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ArtIV.S4.1.1 Historical Background on Guarantee Clause

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.

Article IV, section 4 is generally known as the “Guarantee Clause.” 1 Through its terms, the United States makes three related assurances to the states: (1) a guarantee of a republican form of government; (2) protection against foreign invasion; and (3) upon request by the state, protection against internal insurrection or rebellion.2

An early version of the Guarantee Clause was among the resolutions of the Virginia Plan introduced at the Constitutional Convention by Edmund Randolph and attributed to James Madison.3 The resolution went through several formulations during the debates at the Convention.4 During a key debate, Gouverneur Morris objected to the resolution because “[h]e should be very unwilling that such laws as exist in R[hode] Island ought to be guarantied.” 5 Randolph explained that, rather than cementing the existing laws of the states, the resolution had two objects: “1. to secure Republican Government[;] 2. to suppress domestic commotions.” 6 Along with concerns about rebellions, delegates expressed fears that a monarchy might arise in a particular state and “establish a tyranny over the whole [United States].” 7

Answering Morris’s objection, Madison moved to substitute language that “the Constitutional authority of the States shall be guarant[eed] to them respectively [against] domestic as well as foreign violence,” 8 with Randolph then moving to add language that “no State shall be at liberty to form any other than a Republican [Government].” 9 James Wilson then introduced, as a “better expression of the idea,” language substantially similar to the final form of the Guarantee Clause, which the Convention approved unanimously.10

In light of its text and framing, the Guarantee Clause was intended to be more than an authorization for the federal government to protect states against foreign invasion or internal insurrection,11 a power already conferred elsewhere in the Constitution.12 While the precise contours of what constitutes a “republican form of government” are debatable,13 an additional object of the Guarantee Clause was to prevent states from establishing monarchical or despotic governments.14

Except for a brief period during Reconstruction, the authority granted by the Guarantee Clause has been largely unexplored.15 The Supreme Court and other federal courts have largely declined to hear legal challenges based on the Guarantee Clause because they present nonjusticiable political questions.16

See, e.g., New York v. United States, 505 U.S. 144, 183 (1992); Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 379 (1978). At times, particularly in older cases, the term is spelled “Guaranty Clause.” See, e.g., Baker v. Carr, 369 U.S. 186, 209 (1962); Texas v. White, 74 U.S. 700, 729 (1868). back
U.S. Const. art. IV, § 4. The Clause uses the term “domestic violence” in the now-archaic sense of “[i]nsurrection or unlawful force fomented from within a country,” and not the modern usage meaning violence between romantic partners or within a household. See Domestic Violence, Black’s Law Dictionary (11th ed. 2022); The Federalist No. 21 (Alexander Hamilton). back
See 1 Max Farrand, The Records of the Federal Convention of 1787, at 22 (1911) [hereinafter Farrand’s Records] ( “Resd. that a Republican government & the territory of each State . . . ought to be guaranteed by the United States to each State.” ). In an April 1787 letter to Randolph, Madison suggested that “an article ought to be inserted expressly guaranteeing the tranquility of the states against internal as well as external danger. . . . Unless the Union be organized efficiently on republican principles innovations of a much more objectionable form may be obtruded.” 2 Writings of James Madison 336 (G. Hunt ed., 1900). For background on the origins of the Guarantee Clause, see W. Wiecek, The Guarantee Clause of the U.S. Constitution ch. 1 (1972). back
On June 11, 1787, the original resolution was amended to read “Resolved that a republican constitution and its existing laws ought to be guaranteed to each state by the United States.” 1 Farrand’s Records, supra note 3 at 193–94. back
See 2 id. at 47; see also 2 id. at 48 (delegates expressing worry about “perpetuating the existing Constitutions of states” and the difficulty of having the federal government decide between competing state governments). back
Id. This statement echoed Randolph’s earlier argument that “a republican government must be the basis of our national union; and no state in it ought to have it in their power to change its government into a monarchy.” See 1 id. at 206. back
2 id. at 48. back
2 id. at 47–48 back
2 id. at 48. back
2 id. at 48–49 (resolving “that a Republican [form of Government shall] be guarantied to each State & that each State shall be protected agst. foreign & domestic violence” ). The Committee of Detail added the language providing that state legislatures must first ask for protection against domestic violence. 2 id. at 144, 148, 159, 174. Later motions to strike that proviso failed, 2 id. at 466–67, and during that debate the word “foreign” before “invasion” was deleted as superfluous. Id. back
See generally The Federalist No. 21 (Alexander Hamilton); The Federalist No. 43 (James Madison). back
See U.S. Const. art. I, § 8, cl. 15 (granting Congress power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” ); see generally ArtI.S8.C15.1 Congress’s Power to Call Militias, > back
See Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 23 (1988) ( “Even today, the outer boundaries of the guarantee clause remain murky; no single scholarly work can capture the full meaning of ‘republican government.’” ); . back
See 3 Story’s Commentaries § 1808 ( “The want of a [Guarantee Clause] was felt, as a capital defect in the plan of the confederation . . . . If a despotic or monarchical government were established in one state, it would bring on the ruin of the whole republic.” ); The Federalist No. 21 (Alexander Hamilton). back
See generally Wiecek, supra note 3, at chs. 5–7; Texas v. White, 74 U.S. 700, 728–29 (1868) (Chase, C.J.) (grounding the establishment of Reconstruction governments in the former Confederate states as an “exercise of the power conferred by the guaranty clause” to the United States). back
See, e.g., Baker v. Carr, 369 U.S. 186, 223–28 (1962) (reviewing cases); Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 148–51 (1912); Luther v. Borden, 48 U.S. 1, 42–47 (1849). But see New York v. United States, 505 U.S. 144, 185 (1992) ( “More recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions.” (citing Reynolds v. Sims, 377 U.S. 533, 582 (1964))). back