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Reconstructing the Congressional Guarantee of Republican Government

Posted by on Monday, April 20, 2020 in Articles, Volume 73, Volume 73, Number 3.

David S. Louk | 73 Vand. L. Rev. 673 |

The Republican Guarantee Clause of Article IV, Section 4 promises that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Although this clause might seem to confer significant power to oversee the political structures of the states, ambiguity about the Clause’s meaning, coupled with the Supreme Court’s historic disinclination to define its contours, have led some observers to question whether the Clause is a paper tiger. While recent scholarship has focused mostly on what a “Republican Form of Government” might entail, less attention has been given to the threshold questions of who might serve as guarantors of the Clause and precisely what forms of action they might take under it.

This Article concludes that while all federal branches may have a role to play as guarantors of republican government, the logic, location, and history of the Republican Guarantee Clause suggest that the Clause most directly empowers the political branches, and especially Congress, to act as guarantor. Often forgotten, but of critical importance, is that the Clause served as the chief constitutional basis for Reconstruction after the Civil War, and it helped pave the way for ratification of the Fourteenth and Fifteenth Amendments in the southern states. This history suggests that the Clause and those Amendments—on which twentieth-century voting rights legislation was based—should be understood and interpreted in light of one another.

This Article explores the role the Clause might play as an alternative source of federal legislative power to guarantee basic political processes alongside—or in place of—these Reconstruction Amendments. These questions have renewed significance today, given recent and frequent constitutional confrontations between Congress and the Supreme Court regarding the scope of Congress’s constitutional power to interpret and enforce the Reconstruction Amendments. Most recently, in Shelby County v. Holder (2013), the Court struck down portions of the Voting Rights Act as extending beyond Congress’s Fifteenth Amendment Enforcement Clause power. Around the same time, many state governments began to impose new restrictions on voter registration and access to the ballot box. These new measures, coupled with the Supreme Court’s holding in Rucho v. Common Cause (2019) that legal challenges to partisan gerrymandering are not justiciable in federal courts, has provoked renewed calls for federal protections to guarantee fairness in state political processes. Other recent developments, including the 2020 coronavirus pandemic, have also led to calls for greater congressional oversight of state electoral procedures.

This Article considers whether the Clause might serve as an additional constitutional basis for federal legislation and explores the interpretive arguments Congress might raise to justify the power to reform electoral processes in the states under the Clause. This Article also questions the prevailing view that the Supreme Court has always treated the Clause as functionally nonjusticiable. It argues that even following established precedents, the contemporary Court might well engage with the merits of legislation and litigation commenced under the Clause, given the Court’s recent penchant for enhanced scrutiny of congressional enforcement powers under the Reconstruction Amendments. Such challenges would spark a historical constitutional confrontation between Congress and the Court as to the meaning of the Clause. The Court might take one of several approaches when interpreting Congress’s power to legislate under the Clause, and this Article concludes that the Clause is the rare constitutional provision that would seem to grant both the courts and the political branches independent and complementary bases to guarantee republican government. Judicial scrutiny of congressional actions taken under the Clause should be heightened when congressional efforts can more readily be achieved by the states or by the courts and diminished when only Congress or president could effectively serve as the guarantor.

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David S. Louk