The "Guarantee Clause": Could this one weird trick save American democracy?

This legal scholar argues the Constitution gives Congress a duty to overrule anti-democratic state law. Will they?

By Paul Rosenberg

Contributing Writer

Published December 5, 2021 12:10PM (EST)

Man doesn't like the US Constitution (Photo illustration by Salon/Getty Images)
Man doesn't like the US Constitution (Photo illustration by Salon/Getty Images)

The past decade has seen voter suppression and partisan gerrymandering grow dramatically worse, while the Supreme Court has undercut efforts to fight back through litigation — both by striking down a key provision of the Voting Rights Act and by declaring that partisan gerrymandering is not a matter for the courts. But the courts aren't the only avenue for protecting America against democratic erosion. Congress has a key role as well — in fact, it has an urgent duty to act, according to a recent article about the U.S. Constitution's "Guarantee Clause" by Carolyn Shapiro, a professor at the Chicago-Kent College of Law. 

Democrats in the Senate are reluctant to act, because that would mean altering or ditching the antiquated filibuster, which has been tinkered with repeatedly before. What they haven't taken seriously, at least so far, is the constitutional obligation enshrined in the Guarantee Clause, a topic also recently addressed by New York Times columnist Jamelle Bouie: "The United States shall guarantee to every State in this Union a Republican Form of Government." 

For more than a century, courts have refused to act on this clause, viewing it as a "nonjusticiable" political question. As Shapiro notes in the abstract of her paper, "many see the Clause as purely vestigial." She continues: "But nonjusticiable does not mean toothless, and this view fails to recognize the Clause's grant of power to Congress," which the framers included, she argues, "because they feared that some forms of government, such as monarchy, were incompatible with republicanism, which they understood as representative self-government." 

RELATED: Will Arizona's relentless Republican gerrymander decide the 2024 presidential election?

Those fears "appear prescient" in light of the democratic erosion we're seeing now, Shapiro argues: "Fortunately, the Guarantee Clause allows — indeed, requires — Congress to address these antidemocratic state-level practices."

Shapiro's case amounts to the claim that congressional action on this issue is a crucial constitutional duty, clarified and reinforced by our history, which has seen the meaning of "republican" government evolve, even as the core rationale remains the same. This dual reality — an evolving meaning with a stable rationale — illustrates the logic of living constitutionalism and the folly of "originalism," while the plain language of the Guarantee Clause refutes the right-wing trope that "states' rights" must be seen as the antidote to a tyrannical federal government. The danger of state-level tyranny was clearly recognized by the Constitution's authors. 

The need for such action has never been more urgent, as reflected in a recent statement by more than 150 scholars of American democracy, calling on Congress to pass the Freedom to Vote Act, "if necessary by suspending the Senate filibuster rule," and warning that if it fails to act, "American democracy will be at critical risk." Shapiro casts things in an even sharper light by elucidating the constitutional duty — which was vigorously fulfilled by the Reconstruction-era Congress, even before passage of the 14th and 15th amendments. Salon recently asked Shapiro to explore her argument in depth. This transcript has been edited for clarity and length.

The Guarantee Clause promises that the United States "shall guarantee to every state in the Union a Republican form of government." That part of the Constitution gets relatively little attention. Why does it deserve our attention now?

Well, it deserves our attention because it was created, in part, for a moment like the moment we're in, where we have movement away from compatible forms of government between the states. The "republican form of government" is a very broad term, it can mean a lot of different things at different moments in history. 

But the framers were very worried that there would be certain forms of government that would just be incompatible with each other, and that the country would fall apart. A situation we are in now — where we have some states that do not appear to be committed to democracy, and are working to undermine democracy in some pretty significant ways — that's exactly the kind of situation that the Guarantee Clause speaks to. 

You write that "making sense of the Guarantee Clause today requires recognizing that republicanism means something broader and more democratic than it did at the founding." So, first of all, what's the core meaning that's still applicable? And how has it broadened and changed?

At the founding, the idea of republicanism was actually quite malleable. The real vision of republicanism had to do with trying to prevent corruption, prevent anarchy, to promote virtue, in a way that political thinkers thought of as being similar to the Roman and Greek republics, which is where the term republicanism comes from. They had very different ideas about what that might look like. So, in Britain, they thought it could be compatible with monarchy, whereas in what became the United States, that was absolutely rejected as a possibility. 

