Federal Desk BookConstitution Annotated

Article IV, Section 4 — Republican Form of Government

Article IV, Section 4

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.

ArtIV.S4.1 Historical Background on Guarantee of Republican Form of Government

Article IV, Section 4 is generally known as the “Guarantee Clause.”1 Through its terms, the United States makes three related assurances to the states: (1) a guarantee of a republican form of government; (2) protection against foreign invasion; and (3) upon request by the state, protection against internal insurrection or rebellion.2

An early version of the Guarantee Clause was among the resolutions of the Virginia Plan introduced at the Constitutional Convention by Edmund Randolph and attributed to James Madison.3 The resolution went through several formulations during the debates at the Convention.4 During a key debate, Gouverneur Morris objected to the resolution because “[h]e should be very unwilling that such laws as exist in R[hode] Island ought to be guarantied.”5 Randolph explained that, rather than cementing the existing laws of the states, the resolution had two objects: “1. to secure Republican Government[;] 2. to suppress domestic commotions.”6 Along with concerns about rebellions, delegates expressed fears that a monarchy might arise in a particular state and “establish a tyranny over the whole [United States].”7

Answering Morris’s objection, Madison moved to substitute language that “the Constitutional authority of the States shall be guarant[eed] to them respectively [against] domestic as well as foreign violence,”8 with Randolph then moving to add language that “no State shall be at liberty to form any other than a Republican [Government].”9 James Wilson then introduced, as a “better expression of the idea,” language substantially similar to the final form of the Guarantee Clause, which the Convention approved unanimously.10

In light of its text and framing, the Guarantee Clause was intended to be more than an authorization for the federal government to protect states against foreign invasion or internal insurrection,11 a power already conferred elsewhere in the Constitution.12 While the precise contours of what constitutes a “republican form of government” are debatable,13 an additional object of the Guarantee Clause was to prevent states from establishing monarchical or despotic governments.14

Except for a brief period during Reconstruction, the authority granted by the Guarantee Clause has been largely unexplored.15 The Supreme Court and other federal courts have largely declined to hear legal challenges based on the Guarantee Clause because they present nonjusticiable political questions.16

Notes
  1. See, e.g., New York v. United States, 505 U.S. 144, 183 (1992); Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 379 (1978). At times, particularly in older cases, the term is spelled “Guaranty Clause.” See, e.g., Baker v. Carr, 369 U.S. 186, 209 (1962); Texas v. White, 74 U.S. 700, 729 (1868). ↩
  2. U.S. CONST. art. IV, § 4. The Clause uses the term “domestic violence” in the now-archaic sense of “[i]nsurrection or unlawful force fomented from within a country,” and not the modern usage meaning violence between romantic partners or within a household. See Domestic Violence, BLACK’S LAW DICTIONARY (11th ed. 2022); THE FEDERALIST NO. 21 (Alexander Hamilton) . ↩
  3. See 1 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 22 (Max Farrand, ed. 1911) [hereinafter FARRAND’S RECORDS] (“Resd. that a Republican government & the territory of each State . . . ought to be guaranteed by the United States to each State.”). In an April 1787 letter to Randolph, Madison suggested that “an article ought to be inserted expressly guaranteeing the tranquility of the states against internal as well as external danger. . . . Unless the Union be organized efficiently on republican principles innovations of a much more objectionable form may be obtruded.” 2 WRITINGS OF JAMES MADISON 336 (G. Hunt ed., 1900). For background on the origins of the Guarantee Clause, see W. WIECEK, THE GUARANTEEADMIT A NEW STATE CLAUSE OF THE U.S. CONSTITUTION ch. 1 (1972). ↩
  4. On June 11, 1787, the original resolution was amended to read “Resolved that a republican constitution and its existing laws ought to be guaranteed to each state by the United States.” 1 FARRAND’S RECORDS, supra note 3, at 193–94. ↩
  5. See 2 id. at 47; see also 2 id. at 48 (delegates expressing worry about “perpetuating the existing Constitutions of states” and the difficulty of having the federal government decide between competing state governments). ↩
  6. Id. This statement echoed Randolph’s earlier argument that “a republican government must be the basis of our national union; and no state in it ought to have it in their power to change its government into a monarchy.” See 1 id. at 206. ↩
  7. 2 id. at 48. ↩
  8. 2 id. at 47–48 ↩
  9. 2 id. at 48. ↩
  10. 2 id. at 48–49 (resolving “that a Republican [form of Government shall] be guarantied to each State & that each State shall be protected agst. foreign & domestic violence”). The Committee of Detail added the language providing that state legislatures must first ask for protection against domestic violence. 2 id. at 144, 148, 159, 174. Later motions to strike that proviso failed, 2 id. at 466–67, and during that debate the word “foreign” before “invasion” was deleted as superfluous. Id. ↩
  11. See generally THE FEDERALIST NO. 21 (Alexander Hamilton); THE FEDERALIST NO. 43 (James Madison). ↩
  12. See U.S. CONST. art. I, § 8, cl. 15 (granting Congress power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”); see generally ArtI.S8.C15.1 Congress’s Power to Call Militias. ↩
  13. See Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 23 (1988) (“Even today, the outer boundaries of the guarantee clause remain murky; no single scholarly work can capture the full meaning of ‘republican government.’”); ArtIV.S4.3 Meaning of a Republican Form of Government. ↩
  14. See 3 STORY’S COMMENTARIES § 1808 (“The want of a [Guarantee Clause] was felt, as a capital defect in the plan of the confederation . . . . If a despotic or monarchical government were established in one state, it would bring on the ruin of the whole republic.”); THE FEDERALIST NO. 21 (Alexander Hamilton). ↩
  15. See generally WIECEK, supra note 3, at chs. 5–7; Texas v. White, 74 U.S. 700, 728–29 (1868) (Chase, C.J.) (grounding the establishment of Reconstruction governments in the former Confederate states as an “exercise of the power conferred by the guaranty clause” to the United States). ↩
  16. See, e.g., Baker v. Carr, 369 U.S. 186, 223–28 (1962) (reviewing cases); Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 148–51 (1912); Luther v. Borden, 48 U.S. 1, 42–47 (1849). But see New York v. United States, 505 U.S. 144, 185 (1992) (“More recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions.” (citing Reynolds v. Sims, 377 U.S. 533, 582 (1964))). ↩

