Thursday, October 20, 2011
On the Guarantee Clause
I appreciate Jack's response to my post and his invitation to expand on my claim that the Guarantee Clause of Article IV is a provision that requires the federal government to guarantee Republican government in the states -- but not to impose a Republican requirement on the federal government itself. As I understand Jack's claim, the language ("The United States shall guarantee to every State in this Union a Republican Form of Government...") means (1) that the United States shall guarantee to the states that it is a Republican government and (2) that the United States shall guarantee Republican governments within each state. I am on the road and so don't have access to the materials that bear on this issue so this response is necessarily incomplete. But I don't think that Jack's dual reading comports with the history behind the adoption of this Clause
This seems to be the guts of Jack Balkin's claim:
"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."
Can we concede that the Constitution currently provides for a republican form of government at the federal level? If so, Jack may be on solid ground, subject, however, to Article V. I don't know if Jack is suggesting that an Article V amendment would be prohibited from changing this. Presumably any such amendment may have an impact upon the Guarantee clause that the amendment might appropriately address.
Of all the questions raised by Professor Balkin’s initial post, the question of whether the Guarantee Clause applies to the federal government seems like the least important. True, the Clause appears on its face to apply only to the states, but one can reasonably argue that the Framers could not have intended a Republican Form of Government be guaranteed by a federal government that was itself non-Republican.
The real question is what was meant by a Republican Form of Government? Professor Balkin seems to believe that it means a government in which each citizen has, not merely a formally equal voice in choosing elected representatives, but an actually equal voice in exerting influence on those representatives. I assume that Professor Balkin would concede that no society has ever achieved complete equality in this regard, but that he believes that there is some level of inequality that becomes constitutionally unacceptable, and that we have reached or are approaching that level.
Among the many problems with this hypothesis, the first would seem to be that the Framers quite obviously did not believe that a Republican Form of Government even required universal suffrage, much less some sort of actual equality of influence. And they certainly did not believe that a Republican Form of Government required equality of economic outcomes, or else they would have been trying to bolster rather than suppress Shays’ Rebellion, the OWS of its day.
No doubt one could take any protest or other social movement and find something in the Constitution that relates to its grievances in some way. I am sure that if one went around and asked random members of OWS if they felt deprived of due process or equal protection, many would readily agree. Some would probably say they are suffering cruel and unusual punishment. But I wonder how many would say that they are being deprived of a Republican Form of Government (even leaving aside those who think it refers to a government controlled by Republicans). It just seems like a poor fit with what is bothering OWS.
The oddity of the argument is illustrated by George Will’s column yesterday, in which he reports on a Guarantee Clause challenge to the Colorado Taxpayers Bill of Rights, which was passed by voters in 1992. There it is contended that a “Republican Form of Government” means a government where the laws are made by elected representatives, rather than by the people directly. While the substantive outcome (getting rid of TABOR) would no doubt appeal to OWS, the procedural point (the people cannot be trusted to make the laws directly) seems like the exact opposite of the OWS zeitgeist.
mls is stretching a tad with this:
" ... Shays’ Rebellion, the OWS of its day."
And mls' comment ending:
"While the substantive outcome (getting rid of TABOR) would no doubt appeal to OWS, the procedural point (the people cannot be trusted to make the laws directly) seems like the exact opposite of the OWS zeitgeist."
Neither the Guarantee clause nor the rest of the Constitution limits the people from protesting what they may deem the failures of elected officials. The Guarantee clause does not trump the Bill of Rights and other parts of the Constitution providing certain rights, especially protest, to the people. Jason's post with this:
"The history, I think, suggests strongly that the Guarantee Clause must be read not as a free-standing clause but along with the rest of Article IV, section 4 as a provision that ensures the security of state governments against (among other things) political coups that displace representative government."
can be extended to the entirety of the Constitution as amended.
Are we over-interpreting the "guarantee" clause? I've always assumed it was simply a guarantee that no state would ever establish a monarchy. Hasn't this been the minimal definition of "Republic" since the Romans overthrew Tarquin the Proud? And the Roman state did not cease to be a republic even under the dictatorships of Sulla or Caesar. I don't think anyone familiar with Roman history, as the Founders were, would have assumed that "tyranny" and "republic" were mutually-exclusive categories.
Seems to me that the Constitution guarantees the federal government be a 'republican' government directly, by establishing that sort of government, rather than some other sort.
Brett, concisely well put.
Now let's consider the impact, if any, of the 17th Amendment upon the Guarantee clause for the states. Off the top of my head, I don't see any. But perhaps those who would like to repeal the 17th Amendment do.
