Leading readings of the Guarantee Clause of the US Constitution

Question

One of the many evergreen arguments in US politics is the nature of the Federal Government, whether it is a republic or a democracy. Part of the issue is that it is never explicitly stated in the Constitution, and neither concept is described well in the research I've done as of late.

After a recent reading of the Constitution, I've focused in on Article 4, Section 4, as a guide post of what was intended in the founding.

Section 4 - Republican government.

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.

Primary Question
Is there a historical or current piece of Constitutional scholarship that reads the first portion of that clause as a pact between the Federal Government and the States, assuring that the Federal Government will be a republic?

If the above can't be substantiated, is one of the following conditions true?

• Does the preponderance of scholarly work reflect something else?
• Is it among the many clauses of the Constitution that hasn't yet been fully analyzed?

*Editorial Note: While I've selected an answer as accurate, the answer I've posted with an opposing view will remain. I like the references it leans on. *

Answer 1

This seems like a lot of questions. A couple answers:

Is there a historical or current piece of Constitutional scholarship that reads the first portion of that clause as a pact between the Federal Government and the States, assuring that the Federal Government will be a republic?

It is unnecessary for the federal government to guarantee that the federal government will be a republic. The constitution specifies how the federal government is formed and that formulation is as a republic. A separate declaration that that government be a republic would be redundant.

This section is generally taken as a requirement that the states be republics. E.g. from Wikipedia:

The Guarantee Clause mandates that all U.S. states must be grounded in republican principles such as the consent of the governed. By ensuring that all states must have the same basic republican philosophy, the Guarantee Clause is one of several portions of the Constitution which mandates symmetric federalism between the states.

This section cites page 52 of Homeland Security and Emergency Management: A Legal Guide for State and Local Governments from the American Bar Association.

Perhaps you are looking for the wrong thing? As I stated earlier, there is no reason why the federal government would promise the states that the federal government be a republic. The constitution describes a republican form of government for the federal government and that can't be changed without the approval of three quarters of the states. It is unlikely that such a promise would appear anywhere, and that is not how that part of this sentence is normally interpreted.

Answer 2

The Federalist Papers, which were circulated while the debate over ratifying the constitution was underway in an effort to argue for its ratification, are one the main sources of legislative history for the 1789 Constitution of the United States of America.

The Guarantee Clause is discussed at length in Federalist Paper No. 43 written by Madison. It says in the pertinent part:

"To guarantee to every State in the Union a republican form of government; to 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.

''In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be SUBSTANTIALLY maintained. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. "As the confederate republic of Germany,'' says Montesquieu, "consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland. '' "Greece was undone,'' he adds, "as soon as the king of Macedon obtained a seat among the Amphictyons.'' In the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves.

These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. 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? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a GUARANTY of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance.

A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it.

Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. ''

As a whole it makes very clear that this is an obligation of the federal government to the states and not a pact to ensure that the federal government remains republican (there are other parts of the constitution devoted to that issue). It also makes clear what a republican government is (one that is not aristocratic or a monarchy) as affirmed by Hamilton in Federalist Paper No. 84. And, it makes clear that the federal government can intervene to enforce this right (it exists so that there is a remedy for the right to a republican remedy that local military factions can't thwart).

Hamilton engaged in a parallel examination of the Guarantee Clause in Federalist Paper No. 85. In a key passage he notes that:

The additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and on the ambition of powerful individuals in single States, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals.

A 2007 law review article examines Madison's arguments and the minutes of the proceedings of the Constitutional Convention that drafted the 1789 Constitution to elucidate the guarantee clause's meaning. It also explores the question of whether the courts should resolve disputes under the clause, a point also discussed in a widely cited 1994 law review article (arguing against U.S. Supreme Court precedents holding that they should not).

Answer 3

The United States uses Republic in two ways in general conversation: Republic in a Government model sense is a nation where the people have control over the government of the community... as opposed to a government that is controlled by a King or Monarch. The United States is as much of a Republic as The Union of Soviet Socialist Republics is a Republic. One need not be a Democracy to be a Republic. This definition is generally universal descriptor of such governments.

