Article IV of the US Constitution is a less traveled road in constitutional law than the first three articles. The first three perform the heavy lifting, describing the duties, functions, and limitations of the three branches of the federal government. Article IV, however, seems like an afterthought, a brief collection of rules that do not easily fit in the other articles. Upon closer inspection, though, a theme can be discerned. Each of the four short sections of Article IV deal with the relations of states to each other. The article could be called the Interstate Harmony Article.
Section 1 states that “the public Acts, Records, and judicial proceedings” of one state shall be given “full Faith and Credit” in every other state.[1] This means, for example, that a marriage license in one state must be recognized in all other states. Section 2 states that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”[2] This means, for example, that when a citizen of Maine goes to Idaho, he or she will be treated equally under the law as a citizen of Idaho. Section 2 also states that if a person flees from justice in one state to another state, that person must be returned, or extradited, to “the State having Jurisdiction of the Crime.”[3] Section 3 says that no new States can be formed from parts of existing States without the consent of those States.
Section 4 says that the federal government “shall guarantee to every State in this Union a Republican Form of Government.”[4] Known as the Guarantee Clause, it provides that the federal government has the power to intervene in the governance of a state if it determines the State is not being administered under republican principles. Section 4 also says the government shall protect each state from invasion or domestic violence. While I could (and may) write a separate article just on this latter clause, I would like to focus (for now) on the Guarantee Clause. Unlike the other three sections of Article IV, the Clause has never been invoked.[5] Consequently, no procedure, guideline, or standard exists which: 1) defines how the government would determine a state government is not republican; 2) identifies which branch (or branches) of the government would make such a determination; or 3) delineates how the government should intervene to restore Republican governance.[6]
Unfortunately, these are not merely academic questions. The federal government has been battling the states on several issues lately.[7] While disagreements between the states and the federal government are nothing new—and usually is a sign that our system of dual sovereignty is working—the crescendo of rhetoric and vitriol lately points to an emboldened federal bureaucracy willing to directly challenge, not only the states, but those who govern them as well.[8] While invoking Section 4 is an unlikely scenario, it is not inconceivable—particularly with an administration pondering using Section 3 of the 14th Amendment against congressional Republicans.[9] Hence, it seems appropriate to consider—at least in the abstract—some possible answers to the questions outlined above.
Before answering those questions, though, a threshold question must first be addressed. Is Section 4 even necessary? After all, in our 229-year history, no state has ever tried to establish a non-Republican government. James Madison, however, provides a simple reply: “But who can say what experiments may be produced by the caprice of particular states, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers?”[10] Without Section 4, Madison says, “[u]surpation may rear its crest in each State, and trample upon the liberties of the people; while the national government could legally do nothing more than behold its encroachments with indignation and regret.”[11] Madison and the Framers adapted this view from Montesquieu, who wrote that with a confederated republic, “[s]hould abuses creep into one part, they are reformed by those that remain sound.”[12]
If it can be agreed that Section 4 is necessary, then it follows that the phrase “a Republican form of Government” must be accurately defined. The word “republican” comes from the Latin term res publica which means either “a public affair” or “a public thing.” In the context of government, it is often translated as “commonwealth.” The Framers were students of Cicero and took their concept of republican government from him. Cicero described a commonwealth as “the property of the people.”[13] But the people are not “any collection of human beings,” but “an assemblage of people in large numbers associated in an agreement with respect to justice and a partnership for the common good.”[14] Thus, for Cicero—and for most who followed—a republican government is “a corporate body, membership in which is the common possession of all its citizens; it exists to supply its members with the advantages of mutual aid and just government.”[15] Importantly, Cicero argued that any of the three forms of government (monarchy, aristocracy, democracy) can be ‘republican’ as long as political power is exercised by the general consent of the people and those who exercise it remain subject to “that higher rule of right which transcends human choice and human institution.”[16]
Montesquieu, that other muse of the Framers, echoed Cicero when he explained that “a confederate republic . . . is a convention by which several petty states agree to become members of a large one” and that “a republican government is that in which the body, or only a part of the people, is possessed of the supreme power. . . .”[17] Montesquieu argued that democracy and aristocracy, but not monarchy, can be republican. Madison agreed, writing that the States have the right to substitute their current government for “other republican forms” as long as they did not “exchange republican for anti-republican Constitutions. . . .”[18] Aristocracy is not something modern Americans would consider “republican.” But it must be remembered that the essence of a republic is public administration, not majority rule.[19] Rome was considered a republic even though power was wielded by an aristocratic senate. Also important is the fact that, although political power in a republic derives from the people, that does not mean all of “the people” have an automatic or plenary right to participate directly in its governance. To simply say “consent of the people” does not define who “the people” are, who speaks for them, or how they manifest consent. The key is that “the administration of public affairs is open to all the citizens” rather than restricted to a hereditary elite.[20]
Modern Americans hear “open to all” and think “one person, one vote.” But universal suffrage has never been the hallmark of republican government. Its defining characteristic, rather, is popular consent. And consent does not have to be manifested by election. None of history’s great political theorists thought the majority of citizens should have a direct voice in national assemblies. Even in the direct democracy in Athens under Solon and Cleisthenes suffrage and officeholding was strictly limited. As I have explained before, the philosophers of Greece and Rome (and hence the Framers) held a deep distrust of popular democracy due to “the perversity and rashness of popular assemblies.”[21] The citizenry at large was expected to express themselves at the local level; active in civic affairs, serving on juries, and selecting delegates for higher assemblies.