ArtIV.S4.2 Guarantee Clause Generally

In Luther v. Borden,1 the Supreme Court in 1849 held that questions arising under the Guarantee Clause are generally political, and not judicial, in character.2 Luther was formally an action for damages for trespass, but under the rather “unusual” circumstances of Dorr’s Rebellion, a pro-suffrage revolt that led to two competing claimants for Rhode Island’s lawful government.3 The defendants in Luther justified their breaking and entering into the plaintiff ’s home under a declaration of martial law and based on the plaintiff ’s alleged participation in insurrection. The plaintiff questioned the authority and republican character of the state government, alleging the defendants to be the insurrectionists.4 Thus, to adjudicate the trespass claim in Luther was in effect to decide “which of two rival governments was the legitimate government of Rhode Island.”5

Chief Justice Roger Taney held that the political branches of government, and not the federal courts, should decide such questions: “it rests with Congress to decide what government is the established one in a State . . . as well as its republican character.”6

Luther further held that it rested with Congress to determine the proper means to fulfill the guarantee of protection to the states against insurrection.7 Although the Court suggested that Congress might have empowered the Judiciary to decide whether the federal government should intervene, Congress had instead authorized the President to call out the militia in the case of insurrection against a state’s government.8 It followed, reasoned Chief Justice Taney, that the President “must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress”; this political determination is not subject to judicial review.9

During Reconstruction, the Court in Texas v. White posited that the President’s actions in establishing temporary state governments in the defeated Confederate states at the end of the Civil War was justified as an exercise of his powers as Commander in Chief.10 Because “the power to carry into effect the clause of guaranty is primarily a legislative power, and resides in Congress,” however, those arrangements were necessarily provisional.11 It was generally up to Congress to organize and recognize new republican governments in these states.12

The next major controversies under the Guarantee Clause arose in the Progressive Era, where various state popular democratic reforms were alleged to destroy the republican form of government ensured by the Clause. In Pacific States Telephone & Telegraph Co. v. Oregon, the Supreme Court in 1912 declined to address a claim that the popular initiative and referendum provisions of Oregon’s Constitution violated the Guarantee Clause.13 Relying on Luther v. Borden, the Court dismissed the case for lack of jurisdiction as a political question “conferred upon Congress and not, therefore, within the reach of judicial power.”14

In later cases summarily dismissing similar challenges, Pacific States and Luther came to stand for the proposition that Guarantee Clause questions are never justiciable.15 Baker v. Carr, despite its general curbing of the political-question doctrine, left these Guarantee Clause precedents intact.16 The Supreme Court continued to follow them through the 1980s.17

In the 1990s, however, the Court in dicta raised the possibility that “perhaps not all claims under the Guarantee Clause present nonjusticiable political questions.”18 In Gregory v. Ashcroft, the Court suggested that the Guarantee Clause might operate as a constraint upon Congress’s power to regulate the activities of the states.19 More recently, however, the Court has continued to find Guarantee Clause questions nonjusticiable despite opportunities to revive the Clause.20

