Redeeming the Welshed Guarantee: A Scheme for Achieving Justiciability
46 Pages Posted: 22 Jul 2003
The feast of the republican revival in the law reviews is long over, and one is more likely to encounter a commemorative symposium upon the anniversary of its death than a celebration of its continued vitality in legal scholarship. But this article mines the republican discourse for its oversights. Investigation into its relationship with the Guarantee Clause, the one place in the Constitution directly allocated to republicanism, reveals little attempted in the way of integration, largely because the Guarantee Clause literature is even more dead than the republican revival literature. This article tries to resuscitate both legal republicanism and the Guarantee Clause by creating a lichen, where what is left of each can help the other thrive, albeit parasitically. The article reawakens the naive view that legislatures can sometimes embody what is good about republicanism - deliberative processes, producing outcomes that public choice or courts might not. Accordingly, given the current state of Commerce Clause and Enforcement Clause jurisprudence, neo-republicans would be well advised to shift their attention away from the courts to the constitutional justifications for Congress to act in service of republican ends. The article argues that the jurisprudence of the Guarantee Clause leaves room for near plenary action by Congress under its ambit. Thus, republicans should encourage Congress to instantiate its own ideas about republicanism through a legislative power this article finds vested by the Guarantee Clause. If Congress were to exercise the powers that the Court generally indicates are rightfully its own under the Guarantee Clause, the Court would likely be encouraged to tailor a jurisprudence of the Guarantee Clause and grant the justiciability it has been generally denying since Luther v. Borden. A scheme, indeed.
Keywords: Guarantee Clause, Republican Form of Government Clause, neo-republicanism, justiciability, political question doctrine, republican revival
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