door open to a reevaluation of the clause in some of its decisions. For instance, in Reynolds vs. Sims (1964), the Court may have avoided basing its ruling on the Guarantee Clause, but in dispatching that argument it said only that “some questions raised on the Guarantee Clause are non-justiciable,” implying that the Court believed that some controversies might be justiciable under the clause. More recently in New York vs. U.S. (1992) it was suggested the Luther decision “was a limited holding” which has wrongly “metamorphosized into a sweeping assertion.” Ultimately the court determined that the issue needn’t be resolved in this case because the merits were unfavorable to the plaintiff on other grounds. Still the discussion in dicta indicates that the court in 1992 was ready to narrow the doctrine. Justice Kennedy, in his concurrence in U.S. Term Limits vs. Thornton (1995) stated

“The federal character of congressional elections flows from the political reality that our National Government is republican in form and that national citizenship has privileges and immunities protected from state abridgment by the force of the Constitution itself. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.”

Collectively these decisions suggest that the Court may soon be willing to reverse Pacific States Telegraph and consider cases arising out of the Guarantee Clause on their merits.

IV. The Path Forward: Reviving the Clause to Protect Political Participation and Ensure “Due Process of Lawmaking”

Presuming there is a willingness on the Court to entertain Guarantee Clause claims, it would be prudent to consider what type of controversies the Clause might help resolve, and how the Clause would aid the resolution of those claims on the merits. I see two potential functions for a revival of the Clause.

First, this paper agrees with Professor Chemerinsky that the Clause is “best understood as protecting basic rights of political participation.” This paper has already explored how only that understanding can support the legitimacy of the Court’s reapportionment decisions derived from the original meaning of the Constitution’s text.

Second, this paper also proposes that the Clause itself contains the key to ensuring “due process of law making.” The basic concept of due process of law making, as first proposed by Hans Linde, is that courts should evaluate the legislative process itself for fairness, rather than placing itself as the arbiter of the ultimate public policy advanced by legislation. The concept was later expounded upon by Sanford Levinson, who said:

If governmental action trenches upon values that may reasonably be regarded as fundamental, that action should be the product of a deliberate and broadly based political judgment. The stronger the argument that governmental action does encroach upon such values, the greater the need to assure that it is the product of a process that is entitled to speak for the society. Legislation that has failed to engage the attention of the legislature, like the decisions of subordinate governmental institutions, does not meet that test, for it is likely to be the product of partial political pressures that are not broadly reflective of the society as a whole.

This doctrine has found some limited support on the Court with Justice Stevens, but otherwise has failed to expressly influence any judicial decisions.

Whatever the merits of the concept of due process of lawmaking from a good governance perspective, it is understandable why the Court would be loathe to wade into the sausage making of the legislative process, particularly without a guide or standard for when due process of lawmaking might be satisfied.

The Republican Guarantee Clause is that standard. The rule I would propose is this:

If a law restricts liberty or political participation, and was passed without legislative due process, it must satisfy heightened scrutiny. A law that infringes upon a fundamental liberty or adversely affects a minority group must satisfy heightened scrutiny and have been passed through the legislative due process required by the Guarantee Clause.

This rule would not make direct democratic lawmaking per se unconstitutional, but it would mean that a state must show more than mere rationality in citizen enacted initiatives, and citizen initiatives that encroached upon fundamental liberties or disadvantaged minority groups would be completely impermissible. The reasoning is that the direct democratic process could not possibly provide the appropriate level of deliberation necessary to make tradeoffs between compelling state interests and fundamental liberties. Legislative due process requires that those types of laws pass through the deliberative process required by the Guarantee Clause.

Other commentators have suggested differential review of direct democracy enactments before. Judge Linde himself suggested that statewide initiatives should not be per se unconstitutional, but initiatives that appeal to majoritarian passions are an unconstitutional violation of the Guarantee Clause. Linde encouraged judges to use balanced judgment to ascertain if statewide initiatives ran afoul of any of these tests.

Similarly, Professor Eule suggested that a “more general notion that courts should be willing to examine the realities of substitutive plebiscites” should prevail. According to Eule, the Guarantee Clause needs to be evaluated in the context of the overall constitutional framework, in which the framers devised the “filters” of representative democracy, divided government, and entrenched rights as safeguards against majoritarian tyranny. Where these safeguards exist, as with the typical legislative process, a high degree of judicial deference is appropriate. But in their absence jurists should take a more activist role. As Eule explains:

In its substitutive form direct democracy bypasses internal safeguards designed to filter out or negate factionalism, prejudice, tyranny, and self-interest. The judiciary must compensate for these process defects. It must serve as the first line of defense for minority interests; a back-up role is no longer adequate. The absence of structural safeguards demands that the judge take a harder look.

