TLDR/ Bottom Line Up Front: Is the Guarantee clause an attempt to empower the government to protect individual rights by constraining State Governments by the Rule of Law?

This question can be considered an extension of "Leading readings of the Guarantee Clause of the US Constitution." From the accepted answer there, regarding the intention of the Guarantee Clause, the opening premise for this question is that the Federal Government guarantee's to each State a Republican form of Government.

In Federalist 10, Madison details firm, distinctions between the direct pure democracy and a republican form of government. His words greatly favor the later. The be well summarized by "rule of law protecting the rights of the minority by limiting the whims of the majority."

In Federalist 39 Madison further details what is meant by a Republican form of government, during the time of ratification and in the text of the Constitution.

Federalist 43 is the best measure of detailing the Gaurantee Clause itself, to a point. The primary concern mentioned was defending against aristocratic or monarchical incursions into the governments of the states, though there is room to view a concern about departures in the state governments from the republican model embodying a rule of law, due to the intimate nature of the relationship between the State governments and the Federal Governments. There is also some brief details about the Clause from Madison's notes for the day it was introduction, in which the speakers specifically discussed concerns of the sovereign states departing from Republican form of governments. This clause echoed a similar statement from the Articles of Confederation.

From those multiple points, ignoring the jurisprudence that was concerned over the definitions on what a republican form of government was, could the Guarantee Clause be seen as an early effort to enumerate a explicit power for the Federal government to constrain the State from violating the individual rights of the minority by holding to the Rule of Law?

Later, following a Civil War and efforts to firmly codify protections for individual rights, the Fourteenth Amendment was ratified. It provided direct protections for those rights, ensuring Due Process and Equal Protection, with a prohibition against abridging privileges or immunities. The same empowered the Congress to pass legislations to enshrine those protections. Could this be viewed as an attempted to further clarify through codification of Federal power to constrain the States (again, ignore the immediate jurisprudence that sought to limit the 14th through judicial activism).

1 Answer 1


Are the intentions behind the Guarantee Clause an early incarnation of the concepts in the 14th Amendment?

No, the ideas expressed in the Guarantee Clause already existed in Article IV, Section 2, Privileges and Immunities.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

By rephrasing the Guarantee Clause, Each State shall be entitled to the privilege of protection (against invasion and insurrection) and immunity from undue interference in matters of the State. Though the Fourteen Amendment did grant, to Congress, the authority to make laws to protect citizens of the United States without regard to their State of residence. Such laws would no longer be undue interference. [Federal judges have always had power to invalidate state law.]

A reference to the Guarantee Clause exists in THE CONSTITUTION OF THE UNITED STATES OF AMERICA ANALYSIS AND INTERPRETATION. On page 893, footnote 331, More recently, the Court speaking through Justice O’Connor has raised without deciding the possibility that the guarantee clause is justiciable and is a constraint upon Congress’ power to regulate the activities of the States. New York v. United States, 112 S.Ct. 2408, 2432–2433 (1992); Gregory v. Ashcroft, 501 U.S. 452, 463 (1991). The opinions draw support from a powerful argument for utilizing the guarantee clause as a judicially enforceable limit on federal power. Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988).

See also, regarding the Tenth Amendment, page 1517, the text, The holding in New York, that Congress may not "commandeer" state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized in dictum ... and footnote 64, 501 U.S. 452, 464 (1991). The Court left no doubt that it considered the constitutional issue serious. "[T]he authority of the people of the States to determine the qualifications of their most important government officials ... is an authority that lies at 'the heart of representative government' [and] is a power reserved to the States under the Tenth Amendment and guaranteed them by [the Guarantee Clause]." Id. at 463. In the latter context the Court’s opinion by Justice O’Connor cited Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988). See also McConnell, Federalism: Evaluating the Founders’ Design, 54 U. CHI. L. REV. 1484 (1987) (also cited by the Court); and Van Alystyne, The Second Death of Federalism, 83 MICH. L. REV. 1709 (1985).

Is the Guarantee clause an attempt to empower the government to protect individual rights by constraining State Governments by the Rule of Law?

No, it seems to be unrelated to individual rights, which, presumably, were protected in Article IV, Section 2.

With respect to the due process clause of the Fourteenth Amendment. Due process was already included in Amendment V, nor be deprived of life, liberty, or property, without due process of law and, therefor would have been considered among the Privileges and Immunities of Citizens of the several States.

As to the equal protection clause in the Fourteenth Amendment, Article IV, Privileges and Immunities, and Article VI, Section 2, the Supremacy clause work together.

Article VI, Section 2, in part:

This Constitution, [...], shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

It follows that, if Judges did not provide equal protection to citizens of other states (i.e., Citizens of the several States), those Judges would be in violation of the Supremacy clause.

See, also, Court cases.

However, in Baker v. Carr, 369 U.S. 186 (1962) the United States Supreme Court overturned the previous decision in Colegrove holding that malapportionment claims under the Equal Protection Clause of the Fourteenth Amendment were not exempt from judicial review under Article IV, Section 4, as the equal protection issue in this case was separate from any political questions.

In Baker, the Court ruled that rights are protected in spite of the Guarantee clause.

One thing missed in references to rights in the Constitution is this:

  1. The Preamble states the intent to secure the Blessings of Liberty to ourselves and our Posterity.
  2. The only clause to address that specifically is Article IV, Section 2, Privileges and Immunities.
  3. The denial of privileges and immunities is abuses and usurpations.
  4. The framers never intended that any government should be able to commit abuses and usurpations against any citizen.

It follows that privileges and immunities includes all that would deny any act that could result in abuses and usurpations and, thus, secure the Blessings of Liberty ....


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