Article IV, Section 4 of the US Constitution is known as the Republican Governance Clause, sometimes also called the Guarantee Clause. “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.” What does this clause mean? It is generally understood to mean that each state must have a republican form of government, thus barring for instance state dictatorships or constitutional monarchies. But what is the actual scope of this part of the Constitution?
Curiously, for such an important clause of the Constitution, the Republican Governance Clause only rarely comes up in court cases or law journal articles. The Supreme Court, in Luther v. Borden in 1848, concluded that the clause is a nonjusticiable political question—the fancy way of saying it is something federal courts cannot decide. At the time, Rhode Island was the only state without a constitution of its own and had a dispute between two competing state governments. Subsequently, in 1912, the Supreme Court in Pacific States Telephone and Telegraph Co. v. Oregon was asked to strike down state referendums as a violation of the Republican Governance Clause, but refused to do so on the same non-justiciability grounds. In 1946, in Colegrove v. Green, the Court held that state electoral district malapportionment isn’t justiciable either.
Historians and judges alike have a unique opportunity to revisit the Republican Governance Clause’s meaning at the time of the Founding. Is the view that it is non-justiciable actually correct? What about situations like Governor Huey Long in 1930s Louisiana who was effectively a state dictator? What level of divergence by state governments is acceptable?
One unsettled question is whether the Republican Governance Clause means that states must have the same governmental structure as the federal government. That might mean no independent redistricting commissions, electors for state governor, and a geographic senate. At the time of the Founding, states had different legislative structures and state constitutions and most had a very limited franchise compared to today. Under this view of the Republican Governance Clause, something like Nebraska’s unicameral legislature might not be allowed.
Because the Supreme Court has consistently found the clause non-justiciable, that suggests that Congress and the Executive Branch can craft policy to enforce the Republican Governance Clause. For Congressional Democrats, that seems like an open invitation to pass the John Lewis Voting Rights Act, although as written that would probably unconstitutionally coerce and “commandeer” state governments, as well as violate the Fifteenth Amendment’s guarantees of racial non-discrimination in voting. Conversely, though, a federal statute requiring compliance with national standards of republican governance might be viable. Such a statute could limit mass mail balloting or finally affirm the Fifteenth Amendment’s guarantees of racial non-discrimination. In light of major election contests in 2000, 2016, 2018, 2020, and likely again in 2024, American federal courts and legal scholars are overdue to consider the meaning of the Republican Governance Clause.
Image Credit: Hunter Starett, Unsplash
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