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