The Guarantee Clause in Constitutional Law

• DOI: 10.1177/106591294900200305
• Author: Charles O. Lerche
• Date: 01 September 1949
• Published date: 01 September 1949
• Subject Matter: Articles

THE
GUARANTEE CLAUSE IN CONSTITUTIONAL LAW
CHARLES O. LERCHE, JR.
Knox College
LONG
with the prohibition on titles of nobility, the inclusion in the
Constitution of a guarantee of republican government to the states’
represents an attempt on the part of the framers to make a definite
break with European models. Republican government, carrying as it did
the connotation of non-monarchic institutions which were nonetheless free
from the dangers of mob rule, represented a desirable middle ground be-
tween licentious democracy and autocratic domination. Another strong
appeal of republicanism was the system of checks and balances supposed
to be an integral part of the form. Although some disagreement existed
as to the particular institutions which characterized the republican form
of government, the Philadelphia convention was unanimously in agree-
ment that the existing state governments were republican and should be
protected in their continued enjoyment of that form of government.
Debate in the convention on the proposed guarantee2 was not extensive
and centered about the possible action which the national government
might take in its execution.3 The discussion eventuated in a specific pro-
tection against invasion and, upon call of the legislature or executive,
against domestic violence.4 This addition made the clause complete.
From the records of the convention little that is concrete can be
learned about the intent of the framers. Although confident that the
clause in its entirety constituted a protection to the states, they made no
attempt to answer the two great questions which were to be asked re-
peatedly in future considerations of the guarantee: what is a republican
form of government; and what action is to be taken in execution of the
guarantee? True, it was generally assumed by the delegates that the exist-
ing state governments were guaranteed, thus certifying their republican
character; but were these the only permissible mutations of the prescribed
form? Another issue left unsettled was the possible consequence of a
state’s abandoning its republican form in a peaceful, non-insurrectionary
manner. Who would act to restore republican government, and what
could be done?
’
.
1
"The United States shall guarantee to every State in this Union a republican form of government...."
Article IV, section 4.
2 The idea of a guarantee had been included as the eleventh of the Randolph resolutions: "Resolved:
That a republican government .. ought to be guaranteed by the United States to each State."
Max Farrand, The Records of the Federal Convention (New Haven: 1911), I, 22.
3 The major debate occurred on July 18. The general opinion was that suppression of domestic insur-
rections would be the principal task (the influence of Shay’s Rebellion is obvious). Ibid., II, 37-48.
4
The final language of the clause is that of the Committee of Style in its report of September 12. Ibid.,
p. 602. The provision that an executive request for assistance could be made only "if the legisla-
ture cannot be convened" was added by amendment from the floor on September 15.
Ibid.,
pp. 628-629.
358