Another defining characteristic of republican government is the supremacy of the law. Cicero said that the law “is the bond which unites the civic associations, and the justice enforced by law is the same for all. . . .”[22] Because people are flawed and no representative of the people will ever govern solely for the common good rather than their own good, those who wield sovereign power must themselves be subject to a higher law.[23] Aristotle called the law “reason unaffected by desire.”[24] In this way, any human law that contradicts that higher law is unjust and repugnant to the will of the people.[25] If the law were not supreme, the people would be subject to the caprice of the men that governed. The law would simply be, in Hobbes words, the arbitrary will of the sovereign.[26]
The civil law is the collective wisdom of the ages; the experience of countless generations, a common or customary law that “the people have appointed for themselves.”[27] Because the law in a republic is supreme, no class of people can have an absolute claim to power over others. Rich and poor alike all have equal claim to power because each have an equal claim to the protection of the law. Hence, the best form of government is one where all classes have a voice in its governance. Aristotle described such a government as “a fusion of oligarchy and democracy” and called it “the polity or constitutional government.”[28] Cicero drew his res publica from Aristotle’s polity (politeia: πολιτεία). Aristotle did not think such a government ideal, but merely “the best practicable average which results from avoiding extremes in democracy and oligarchy that experience has shown to be dangerous.”[29] Oligarchy is government by the rich, while democracy is government by the poor. While there are many poor and few rich, the fusion of the two forms balances “two distinct claims to power, one based on the rights of property and the other upon the welfare of the greater number of human beings.”[30]
This balance between rich and poor is very tenuous. What is ultimately needed for stability are those who lie “between the two extremes” and “who make the state secure and uphold the laws.”[31] Thus, Aristotle argued that, because the mean is always best, the best constitutional government was “formed by the citizens of the middle class” particularly where “the middle class is large, and stronger if possible than both the other classes.”[32] The middle class is ideal because they “have a moderate and sufficient property,” do not “covet their neighbors’ goods,” are “least likely to shrink from rule, or to be overly-ambitious for it. . . .”[33] A large middle class forms “a group large enough to give the state a popular foundation, disinterested enough to hold the magistrates responsible, and select enough to avoid the evils of government by the masses.” [34] Upon such a social foundation it is possible to build a stable republican government.
The foregoing discussion may not be comprehensive, but from it we can identify at least four key elements of republican government: 1) officials who govern by consent rather than by force; 2) an administration open to public scrutiny and critique; 3) legislators and laws subservient to a higher law; and 4) political power in the hands of a large, prosperous, and well-educated middle class. With this summary, the first question identified at the beginning of this essay can now be tentatively answered: by what standard should the federal government conclude that a state government is not a “republican” government?
To build a case against a state, the government would have to present evidence of state officials ruling arbitrarily by dictates, mandates, and decrees. It would also have to present evidence of a bureaucracy withholding information, stifling debate, and misleading the public. It would further have to present evidence of officials demonstrating contempt for the law, exempting themselves from laws, and enacting rules contradictory to the higher law. Finally, it would have to present evidence of deliberate attempts to weaken the middle class, restrict their political power, and disenfranchise them. A well-informed reader could conceivably make an argument that a couple of states are guilty of these anti-republican practices. A more ominous thought is that the same argument could conceivably be raised against federal government. It is a worrying thought indeed, but one that has certainly run through the minds of those who are apprised of current events.
Of course, such a thought naturally raises the question, if true, what can be done? The Guarantee Clause is not operative against the federal government—or is it? Perhaps, it is helpful to remember Montesquieu’s observation about confederated republics: “[s]hould abuses creep into one part, they are reformed by those that remain sound.”[35] Some recent scholars have advocated the use of the Guarantee Clause as a bulwark against federal encroachments on state sovereignty.[36] Much of the federal government’s anti-republican behavior can be traced to its proclivity for “redefining” words in the Constitution in order to grant itself odious and intrusive powers over the states. In theory, states could use the Clause to reject federal laws that impose anti-republican principles on the states or compel the states to take anti-republican actions.[37] Such a suggestion raises the specter of the Nullification Doctrine, but is far different.[38] Under nullification theory, a state or states unilaterally declare a federal law to be void and of no force. However, using the Guarantee Clause, a state(s) would file suit in the Supreme Court, challenging the federal legislation as inimical to their guarantee of a republican government. Judicial review legitimizes the process. Such a tactic has the benefit of being grounded on a sound legal basis, but unfortunately is subject to the caprice of five judges. But such challenges are no excuse for throwing up one’s hands and declaring defeat. The principles of republican government are worth fighting for because history has amply demonstrated they are the only principles that promote liberty and prosperity to the world. We owe it to our descendants to defend them at all costs.
