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

• Author: Heller, Jacob M.
• Position: NOTE - Interview

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 "kills" its republican form of government. Given the extreme unlikelihood that a state will crown a king or descend into anarchy, this interpretation of the Clause ensures its desuetude.

A handful of courts, however, have invalidated specific policies that threatened, but did not completely destroy, a state's republican form of government. (16) This is the "death by a thousand cuts" approach: anything that impedes on the state's republican form is one step closer to an eventual unraveling of the state's republican form of government. Under this view, the Guarantee Clause protects against not only a complete loss of republican government, but also these "cuts" that threaten, encroach upon, or erode a state's republican form. Over the Guarantee Clause's history, this approach has been used to uphold state anti-corruption legislation, strike down ballot initiatives, and was one of the elder Justice Harlan's reasons for why segregation is unconstitutional. This view envisions a robust enforcement of the Clause, and a widespread adoption of this interpretation would make the Clause an effective tool of governmental reform.

This Note sides with the "death by a thousand cuts" view of enforcing the Guarantee Clause. It first argues that, normatively, we should desire that the Constitution guarantee minimum standards of state governance. (17) The requirement that each state maintain a "Republican Form of Government" would ensure that certain principles of good government--majority rule, separation of powers, and representation--would be present in every state. These institutional arrangements were designed specifically to ensure that our governments represent majority will without sacrificing the interests of minorities or overempowering the government. When states deviate from these principles, they risk losing this fundamental virtuous balance.

The Note then advocates that republican government should be guaranteed both top-down and bottom up. (18) Republican government should be guaranteed top-down by the federal government, which would require the states to retain their republican governments. But it should also be guaranteed bottom-up: when the states are working to ensure their government is republican, the federal government should be precluded from undermining that effort.

The Note then demonstrates that the Guarantee Clause was in fact intended to serve this role. (19) The text, original understanding, and policy justifications behind the Clause weigh in favor of the "death by a thousand cuts" approach to enforcement. The drafters and supporters of the Constitution argued that the Guarantee Clause would prevent unrepublican "encroachments" and "alterations" in state governments. Its detractors interpreted the Clause similarly and worried that the Clause would be so stringently enforced that any "changes" in state constitutions would be unconstitutional. Importantly, however, the Clause was understood to be limited in one important aspect: it only covers states' forms of government--matters that would at the time of the founding be the sole province of state constitutions--as opposed to state substantive laws.

This view of the enforcement of the Guarantee Clause is not only consistent with its history, it is also necessary to maintain republican government. As is true with California's use of ballot-box budgeting, the erosion of republican government, as Justice O'Connor noted in regard to state sovereignty, "is likely to occur a step at a time': (20) "If there is any danger, it lies in the tyranny of small decisions--in the prospect that" republican government "will [be] nibble[d] away ... bit by bit, until someday essentially nothing is left but a gutted shell." (21) Death by a thousand cuts is death all the same.

The Note concludes by demonstrating where the Guarantee Clause, if interpreted to protect republican government against death by a thousand cuts, can make substantial change in some areas at the core of state constitutional law, including anti-corruption, voting rights, separation of powers, and the use of direct democracy. (22)

1. THE FEDERAL CONSTITUTION AND STATE GOVERNMENT STRUCTURE

   Before describing how the Guarantee Clause should be interpreted, this Part explains its importance. This Part lays out the normative case for requiring the states to have, at a minimum, certain governmental structures, and for enforcing that requirement through a federal guarantee of republican government. It first gives shape to the phrase "Republican Form of Government" in the Guarantee Clause. It then argues that applying principles of republican governance to state constitutions would both ensure minority rights and majority representation. The Part concludes that there is a powerful federal interest in ensuring that state constitutions maintain their republican character and explains how the Guarantee Clause, enforced to achieve that end, fits into American federalism.

   1. Defining "Republican Form of...