The Guarantee Clause

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.

—Robert G. Natelson

Introduction

Through the Guarantee Clause, the federal government provides three guarantees to the states: to ensure that every state in the Union has a “Republican Form of Government”; to protect each state against foreign invasion; and, under specified conditions, to protect each state “against domestic Violence.” These guarantees necessarily imply that the federal government has sufficient grants of authority to execute these mandates. Generally, the Constitution grants power to individual assemblies such as the House of Representatives or officers like the President, but the Guarantee Clause grants authority directly to the federal government as an entity. The federal courts have declined to review cases involving whether a state has a “Republican Form of Government,” and the justiciability of the clause’s other protections remains unresolved.

History Before 1787

The requirement that all states must be republican is traceable to lessons learned from Greek historians who were standard schoolbook fare for the Founding generation. Their discussions of the Achaean and Amphictyonic Leagues—Hellenistic-era Greek confederacies—taught that monarchical members tended to undermine their republican federal partners.

The Founding generation seems to have recognized that republics could be aristocratic as well as democratic in nature. Founders like John Adams were familiar with a number of aristocratic republics, including the Roman, Dutch, and Venetian republics.¹ Baron Montesquieu—an authority cited more often during the constitutional debates than any other—accordingly divided republics into aristocratic and democratic categories: “When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy.”²

During the Revolutionary War, the Continental and Confederation Congresses undertook the defense of the states. The Articles of Confederation codified a duty to defend the states: “States . . . enter into a firm league of friendship with each other, for their common defense . . . binding themselves to assist each other, against all force offered to, or attacks made upon them. . . .”³ This provision was the immediate predecessor of the Guarantee Clause. However, the Articles did not include a “Republican Form of Government” mandate.

The Constitutional Convention

The Guarantee Clause emerged from the earliest days of the Constitutional Convention. On May 29, 1787, Governor Edmund Randolph’s Virginia Plan provided that “a Republican Government & the territory of each State . . . ought to be guaranteed by the United States to each State.”⁴

On June 11, James Madison of Virginia proposed an amendment: “[A] republican constitution, and its existing laws ought to be guaranteed to each State by the U. States.”⁵ Randolph supported the change “because a republican government must be the basis of our national union; and no state in it ought to have it in their power to change its government into a monarchy.”⁶ This new form was adopted unanimously.⁷

On July 18, however, this provision became the subject of sharp discussion. Gouverneur Morris of Pennsylvania objected to the notion that “such laws as exist in R[hode] Island should be guaranteid.”⁸ Morris did not want the federal government to guarantee Rhode Island’s government, which was one of which he and other delegates strongly disapproved.

George Mason of Virginia insisted that in the event of rebellions, a federal response would be necessary. “[I]t will be a bad situation indeed,” Mason said, if the “Genl Govt should have no right to suppress rebellions agst. Particular States.”⁹ On the motion of James Wilson of Pennsylvania, the language was changed to “That a republican form of Government shall be guaranteed to each State—and that each State shall be protected against foreign and domestic violence.”¹⁰ According to Madison, Wilson’s proposal was “well received,” and it passed unanimously.¹¹

The Committee of Detail further reworked the language: “The United States shall guaranty to each State a Republican form of Government; and shall protect each State against foreign invasions, and, on the application of its Legislature, against domestic violence.”¹² The Committee added an enumerated power of Congress “to subdue a Rebellion in any State, on the Application of its Legislature.”¹³ The Convention did not adopt this enumerated power, perhaps because it was superfluous.

On August 30, the delegates debated whether approval of a state legislature should be required before the federal government could quash domestic violence. John Dickinson of Delaware observed that the rebellion “might hinder the Legislature from meeting.”¹⁴ He proposed that a legislative request was sufficient, but if the legislature could not be convened, the state executive could make the request.¹⁵ The Convention approved this proposal.

However, the Committee of Style altered that process. Its draft granted the executive the unconditional power to apply for federal assistance even if the legislature was available.¹⁶ On September 15, two days before the Constitution would be signed, the Convention reversed this change.¹⁷ The final clause provided that “[t]he 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.”

The Ratification Debates

During the ratification debates, the Guarantee Clause was not especially controversial. Madison explained its purpose in Federalist No. 43: “In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations.” Madison added that “[w]henever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter.”

In Federalist No. 63, Madison referred to democratic states such as the Athenian democracy interchangeably as democracies or as “republics.” Alexander Hamilton used similar terminology in Federalist No. 9. The Founders also referred generally to the American states as democracies as well as republics.¹⁸ In Federalist No. 10, Madison distinguished a “republic” from a “pure democracy.” Madison was not suggesting that all institutions of direct democracy were inconsistent with a republic; rather, he was apparently criticizing Aristotle’s teleutaia demokratia. This extreme, or ultimate democracy, was a theoretical form of mob rule that was unrepublican because it did not respect the rule of law.

