Thursday, October 20, 2011

OWS: Which Constitution, Which Government?

Jason Mazzone

As somebody who has written extensively about the Guarantee Clause of Article IV, I was struck by Jack Balkin's recent post on the Clause as providing a constitutional hook for the Occupy Wall Street protests. Jack calls for OWS to dust of Article IV and to invoke it as the clause that gives the protestors' grievances about how government is failing a constitutional dimension. I agree that the Guarantee Clause should get more attention than it has until now. But there is a significant problem with respect to OWS making use of this Clause. The Guarantee Clause imposes an obligation on the federal government with respect to state government. It reads: "The United States shall guarantee to every State in this Union, a Republican Form of Government." Jack invokes the Guarantee Clause to confront a "Senate . . . for sale." But the Guarantee Clause does not say that the federal government must be a "Republican form of government." (Perhaps there are other places in the Constitution one might find the basis for such a command.) Thus, to the extent the Guarantee Clause is a useful vehicle for a complaint about government, it is useful only to complain about the shortcomings of state governments (and secondarily the failure of the federal government to correct those shortcomings). Yet OWS, as Jack's post itself suggests, seems focused primarily on failings of the federal governnment: the paralyzed Congress, federal tax rates perceived as unfair, corporate influence in Washington, and so on. Use of the Guarantee Clause, in OWS or elsewhere, however, requires an articulation of why the laws, including perhaps the constitutions, of state governments are not republican. Because the Guarantee Clause is limited to state government, it will be hard for OWS or any other social movement to gain constitutional traction via this Clause. (Is New York State responsible for concentrations of wealth that OWS complain about on Wall Street? Which other states are insufficiently Republican? All of them?) And while OWS agitates against the federal government, use of the Guarantee Clause requires dependence upon the federal government to rectify the perceived shortcomings in the states. A constitutional movement grounded in the Guarantee Clause is thus one that convinces the federal government to address problems within the states. I don't see that to fit too well with how OWS views the federal government and what is presently seeks.