Balkinization  

Thursday, October 20, 2011

On the Guarantee Clause

Jason Mazzone

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


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. In full, Article IV, section 4 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."

The inspiration for Article IV, section 4 was Shays's Rebellion on the eve of the constitutional convention--and the inability of the federal government under the Articles of Confederation to intervene to prevent the insurrections in western Massachusetts. The debates at Philadelphia (according to Madison's Notes) that led to the adoption of Article IV, section 4 were all about the risks to state governments from unrepublican forces--especially when state governments would be barred from acting as mini-sovereigns with full military powers. The guarantee of republican government provision was debated in the specific context of federal guarantees to the security of the states and in the context of fears about what sorts of constitutions state governments might adopt (Rhode Island was the problem child). As best I can tell, the guarantee of republican government was never debated as a free-standing provision that could apply also to the federal government itself.

I have reconstructed below the relevant portions of the Philadelphia debates (all from Madison's Notes) so readers can judge for themselves whether there is anything that supports the claim that the Guarantee Clause can be separated out from the rest of Article IV, section 4 to require the federal government to guarantee itself as Republican. (The usual caveats about relying on Madison's reports from Philadelphia apply.)

One further point: Jack cites the Second Amendment as reflecting a concern that the federal government could become unrepublican. I don't disagree with that. But it seems to me that any guarantee of a federal republican government in the Constitution would have been a guarantee to the (arms-bearing) people, rather than to the states, as Article IV, section 4 says. Or, to put things in context, what good would it do OWS to invoke Jack's dual understanding of the Guarantee Clause if the beneficiaries of a suitably Republican federal government are the states?

I am happy to hear from readers who have other evidence (historical or otherwise) that supports a reading of the guarantee requirement of Article IV, section 4 as separate from the state-protection obligation and applicable also to the federal government. I am therefore opening comments. (If needed, I will be in a better position to respond more fully when I return home at the weekend.)

Update: See Tim Zick's argument that OWS's claims are better situated in the Preamble.


The origins of the Guarantee Clause
James Madison, in his April 1787 pamphlet, “Vices of the Political System of the United States,” identified as vice number six the “want of Guaranty to the States of their Constitutions & laws against internal violence” and the problem that because “[t]he confederation is silent on this point . . . the hands of the federal authority are tied.” Writing to Edmund Randolph that same month, Madison emphasized the need in the plan for a new government for “[a]n article . . . expressly [guaranteeing] the tranquility of the States [against] internal as well as external dangers,” because “unless the Union be organized efficiently & on Republican Principles, innovations of a much more objectionable form may be [intruded].”

On May 29, 1787, Randolph cited among the defects of the Articles that “the confederation produced no security against foreign invasion” and that “the foederal government could not check the quarrels between states, nor a rebellion in any, not having constitutional power nor means to interpose according to the exigency.” Randolph therefore presented the so-called Virginia Plan. Section 11 of the Plan proposed that “a Republican Government [and] the territory of each State, except in the instance of a voluntary junction of Government [and] territory, ought to be guarantied by the United States to each State.”

On June 11, when the delegates first considered this proposal, they dropped the territory guarantee and changed the remaining language to read “that a republican Constitution [and] its existing laws ought to be guaranteed to each State by the [United] States,” and the provision was included in the June 13 Report of the Committee of the Whole. On July 18, when the delegates debated the guarantee provision, Gouverneur Morris of Pennsylvania objected that it would require the United States to guarantee “such laws as exist in R[hode] Island” (a reference to that state’s severe franchise restrictions). Pennsylvania delegate James Wilson responded that the guarantee’s purpose was “merely to secure the States [against] dangerous commotions, insurrections and rebellions." George Mason of Virginia tied the guarantee to the federal government’s own security: “If the [General Government] should have no right to suppress rebellions [against] particular States, it will be in a bad situation indeed. As Rebellions [against] itself originate in [and against] individual States, it must remain a passive Spectator of its own subversion.”

