The Supreme Court’s 5–4 ruling in Rucho v. Common Cause last month dealt a harsh blow to American democracy. For the last decade, federal courts were the strongest bulwark against partisan gerrymandering in the states, but Chief Justice John Roberts closed the door on that remedy in the future. In his opinion, though, he accidentally hinted at another way to challenge warped legislative maps on constitutional grounds.
“The District Court nevertheless asserted that partisan gerrymanders violate ‘the core principle of [our] republican government’ preserved in [Article I, Section 2], ‘namely, that the voters should choose their representatives, not the other way around,’” Roberts wrote, referring to the lower court’s finding that North Carolina’s maps were unconstitutional. “That seems like an objection more properly grounded in the Guarantee Clause of [Article IV, Section 4], which ‘guarantee[s] to every State in [the] Union a Republican Form of Government.’”
“This court,” he added, “has several times concluded, however, that the Guarantee Clause does not provide the basis for a justiciable claim.”
What if the clause did, though? While the court has long held that the clause can’t be invoked in federal courts, that interpretation of the Constitution isn’t without its critics. The resurgence of anti-republican measures in the laboratories of oligarchy, and the Roberts Court’s unwillingness to intervene, cry out for alternatives. Like Excalibur resting at the bottom of a lake, the Guarantee Clause waits to be pulled from the constitutional netherworld and wielded on behalf of the people.
While the Constitution’s first three articles define the federal government’s three branches, Article 4 dwells on the interlocking relationship between federal, state, territorial, and tribal powers. Among its provisions is a deceptively simple-sounding one: “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 first portion is typically referred to separately as the Guarantee Clause.
In the Federalist Papers, James Madison framed the guarantee as a way to ensure that no member of the Union drifted toward forms of government rejected in the revolution. “In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or [monarchical] innovations,” he wrote. This fear may sound ridiculous today, but it was hardly unreasonable in an age where kings and emperors were the norm and American republicanism was the exception.
“At a minimum, the guarantee of a republican form of government was meant to protect against a monarchy,” Erwin Chemerinsky, a Berkeley Law School professor, wrote in a 1994 law review article calling for the Guarantee Clause to be justiciable. “What was so objectionable about a monarchy? In a monarchy, citizens do not get to choose their rulers, power is fixed and inherited; in a republican form of government, the people ultimately retain sovereignty and choose their officeholders.” It’s no great leap to conclude that partisan gerrymandering, where lawmakers pick their voters instead of the other way around, could also qualify.
Madison took care to note that the clause would not give the federal government free rein to interfere in a state’s internal structures. “As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution,” he wrote. “Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican constitutions; a restriction which, it is presumed, will hardly be considered as a grievance.”
The Supreme Court’s first brush with the Guarantee Clause came after one of the most esoteric struggles in American political history: the Dorr Rebellion. By the 1840s, every state in the Union but one had adopted its own constitution. The sole exception was Rhode Island, which instead relied upon the royal charter granted to it by Charles II in 1663 as its basic law. State leaders made some changes after independence by statute. But one key provision remained: a suffrage requirement that restricted the vote to men who owned more than $134 in land.
The charter thus empowered wealthy rural Rhode Islanders while condemning to political isolation the state’s poorer urban residents and its growing Irish immigrant community. After multiple failed efforts to persuade the state legislature to reform state law, activists took a more extreme approach. In 1841, they organized a constitutional convention without the charter government’s assent and drafted the People’s Constitution. It received the expanded electorate’s assent in a referendum that year. By 1842, the state had two rival governments: a constitutional one led by Governor Thomas Dorr and a charter one led by Governor William King.
King’s government eventually declared martial law to suppress the rebellion, a task made easier by Dorr’s failure to capture the state arsenal in Providence in May 1842. Luther Borden, a state official tasked with rounding up the uprising’s participants, broke into Martin Luther’s house and arrested him for his role in the crisis. Luther responded by suing Borden for trespass, arguing that Borden’s actions were unlawful because the state government he served violated the Guarantee Clause. When Luther v. Borden reached the Supreme Court in 1849, Chief Justice Roger Taney concluded that it was for Congress, not the courts, to determine which state government was legitimate.