Eule concludes that in reviewing statewide initiatives and referenda, courts must play a larger role, “not because direct democracy is unconstitutional…but because the judiciary stands alone in guarding against the evils incident to transient, impassioned majorities that the Constitution seeks to dissipate.”

Both Linde and Eule deserve credit for grounding a theory of differential review of direct democracy in the Guarantee Clause, but their specific proposals have limitations that undermine their applicability. As with his original “due process of lawmaking” proposal, Linde would again invite the judiciary to examine the sausage making of the legislative process, by probing the “historical and political context” of otherwise neutral legislation, without any clear parameters to guide the inquiry. Eule does not offer us a specific rule at all, just a “general notion” that courts should have less deference for direct democracy enactments. The rule proposed by this paper above seeks to build on the theory of differential review advanced by both men, but overcome their shortcomings by providing a specific standard of judicial review and the context in which that standard should apply.

A reexamination of the Court’s landmark decision in Romer v. Evans (1996) illuminates how the rule might aid judicial decision making. In Romer the Court held that a Colorado initiative to amend the state constitution so as to prevent homosexuality from being considered a protected classification was an unconstitutional violation of the Equal Protection Clause. The justification for this holding was that the amendment would bar homosexuals from seeking special protections from their local governments, and force them to appeal to a statewide electorate to their disadvantage. At the time of the Romer decision, homosexuality was not considered a suspect class, nor was the right to consensual homosexual sex deemed fundamental under the Constitution. Thus result was notable for the lack of traditional judicial deference in the absence of a suspect classification or fundamental right at issue. The decision was met with criticism for being “opaque,” difficult to reconcile with traditional equal protection review, and for inviting judicial activism and inconsistency in the lower courts. Even Justice Kennedy, writing for the majority, conceded that the decision “confounded the normal process of judicial review.”

Writing for the dissent, Justice Scalia stated “the Court’s reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decision making than others.” Scalia found fault with this argument, stating that this “electoral-procedural discrimination” principle could never function in a “multi-level” democracy. He concludes, “A law that is valid in its substance is automatically valid in its level of enactment.”

The error in Scalia’s analysis is that he confused the “level” of an enactment with the procedure of its enactment. This distinction is critical to the understanding of the Guarantee Clause’s application to achieve due process of lawmaking. If the majority in Romer had applied the rule proposed here to the issues presented, they would have been able to apply a heightened standard of review on the basis of its passage through a direct democracy procedure. Under this theory, the heightened rigor would be justified by the Guarantee Clause’s requirement that the amendment clear the filters employed by a government republican in form to mitigate the passions of tyrannical majorities. The Court could have avoided its muddled equal protection rationale, and muted the criticism leveled by Scalia and others that the result was inconsistent with the Court’s prior precedents.

Conclusion

This paper agrees with the emerging consensus in legal scholarship that the Guarantee Clause should be justiciable and requires a differential treatment of governmental enactments that arise from processes inconsistent with republican principles. This paper seeks to build upon that scholarship in three distinct ways.

First, by outlining what a republican government was understood to be at the time of the founding generation, namely a government in which the people are sovereign, fundamental rights are protected, the people acted through representative government, and political power was divided.

Second, this paper agrees with the principle that the Guarantee Clause should be understood as protecting political participation, and that application of the Clause would yield better decisions with a stronger textual basis in the Constitution in a wide range of political process controversies than does the Court’s prevailing equal protection analysis.

Finally, this paper proposes that the Clause holds the key to providing a judicially manageable standard to enforce due process of lawmaking. It suggests that direct democracy is particularly lacking in providing the appropriate level of deliberation required by the Constitution for enactments that infringe liberties or have detrimental effects on suspect classes. Because direct democratic initiatives and referenda avoid the filters of republican government, this paper recommends that courts ensure the due process of lawmaking by examining such enactments with heightened scrutiny.

Authors Note – Originally submitted as a law school seminar paper in 2013.  Due to WordPress’ limited ability to footnote many original citations are omitted.  The original citations can be provided upon request.  

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