There were some core features of republicanism, and one of them was representative democracy, with some level of representation by whoever they consider to be the people. Of course, we think of "the people" today as much broader than they did at the time. But that came out of this desire to promote virtue and prevent anarchy, and try to prevent corruption among leaders — that there was always a danger of self-interest getting in the way. So you wanted to promote virtue among the leaders, among the people who were making decisions on behalf of the people. And one way to do that was to make those leaders answerable to the people. 

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

So how has that broadened and changed? 

We would not today consider what they saw at the founding as representative democracy. At the founding, only white men, and in many places only white men who were property owners, were allowed to vote, and that continued well into the 19th century in some states. Rhode Island had extremely restrictive franchise rules well up until the 1840s. So we wouldn't recognize that as a kind of representative democracy. 

The other piece of what is important about the Guarantee Clause has to do with this idea of a structural guarantee — that it's about making sure that we can be a cohesive country.  There are limits to what can happen in one state without it affecting the governance in another state and the cohesion between states. 

You can see that with what happened with slavery. At the founding, there were people who were against slavery, but there was a general acceptance that it might be at least possible or even likely that we could have a country where slavery was legal  in some states and illegal in other states. What happened over time is that it became clear that was untenable. In order to enforce slavery in the slave states, it was impossible for the free state to protect their own people. It was impossible for the free states to have their own laws. 

RELATED: The Roberts Court is destroying voting rights — winning back state legislatures is the only answer

We saw that in cases like Prigg v. Pennsylvania, where slave-catchers could come into a free state and abduct people, including people who were born free in Pennsylvania, and say, "Well we own these people, and we're going to take them back to Maryland," and there was nothing Pennsylvania could do, even with a law that says you can't kidnap people, even under claim of ownership. So slavery became inconsistent with national cohesion, and at the same time with republicanism, because it undermines the whole notion of a functioning representative democracy.  

You write that "the story often told is that the Framers were determined to protect the states from the federal government, or the parts from the whole, in order to protect against tyranny" but that in fact the protections "run in several directions." How should the Guarantee Clause be understood in this context? 

It's in a part of the Constitution that generally talks about those relationships. It includes a variety of different promises that the federal government is making to the states, not just a guarantee of a republican form of government — for example, a guarantee of protection against invasion. There's this promise that if New York invades Pennsylvania, the federal government will aid Pennsylvania. It's about trying to find that balance in doing something quite new, in having this country made up of sovereign states that have given up a fair amount of their sovereignty, and in exchange are getting these promises. 

In your paper you talk about the "spillover effects" that laws in one state can cause in others. Can you explain what those are and why they're such a concern? 

Spillover effects is a concept not necessarily related to the question of a "republican form of government." That arises from the notion that sometimes things decided upon by the government of one state can have negative — or, for that matter, positive — effects in another state. So, the easiest one to think about is pollution. If I'm in a state with not much regulation of pollution and we're throwing a lot of stuff into the water and it's going downstream into the next state, the next state is experiencing, quite literally, a negative spillover effect. 

But it's not limited to pollution, that's just the easiest concrete example. What I argue in the paper — and this is not my idea, it comes out of the work of many other scholars on democratic decline — is that there can be a negative feedback loop related to anti-democratic or pro-authoritarian impulses. So if one state is bound and determined to not allow a certain set of people to vote, or is going to gerrymander its legislature in such a way that it is highly unrepresentative, that has effects that go beyond that state itself.

Some of those effects are kind of literal: That gerrymandered legislature, in turn, is going to gerrymander the congressional delegation, which is going to affect everybody in the country, for example, through how they choose their presidential electoral votes. But the democracy scholars talk about the tit-for-tat situation that develops over time, where states begin to respond to each other: "Well, the other side is doing this. If they're gerrymandering so extremely, then we better do the same," for example.  That can really devolve into an anti-democratic spiral, which I think we're seeing.

RELATED: Michigan GOP plans "shocking" scheme to ram through voting restrictions over Whitmer's veto

You argue that the Guarantee Clause "may require a federal legislative response to state-level actions when they threaten antidemocratic spillovers" — not just "justify" but "require," you say. Why should we see it this way?

Well, it's a guarantee. It's a promise. It's not an enforceable requirement. You can't go to court and make Congress do it. But I think it is an appropriate way of thinking about the clause. "Guarantee" is a big word. It's not like you know, "the United States shall facilitate," or "shall promote." It says "guarantee," and I think thinking about the reasons behind such a promise is so important. 

