Difference between revisions of "Guarantee Clause"
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{{cquote|See Kerr v. Hickenlooper, 759 F.3d 1186, 1195 & n.2 (10th Cir. 2014) (Gorsuch, J., dissenting from denial of rehearing en banc) ("[M]uch of [the scholarship] suggests that the Clause may rule out a state monarchy, a smaller amount . . . suggests the Clause may rule out a complete direct democracy, but none . . . credibly suggests a limited dose of direct democracy of the sort at issue here is constitutionally problematic." (citing Robert Natelson, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution's Guarantee Clause, 80 Tex. L. Rev. 807, 811 n.19 (2002)); G. Edward White, Reading the Guarantee Clause, 65 U. Colo. L. Rev. 787, 803-06 (1994); Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. Colo. L. Rev. 749, 749-52, 761-73 (1994); Jonathan Toren, Protecting Republican Government from Itself: The Guarantee Clause of Article IV, Section 4, 2 N.Y.U. J.L. & Liberty 371, 374-92, 392-99 (2007))).}} | {{cquote|See Kerr v. Hickenlooper, 759 F.3d 1186, 1195 & n.2 (10th Cir. 2014) (Gorsuch, J., dissenting from denial of rehearing en banc) ("[M]uch of [the scholarship] suggests that the Clause may rule out a state monarchy, a smaller amount . . . suggests the Clause may rule out a complete direct democracy, but none . . . credibly suggests a limited dose of direct democracy of the sort at issue here is constitutionally problematic." (citing Robert Natelson, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution's Guarantee Clause, 80 Tex. L. Rev. 807, 811 n.19 (2002)); G. Edward White, Reading the Guarantee Clause, 65 U. Colo. L. Rev. 787, 803-06 (1994); Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. Colo. L. Rev. 749, 749-52, 761-73 (1994); Jonathan Toren, Protecting Republican Government from Itself: The Guarantee Clause of Article IV, Section 4, 2 N.Y.U. J.L. & Liberty 371, 374-92, 392-99 (2007))).}} | ||
Kerr v. Polis, 20 F.4th 686, 710 n.5 (10th Cir. 2021)( TYMKOVICH, Chief Judge, concurring). | Kerr v. Polis, 20 F.4th 686, 710 n.5 (10th Cir. 2021)( TYMKOVICH, Chief Judge, concurring). | ||
| − | + | == See also == | |
| + | *[https://www.heritage.org/constitution/#!/articles/4/essays/128/guarantee-clause Heritage Guide] | ||
[[Category:United States Law]] | [[Category:United States Law]] | ||
Revision as of 03:56, July 19, 2023
The Guarantee Clause of the U.S. Constitution ensures certain protections to each and every state:
- The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence.
Article IV, Section 4.
It has been suggested that the Founders wanted state governments to be parliamentary republics rather than democracies, but others have suggested that this clause was intended to protect not against pure democracies but against monarchies.
There is relatively little case law interpreting this Guarantee Clause. Only about 700 decisions cite to it in any way. and some feel strongly that legal claims based on this Clause should not be allowed:
| “ | The Plaintiffs' claims based on the Guarantee Clause and the Enabling Act are nonjusticiable political questions beyond the purview of this court and should have been dismissed at the outset. Supreme Court precedent requires this conclusion. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377 (1912), precludes a merits review of the Plaintiffs' Guarantee Clause claim, and Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), precludes review of their Enabling Act claim. | ” |
Kerr v. Polis, 20 F.4th 686, 704 (10th Cir. 2021) (TYMKOVICH, Chief Judge, concurring). He found no case since 1912 allowing a challenge based on this clause, and wrote with respect to a direct democracy:
| “ | See Kerr v. Hickenlooper, 759 F.3d 1186, 1195 & n.2 (10th Cir. 2014) (Gorsuch, J., dissenting from denial of rehearing en banc) ("[M]uch of [the scholarship] suggests that the Clause may rule out a state monarchy, a smaller amount . . . suggests the Clause may rule out a complete direct democracy, but none . . . credibly suggests a limited dose of direct democracy of the sort at issue here is constitutionally problematic." (citing Robert Natelson, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution's Guarantee Clause, 80 Tex. L. Rev. 807, 811 n.19 (2002)); G. Edward White, Reading the Guarantee Clause, 65 U. Colo. L. Rev. 787, 803-06 (1994); Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. Colo. L. Rev. 749, 749-52, 761-73 (1994); Jonathan Toren, Protecting Republican Government from Itself: The Guarantee Clause of Article IV, Section 4, 2 N.Y.U. J.L. & Liberty 371, 374-92, 392-99 (2007))). | ” |
Kerr v. Polis, 20 F.4th 686, 710 n.5 (10th Cir. 2021)( TYMKOVICH, Chief Judge, concurring).
