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.
Edward L. Barrett Jr. Chair of Law, Martin Luther King, Jr. Professor of Law, and Director of Clinical Legal Education at the University of California - Davis School of Law
Associate Professor of Law, University of Missouri School of Law
The Guarantee Clause requires the United States to guarantee to the states a republican form of government, and provide protection from foreign invasion and domestic violence. Although rarely formally invoked by Congress, the President, or the courts, there is some consensus on what it means.
At its core, the Guarantee Clause provides for majority rule. A republican government is one in which the people govern through elections. This is the constant refrain of the Federalist Papers. Alexander Hamilton, for example, put it this way in The Federalist No. 57: “The elective mode of obtaining rulers is the characteristic policy of republican government.”
Thus, the Guarantee Clause imposes limitations on the type of government a state may have. The Clause requires the United States to prevent any state from imposing rule by monarchy, dictatorship, aristocracy, or permanent military rule, even through majority vote. Instead, governing by electoral processes is constitutionally required.
However, the Guarantee Clause does not speak to the details of the republican government that the United States is to guarantee. For example, it is difficult to imagine that those who enacted the Constitution believed the Guarantee Clause would be concerned with state denial of the right to vote on the basis of race, sex, age, wealth, or property ownership. Article I, Section 2 of the Constitution left voting qualifications in the hands of the states, although state authority in this area has been altered by subsequent amendments.
The Guarantee Clause also does not require any particular form of republican governmental structure. Thus, in cases such as Pacific States Telephone & Telegraph Co. v. Oregon (1912), the Supreme Court has refused to invalidate various forms of direct democracy permitted by state law, such as popular initiative and referendum, on the ground that they violate the Guarantee Clause. While these decisions were often on jurisdictional grounds, they are consistent with James Madison’s observation in The Federalist No. 43 that “the States may choose to substitute other republican forms.”
It is also clear that federal actions regarding states, authorized by other parts of the Constitution, do not ordinarily violate the Guarantee Clause, even if those federal actions prevent a particular state decision from going into effect. Under the Supremacy Clause, federal law will sometimes supersede otherwise valid state laws.
The question whether a Guarantee Clause challenge may be heard in federal court—that is, whether it is judicially enforceable—is a difficult one. In Luther v. Borden (1849), the Supreme Court held questions involving the Guarantee Clause nonjusticiable, meaning that any remedy for a violation would lie with Congress or the President, not the federal judiciary. Nearly one hundred years later, the Court sweepingly declared that the guarantee of a republican form of government cannot be challenged in court. Colegrove v. Green (1946).
More recently, however, the Supreme Court has left the door open to a Guarantee Clause challenge, intimating that the justiciability of such a claim must be decided on a case-by-case basis. Nevertheless, because protection against invasion or domestic violence is normally available only from Congress and the President, the structure of this section suggests that the political branches have at least the primary duty to carry out its obligations.
Edward L. Barrett Jr. Chair of Law, Martin Luther King, Jr. Professor of Law, and Director of Clinical Legal Education at the University of California - Davis School of Law
There is a serious claim that the United States failed to carry out its duty under the Guarantee Clause in the context of African American suffrage. The Supreme Court held that African Americans were protected by the Clause after the passage of the Reconstruction Amendments. In Texas v. White (1891) the Court explained: “[t]he new freemen necessarily became part of the people, and the people still constituted the State . . . . And it was the State, thus constituted, which was now entitled to the benefit of the constitutional guaranty.”
Importantly, after the Civil War, African Americans were a majority of the population in Louisiana, Mississippi, and South Carolina, and 40 percent or more in Alabama, Florida, Georgia, and Virginia. If majority rule and political freedom had prevailed in those seven states, the political power and influence African Americans enjoyed during Reconstruction would likely have continued for decades, or permanently.
However, as is well-known, African Americans were systematically disenfranchised, most vigorously in places where they were majorities, or could combine with other voters to become majorities. Mississippi was a leader in disenfranchising African Americans. In 1896, the Mississippi Supreme Court explained how this happened in Ratliff v. Beale:
Our unhappy state had passed in rapid succession from civil war through a period of military occupancy, followed by another, in which the control of public affairs had passed to a recently enfranchised race, unfitted by educational experience for the responsibility thrust upon it. This was succeeded by a semimilitary, semicivil uprising, under which the white race, inferior in number, but superior in spirit, in governmental instinct, and in intelligence, was restored to power. The anomaly was then presented of a government whose distinctive characteristic was that it rested upon the will of the majority, being controlled and administered by a minority of those entitled under its organic law to exercise the electoral franchise.
The Mississippi Constitutional Convention of 1890 solved this problem:
Within the field of permissible action under the limitations imposed by the federal constitution, the convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race.
See United States v. Mississippi (1965). Disenfranchisement of African Americans, the perpetrators themselves recognized, resulted in the establishment of minority rule.
Accordingly, the United States failed to guarantee a republican form of government in many former Confederate states in the period after Reconstruction and before the passage of the Voting Rights Act of 1965. The legislative history of a number of acts of Congress including the Fifteenth Amendment itself, recognized the conflict between the principle of majority rule enshrined in the Guarantee Clause and the reality of systematic disenfranchisement of African Americans.
It is unlikely that anyone would bother to disenfranchise a political opponent unless the outcome of the election might be at stake. In a highly polarized nation, there remain incentives for governmental actors, political parties, or others, to find ways to obstruct registration or casting of ballots to turn minorities of eligible voters into winners of elections. Congress does not have a general power to police and purify state elections, or to install governmental structures it considers desirable. However, the United States has a Guarantee Clause responsibility to step in when the principle of majority rule is threatened.