Founding-era dictionaries defined the noun republic as “a commonwealth, a free state,”¹⁹ or “a state or government in which the supreme power is lodged in more than one.”²⁰ Dictionaries defined the adjective republican as “placing the government in the people.”²¹ With some refinements, the Founders’ consensus understanding of the “Republican Form” is consistent with these definitions. In general, they viewed a republic as a state (1) responsible to its citizenry, (2) without a king, and (3) that respected the rule of law.²² John Adams was seemingly alone among the Founders in considering Great Britain’s limited monarchy to be a “republic” because one branch of the British government, the House of Commons, represented the people.

The guarantee of republican government was widely understood as a guard against monarchy. A Citizen and Soldier, an anonymous pamphlet published in North Carolina, observed that under the Constitution, a state “could not alter its republican form of government to a monarchy.”²³ Another anonymous essay from Plain Truth in the Philadelphia Independent Gazetteer observed that the Constitution “shall guarantee [to every state] against monarchical or aristocratical encroachments.”²⁴

The Constitution’s opponents raised a few complaints. Silas Lee of Massachusetts, for example, warned that the Guarantee Clause might empower the federal government to “establish one [particular] republican form, such as they shall chuse, throughout the whole [nation].”²⁵ The more common objection was that the Guarantee Clause did not go far enough to prohibit aristocracies. Hampden, an Anti-Federalist from Pennsylvania, warned that “under aristocratical republics, there is often less personal freedom and political importance enjoyed by the people at large than under despotic forms . . . .”²⁶ Agrippa, another anti-Federalist, wrote to the Massachusetts ratification convention that “It is vain to tell us, that the proposed government guarantees to each state a republican form. Republicks are divided into democraticks, and aristocraticks.”²⁷

Other objections were raised with respect to the Guarantee Clause’s scope. During the New York ratifying convention, John Lansing, Jr., complained that the guarantee of republican government applied only to the states but should also extend to “the Jurisdiction of the Genl Govt.” and federal enclaves.²⁸

What Is an Invasion?

Founding-era dictionaries defined “invasion” as “a descent upon a country, an [sic] usurpation, or encroachment.”²⁹ This definition seems to include both formal military operations and peaceful, although unauthorized, in-migrations. Eighteenth-century English usage seems to confirm this definition. For example, before the Constitution’s adoption, both Benjamin Franklin and the Pennsylvania legislature referred to peaceful but unauthorized immigration of Connecticut settlers into Pennsylvania as an “invasion.”³⁰ Nevertheless, some commentators have argued that the term “invasion” refers only to formal military operations.³¹

Judicial Precedent

There is not much federal case law on the Guarantee Clause.³² Luther v. Borden (1849) declared that whether a state government has been established and whether it is republican in form are political questions for Congress to decide. In other words, these claims were not justiciable issues for the courts to resolve.³³ Minor v. Happersett (1874) deviated from this rule, holding that a republican form of government could deny women the right to vote.³⁴ Apart from that precedent, the Supreme Court has continued to adhere to its non-justiciability position even though the history has not been unambiguous.³⁵

In Kerr v. Hickenlooper (2015), the U.S. Court of Appeals for the Tenth Circuit questioned whether “Republican Form” cases are always non-justiciable. On appeal, the Supreme Court vacated that opinion on other grounds.³⁶ The Tenth Circuit also ruled that a subdivision of a state lacks standing to argue that its parent state does not have a republican form of government.³⁷

Under settled doctrine, citizens of a state who believe their state government is no longer republican can apply only to Congress for relief rather than to the federal courts. State courts, by contrast, have been more receptive to Guarantee Clause claims. Some litigants have argued that institutions of direct democracy, like initiatives and referenda, are inconsistent with a republican form of government; republics, they claim, must be entirely representative. Some of these advocates have misread James Madison’s comments in Federalist No. 10. The claim that democracy and republicanism are mutually exclusive categories has no Founding-era pedigree.