---

359
These questions were noticed by the various pamphleteers who com-
mented on the Constitution during the struggle over ratification. &dquo;Cassius&dquo;
(James Sullivan) asserted that the &dquo;inhabitants of America are surely
acquainted with the principles of republicanism&dquo; 5 and let it go at that.
Tench Coxe felt that republican government necessitated that political
power rest in &dquo;the hands of the people at large&dquo;; s he maintained that the
guarantee would be self-executing and that those who attempted to sub-
vert republican government would be guilty of high treason.
It was Madison’s exposition of the clause in The Federalist which
was at once the most complete and the most influential in furnishing
guidance for the future. Hamilton, in Number XXI, had largely contented
himself with summarizing the attitude of the members of the convention
and had stressed the power to suppress domestic violence as the heart of
the clause.7 He also mentioned the guarantee as a protection to the people
in their right peaceably to change their constitutions. Madison’s contribu-
tion was more significant. He defined a republican government in Number
XXXIX as one &dquo;deriving all its power directly or indirectly from the great
body of the people&dquo; and administered by officers under popular control.8
8
It was in Number XLIII that he made the detailed analysis of the guaran-
tee which has become well known and which has been cited in every
dispute arising over the meaning of the clause. Briefly, he regarded the
guarantee as one of self-government. The existing state governments,
he felt, were republican, but other republican forms were possible. The
force of the guarantee was to authorize the people to &dquo;substitute other
republican forms&dquo; for those they at present possessed and then &dquo;to claim
the federal guarantee&dquo; for these new ones.’ The only restriction was that
they could not exchange republican for anti-republican institutions, a
restriction which, Madison felt, &dquo;will hardly be considered as a grievance.&dquo;
With Madison’s authoritative exegesis, the guarantee soon found a
place in the new scheme of government. The first use to which it was
put was the admission of new states. Drawing its inspiration from the
requirement of the Ordinance of 1787 that the states to be formed from
the Northwest Territory be republican in form,l° Congress early began to
enforce the requirement of a republican form upon candidates for ad-
5 The Massachusetts Gazette, December 25, 1787, reprinted in Paul L. Ford, editor, Essays on the Consti-
tution of the United States (Brooklyn: 1892), pp. 43-44.
6
Paul L. Ford, editor, Pamphlets on the Constitution of the United States (Brooklyn: 1888), p. 65.
7
Henry Cabot Lodge, editor, The Federalist (New York: 1888), pp. 121-122.
8
Ibid., p. 233. Compare his more famous distinction, in Number X, between a democracy with direct
government and a republic "in which the scheme of representation takes place." Ibid., p. 57.
9
Ibid., pp. 270-271.
10
Francis Newton Thorpe, The Federal and State Constitutions (Washington: 1909), II, 962.

---

360
mission.ll Scrutiny of the state constitution by Congress prior to admission
and a positive affirmation of the republican character of the government
in the act of admission formed the normal procedure of enforcement.
The guarantee became involved in active political controversy with
the appearance of the slavery issue. The dispute, which was to continue
unabated from 1818 to 1860, involved conflicting views both of the re-
lation of slavery to republican government and of the power conferred
upon the national government to execute the guarantee. The position of
the opponents of slavery remained consistent throughout: they contended
that slavery was incompatible with the fundamental nature of republican
government 12 and that any government thus perpetuating inequality of
man
was liable to federal action under the guarantee. 13 This argument was
answered by the southerners, who denied that &dquo;a republican form of
government&dquo; necessitated any particular arrangement of social classes
4
Apologists for slavery pointed out that twelve of the thirteen original
states had recognized the institution at the time of the ratification of the
Constitution, and cited with approval Madison’s interpretation of the
guarantee as one of self-government. 15 On the scope of the action to be
taken by the federal government in execution of the guarantee, opinions
likewise differed. Northern Congressmen professed to find in the clause
a powerful supervisory and regulatory power, enabling Congress to frame
its own definition of republicanism and then to initiate action to force the
states to conform to it.16 Southerners insisted instead that the guarantee
conferred no power on the central government until a state, by an overt
act, had deprived its people of a republican government.17 Even then,
federal action was limited to a restoration of the pre,existing republican
11
The earliest example is that of Ohio, required by its enabling act to set up a government "republican
in form." 2 Statutes at Large 274 (April 30, 1802). For a consideration of the manner in which
the practice developed, see the present writer’s article on "The Guarantee of a Republican Form
of Government and the Admission of New States," Journal of Politics, Vol. XI, no. 2 (May, 1949).
12
Representative Fuller of Massachusetts claimed in 1818 that "The existence of slavery in any State is
... a
departure from republican principles." Annals of Congress, 15th Congress, 2nd Session,
p. 1180. Morril of New Hampshire felt that "in the same degree that you admit slavery, you
contaminate the Republic." Ibid., 16th Congress, 1st Session, p. 150.
13
Hendricks of Indiana felt that "Congress is bound... to require that she [Missouri] expunge those
objectionable parts of her constitution before she is admitted to the Union." Annals of Congress,
16th Congress, 1st Session, p. 1348.
14
P. P. Barbour of Virginia defined republican government as "derived from the people to be governed
by it, liable to be altered, reformed, or abolished by themselves." Annals of Congress, 16th Congress,
1
st Session, p. 1338. Senator Clingman of North Carolina found that the constitution of Florida
in 1845 was republican "in the sense intended by the framers of...