Guarantee clause

Clause in Article IV, section 4, of the U.S. Constitution empowering the national government to guarantee to each state a republican form of government.

As a basis of national power, the guarantee clause has seldom been invoked. President Abraham Lincoln relied on it for authority to suppress the rebellion of the Southern states, and Congress, with the subsequent support of the Supreme Court (Texas v. White, 1869), used it to justify the post-Civil War Reconstruction laws. Its principal significance in constitutional law has been in the Court’s nonjusticiability jurisprudence. In a trespass action arising out of Dorr’s Rebellion (1842), the Court faced the vexing problem of determining which of the warring factions was the legitimate government of Rhode Island when the alleged trespass occurred. Instead of deciding, the Court, in Luther v. Borden[case]Luther v. Borden[Luther v. Borden] (1849), said that the guarantee clause left to Congress alone the task of deciding “what government is the established one in a State.” Luther became, for more than a century, the leading case and the guarantee clause the primary example for the principle that certain issues were nonjusticiable because they posed political questions properly left to the political branches. Similarly, the court rejected challenges to Oregon’s initiative and referendum procedures in Pacific States Telephone and Telegraph Co. v. Oregon[case]Pacific States Telephone and Telegraph Co. v. Oregon[Pacific States Telephone and Telegraph Co. v. Oregon] (1912) and Kentucky’s election procedures in Taylor v. Beckham[case]Taylor v. Beckham[Taylor v. Beckham] (1900).Political questions

In Baker v. Carr[case]Baker v. Carr[Baker v. Carr] (1962), the Court reaffirmed that a challenge to state legislative apportionment was nonjusticiable under the guarantee clause, which was not “a repository of judicially manageable standards which a court could utilize independently in order to identify a state’s lawful government.” Nevertheless, the Court allowed the challenge to proceed under the equal protection clause of the Fourteenth Amendment, reaffirming the Court’s position that its reluctance to apply the guarantee clause is based not on deference to state governments but on its relationship to the coordinate branches of the federal government; in other words, it is a question of separation of powers, not one of federalism.

It has long been argued that the Court should invoke the guarantee clause to protect state autonomy against federal interference and to protect individuals against state tyranny. The Court’s use of the Tenth Amendment to accomplish the former in New York v. United States[case]New York v. United States[New York v. United States] (1992), following the use of the equal protection clause to accomplish the latter in Baker, gave new impetus to the case for a guarantee clause jurisprudence that would give federal courts an active role on both fronts while maintaining appropriate deference to the president, Congress, and the states.

Further Reading

  • Bonfield, Arthur. “The Guarantee Clause of Article IV, Section 4: A Study in Congressional Desuetude.” Minnesota Law Review 46, no. 513 (1962).
  • Merritt, Deborah Jones. “The Guarantee Clause and State Autonomy: Federalism for a Third Century.” Columbia Law Review 88 (1988).
  • Wiecek, William M. The Guarantee Clause of the U.S. Constitition. Clark, N.J.: Lawbook Exchange, 2004.

Baker v. Carr

Judicial review

Political questions

Restrictions on court power