Democracy, Federalism, and the Guarantee Clause
![handle is hein.journals/arz62 and id is 191 raw text is:
DEMOCRACY, FEDERALISM, AND THE
GUARANTEE CLAUSE
by Carolyn Shapiro*
The Guarantee Clause of the Constitution promises that [t]he United States shall
guarantee to every State in this Union a Republican form of Government ..... The
Supreme Court has long held this Clause to be nonjusticiable, and as a result, many
see the Clause as purely vestigial. But nonjusticiable does not mean toothless, and
this view fails to recognize the Clause's grant ofpower to Congress. The Guarantee
Clause provides Congress with the authority to ensure that each state's internal
governance meets a minimum standard ofrepublicanism. The Framers included this
promise because they feared that some forms of government, such as monarchy,
were incompatible with republicanism, which they understood as representative
self-government. Nonrepublican government in one state, they believed, might have
deleterious or even dangerous effects on other states, and protection against
nonrepublican government was thus essentialfor long-lasting and healthy interstate
and federal-state relationships. Today, the Framers' fears appear prescient as a
number of states engage in tactics like extreme partisan gerrymandering, which
entrenches one party in power; lame-duck legislation, which reallocates power to
undermine an incoming administration; and targeted burdens on voting. These
tactics parallel the types of democratic erosion that scholars have observed
internationally and historically. Moreover, the potential negative effects of these
antidemocratic tactics from one state to another, and from one state to the nation as
a whole, are substantial and threaten to undermine many of the benefits of
federalism. Fortunately, the Guarantee Clause allows indeed, requires
Congress to address these antidemocratic state-level practices.
* Associate Professor of Law and Co-Director, Institute on the Supreme Court
of the United States (ISCOTUS), IIT Chicago-Kent College of Law. For their invaluable
comments and conversation, thanks are due to Katharine Baker, Jessica Bulman-Pozen, Tom
Ginsburg, Steven Heyman, Aziz Huq, Joshua Karsh, William Marshall, David Pozen, Richard
Primus, Mark Rosen, Christopher Schmidt, and Jed Shugerman, as well as to participants in
the National Conference of Constitutional Law Scholars at the Rehnquist Center of the
University of Arizona and in workshops at Chicago-Kent and at the Midwest Law and Society
Retreat. Excellent research assistance was provided by Patrick Manion and Gabriel Karsh.](ViewImageLocal?handle=hein.journals/arz62&div=8&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Democracy, Federalism, and the Guarantee Clause
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most