62 Ariz. L. Rev. 183 (2020)
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.

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