Death by a thousand cuts: the guarantee clause regulation of state constitutions.

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Death by a thousand cuts: the guarantee clause regulation of state constitutions.

INTRODUCTION I. THE FEDERAL CONSTITUTION AND STATE GOVERNMENT STRUCTURE A. Defining "Republican Form of Government" 1. Popular sovereignty and anti-monarchy 2. Representative government 3. Separation of powers B. Why Republican Government? 1. Republican government as Bill of Rights 2. Parchment barriers C. The Federal Interest in State Government Structure II. REPUBLICANISM TOP-DOWN AND BOTTOM-UP III. CURRENT APPROACHES TO PROTECTING REPUBLICAN GOVERNMENT A. Death in One Blow 1. Merits 2. Justiciability B. Death by a Thousand Cuts C. Legislative and Executive Guarantee Clause Powers IV. PROTECTING REPUBLICAN GOVERNMENT AGAINST DEATH BY A THOUSAND CUTS A. The Text B. Original Meaning 1. Context and origination 2. "Guarantee": empowering the federal government to regulate state constitutions a. Definition b. Drafting history c. Ratification 3. "Form of Government": confining the Guarantee Clause to matters of state constitutional law a. Definition b. Drafting history and ratification c. Application of the "Form of Government" limitation today C. "The Tyranny of Small Decisions" D. Justiciability Reconsidered. 1. Others' arguments for justiciability 2. Justiciability and death by a thousand cuts 3. Justiciability in the state courts V. APPLICATIONS TO ISSUES IN STATE CONSTITUTIONAL LAW A. Anti-Corruption 1. Anti-corruption top-down 2. Anti-corruption bottom-up B. Voting Rights 1. Malapportionment and majority rule 2. Section Five of the Voting Rights Act C. Legislative Power Grabs D. Ballot-Box Budgeting E. State Substantive Law CONCLUSION INTRODUCTION

California is ungovernable. The state's annual budget charade might give one the impression that its governor and legislature are to blame. But in truth, it is out of their hands. Decades of "ballot-box budgeting," where voters pass taxing and spending legislation by citizen initiative, has put more and more of the state's budget out of the legislature's control. (1) While estimates vary, somewhere between seventy-seven and ninety percent of California's general fund (2) is "set in stone before the Legislature and governor even start negotiating." (3) With an increasingly small slice of the decision-making authority left to elected representatives, it is difficult to argue that California is still a representative democracy. (4)

This fundamental change in California's form of government did not happen overnight. Instead, with every election came a new set of initiatives that slowly and gradually set aside pieces of the general fund until there was nothing left. There was no one fatal blow to representative democracy in California; it suffered death by a thousand cuts.

Article IV, Section 4 of the United States Constitution "guarantee[s] to every State in this Union a Republican Form of Government." (5) For over a century, academics, jurists, and politicians have argued that this provision, the "Guarantee Clause," could be a powerful tool to reform state governments. Myriad uses for the Clause have been suggested, including that it prohibits or regulates direct democracy6 and judicial elections, (7) provides a basis for federal anti-corruption legislation aimed at state and local officials,8 protects individual (9) and political rights, (10) precludes federal interference with the states' ability to maintain their republican forms of government, (11) and much more. (12) In the words of Reconstruction Era Senator Charles Sumner, the Clause is a "sleeping giant in the Constitution"; "no clause" gives the federal government "such supreme power over the States." (13)

The debate over the Guarantee Clause, however, has to date centered exclusively around which forms of government are or are not "Republican." (14) Lost in this discussion is the rest of the Clause's language. While scholars have shed light on what the Guarantee Clause covers, how the Clause is implemented has been drastically underevaluated. If the Clause guarantees that California will have representative government, for example, the literature has left unanswered whether the Clause was implicated when California amended its constitution to permit initiatives, when a single initiative passed and displaced part of the legislature's power, when a substantial portion of the general fund was irreversibly committed by initiative, or not at all.

Determining how the Guarantee Clause is enforced is central to whether the Clause is a potent tool for governmental reform or a historical artifact. Indeed, due to the lack of attention to this fundamental question, the Clause has lain virtually dormant for over two centuries despite its potential. The vast majority of courts reject Guarantee Clause claims under the perception that the Clause is not violated unless a state completely ceases to be republican in form (i.e., becomes a pure monarchy, aristocracy, or democracy). (15) This 1 term the "death in one blow" approach to enforcing the Clause: the Clause is not implicated unless a state completely "ki...

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