Under this article of the Constitution, it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue, and, as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts.
Taney’s broad language went beyond what was necessary to resolve the case, a habit that would prove disastrous ten years later. The Guarantee Clause limped on until the 1912 case Pacific States Telephone & Telegraph v. Oregon, which challenged direct-democracy laws in the state that gave voters the power to introduce laws and to reject those passed by the legislature. The ruling was not a high point for judicial sobriety: Chief Justice Edward White implied that the claim would bring about “anarchy” and concluded it would produce “strange, far-reaching, and injurious results.” The Supreme Court then transmogrified Luther into a general rule that Guarantee Clause claims were nonjusticiable. It would be up to Congress, not the courts, to decide when a state was no longer republican.
This was a sharp turn in how at least one of the justices had thought about the clause. In 1896, the Supreme Court upheld de jure racial segregation in Plessy v. Ferguson. The first Justice John Marshall Harlan, who wrote the sole dissenting opinion in the case, predicted that it would be as “pernicious” as the court’s ruling in Dred Scott before the Civil War. Letting separate-but-equal laws stand, he argued, would allow states, “by sinister legislation, to interfere with the full enjoyment of the blessings of freedom” and “place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States.”
“Such a system is inconsistent with the guarantee given by the Constitution to each state of a republican form of government,” he wrote, “and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.” It would be nearly six decades before the Supreme Court finally reversed course in Brown v. Board of Education, which rested upon the Fourteenth Amendment’s Equal Protection Clause instead.
It would be many decades more before the high court had an opportunity to revisit the clause’s meaning, and then only in passing. In 1992, the Supreme Court heard New York v. United States, a dispute between Albany and Washington over a federal law that required states to take legal responsibility for radioactive waste in certain circumstances. New York claimed the law violated the Tenth Amendment’s federalism requirements as well as the Guarantee Clause. Justice Sandra Day O’Connor, writing for the majority, dismissed the latter claim but hinted that the court’s current approach to the Guarantee Clause may be flawed.
“Over the following century, this limited holding [in Luther] metamorphosed into the sweeping assertion that ‘[v]iolation of the great guaranty of a republican form of government in states cannot be challenged in the courts,’” she wrote, quoting a 1946 ruling on the matter. “This view has not always been accepted.” She observed that even after Luther, the court decided some Guarantee Clause cases on the merits, citing a litany of cases as well as Harlan’s dissent in Plessy. “Contemporary commentators have likewise suggested that courts should address the merits of such claims, at least in some circumstances,” she added.
Those commentators attacked it on multiple grounds. “The Guarantee Clause is best understood as protecting basic rights of political participation within state governments,” Chemerinsky wrote, arguing that it can be read as a protection for individual liberties as well as a structural boundary for the republic. Akhil Reed Amar, a Yale law professor, disputed the idea that federal courts can’t resolve Guarantee Clause questions. “[W]hy not?” he wrote in a 1994 law review article on the matter. “Because it is wholly devoid of analytic content, and cannot be made more specific through judicially enforceable standards?” Amar noted that the same logic could apply to the Fourteenth Amendment’s major clauses, which are regularly interpreted by the courts.
One way to revive the Guarantee Clause would be through Congress. Federal lawmakers could, for example, invoke the clause to forbid state legislatures from enacting the kinds of partisan gerrymanders that Rucho now blocks the federal courts from stopping. The Roberts Court’s ruling in Shelby County v. Holder, which struck down a key section of the Voting Rights Act of 1965, showed the conservative bloc’s hostility to federal intervention of this magnitude, especially when it would shift power away from conservative governments. But in order to stop it, they would have to make Guarantee Clause claims justiciable again.
Alternatively, the Supreme Court may itself decide that Luther did not go as far as the court has thought for the past 150 years. While the Roberts Court is more than willing to toss aside long-established precedent when it wishes, revisiting Luther v. Borden and its progeny is probably not on the conservative bloc’s agenda. But future justices may be more inclined. The conservative legal movement spent the post–Warren Court years awaiting its chance to impose a particular constitutional vision upon the country. If liberals are condemned to spend the next generation crafting their own vision in judicial exile, the Guarantee Clause is a good place to start.
