Article IV, Section 4:

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.

In Luther v. Borden,1 the Supreme Court in 1849 held that questions arising under the Guarantee Clause are generally political, and not judicial, in character.2 Luther was formally an action for damages for trespass, but under the rather “unusual” circumstances of Dorr’s Rebellion, a pro-suffrage revolt that led to two competing claimants for Rhode Island’s lawful government.3 The defendants in Luther justified their breaking and entering into the plaintiff’s home under a declaration of martial law and based on the plaintiff’s alleged participation in insurrection. The plaintiff questioned the authority and republican character of the state government, alleging the defendants to be the insurrectionists.4 Thus, to adjudicate the trespass claim in Luther was in effect to decide “which of two rival governments was the legitimate government of Rhode Island.” 5

Chief Justice Roger Taney held that the political branches of government, and not the federal courts, should decide such questions: “it rests with Congress to decide what government is the established one in a State . . . as well as its republican character.” 6

Luther further held that it rested with Congress to determine the proper means to fulfill the guarantee of protection to the states against insurrection.7 Although the Court suggested that Congress might have empowered the Judiciary to decide whether the federal government should intervene, Congress had instead authorized the President to call out the militia in the case of insurrection against a state’s government.8 It followed, reasoned Chief Justice Taney, that the President “must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress” ; this political determination is not subject to judicial review.9

During Reconstruction, the Court in Texas v. White posited that the President’s actions in establishing temporary state governments in the defeated Confederate states at the end of the Civil War was justified as an exercise of his powers as Commander in Chief.10 Because “the power to carry into effect the clause of guaranty is primarily a legislative power, and resides in Congress,” however, those arrangements were necessarily provisional.11 It was generally up to Congress to organize and recognize new republican governments in these states.12

The next major controversies under the Guarantee Clause arose in the Progressive Era, where various state popular democratic reforms were alleged to destroy the republican form of government ensured by the Clause. In Pacific States Telephone & Telegraph Co. v. Oregon, the Supreme Court in 1912 declined to address a claim that the popular initiative and referendum provisions of Oregon’s Constitution violated the Guarantee Clause.13 Relying on Luther v. Borden, the Court dismissed the case for lack of jurisdiction as a political question “conferred upon Congress and not, therefore, within the reach of judicial power.” 14

In later cases summarily dismissing similar challenges, Pacific States and Luther came to stand for the proposition that Guarantee Clause questions are never justiciable.15 Baker v. Carr, despite its general curbing of the political-question doctrine, left these Guarantee Clause precedents intact.16 The Supreme Court continued to follow them through the 1980s.17

In the 1990s, however, the Court in dicta raised the possibility that “perhaps not all claims under the Guarantee Clause present nonjusticiable political questions.” 18 In Gregory v. Ashcroft, the Court suggested that the Guarantee Clause might operate as a constraint upon Congress’s power to regulate the activities of the states.19 More recently, however, the Court has continued to find Guarantee Clause questions nonjusticiable despite opportunities to revive the Clause.20

Footnotes

1

48 U.S. (7 How.) 1 (1849); see also ArtIII.S2.C1.9.3 Luther v. Borden and Guarantee Clause.

2

Id. at 42.

3

Id. at 29–30; see also Baker v. Carr, 369 U.S. 186, 218–219 (1962) (summarizing facts and holding of Luther).

4

Luther, 48 U.S. at 34–35.

5

New York v. United States, 505 U.S. 144, 184 (1992).

6

Luther, 48 U.S. at 42.

7

Id. at 42–43.

8

1 Stat. 424 (1795); 10 U.S.C. § 251.

9

Luther, 48 U.S. at 43.

10

74 U.S. (7 Wall.) 700, 729–30 (1869) (Chase, C.J.).

11

Id. at 730–31.

12

Id. Similarly, in Georgia v. Stanton, when the state challenged Reconstruction legislation on the premise that Georgia already had a republican form of government (and thus Congress could not act), the Court viewed the act of Congress as determinative and declined to address the question as a political matter. 73 U.S. 50, 76–77 (1867); see also Taylor v. Beckham, 178 U.S. 548, 578–79 (1900).

13

223 U.S. 118, 133–34, 140 (1912).

14

Id. at 151.

15

See Kiernan v. City of Portland, 223 U.S. 151 (1912); Marshall v. Dye, 231 U.S. 250, 256–57 (1913); City of Denver v. N.Y. Tr. Co., 229 U.S. 123, 141 (1913); Davis v. Ohio, 241 U.S. 565 (1916); O’Neill v. Leamer, 239 U.S. 244, 247–48 (1915); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569–70 (1916); Mountain Timber Co. v. Washington, 243 U.S. 219, 234 (1917); Ohio ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 79–80 (1930); Cochran v. La. State Bd. of Educ., 281 U.S. 370, 374 (1930); Highland Farms Dairy v. Agnew, 300 U.S. 608, 612 (1937); Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality opinion).

In a few nineteenth century cases, however, the Court disposed of Guarantee Clause questions on the merits, despite Luther. See Forsyth v. City of Hammond, 166 U.S. 506, 519 (1897); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175–78 (1874).

16

369 U.S. 186, 218–32 (1962). Baker found that Guarantee Clause questions were nonjusticiable not because they involved matters of state governmental structure but because they lacked “judicially manageable standards which a court could utilize independently in order to identify a State’s lawful government.” Id. at 218, 222–23. Baker therefore held that the Guarantee Clause precedents “have no bearing” of the justiciability of a challenge to state legislative apportionment based on the Equal Protection Clause. Id. at 228.

17

See City of Rome v. United States, 446 U.S. 156, 182 n.17 (1980); Quinn v. Millsap, 491 U.S. 95, 102 (1989).

18

New York v. United States, 505 U.S. 144, 185 (1992) (citing Reynolds v. Sims, 377, 533, 582 (1964)).

19

501 U.S. 452, 463 (1991) ( “[T]he authority of the people of the States to determine the qualifications of their most important government officials . . . is a power reserved to the States under the Tenth Amendment and guaranteed them by [the Guarantee Clause].” (citations omitted)). Both New York and Gregory cite the argument set out in Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988).

20

See Rucho v. Common Cause, No. 18–422, slip op. at 30 (U.S. June 27, 2019) ( “This Court has several times concluded, however, that the Guarantee Clause does not provide the basis for a justiciable claim.” ); Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 795 n.3 (2015) ( “The people’s sovereign right to incorporate themselves into a State’s lawmaking apparatus . . . is one this Court has ranked a nonjusticiable political matter.” (citing Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912)).