I don't think it's to be taken lightly. I don't think that I would support an argument that the Guarantee Clause allows Congress to come in and do anything it wants in restructuring state government. I don't think that's what it says at all. I think it's specifically about the kind of danger that we are currently facing. 

Obviously there's room for debate, and there would be judgment calls about exactly when we're in such a situation, and what types of responses are justified. But I don't think that changes the reality that this promise is premised on the challenge of having a diverse country, even though the diversity at the time of the founding was very different. There was still worry about different states not respecting their place as coequal states, coequal members of this new country, that there could be expansionist tyrannical efforts to overtake other states' interests. I think that fairly describes a lot of what we're seeing today. 

The Guarantee Clause was largely unused before the Civil War, as you discuss. What lessons can we draw from that time period?

We can draw a number of lessons. One is that if it's unused, of course, it's not very meaningful. We can see it was unused for reasons that were not necessarily very good. I talk in the paper about some of the reasons why, in the most crucial moment, around the Dorr Rebellion in Rhode Island — when the president was approached and Congress was approached and then later, the Supreme Court was asked to weigh in — there really was resistance to doing anything. Many historians think that was in part because the slaveowners and the slave states understood the Guarantee Clause as a threat to them. Because if it was taken seriously, it was not going to be possible to reconcile a republican form of government with slavery. And abolitionists in the 19th century were making this argument, they were arguing that's what the Guarantee Clause had to mean. 

So there was great reluctance on the part of the Supreme Court, which was dominated by justices from slave states — some of them slaveowners themselves — and from the president at the time, who was from the South, to do anything that might open the door to relying on the Guarantee Clause to undermine slavery. 

The Civil War obviously brought about a sea change, but the role of the Guarantee Clause is usually obscured in that history. What should we know about that?

The Reconstruction Congress relied on the Guarantee Clause to do a number of things before they enacted or sent to the states the 14th and 15th amendments. For example, they refused to seat delegations from some states unless and until they thought the states complied with having the type of government that they considered to meet the Guarantee Clause requirements. That meant things like universal male suffrage — and that was before the 15th Amendment was ratified. So they saw the Guarantee Clause as a crucial piece of undoing slavery, just as the slaveowners had worried that it would be. So it's very consistent. 

But ultimately when the 14th and 15th amendments were ratified, a lot of attention, understandably, shifted to those amendments. One of the arguments I make is that an unanticipated consequence of those amendments has been that a lot of the debate we have about voting and election law is bound up in those amendments, which are really understood to provide individual rights and protect people's individual rights, whereas the Guarantee Clause is not about that. As I've argued, it's a guarantee about the relationship between the states. Even though the 14th and 15th amendments on the one hand and the Guarantee Clause on the other may address very similar concerns, they do so in a very different kind of way. 

That leads into my next question, about how things have developed since the post-Civil War era. One was that shift of focus, but you also talk about the development of our national identity as a democracy. What's important about this for us today? 

I think it's important for a couple of reasons. One is that the more cohesive we are as a country, both in terms of political culture and national identity, but also in terms of how the federal government operates in general — it is a much more significant force than it was at the founding — all speak to the potential dangers of the negative spillover effects that the Guarantee Clause was designed to address. So it's not necessarily better or worse. It's different. 

I talk about how people today, as a general matter, are more likely to identify as Americans than, say, Illinoisians. I talk about how with massive immigration, with massive internal migration — where people are really moving from state to state but maintain connections with people in other states — the distinct state cultures which were very important at the founding have fallen away. And of course we have technology and an ability to travel that completely eclipses anything that was the case at the time. In essence, we function much more as a single political entity than we did at the founding. 

At the same time, the history of the country is a history of moving towards increased democracy. Even in the 19th century, when you start to have people in Rhode Island during the Dorr Rebellion, say, "No, it's not OK for only men who have $134 worth of property and their eldest sons to vote. Other people should be able to vote too." And it's not OK to have a state legislature so malapportioned that rural towns were able to dominate the increasingly populous cities in Rhode Island.

Now, that's long before the Supreme Court started weighing in, that was 120 years before the Supreme Court weighed in on "one person, one vote," it was before the 14th Amendment itself.  But that's part of this ongoing trend, right through to the abolition of slavery, to the 14th amendment, the 15th amendment and the 19th amendment, all of these different amendments about expanding democracy. So there's an increased constitutional commitment to popular, representative democracy that really does allow for full participation among the citizenry. That's been a pretty consistent trend. 

