Waking the Giant: A Role for the Guarantee Clause Exclusion Power in the Twenty-First Century

• Author: Cormac H. Broeg
• Position: J.D. Candidate, The University of Iowa College of Law, 2020; B.A., The University of Iowa, 2016
• Pages: 1319-1362

1319

Waking the Giant: A Role for

the Guarantee Clause Exclusion

Power in the Twenty-First Century

Cormac H. Broeg*

ABSTRACT: In 1849, the Supreme Court found in Luther v. Borden that

the constitutional guarantee of republican state government was a political

question which Congress could enforce by excluding the representatives of

unrepublican state governments. Following the American Civil War,

the Guarantee Clause served as a constitutional foundation of the

Reconstruction Congress’s attempt to transform the former slave states

into a stable, interracial democracies. Taking its inspiration from the

Reconstruction Congress, this Note proposes that today’s Congress use its

Guarantee Clause exclusion power by articulating a standard for exclusion

to deter voter suppressive measures by state governments.

I. INTRODUCTION ........................................................................... 1320

II.BACKGROUND ............................................................................. 1322

A.THE ANTEBELLUM GUARANTEE CLAUSE ................................. 1322

B.THE GUARANTEE CLAUSE AND RECONSTRUCTION ................... 1329

C.THE GUARANTEE CLAUSE AFTER STANTON ........................... 1338

III.ANALYSIS ..................................................................................... 1340

A.THE PROBLEM OF PARTISAN VOTER SUPPRESSION ................... 1340

B.THE CONSTITUTIONALITY OF THE GUARANTEE CLAUSE

EXCLUSION POWER ................................................................ 1346

C.THE LOUISIANA QUESTION .................................................... 1349

IV.RECOMMENDATION ..................................................................... 1358

V.CONCLUSION .............................................................................. 1362

*

J.D. Candidate, The University of Iowa College of Law, 2020; B.A., The University of

Iowa, 2016.

1320 IOWA LAW REVIEW [Vol. 105:1319

I. INTRODUCTION

In 1867, Senator Charles Sumner of Massachusetts1 proposed a

bill to end racial discrimination in voting rights.2 Sumner anticipated a

counterargument that such a bill was outside the constitutional parameters of

federal power. He conceded that because the bill would affect those states

which remained loyal to the Union during the Civil War it could not be

“founded . . . simply on the fact of rebellion.”3 It was however, Sumner argued,

within the power granted to Congress by “the guaranty clause in the National

Constitution.”4 This “sleeping giant of the Constitution, never until this recent

war awakened, [now came] forward with a giant’s power.”5 “The re is n o clau se

like it,” Sumner argued, “[t]here is no text in the Constitution which gives to

Congress such supreme power over the states” to promote voting rights.6

Sumner’s bill failed; in 1870, Congress ratified the Fifteenth Amendment

to accomplish its aim.7 However, Sumner’s assertion that the Guarantee

1. Charles Sumner was a Radical Republican and one of the foremost proponents of

Congressional Reconstruction, and perhaps most famous for being the victim of an infamous

cane attack in 1856.

2. 15 CHARLES SUMNER, Remarks in the Senate on a Bill to Enforce Several Provisions of the

Constitution by Securing the Elective Franchise to Colored Citizens, July 12, 1867, in CHARLES SUMNER:

HIS COMPLETE WORKS 229, 229 (1875).

3. Id.; see U.S. CONST. art. IV, § 4.

4. 15 SUMNER, supra note 2, at 229–31; see U.S. CONST. art. IV, § 4.

5. 15 SUMNER, supra note 2, at 231.

6. Id. Sumner did not intend to make a legal argument stating in the following paragraph:

I am not to be betrayed into the constitutional argument . . . . I invite discussion. I

challenge the expression of any reason against it, or of any doubt with regard t o its

constitutionality; and I ask Senators to look at it as a great measure of expediency as

well as of justice.