I also agree with Brett and I think the logical implication of his point is that if the federal government is in compliance with those provisions of the Constitution that establish its “form of government,” it is necessarily “Republican” within the meaning of the Guarantee Clause. Therefore, if Professor Balkin and OWS wish to contend that the federal government is not “Republican,” they must show a violation of some other provision of the Constitution.
It should be kept in mind how a republican form of government actually functions, both at the federal and state levels: does it function well or poorly? The Guarantee clause does not guarantee that the republican form of government will always (if ever?) function well. That's why be have elections. That why there are individual rights, including the right of protest. But elections and/or protests, alas, also do not always work well. So we sometimes end up with difficult times. Eventually things may work out over time, but in the interim there can be suffering. And just as the 99% suffer, so may the 1%. So justice and fairness are important to all. (A little Rawls here!)
I just recently noted Joseph Stiglitz's Vanity Fair article, May 2011 titled: "Of the 1%, by the 1%, for the 1%" with this synopsis:
"Americans have been watching protests against oppressive regimes that concentrate massive wealth in the hands of an elite few. Yet in our own democracy, 1 percent of the people take nearly a quarter of the nation's income - an inequality the wealthy will come to regret."
Perhaps in May of this year Stiglitz was prescient of the recent OWS movement. Fortunately here in America we don't have the riots, etc, that he describes in other countries. Hopefully there will be no riots, etc; but the protests must be heard, take their course, so that the republican form of government will perform better for all the people.
I think that the Shay's Rebellion comment is particularly apt in most ways. It was the last time that slaves and poor white people worked together to fight the power of the landed gentry in Virginia whose hold over agricultural land guaranteed their permanent power. The difference between Shay's and OWS is that Shay's had a leader, Shay, who was a dissatisfied member of the landed gentry.
OWS resembles Shay's because OWS is protesting the disproportionate ownership of stocks by the few in the way that Shay's protested the ownership of the best farmland by the few. Furthermore, today, income from stocks in the form of capital gains is taxed at a lower rate than income from actual work.
"suppress Shays’ Rebellion, the OWS of its day"
Over the years, "the masses" had many public protests, including in the decade before '76. This was recognized by the PTB as unfortunate but basically acceptable means. See, e.g., the 1A.
The Shay's Rebellion was an armed effort that included forcibly shutting down the courts from collecting debts. A bridge too far for some. The current protests is more the former, than the latter.
When they march and close down the courts, we can compare the two. I know of a few protests that included armed people threatening the PTB with "second amendment" remedies, but OWS aren't that.
I too think Brett is correct, but then the question become if the feds are in such and such case actually following that requirement.
The basic concern remains. The meaning of "republican" and federal duty/power to "guarantee" it has expanded since '87, as well, as shown by various amendments and practice.
The Preamble speaks of the feds protecting "general welfare" and it has the power and duty (see Declaration of Independence, governments in place to "secure" our liberty) to do so in this respect, particularly given the national and international scope of the financial industry, which Art. I, sec. 8 in more than one case explicitly covers.
Gerard Magliocca's book, see side panel, discusses how the constitutional understanding that such things justified more federal oversight developed, certain political happenings helping to delay things for awhile.
Frank Rich's 10/23/11 New York Magazine article "The Class War Has Begun - And the very classlessness of our society makes the conflict more volatile, not less" segues from the June 1932 Bonus Army march on Washington, D.C. to OWS protests. The article is available at:
Here's the penultimate [still my favorite word] paragraph of this sobering article:
"Elections are supposed to resolve conflicts in a great democracy, but our next one will not. The elites will face off against the elites to a standoff, and the issues animating the class war in both parties won't even be on the table. The structural crises in our economy, our government, and our culture defy any of the glib solutions proposed by current Democrats or Republicans; the quixotic third-party movements being hatched by well-heeled do-gooders are vanity productions. The two powerful forces that extricate America from the Great Depression--the courageous leadership and reformist zeal of Roosevelt, the mobilization for World War II--are not on offer this time. Our class war will rage on without winners indefinitely, with all sides stewing in their own juices, until--when? No one knows. The reckoning with capitalism's failures over the past three decades, both in America and the globe beyond, may well be on hold until the top one percent becomes persuaded that its own economic fate is tied to the other 99 percent's. Which is to say things may have to get worse before they get better."
I suggested some of this in an earlier comment, but ineloquently. You can't take Article IV's Guarantee clause "to the bank."
"Elections are supposed to resolve conflicts."
Long term, conflicts seem to continue, any "resolution" at best short term, if ever completely occurring at all.
I also note that various major changes didn't come with Roosevelt, but decades after, and many didn't expect WWII in the years before it occurred.
It might be said, e.g., race relations got worse before it got better. So, I take Rich's comments with a grain of salt.
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