We didn't always live up to it. The end of Reconstruction was a big backslide. But I talk in the paper about all these examples of presidents claiming, "We're going to make the world safe for democracy" or "We're going to bring democracy to the Middle East" or "The Axis Powers of World War II are trying to undermine democracy." It's a rallying cry for the country and has been for well over a century, at least since the Civil War. So I think those two put together, when you have a national identity focused on democracy and when you have that being undermined in individual states, that is a dangerous situation. 

That brings us to the current moment and the threats we face now. How should they be understood in terms of the Guarantee Clause? 

Well, they should be understood, in terms of the Guarantee Clause, exactly as a true threat to the ability of the country to function as a single country and as a democratic country. Federalism is often used when people talk about how states get to decide who votes and how they vote and how elections are run, and that the Constitution gives that power to the states. But the Guarantee Clause is like the safety valve on the other side, to say that we could go too far in allowing each state to decide what to do. 

If a bunch of states were to say, "You know what, we're not going to have popular elections of presidents anymore." If they were to say that through gerrymandered legislatures that are themselves not democratically elected, enough states with undemocratic gerrymandered legislatures decided to take the vote for president away from the people — and they had enough votes among themselves to elect a president — it's hard to imagine that that presidency would be understood as fully legitimate by all the people who weren't for that president, whether in those states or in the other states. So that's an example where antidemocratic actions in one state, if there are enough of them, can completely undermine our national government and our ability to accept our national government.

You write that in interpreting and enforcing the Guarantee Clause, "Congress is due more here than the limited deference the Court gives to congressional efforts to enforce individual rights" under the 14th and 15th amendments — which is exactly what happened with the Shelby v. Holder decision. Do you think that would protect against the court invalidating congressional action based on the Guarantee Clause? 

It's a fool's errand to say for sure what the Supreme Court is going to do. So I don't think there's a guarantee, no pun intended. I think they are very different, and I think the arguments are powerful — let me put it that way. I I think that if the Supreme Court decides it's not going to define the scope of the Guarantee Clause, which it has decided, and if the Guarantee Clause is directed to the government as a whole, which it is, and if Congress makes meaningful findings — and I don't think Congress can act willy-nilly; an appropriate use of the Guarantee Clause requires a thoughtful explanation for why they're doing what they're doing — but if Congress does that, I think a significant deference is owed to their judgment. 

It's exactly the kind of political judgment that led the court to decide it couldn't weigh into the Guarantee Clause in the first place. And since it hasn't provided any definition of the scope of what that clause means — unlike the rights protected by the 14th and 15th amendments — it would essentially be like a guessing game: "No, that one didn't work. Try again." That's not the way coequal branches are supposed to operate. 

So, can I tell you the Supreme Court would agree with me and would do what I suggest here? Of course I can't make that promise. But I think the arguments are powerful. I think there are very meaningful differences between the different clauses and the amendments. Some of them have to do with the way they are written, and some have to do with how the Supreme Court has interpreted them, or declined to do so.  

When it came to extreme partisan gerrymandering, until Anthony Kennedy left the court, it looked like they might say, "Yes we can and should do something about it," and then they pulled back. By the logic that you're proposing, this would strengthen Congress's hand in acting, correct?

This is a key: Under the elections clause, Congress can outlaw extreme partisan gerrymandering for congressional elections. I think that's widely accepted. But I think under the Guarantee Clause they can actually do it for state legislatures, and there is no other part of the Constitution that provides for that power. In fact, at the time of the founding there was a genuine fear that some states would try to establish monarchies in their own state. And if you think about it, if enough states were to say tomorrow, "We're not going to call it a monarchy, but our governor is going to serve for life and the governor gets to pick their successor, and then that person serves for life, etc.," would we stand for  that? What if the state said, "We're also going to allow for that governor to handpick the members of the legislative body'? Would that be OK? 

I don't think that would be OK. Congress could refuse to seat a delegation from a state that looks like that, but that could actually undermine the only small-d democratic function that the state might have left. So I think it would be well within Congress' power to say, "No, states must have a popularly elected governor and a popularly elected legislature," without a lot of detail. If a state decided to have a parliamentary form of government, that would not violate the Guarantee Clause because we see that as an appropriate form of representative democracy today. But monarchy or aristocracy? I don't think that is consistent with our understanding of republicanism. 