The Delaware Supreme Court adopted the purported “republic v. democracy” distinction in 1847,³⁸ but this distinction was rejected by the highest tribunals of Colorado, Washington State, Oregon, and other states.³⁹ In 2015, the U.S. Supreme Court, citing Madison’s reassurance about the ability of states to alter their republican forms of government, declared that voter initiatives were legitimate components of the “Republican Form.”⁴⁰ In addition, three federal appeals courts have opined in dicta that the Constitution’s use of the term “invasion” and its variants refers only to formal military operations.⁴¹

Open Questions

• Luther v. Borden and related cases were brought by individual plaintiffs. Would the outcome have been different if the dispute had been brought by a duly constituted government of a “parent state” against the federal government? A plaintiff state government would be, unlike the individual plaintiffs in prior cases, the direct beneficiary of the Guarantee Clause.
• Luther v. Borden and related cases held that judicial disputes about whether a state has a “Republican Form of Government” are not justiciable, but whether courts can hear disputes brought by states that claim the federal government failed to “protect” them “against Invasion” or “against domestic Violence” remains an open question. Can a duly constituted government of a “parent state” maintain a suit against the federal government for failure to comply with the Guarantee Clause’s other two mandates?
• What are the original public meanings of the terms “Invasion” and “domestic Violence” in the Guarantee Clause?

1. John Adams, A Defence of the Constitutions of Government of the United States of America (1787–88). ↩︎
2. M. De Secondat, Baron de Montesquieu, 1 The Spirit of Laws 11–12 (4th ed. 1766). ↩︎
3. Articles of Confederation, art. III. ↩︎
4. 1 Farrand’s 22. ↩︎
5. Id. at 202. ↩︎
6. Id. at 206. ↩︎
7. Id. at 202. ↩︎
8. 2 Farrand’s 47. ↩︎
9. Id. ↩︎
10. Id. at 48–49. ↩︎
11. Id. at 49. ↩︎
12. Id. at 174. ↩︎
13. Id. at 168. ↩︎
14. Id. at 467. ↩︎
15. Id. ↩︎
16. Id. at 578. ↩︎
17. Id. at 628–29. ↩︎
18. 9 DHRC 1106. ↩︎
19. Nicholas Bailey, An Universal Etymological English Dictionary (25th ed. 1783). ↩︎
20. 2 Samuel Johnson, A Dictionary of the English Language (8th ed. 1786); 2 John Ash, A New and Complete Dictionary of the English Language (1775). ↩︎
21. Thomas Sheridan, A Complete Dictionary of the English Language (2d ed. 1789) (unpaginated); 2 Samuel Johnson (same). ↩︎
22. Robert G. Natelson, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause, 80 Tex. L. Rev. 807 (2002). This entry relies on this article unless otherwise stated. ↩︎
23. 31 DHRC 543, 546. ↩︎
24. 2 DHRC 216, 218 ↩︎
25. 5 DHRC 874 ↩︎
26. 2 DHRC 663, 668. ↩︎
27. Storing 4.6.60. ↩︎
28. 22 DHRC 2089 ↩︎
29. Nathan Bailey, An Universal Etymological English Dictionary (1783) (unpaginated). Thomas Sheridan, A Complete Dictionary of the English Language (1789) (unpaginated); Samuel Johnson, A Dictionary of the English Language (6th ed., 1785) (unpaginated). ↩︎
30. Robert G. Natelson & Andrew T. Hyman, The Constitution, Invasion, Immigration, and the War Powers of States, 13 Brit. J. Am. L. Stud. 1, 24 (2024). ↩︎
31. Frank O. Bowman III, Immigration Is Not an “Invasion” Under the Constitution, Just Security (Jan. 29, 2024), https://perma.cc/KE57-XQUJ. ↩︎
32. Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. Rev. 1908 (2015). ↩︎
33. 48 U.S. (7 How.) 1 (1849). ↩︎
34. 88 U.S. (21 Wall.) 162 (1874). ↩︎
35. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912); Baker v. Carr, 369 U.S. 186 (1962); Rucho v. Common Cause, 588 U.S. 684, 718 (2019); Grove, The Lost History. ↩︎
36. Kerr v. Hickenlooper, 744 F.3d 1156 (10th Cir. 2015), judgment vacated by Hickenlooper v. Kerr, 576 U.S. 1079 (2015). ↩︎
37. Kerr v. Polis, 20 F.4th 686, 701 (10th Cir. 2021). ↩︎
38. Rice v. Foster, 4 Harr. 479 (Del. 1847). ↩︎
39. Bernzen v. City of Boulder, 525 P.2d 416 (Colo. 1974); Hartig v. City of Seattle, 102 P. 408 (Wash. 1909); Kadderly v. City of Portland, 74 P. 710 (Or. 1903). ↩︎
40. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 817 (2015). ↩︎
41. California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997); Padavan v. United States, 83 F.3d 23, 28 (2d Cir. 1996); New Jersey v. United States, 91 F.3d 463, 468 (3d Cir. 1996). ↩︎