Governance

Although the Supreme Court has generally avoided addressing Guarantee Clause questions because of their political character,1 it has occasionally ruled on the merits of such challenges. These decisions, as well as contemporaneous sources, shed some light on the meaning of the “Republican Form of Government” guaranteed by the Clause.2 For example, in the Federalist No. 39, James Madison emphasizes popular sovereignty and majoritarian control as among “the distinctive characters of the republican form” :

The 1874 case of Minor v. Happersett represents a rare instance of the Supreme Court directly deciding a Guarantee Clause issue. In Minor, the Court addressed whether Missouri’s denial of the right to vote to women complied with the Constitution.4 The Court stated that the Guarantee Clause leaves room for states to structure their governments in various ways yet remain “republican.” 5 Relying on historical practice as dispositive of the matter, the Court held that the Guarantee Clause did not require women’s suffrage because at the time of ratification, women “were excluded from suffrage in nearly all the States,” with the franchise “only bestowed upon men and not upon all of them.” 6 Later, the Court held in Forsyth v. City of Hammond that the Guarantee Clause did not prevent a state from determining municipal boundaries through its courts instead of the state legislature.7

In other cases, the Court found occasions to opine on the nature of a republican government guaranteed by the Clause in dicta. For example, In re Duncan observes:

Similarly, the Court in United States v. Cruikshank, while adopting a narrow construction of the rights secured by the Fourteenth Amendment’s Privileges or Immunities Clause,9 stated that a republican form of government includes “a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances” as well as the “equality of the rights of citizens.” 10

Footnotes

1

See ArtIV.S4.2 Guarantee Clause Generally. 

2

For scholarly examinations of this issue, see, for example, W. Wiecek, The Guarantee Clause of the U.S. Constitution ch. 1 (1972); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 22–25 (1988) (finding “widespread agreement” among scholars that the “core” of republican government is “one in which the people control their rulers” ); Akhil Reed Amar, The Central Meaning of a Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. Colo. L. Rev. 749, 786 (1994) (concluding that the “central meaning” of the republican government in the Founding Era was “popular sovereignty, majority rule, and the people’s right to alter or abolish [the government]” ); Robert G. Natelson, A Republic, Not a Democracy—Initiative, Referendum, and the Constitution’s Guarantee Clause, 80 Tex. L. Rev. 807, 814–15 (2002) (surveying historical sources to conclude that “republican form of government,” as used in the Guarantee Clause, had three core features: majority rule, the absence of monarchy, and the rule of law). 

3

See, e.g., The Federalist No. 39 (James Madison); see also The Federalist No. 22 (Alexander Hamilton) “[T]he fundamental maxim of republican government . . . requires that the sense of the majority should prevail.” ); The Federalist No. 57 (James Madison) ( “The elective mode of obtaining rulers is the characteristic policy of republican government.” ). 

4

88 U.S. 162 (1874), superseded by constitutional amendment, U.S. Const. amend. XIX. See also . The primary constitutional basis for the claim in Minor was the Fourteenth Amendment’s Privileges or Immunities Clause. Minor, 88 U.S. at 165. 

5

Minor, 88 U.S. at 175 ( “No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated.” ). 

6

Id. Continuing in this vein, the Court reasoned that the Guarantee Clause could not secure women the right to vote because “[n]o new State has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered a valid objection to her admission” and “the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey, without any attempt to obtain the interference of the United States to prevent it.” Id. at 177–78. 

7

166 U.S. 506, 519 (1897) ( “[L]egislative control in such matters is not one of the essential elements of a republican form of government [under the Guarantee Clause].” ). 

8

139 U.S. 449, 461 (1891). The Court paraphrased Daniel Webster’s “masterly statement of the American system of government” as one where “the people are the source of all political power, but that, as the exercise of governmental powers immediately by the people themselves is impracticable, they must be exercised by representatives of the people; that the basis of representation is suffrage.” Id. at 461–62. 

9

United States v. Cruikshank, 92 U.S. 542, 551–57 (1875) (holding that First and Second Amendment rights were not a privilege of U.S. citizenship secured against state invasion by the Fourteenth Amendment); see also Slaughter-House Cases, 83 U.S. 36 (1872); Amdt14.S1.2.1 Privileges or Immunities of Citizens and the Slaughter-House Cases. The Court later held those rights were incorporated against the states through the Due Process Clause. See McDonald v. City of Chicago, 561 U.S. 742 (2010); De Jonge v. Oregon, 299 U.S. 353, 364 (1937). 

10

Cruikshank, 92 U.S. at 552, 555.