So we're at a point of crisis now. More than 150 scholars of democratic backsliding just issued a statement in support of the Freedom to Vote Act and setting aside the filibuster, saying  that if Congress fails to pass the act, "American democracy will be at critical risk." How should we understand the relationship between your argument and this call for action? 

I think they come from the same place. We are in a really dangerous situation where a lot of significant efforts are being made in many states to change the way we choose our leaders, to exclude significant numbers of people from being able to have a say. We look increasingly like a country close to what we looked like before the Voting Rights Act, in terms of large parts of the country not having a government that is in any way responsive to and or elected by the people. It's elected by a subset of the people, and responsive to a subset of the people. In turn, because the legislatures in most states draw the maps for the legislature, and in most states draw the maps for Congress, and in all states get to decide how presidential electors are chosen, there's a whole series of knock-on effects that become very, very hard to undo over time. 

In your survey of threats that we face today you don't just mention extreme gerrymandering and voter suppression. You also talk about anti-democratic lame-duck lawmaking, which we've seen in Wisconsin and North Carolina. How might Congress respond? 

This really is most relevant in states that are pretty purple, that could go either way. You have this heavily gerrymandered supermajority Republican legislature and in statewide elections Democratic statewide officials are elected — whether the governor and the attorney general, as in North Carolina, or Supreme Court justices in some states — and then in the interim period, before the new governor comes in, the state legislatures have enacted laws that change the structure of government in a meaningful way, taking power away from the incoming Democratic officeholders and reallocating it to the legislature. 

In the case of Wisconsin, one particularly outrageous thing was that one of these laws had the intent and effect of making it impossible for the new Democratic governor [Tony Evers] to fulfill one of his primary campaign promises, which was to get out of the anti-Obamacare lawsuit. He supported Obamacare, and withdrawing from the lawsuit was a big issue in the campaign, not a small thing. And then the legislature enacted a law, which the outgoing governor signed, that prevented that from happening. To me, that's particularly outrageous, because we had a small-d democratic election, people said, "This is what we want," and then an undemocratic gerrymandered legislature with an outgoing governor undermines that.

I think one way of addressing that is that if a legislature is passing laws in that lame-duck period that reallocate authority within state government in some way, those laws have to go through some form of pre-clearance to establish that it's not an attempt to undermine the democratic decisions of the people of the state. I would argue that it should be nationwide. I think it would be a pretty deferential standard, because there's lots of things that state legislatures can and should do in that context. But as a nationwide system it would at minimum discourage that kind of democratic undermining. 

In two respects your paper goes against conservative constitutional mythology. First, you reveal the obvious shortsightedness of regionalism and, second, by focusing attention on the text you push back against the states' rights ideology, making it clear that the Constitution grants federal power to protect against tyranny coming from the states just as much as it protects the states against federal tyranny. Do you have any broader thoughts about the importance of freeing ourselves from these kinds of partial and misleading myths?

That's a big question. I am not an originalist, that's pretty obvious. But on the states' rights side, that is, I think, a really crucial contribution, in the way I think about the Guarantee Clause. There's this whole long saga about how a big central government is tyrannical, by definition, that the states are closer to the people and can prevent us from tyranny. That's the story that we get told. I teach a version of that story when I talk about what the founders were thinking, but they weren't oblivious to the danger that tyranny could come from within a state. They thought there were some forms of government that are incompatible with democracy. You can't have unlimited states' rights. 

Finally, what's the most important question that I haven't asked? And what's the answer? 

The most important question is, "What do we do to try to protect democracy in our country?" And I think the answer is enormously complicated. I think Congress should absolutely pass the For the People Act and the John Lewis Voting Rights Act, and should pass some of the ideas I propose in the paper. Of course I think that. 

But I also think ordinary people should take responsibility for talking across ideological divides, promoting meaningful civic education that teaches young people how to do that. It's something I do as faculty director of the Constitutional Democracy Project at Chicago-Kent. One thing democracy scholars talk about is that an antidemocratic spiral arises out of this belief that if the other side wins it's the worst thing that could happen. I think we are in a moment in our country where both sides think that — it's an existential threat if the other side wins. I don't know the answer to that, but I don't think the answer comes from Congress. It has to come from people.

By Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News and columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

MORE FROM Paul Rosenberg