Id. at 231–32. This was not the first-time Sumner insisted that the Guarantee Clause vested in

Congress the power to ban race-based discrimination in voting rights. A year previously, he had

written in a public letter to a New York newspaper:

I vouch the authoritative words of the National Constitution, making it our duty to

guaranty a republican form of government in the States. Now the greatest victory of

the war, to which all other victories, whether in Congress or on the bloody field, were

only tributary, was the definition of a republican government according to the

principles of the Declaration of Independence. A government which denies the

elective franchise on account of color, or, in other words, sets up any “qualifications”

of voters in their nature insurmountable, cannot be republican; for the first

principle in a republican government is Equality of Rights, according to the

principles of the Declaration of Independence. And this definition, I insist, is the

crowning glory of the war which beat down Rebellion under its feet. It only remains

for Congress to enforce it by appropriate legislation.

15 CHARLES SUMNER, Letter to the New York Indepe ndent, April 20, 1867, in CHARLES SUMNER: HIS

COMPLETE WORKS, supra note 2, at 176, 178–79.

7. 15 SUMNER, supra note 2, at 233. Black manhood suffrage would be achieved by the

ratification of the Fifteenth Amendment in 1870. U.S. CONST. amend. XV.

2020] WAKING THE GIANT 1321

Clause was a “giant” awakened by the war has not been lost on legal scholars.8

The Clause itself is short: “[t]he United States shall guarantee to every State

in this Union a Republican Form of Government.”9 But its potential

applications are vast. During Reconstruction, “an era when the foundations

of public life were thrown open for discussion,”10 a dynamic interpretation of

the Guarantee Clause helped to facilitate “a stunning and unprecedented

experiment in interracial democracy.”11 Armed with the Supreme Court’s

holding in Luther v. Borden that the Clause was a political question enforceable

by Congress without judicial interference, the Reconstruction Congress

interpreted the Clause as a grant of power to the federal government so

extensive that it justified the disestablishment of ten state governments.12 In

Stanton v. Georgia, the Supreme Court acquiesced to this interpretation.13 In

the years immediately following the readmission of the former Confederate

states, the United States Senate exercised the exclusion power recognized in

Luther when faced with an election dispute created by state measures to

suppress black voter turnout.14 The latter decades of the twentieth century

saw a burst of scholarship debating the Court’s century-old doctrine that the

Guarantee Clause is a political question.15 Rather than retreading this

question, this Note will accept the Guarantee Clause’s non-justiciability.

Today, state and local governments continue to engage in conduct that

unreasonably hinders ballot access.16 These measures disproportionately

affect racial minority communities and threaten the majoritarian integrity of

local, state, and federal elections.17 As the House of Representatives considers

legislation to combat these measures,18 this Note offers the Guarantee Clause

exclusion power as a tool to deter voter suppression.

8. See Jonathan K. Waldrop, Note, Rousing the Sleeping Giant? Federalism and the Guarantee

Clause, 15 J.L. & POL. 267, 267 (1999).

9. U.S. CONST. art. IV, § 4, cl. 1. The Guarantee Clause is followed by the Domestic

Violence Clause which reads “[the United States] . . . shall protect each of [the states] against

Invasion; and on Application of the Legislature, or of the Executive (when t he Legislature cannot

be convened) against domestic Violence.” Id. art. IV, § 4, cl. 2.

10. ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863–1877, at

278 (1988).

11. Id.

12. See infra Section II.B.

13. See infra Section II.B.

14. See infra Section III.C.

15. Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justici able, 65 U. COLO. L.

REV. 849 (1994). Chemerinsky credits Arthur E. Bonfield’s article, The Guarantee Clause of Article

IV, Section 4: A Study in Constitutional Desuetude, 46 MIN N. L. REV. 513 (1962) as the “primary article”

advocating for a justiciable Guarantee Clause before 1980. Chemerinsky, supra, at 850 n.4.

16. See infra Section III.A.

17. See infra Section III.A.

18. Osita Nwanevu, With H.R. 1, Democrats Announce a New Program for Electoral Reform, NEW

YORKER (Nov. 30, 2018, 6:37 PM), https://www.newyorker.com/news/current/with-hr-1-

democrats-announce-a-new-program-for-electoral-reform [https://perma.cc/5HAU-6HF7].