Notes
  1. 48 U.S. (7 How.) 1 (1849); see also ArtIII.S2.C1.9.3 Luther v. Borden and Guarantee Clause. ↩
  2. Id. at 42. ↩
  3. Id. at 29–30; see also Baker v. Carr, 369 U.S. 186, 218–219 (1962) (summarizing facts and holding of Luther). ↩
  4. Luther, 48 U.S. at 34–35. ↩
  5. New York v. United States, 505 U.S. 144, 184 (1992). ↩
  6. Luther, 48 U.S. at 42. ↩
  7. Id. at 42–43. ↩
  8. 1 Stat. 424 (1795); 10 U.S.C. § 251. ↩
  9. Luther, 48 U.S. at 43. ↩
  10. 74 U.S. (7 Wall.) 700, 729–30 (1869) (Chase, C.J.). ↩
  11. Id. at 730–31. ↩
  12. Id. Similarly, in Georgia v. Stanton, when the state challenged Reconstruction legislation on the premise that Georgia already had a republican form of government (and thus Congress could not act), the Court viewed the act of Congress as determinative and declined to address the question as a political matter. 73 U.S. 50, 76–77 (1867); see also Taylor v. Beckham, 178 U.S. 548, 578–79 (1900). ↩
  13. 223 U.S. 118, 133–34, 140 (1912). ↩
  14. Id. at 151. ↩
  15. See Kiernan v. City of Portland, 223 U.S. 151 (1912); Marshall v. Dye, 231 U.S. 250, 256–57 (1913); City of Denver v. N.Y. Tr. Co., 229 U.S. 123, 141 (1913); Davis v. Ohio, 241 U.S. 565 (1916); O’Neill v. Leamer, 239 U.S. 244, 247–48 (1915); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569–70 (1916); Mountain Timber Co. v. Washington, 243 U.S. 219, 234 (1917); Ohio ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 79–80 (1930); Cochran v. La. State Bd. of Educ., 281 U.S. 370, 374 (1930); Highland Farms Dairy v. Agnew, 300 U.S. 608, 612 (1937); Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality opinion). In a few nineteenth century cases, however, the Court disposed of Guarantee Clause questions on the merits, despite Luther. See Forsyth v. City of Hammond, 166 U.S. 506, 519 (1897); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175–78 (1874). ↩
  16. 369 U.S. 186, 218–32 (1962). Baker found that Guarantee Clause questions were nonjusticiable not because they involved matters of state governmental structure but because they lacked “judicially manageable standards which a court could utilize independently in order to identify a State’s lawful government.” Id. at 218, 222–23. Baker therefore held that the Guarantee Clause precedents “have no bearing” of the justiciability of a challenge to state legislative apportionment based on the Equal Protection Clause. Id. at 228. ↩
  17. See City of Rome v. United States, 446 U.S. 156, 182 n.17 (1980); Quinn v. Millsap, 491 U.S. 95, 102 (1989). ↩
  18. New York v. United States, 505 U.S. 144, 185 (1992) (citing Reynolds v. Sims, 377, 533, 582 (1964)). ↩
  19. 501 U.S. 452, 463 (1991) (“[T]he authority of the people of the States to determine the qualifications of their most important government officials . . . is a power reserved to the States under the Tenth Amendment and guaranteed them by [the Guarantee Clause].” (citations omitted)). Both New York and Gregory cite the argument set out in Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988). ↩
  20. See Rucho v. Common Cause, No. 18–422, slip op. at 30 (U.S. June 27, 2019) (“This Court has several times concluded, however, that the Guarantee Clause does not provide the basis for a justiciable claim.”); Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 795 n.3 (2015) (“The people’s sovereign right to incorporate themselves into a State’s lawmaking apparatus . . . is one this Court has ranked a nonjusticiable political matter.” (citing Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912)). ↩

ArtIV.S4.3 Meaning of a Republican Form of Government

Although the Supreme Court has generally avoided addressing Guarantee Clause questions because of their political character,1 it has occasionally ruled on the merits of such challenges. These decisions, as well as contemporaneous sources, shed some light on the meaning of the “Republican Form of Government” guaranteed by the Clause.2 For example, in the Federalist No. 39, James Madison emphasizes popular sovereignty and majoritarian control as among “the distinctive characters of the republican form”:

