Death by a Thousand Cuts: The Guarantee Clause Regulation of State Constitutions

52 Pages Posted: 23 Aug 2010

Date Written: June 10, 2010

Abstract

Article IV, Section 4 of the United States Constitution “guarantee[s] to every State in this Union a Republican Form of Government.” For over a century many have argued that this provision, the “Guarantee Clause,” could be a powerful tool to reform state governments. Myriad uses for the Clause have been suggested, including that it prohibits or regulates direct democracy and judicial elections, provides a basis for federal anti-corruption legislation aimed at state and local officials, protects individual and political rights, precludes federal interference with the states’ ability to maintain their republican forms of government, and much more.

While scholars have shed light on what the Guarantee Clause covers, how the Clause is implemented has been drastically underevaluated. Indeed, due to this lack of attention on the implementation of the Clause, the courts have taken sharply divergent views on how it should be enforced. The vast majority of state courts reject Guarantee Clause claims under the perception that the Clause is not violated unless a state completely ceases to be republican in form (i.e., becomes a pure monarchy, aristocracy, or democracy). This I term the “death in one blow” approach to enforcing the Clause: the Clause is not implicated unless a state completely “kills” its republican form of government. Given the extreme unlikelihood that a state will crown a king or descend into anarchy, this interpretation of the Clause ensures its desuetude.

A handful of courts, however, have invalidated specific policies that threatened, but did not completely destroy, a state’s republican form of government. This is the “death by a thousand cuts” approach: anything that impedes on the state’s republican form is one step closer to an eventual unraveling of the state’s republican form of government. Under this view, the Guarantee Clause protects against not only a complete loss of republican government, but also “cuts” that threaten, encroach upon, or erode a state’s republican form. Over the Guarantee Clause’s history, this approach has been used to uphold state anti-corruption legislation, strike down ballot initiatives, and was one of the elder Justice Harlan’s reasons for why segregation is unconstitutional. This view envisions a robust enforcement of the Clause.

Thus this question of how the Guarantee Clause should be implemented is critical to whether it is a powerful tool for governmental reform or a historical artifact. This Note sides with the “thousands cuts” view on the Clause’s enforcement. That approach is consistent with the Guarantee Clause’s drafting and ratification history and is normatively desirable. Indeed, without such an approach, there is a threat that the republican institutions that make our system of government unique and successful will be, to borrow Laurence Tribe’s powerful metaphor on state’s rights, “nibble[d] away . . . bit by bit, until someday essentially nothing is left but a gutted shell.” Death by a thousand cuts is death all the same.

Keywords: Guarantee Clause, Article IV, republican form of government, enforcement of constitutional provisions, state constitutions, direct democracy, forms of government

JEL Classification: D72

Suggested Citation

Heller, Jacob M., Death by a Thousand Cuts: The Guarantee Clause Regulation of State Constitutions (June 10, 2010). Stanford Law Review, Vol. 62, No. 6, 2010, Available at SSRN: https://ssrn.com/abstract=1663967

Jacob M. Heller (Contact Author)

First Circuit Court of Appeals ( email )

1 Courthouse Way
Boston, MA 02210
United States

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