Democracy, Guaranteed

Voting Rights Academy: The Guarantee Clause

Tomorrow, eyes will be glued on the U.S. Supreme Court as it grapples with the long overlooked disqualification clause in the Constitution—added after the Civil War to protect democracy from insurrectionists. I’ve shared numerous newletters highlighting key arguments from that case.

But while we’re at it, can I toss in another Constitutional bulwark for democracy that we’ve overlooked for far too long? That we need to breathe some serious life into?

And this one was actually part of the original Constitution.

Some of you may have heard me talk about it before. But for those who haven’t, or those who want a refresher, let me introduce you to…

Art. IV, Section IV of the Constitution:

The Guarantee Clause.

When it comes to democracy, it maybe the most important clause in the Constitution no one pays attention to.

But at this fraught time for our democracy, we must! Congress must! Grassroots activists must.

And like the disqualification clause, the Guarantee Clause lays out a clear rule: “the United States shall guarantee to every State in this Union a Republican Form of Government…"

"Shall"

"Guarantee"

No stronger words in law than that. An ironclad contract.

And with that emphatic and binding promise, what did the Founders mean by "Republican Form" of Government?

Hint: it's not what the far right thinks, as I wrote about here.

As scholars of the Founding like Akhil Amar have written at length, the revolutionary concept of “Republican” was that it established that the PEOPLE were sovereign. The government derived powers from the people, as Madison wrote in Federalist 39—and not from a "favored class.”

This stood in contrast to the system they were tossing out: where the Monarchy, the crown, was sovereign, and where power was fixed as opposed to responsive to the people—and the majority.

Basically, what we casually refer to as democratic governance today, where elected officials represent collectively the people of that state, is what they meant.

And it's what they guaranteed state governments would be.

Why a Guarantee?

Now why did they feel the need to guarantee this in the Constitution itself?

Ironically, they did so for the very reason that I am so concerned about statehouses today.

In the Federalist Papers and elsewhere, Madison and others were explicit—they knew in the balancing act of the new Constitution, they were giving states a lot of power over the new nation’s democracy.

But they also worried that statehouses were easily susceptible to corruption, and capture by elite and “rich” interests, as they called them, or the monarchy itself. Recent lived experience amplified their concern.

And they further worried that in the wrong hands, states unmoored from the people could be used to undermine the entire nation's democracy. And that interests hostile to the people—that “favored class”—could harness the power of statehouses and use them as a backdoor to get a narrow agenda accomplished against the interests of the people and the new nation.

Amar, again: “[A]n unrepublican state government might tend to undermine the republican character of the federal government, whose own institutions would rest largely on state-law pillars. For example, a warped state government might corrupt the integrity of that state’s elections to the federal House, Senate and electoral college.” (America’s Constitution, A Biography, page 280).

They were so worried about this that they included in the Founding document the “guarantee” that the United States would never let this happen. Again, it was such a serious concern that they used language found nowhere else in the Constitution.

And unlike the disqualification clause (where the debate tomorrow will center around who is supposed to decide who gets disqualified), the Founders explicitly gave the power to the United States government to uphold this guarantee.

And why did they grant the federal government this power? As Madison explained in Federalist 43, “the superintending government ought to clearly possess authority to defend the system against aristocratic or monarchical innovations.”

So when you hear talk about the powers of state legislatures and “states’ rights,” ALL of that was premised on an assumption that those states ultimately represented the people. That they exhibited the basics of a Republican Form of government.

Without that assumption in place—without that Guarantee fulfilled—the entire system falls apart. Statehouses exercising unfettered power—unaccountable to the people of those states, advancing aristocratic priorities at the expense of the people, undermining the nation’s new democracy—is precisely the nightmare the Founders feared.

So they gave the federal government the power to step in. As Amar puts it, think of the clause (in a way, similar to the disqualification clause), as a “kind of democratic insurance policy.” (America’s Constitution, A Biography, page 280).

Today: Guarantee Unmet

Fast forward to today.'

We have a problem.

And it’s that the Founders concern about statehouses is playing out exactly as they feared.

