The Republican Guaranty Contract

NOTE

The Republican Guaranty Contract

ALEJANDRO J. GARCI

´A*

The Guarantee Clause of the U.S. Constitution, located in Section 4 of

Article IV, provides that “[t]he United States shall guarantee to every

State in this Union a Republican Form of Government.” What reads like

a lynchpin of the Founders’ federal experiment has become little more

than a quaint footnote of constitutional law. Neither the Supreme Court

nor the political branches have made any meaningful use of this rich

text. Scholars have long struggled to f‌ind its meaning and usefulness and

have instead mostly focused on whether it is justiciable.

Some recent scholarship has begun to look at what the Clause meant to

the Founding Generation. This Note inserts itself in that scholarly debate by

arguing that the public of 1787 most likely understood the Guarantee Clause

through the lens of contract law. Guarantees, also known as guaranties,

were and still are a common contractual device for ensuring the payment of

debts by having a third party secure the debt. Under this framework, this

Note argues that the Guarantee Clause places the federal government as the

guarantor to an obligation of maintaining a “Republican Form of

Government,” owed by states to each other. No published article or note has

explored such a potential meaning of the Guarantee Clause, and this Note

seeks to open an entirely new line of inquiry into the Clause’s meaning.

In large part, this Note is a response to Professor Ryan C. Williams’s

recent article on the Guarantee Clause. In the article, Professor

Williams argues that the Clause should be seen through the lens of eight-

eenth-century treaty law. This paper works to provide an alternative, and

arguably more persuasive, private law lens for understanding the

Guarantee Clause. It undertakes detailed etymological and contextual

analysis to get at the meaning of the “guarantee.” Moreover, the Note

looks at contemporary usage of the term “guarantee” to conclude that

the term was more commonly used in both law and business to refer to

the eponymous contractual device, rather than treaty mechanisms.

In a period characterized by challenges to federal–state and state–

state relations, a better-understood Guarantee Clause could serve as a

* Georgetown Law, J.D. 2020; Brown University, A.B. 2015. © 2020, Alejandro J. Garcı

´a. My

gratitude goes especially to Dean William M. Treanor and Dean John Mikhail, whose patient guidance

and counsel were invaluable to developing the paper that became this Note. Moreover, I am indebted to

Maximillian A. Crema, Tyler D. Kuhn, and Justin Rattey for their feedback. The work of Orion de

Nevers, Anna Stacey, Maggie O’Leary, and all The Georgetown Law Journal editors and staff has been

crucial to making this Note what it is today. And, of course, none of this would have been possible

without the endless support of my parents, Shadia, and so many others. Ad majorem Dei gloriam.

191

strong tool to protect the Republic. By placing it within an ancient and

well-developed framework of contract law, this Note seeks to advance

understanding of the Clause and promote its revival from desuetude.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

I. THE GUARANTEE CLAUSE AS CONTRACT . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

A. PROFESSOR WILLIAMS’S TREATY LAW ACCOUNT . . . . . . . . . . . . . . . . . 196

B. THE GUARANTY CONTRACT IN THE EIGHTEENTH CENTURY . . . . . . . . . 198

1. Dictionary Def‌initions . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

2. Guaranties in the Eighteenth Century . . . . . . . . . . . . . . . . 201

a. Legal Treatises and Dictionaries. . . . . . . . . . . . . . . . 202

b. Early American Case Law. . . . . . . . . . . . . . . . . . . . . 204

C. STRENGTHS AND DRAWBACKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

1. Strengths of the Contract Analogy . . . . . . . . . . . . . . . . . . 207

2. Drawbacks of the Contract Analogy . . . . . . . . . . . . . . . . . 210

II. THE TERMS OF THE GUARANTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

A. THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

1. The “United States” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

2. The “States” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

a. In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

b. Creditors or Debtors?. . . . . . . . . . . . . . . . . . . . . . . . 216

i. Substantive Guarantee v. State Autonomy 216

ii. The States as Both Debtors and Creditors 220

B. THE FORM OF THE OBLIGATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

C. THE SUBSTANCE OF THE OBLIGATION. . . . . . . . . . . . . . . . . . . . . . . . . . 223

D. CLAIMING ON THE GUARANTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

192 THE GEORGETOWN LAW JOURNAL [Vol. 109:191

INTRODUCTION

The Guarantee Clause of the U.S. Constitution has historically been described

as “a sleeping giant in the Constitution.”

1

The Clause provides that “[t]he United

States shall guarantee to every State in this Union a Republican Form of

Government.”

2

What reads like a lynchpin of the Founders’ federal experiment

has become little more than a quaint footnote of constitutional law. A line of

Supreme Court precedent f‌inding controversies under the Clause nonjusticiable,

3

coupled with underenforcement by the political branches, has left the Clause

derelict.

Faced with the government’s neglect of the Guarantee Clause, scholars over

the past few decades have attempted to salvage the Clause from desuetude. Most

published work revolves around the nontextual and policy-driven issue of the

Clause’s justiciability.

4

Scholars in this area have offered conf‌licting accounts of

whether the Supreme Court should revisit its precedent on the matter.

5

But the lit-

erature has paid relatively little attention to the legal framework through which

the Founding Generation viewed the obligation created by the Guarantee Clause.

In a recent article, Professor Ryan C. Williams argues that the Clause should

be seen through the lens of eighteenth-century treaty law.

6

In this framework, the

United States stands “as a kind of neutral, third-party monitor” of states’ compli-

ance with a treaty between the states

7

whereby they pledge to each other to main-

tain a “Republican Form of Government.”

8

Williams contends that this

interpretation “arguably constitutes the most plausible account of the available

historical evidence regarding the provision’s original meaning.”

9

To bolster this,

he surveys a series of Founding-Era texts and statements that purport to show

1. CONG. GLOBE, 40th Cong., 1st Sess. 614 (1867) (statement of Sen. Sumner).

2. U.S. CONST. art. IV, § 4, cl. 1. The Invasion and Domestic Violence Clauses follow, providing that

“[t]he United States . . . shall protect each of [the states] against Invasion; and on Application of the

Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

Id. art. IV, § 4, cls. 2–3.

3. See infra Section II.D.

4. See infra Section II.D.

5. Compare, e.g., Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable,

65 U. COLO. L. REV. 849, 851, 863–69 (1994) (proposing that “the Guarantee Clause should be regarded

as a protector of basic individual rights,” meaning that “judicial interpretation and enforcement is in

accord with the preeminent federal judicial mission of protecting individual rights and liberties”), with,

e.g., Richard L. Hasen, Leaving the Empty Vessel of “Republicanism” Unf‌illed: An Argument for the

Continued Nonjusticiability of Guarantee Clause Cases, in THE POLITICAL QUESTION DOCTRINE AND

THE SUPREME COURT OF THE UNITED STATES 66, 71–72 (Nada Mourtada-Sabbah & Bruce E. Cain eds.,

2007) (arguing that the Guarantee Clause is wrongly viewed as “an empty vessel” that can “be f‌illed by

whatever individual right the particular writer desires the courts to enforce,” thus allowing the judiciary

to “ossify” its own vision of republican government through constitutional judgments).

6. Ryan C. Williams, The “Guarantee” Clause, 132 HARV. L. REV. 602, 603 (2018).

7. Id. at 618.

8. U.S. CONST. art. IV, § 4, cl. 1.

9. Williams, supra note 6, at 673.

2020] THE REPUBLICAN GUARANTY CONTRACT 193