[1] U.S. Constitution, Art. IV, Sec. 1.
[2] U.S. Constitution, Art. IV, Sec. 2.
[3] U.S. Constitution, Art. IV, Sec. 2.
[4] U.S. Constitution, Art. IV, Sec. 4.
[5] The Guarantee Clause has been raised in several Supreme Court cases, but the Court has generally held that claims under the Clause are nonjusticiable under the political question doctrine. See New York v. United States, 505 U.S. 144, 183-86 (1992).
[6] In recent decades, several legal scholars have made cogent arguments on each of these questions, but the debate has not progressed beyond speculation to actual legislation or legal precedent. See e.g., Deborah Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988).
[7] See, e.g., Katelyn Caralle, Biden checking whether he can intervene to stop Republican bans in Daily Mail (August 10, 2021) (“Joe Biden said on Tuesday that he is looking into whether he is able to intervene in states like Florida and Texas as they ban mask mandates. . . .”); Monique El-Faizy, Biden threatens governors with legal action in France 24 (Sept 20, 2021).
[8] See, e.g., Bianca Ocasio, Biden Threatens Legal Action in Miami Herald (August 19, 2021) (“We’re not going to sit by as governors try to block and intimidate educators protecting our children. . . .”) Marc Caputo, White House Whacks DeSantis in Politico (August 11, 2021) (“To Democrats . . . DeSantis has a dangerous, irresponsible mindset. . . .”); David Smith, Biden condemns ‘acolyte of Trump’ in Virginia in The Guardian (Oct 26, 2021).
[9] Bruce Ackerman, The Makings of a Constitutional Crisis in Politico (Feb 1, 2022); Steve Harrison, Post-Confederate law bars Jan. 6 speaker in GPB News (Feb 7, 2022); Cliff Sloan, How Congress can keep Trump and other insurrectionists out of public office in The Washington Post (Feb 1, 2022).
[10] Federalist 43 (Madison).
[11] Federalist 21 (Madison).
[12] Montesquieu, The Spirit of Laws, B. 9, ch. 1. in 38 Great Books of the Western World 58 (1952).
[13] Cicero, On the Republic, I, 25 in 213 Loeb Classical Library 65 (1928).
[14] Id.
[15] George H. Sabine, A History of Political Theory 166 (2d ed. 1950).
[16] Id.
[17] Montesquieu, The Spirit of Laws, B. 2, ch. 1. in 38 Great Books of the Western World 4 (1952).
[18] Federalist 43 (Madison).
[19] See Patrick E. Higginbotham, David Shapiro’s Adversary Statement on Federalism in 94 Mich. L. Rev. 1471, 1475 (1996) (“[T]he core of the guarantee of a republican form of government is political accountability of the representatives.”).
[20] Black’s Law Dictionary 1467 (4th ed. 1951).
[21] Cicero, Republic, I, 34 in 213 Loeb 81.
[22] Cicero, Republic, I, 32 in 213 Loeb 75.
[23] See Aristotle, Politics 1, 2 in 9 Great Books of the Western World 445 (1952) (“Man, when perfected, is the best of animals, but, when separated from law and justice, he is the worst of all.”).
[24] Aristotle, Politics 3, 16.
[25] See William Blackstone, Commentaries *41 (“This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other; no human laws are of any validity, if contrary to this. . . .”).
[26] Thomas Hobbes, Leviathan in 23 Great Books of the Western World 131 (1952) (“Civil law is to every subject those rules which the Commonwealth hath commanded [to one obliged to obey], by word, writing, or other sufficient sign of the will. . . .”).
[27] Justinian, Institutes i. 2. 1 (“ius civile est quod quisque populus sibi ipse constituit” “[the law] is a civil right which the people have appointed for themselves.”).
[28] Aristotle, Politics 4, 8.
[29] George H. Sabine, A History of Political Theory 112 (2d ed. 1950).
[30] George H. Sabine, A History of Political Theory 101 (2d ed. 1950).
[31] Euripides, The Suppliants (“There are three classes of citizens. The first are the rich, who are indolent and yet always crave more. The second are the poor, who have nothing, are full of envy, hate the rich, and are easily led by demagogues. Between the two extremes lie those who make the state secure and uphold the laws.”).
[32] Aristotle, Politics 4, 11.
[33] Id.
[34] George H. Sabine, A History of Political Theory 113 (2d ed. 1950).
[35] Montesquieu, The Spirit of Laws, B. 9, ch. 1. in 38 Great Books of the Western World 58 (1952).
[36] See Merritt, supra note 6 at 3 (“[T]he words of the guarantee clause suggest a limit on the power of the federal government to infringe state autonomy.”).
[37] See, e.g., Bush v. Gore, 531 U.S. 98, 141 (2000) (Ginsburg, J. dissenting) (“In light of the constitutional guarantee to States of a ‘Republican Form of Government,’ Article II can hardly be read to invite this Court to disrupt a State’s republican regime.”).
[38] See, e.g., Ryan Card, The Constitutional and Political Implications of State Attempts to Nullify Federal Law, 2010 BYU L. Rev. 1795, 1800-18 (2010).