[W]e may define a republic to be, or at least may bestow that name on, a government

which derives all its powers directly or indirectly from the great body of the people, and

is administered by persons holding their offices during pleasure, for a limited period, or

during good behavior. It is ESSENTIAL to such a government that it be derived from

the great body of the society, not from an inconsiderable proportion, or a favored class

of it; . . . It is SUFFICIENT for such a government that the persons administering it

be appointed, either directly or indirectly, by the people; and that they hold their

appointments by either of the tenures just specified[.]3

The 1874 case of Minor v. Happersett represents a rare instance of the Supreme Court directly deciding a Guarantee Clause issue. In Minor, the Court addressed whether Missouri’s denial of the right to vote to women complied with the Constitution.4 The Court stated that the Guarantee Clause leaves room for states to structure their governments in various ways yet remain “republican.”5 Relying on historical practice as dispositive of the matter, the Court held that the Guarantee Clause did not require women’s suffrage because at the time of ratification, women “were excluded from suffrage in nearly all the States,” with the franchise “only bestowed upon men and not upon all of them.”6 Later, the Court held in Forsyth v. City of Hammond that the Guarantee Clause did not prevent a state from determining municipal boundaries through its courts instead of the state legislature.7

In other cases, the Court found occasions to opine on the nature of a republican government guaranteed by the Clause in dicta. For example, In re Duncan observes:

By the constitution, a republican form of government is guarant[eed] to every state in

the Union, and the distinguishing feature of that form is the right of the people to

choose their own officers for governmental administration, and pass their own laws in

virtue of the legislative power reposed in representative bodies, whose legitimate acts

may be said to be those of the people themselves . . . .8

Similarly, the Court in United States v. Cruikshank, while adopting a narrow construction of the rights secured by the Fourteenth Amendment’s Privileges or Immunities Clause,9 stated that a republican form of government includes “a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances” as well as the “equality of the rights of citizens.”10

Notes
  1. See ArtIV.S4.2 Guarantee Clause Generally. ↩
  2. For scholarly examinations of this issue, see, for example, W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION ch. 1 (1972); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 22–25 (1988) (finding “widespread agreement” among scholars that the “core” of republican government is “one in which the people control their rulers”); Akhil Reed Amar, The Central Meaning of a Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. COLO. L. REV. 749, 786 (1994) (concluding that the “central meaning” of the republican government in the Founding Era was “popular sovereignty, majority rule, and the people’s right to alter or abolish [the government]”); Robert G. Natelson, A Republic, Not a Democracy—Initiative, Referendum, and the Constitution’s Guarantee Clause, 80 TEX. L. REV. 807, 814–15 (2002) (surveying historical sources to conclude that “republican form of government,” as used in the Guarantee Clause, had three core features: majority rule, the absence of monarchy, and the rule of law). ↩
  3. See, e.g., THE FEDERALIST NO. 39 (James Madison); see also THE FEDERALIST NO. 22 (Alexander Hamilton) “[T]he fundamental maxim of republican government . . . requires that the sense of the majority should prevail.”); THE FEDERALIST NO. 57 (James Madison) (“The elective mode of obtaining rulers is the characteristic policy of republican government.”). ↩
  4. 88 U.S. 162 (1874), superseded by constitutional amendment, U.S. CONST. amend. XIX. See also Amdt19.1 Overview of Nineteenth Amendment, Women’s Voting Rights. The primary constitutional basis for the claim in Minor was the Fourteenth Amendment’s Privileges or Immunities Clause. Minor, 88 U.S. at 165. ↩
  5. Minor, 88 U.S. at 175 (“No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated.”). ↩
  6. Id. Continuing in this vein, the Court reasoned that the Guarantee Clause could not secure women the right to vote because “[n]o new State has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered a valid objection to her admission” and “the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey, without any attempt to obtain the interference of the United States to prevent it.” Id. at 177–78. ↩
  7. 166 U.S. 506, 519 (1897) (“[L]egislative control in such matters is not one of the essential elements of a republican form of government [under the Guarantee Clause].”). ↩
  8. 139 U.S. 449, 461 (1891). The Court paraphrased Daniel Webster’s “masterly statement of the American system of government” as one where “the people are the source of all political power, but that, as the exercise of governmental powers immediately by the people themselves is impracticable, they must be exercised by representatives of the people; that the basis of representation is suffrage.” Id. at 461–62. ↩
  9. United States v. Cruikshank, 92 U.S. 542, 551–57 (1875) (holding that First and Second Amendment rights were not a privilege of U.S. citizenship secured against state invasion by the Fourteenth Amendment); see also Slaughter-House Cases, 83 U.S. 36 (1872); Amdt14.S1.2.1 Privileges or Immunities of Citizens and the Slaughter-House Cases. The Court later held those rights were incorporated against the states through the Due Process Clause. See McDonald v. City of Chicago, 561 U.S. 742 (2010); De Jonge v. Oregon, 299 U.S. 353, 364 (1937). ↩
  10. Cruikshank, 92 U.S. at 552, 555. ↩