As I update folks on a daily basis, all around the nation, extremely gerrymandered legislatures are rushing through toxic policies directly contravening the popular will of their states. Most prominent of late have been abortion bans with no exceptions even as the people of these states hold the exact opposite view. The same is happening with toxic gun laws, book banning, a never-ending attack on public schools, trickle-down economics, and so on.

All of these priorities are completely disconnected from the will of the people of these states. But with districts so rigged that almost all elections are predetermined, hardly a single member of these bodies faces accountability for their votes. In some states, more than half of the people in these offices don’t even face a general election opponent at all. Often, they face no challenge election after election. They are “fixed” in power, hardly touchable.

To make matters worse, just as the Founders feared, through organizations such as ALEC and others, these statehouses have also become corrupted by elite "rich" and “favored” (often, out of state and national) interests to do their private bidding (energy bailouts, lax regulations, fracking in state parks, for-profit schools) as opposed to that of the people (who pay the price of it all). While those in power face no accountability from the people due to gerrymandered and uncontested districts, they encounter major accountability from these narrow, private interests. Which—if you watch closely—drives most of their work, even as public outcomes suffer as a consequence.

And lately, when the public tries to take control back and override these unpopular policies—by waging referenda campaigns, for example—these same statehouses use/abuse the power of government to try to stymie even those efforts. Thankfully, they failed in in Ohio (last August), but we are now seeing them try to do the same in Mississippi, Florida and Missouri. Legislatures themselves sealed off from the people through rigged districts, trying to make it ever more difficult for the people to override them directly.

So what we have are governing bodies, “fixed” in power, serving a narrow class of people—the people no longer sovereign.

Again, exactly what the Founders feared.

And as they predicted, it’s why things are so out of balance today.

What To Do?

Bottom line: the fact that we are falling short of that guarantee clause in dozens of states lies at the heart of the overall downward spiral of democracy we are seeing today. It is a threat separate from Trump—it preceded Trump, and if he were disqualified or locked up tomorrow, it would remain.

To respond—through policies, politics and the law—we must work to fulfill the guarantee in EVERY STATE now. For every American.

It’s the right thing to do, of course. But I hope, after reading this, you also see it’s a constitutional command!

So what should we do?

Many things, as I outline in my two books and often tweet. But I’ll outline a few:

The Federal Government

With respect to this Clause itself, the federal government wields the ultimate power.

So when Congress next has the chance, it must finally act (it failed to do so in 2021-2022). Senators and House Members—and the President—have a Constitutional obligation to protect democratic governance in states. It's part of the oath they take when they’re sworn in, and it's a duty that outweighs any allegiance to procedures (which don’t appear in the Constitution) such as the filibuster.

Under the auspices of that power, they can and must pass robust anti-gerrymandering and other pro-democracy protections (voter protections, etc) to restore democratic governance in states. To ensure that the people of these states are sovereign again. And unlike other powers they have, this is a power that the Supreme Court has ruled for a century is a political one (remember, the “political question doctrine”), beyond the Court’s review. Congress alone wields it.

And to the extent the Supreme Court protects gerrymandered statehouses and anti-democratic behavior through rulings such as Rucho and Shelby County (which allowed partisan gerrymandering and gutted the Voting Rights Act), the more the Congress and President must respond with actions that ensure those statehouses are, in the end, democratically governed. Or as the Founders would have worded it—Republics, anchored in popular sovereignty.

The Guarantee Clause is the federal government’s strongest tool to protect democracy in states. They need to use it, pass laws to fulfill the guarantee, and cite the clause as they do so.

For some in politics, this may feel bold. But it's exactly what the oath they took commands them to do.

The Rest of Us

And while the Guarantee Clause falls on federal leaders to directly uphold, the rest of us must still act on its crucial insight. That the health and viability of American democracy—the delicate balance going back to the Founding—are anchored on the condition that states and statehouses represent the people. That they exhibit the attributes of a Republican Form of government.

If they don’t, the entire system can and will unravel, as we are witnessing today. (It’s how we got Jim Crow for generations).

Which means as we plan and execute our political and pro-democracy activities, we must stay as focused and vigilant as the Founders were on ensuring that states are viable, rule-of-law democracies .

Again, for some, this may feel like adding too much work.

But we are where we are today because we have failed to adopt this focus for far too long.

Plus, we’re going to be working hard either way.

So we might as well do it right.