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.
Posted 7:06 PM by Jason Mazzone [link]