When an American says "We are a Republic, not a Democracy" they are referring to a specific to America second meaning... Here, we can substitute the phrase "Republic" with "Representative Democracy" and not lose any meaning... this is a rebuke to the fact that what is popular is not always what the votes decide. This would date back to the founding and 19 century of the United States which viewed "Democracy" to mean "Direct Democracy" which many felt was just mob rule. They also included the notion of seperate but equal powers in the term of Republic and elected head of State. None of these three items were unique to the United States at this time... but the combination of all three was unique. So in the United States, Republicanism became "Representative Democracy" while "Democracy" was Direct Democracy. As late as 1865, Lincoln made a speech where he explicitly called Democracy an evil... which sounds weird to modern ears... but back then they didn't have a category for Representative Democracy... Democracy was only used by the Greeks at that point.

Answer 4

Figures I would find a document answering this question, after two weeks of searching, only after I posted this question for the insight of others.

Per "The Guarantee Clause" by Ryan C. Williams, the majority of the extensive analysis regarding the first portion of the clause has focused on what the nature of the Republican government referenced by the clause would be. This ranges over several Court cases, though is primarily centered on Luther V. Borden, whose decision presented the nonjusticiable position.

The linked paper serves as a direct response to the primary question posed here. Williams' focus is on the meaning of the word guarantee in the clause, and how it would affect the items to follow. The attention that is paid to the importance of the word is best stated directly:

This paucity of scholarly attention devoted to the original meaning of the term “guarantee” is somewhat curious. The meaning of the term is crucially important to understanding the Clause’s actual meaning and operation. Neither the nature of any duties the Clause imposes on the federal government, nor the scope of any powers the Clause confers, can be fully understood without a clear sense of what, exactly, was meant by “guarantee.” And yet, the term itself is something of a constitutional anomaly. The word “guarantee” appears nowhere else in the federal Constitution of 1787 nor in any of the Amendments that were ratified within the first decade after its adoption. The language of “guarantee” is also conspicuously absent from many of the preFounding sources that are often pointed to as having influenced the federal Constitution’s design, such as the Articles of Confederation, the Declaration of Independence, early state constitutions, and the Northwest Ordinance of 1787. In the absence of more definitive clues regarding the term’s originally understood meaning, most scholars have been content to either ignore the problem or to throw up their hands and declare the term hopelessly ambiguous.

The argument presented is that the Guarantee clause should be analyzed from the lens of international law, as demonstrated by how "guarantee" was used in the language of treaties written concurrently or shortly after the drafting and ratification of the Constitution. The premise is expanded through an admission that international treaties are an underused resource in the analysis of the Constitution's language, reasoning that they may seem beyond the scope in the review of "municipal law document."

The viewpoint that Guarantee should be viewed in this manner is justified through a review of predominant 18th century dictionary definitions and legal connotations of guarantee, an examination of Founding era documents for the use of guarantee to establish a specialized term-of-art understanding, and the significance of reading it as such limits the invocation of the guarantee to rebuke against the Federal government by the State rather than individual citizens seeking redress against their State. The article closes with:

The available evidence strongly suggests that the use of this term was likely informed by a centuries-long practice of using similar language to create binding international treaty commitments. The parallels between the language of the Guarantee Clause and contemporaneous international treaties strongly suggest that the provision was intended to signify a similar quasi-diplomatic obligation of protection flowing from the federal government to the sovereign “republican” governments of the several states.

Adopting this interpretation of the Guarantee Clause would require a rethinking of the obligations imposed by the Clause. Although it has become common to view the provision as a source of obligations imposed on the states with respect to the maintenance of republican government, this understanding is nearly the opposite of the obligations suggested by the provision’s express terms. By its terms, the Guarantee Clause imposes a duty on the “United States” for the benefit of the “States.” And under well-settled principles of international law applicable to similarly worded “guarantee” provisions, such obligations conferred no new rights or entitlements on the part of the guaranteeing state to intervene unasked in the internal affairs of the guaranteed state.

The article is extensive, and in depth, at 80 pages. For those interested in the Constitutional Originalist viewpoint, opposed to it, or just wanting to know more, I recommend reading it in its entirety.