After Randolph explained that the guarantee provision was meant both to secure republican government and to suppress domestic commotions, Madison moved to amend the provision to read “that the Constitutional authority of the States shall be guarantied to them respectively [against] domestic as well as foreign violence.” Two delegates immediately identified difficulties with the proposal. William C. Houston of New Jersey complained that some of the existing state constitutions should be amended, not guaranteed, and that “[i]t may also be difficult for the [General Government] to decide between contending parties each of which claim the sanction of the Constitution.” Luther Martin of Maryland “was for leaving the States to suppress Rebellions themselves.” Massachusetts delegate Nathaniel Ghorum emphasized the national government’s need for authority to intervene to put down rebellions, even if that meant choosing among competing claims. Responding to concerns that the existing provision did not explicitly condemn monarchical government, Randolph moved (and was seconded by Madison) to insert language that “no State be at liberty to form any other than a Republican [Government].”

Wilson proposed as an alternative that the provision read that “a Republican form of [Government] shall be guarantied to each State [and] that each State shall be protected [against] foreign [and] domestic violence.” The delegates accepted this formulation and it was included in the proposals that went to the Committee of Detail. The Committee of Detail then modified the proposal to provide for a state’s application to trigger the national government’s obligation to intervene to stop domestic violence. As reported on August 6, the provision began to take its familiar form: “The United States shall guaranty to each State a Republican form of Government; and shall protect each State against foreign invasions, and, on the application of its Legislature, against domestic violence.”

When debate resumed on August 17, it centered on the “application of the legislature” component of the provision. Charles Pinckney of South Carolina moved to strike the requirement that states make an application for protection. Gouverneur Morris opposed the motion “as giving a dangerous [and] unnecessary power. The consent of the State ought to precede the introduction of any extraneous force whatever.” When Connecticut delegate Oliver Ellsworth moved to add “or Executive” after the term legislature, Morris responded: “The Executive may possibly be at the head of the Rebellion. The [General Government] should enforce obedience in all cases where it may be necessary.” Ellsworth changed his motion to add to the consent of the legislature requirement, “or without it when the legislature cannot meet.” Referring to Shays’ Rebellion, Massachusetts delegate Elbridge Gerry was “[against] letting loose the myrmidons of the [United] States on a State without its own consent. The States will be the best Judges in such cases. More blood would have been spilt in [Massachusetts] in the late insurrection, if the [General] authority had intermeddled.” Morris thought it strange to “form a strong man to protect us, and at the same time wish to tie his hands behind him.” The national government, he insisted, “may surely be trusted with such a power to preserve the public tranquility.” Ellsworth’s motion passed.

On August 30, the delegates again took up the protection provision and upon motion by Morris, “the word ‘foreign’ was struck out . . . as superfluous, being implied in the term ‘invasion.’” John Dickinson of Delaware also moved to delete the requirement that a state apply for protection against domestic violence: “He thought it of essential importance to the tranquility of the [United States] that they should in all cases suppress domestic violence, which may proceed from the State Legislature itself, or from disputes between the two branches where such exist.” The motion was defeated. Also defeated was a motion to change “domestic violence” to “insurrections.” A separate motion by Dickinson to “insert the words, ‘or Executive’ after the words ‘application of its Legislature’” passed. A motion by Martin to add “in the recess of the Legislature” was defeated. As reported out of the Committee of Style on September 12, the provision therefore read: “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 executive, against domestic violence.” On September 15, the phrase “when the Legislature can not be convened” was inserted following “executive,” and the final provision was approved and sent to the states for ratification as Section 4 of Article IV of the Constitution.

Comments:

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:

http://nymag.com/print/?/news/frank-rich/class-war-2011-10

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."
 

This comment has been removed by the author.
 

"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.
 

This article is very interesting and meaningful. Thank you very much. Thank you very much!
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