'And to the Republic for Which it Stands': Guaranteeing a Republican Form of Government

16 Pages Posted: 15 Apr 2016

See all articles by Catherine A. Rogers

Catherine A. Rogers

Pennsylvania State University - Dickinson Law; CCLS, Queen Mary University of London

David L. Faigman

University of California Hastings College of the Law

Date Written: 1996

Abstract

Most scholars who have addressed voter initiatives suggest only that the Guarantee Clause requires that the Supreme Court take a more active role in reviewing the constitutionality of state initiative measures. In contrast, we argue in this Essay that the Guarantee Clause establishes a per se prohibition against state initiatives. Part I of this Essay briefly examines the historical origins of the Guarantee Clause and the Founders’ apprehensions of direct democracy. Part II observes how modern state initiatives provide contemporary illustrations of the Founders’ philosophical concerns about direct democracy. Part III concludes that state initiative measures constitute per se violations of the Guarantee Clause and, accordingly, must be summarily rejected. In so concluding, this Essay rejects proposals that courts review direct legislation or certain genres of direct legislation under heightened scrutiny.

Suggested Citation

Rogers, Catherine A. and Faigman, David L., 'And to the Republic for Which it Stands': Guaranteeing a Republican Form of Government (1996). Hastings Constitutional Law Quarterly, Vol. 23, No. 1057, 1996; Penn State Law Research Paper, 1996. Available at SSRN: https://ssrn.com/abstract=2764226

Catherine A. Rogers (Contact Author)

Pennsylvania State University - Dickinson Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

CCLS, Queen Mary University of London ( email )

Charterhouse Square
London, EC1M 6AX
United Kingdom

David L. Faigman

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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