Balkinization  

Thursday, October 20, 2011

Does the Guarantee Clause Apply to the Federal Government?

JB

Much as I respect Jason Mazzone as a scholar, I think his reading of the Guarantee Clause in the previous post is unduly crabbed. The Guarantee Clause of Article IV places two obligations on the United States. It must guarantee to the states that their governments will remain republican, and it must guarantee to the states that it will remain republican. Otherwise the federal government could cease to be republican, and become a tyranny, which was the central fear of the founding generation. (The Second Amendment is premised on the very same idea-- it is a way of ensuring that the federal government remains republican and does not become tyrannical.)

If Jason believes that the federal government has no constitutional obligation to be republican and representative, and that the framers contemplated that it would be perfectly constitutional if that happened, I would very much like to see the evidence. Perhaps Jason's point is that the obligation of the federal government to be republican comes from some place in the Constitution other than the Guarantee Clause and he would like the opportunity to identify those places. If so, I'd be delighted to add these additional sources of the obligation to the argument in my previous post.

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