The Founders of our country, and the Framers who authored our Constitution, established (as Ben Franklin memorably put it) a constitutional republic: a government “deriving its just powers from the consent of the governed” via citizens’ (then white men only) ability to vote.
They termed it “republicanism” since it was modeled on the Greek and Roman republics (then thousands of years before but still remembered and admired), and when it became legislation, it was referred to as “a Republican Form of Government.”
Today, that type of governance is under jeopardy in America, as Republican lawmakers in red states throughout the country fight the fundamental right to vote that characterizes republicanism.
“In emergency, break glass” is an almost-never-used option if a structure catches fire or otherwise becomes inoperable. The US Constitution has a comparable alarm and safety valve that, like the glass in so many buildings, has never been utilized to defend our nation.
The Guarantee Clause is the foundation of the Right to Vote Act, which has passed the House but is blocked in the Senate due to a Republican filibuster.
“Congress finds that the Constitution of the United States grants explicit and broad authority to protect the right to vote, to regulate elections for Federal office, to prevent and remedy discrimination in voting, and to defend the Nation’s democratic process. Congress enacts the Freedom to Vote Act pursuant to this broad authority…” the Act reads.
The Guarantee Clause compels the United States to provide the states with a republican form of government as well as safety against foreign invasion and domestic violence. As a result, the Guarantee Clause restricts the form of government that a state may have.
The Guarantee Clause, on the other hand, has never been employed in our daily politics or legislation; in fact, most people have never heard of it.
It’s never been employed or accepted as law by the courts, so it’s effectively “potential power,” a tremendous but tightly coiled force hidden deep in our Constitution for 232 years, patiently waiting for a true emergency.
However, it comes to life when Congress activates it for the first time, which might be right now since the Freedom to Vote Act officially activates it by name.
Senators Klobuchar (the bill’s principal sponsor), Kaine, King, Merkley, Padilla, Tester, and Warnock are among those who have signed on as co-sponsors. On the Republican side, Alaska’s Lisa Murkowski looks to be on board.
And, when the context of the Guarantee Clause is understood, the urgency and compatibility of The Right To Vote Act with the Framers’ vision of the possibilities of this democratic moment is unmistakable:
That summer in Philadelphia was brutally hot, and it was a week and a day after a crowd hunted down Mrs. Korbmacher on the streets outside Independence Hall (then the site of the Pennsylvania assembly) and beat her to death for witchcraft.
Inside the Hall, delegates were drafting a new nation’s Constitution, and the question of whether the new US government should have the power — or the obligation — to “guarantee” that no state could change its laws in such a way as to deprive its citizens of a “Republican Form of Government” had arisen.
This was especially significant since British legislation at the time clearly prohibited republicanism: only monarchy was permitted, and individuals were required to pledge homage to the king. In truth, nowhere in the “civilized world” of 1787 was it permissible for a people to elect its own representatives and live under their own laws, all of which were formed and enforced “by the agreement of the governed” via “a Republican Form of Government.”
At the end of the long, tense day, James Madison wrote a short letter to Thomas Jefferson, the US envoy to France at the time and living in Paris, assuring him that he was taking “lengthy notes” but couldn’t fill his mentor in on the details because he was “still under the mortification of being restrained from disclosing any part of their proceedings.”
Indeed, the notes taken at the Convention wouldn’t be published for another 50 years, after all the men in the Hall had died, a concession to several delegates who’d essentially sold off their wealthy acquaintances by ensuring republican democracy or allowing slavery to continue (there were compromises on both sides, some of which, like the electoral college and setup of the 2-votes-only-regardless-of-population Senate, cripple us to this day).
The following suggested constitutional wording was presented to them for consideration that day: “That a republican constitution and its existing laws ought to be guarantied to each state by the United States.”
Both New York’s Gouverneur Morris and New Jersey’s William Houston raised an instant opposition, arguing that the phrase would enable the new states to preserve laws that some delegates considered were not “republican” in character.
Morris, in particular, was an ardent abolitionist who wanted slavery to be phased away while simultaneously opposing (from the right) legislation like the one Rhode Island’s legislature was discussing at the time, which would have equalized all wealth in the state every 13 years. Morris saw the “Jubilee” concept as a recipe for instability, and hence a danger to the fledgling republic.
Morris felt the weight of history on his shoulders.
Madison later said, “He came here as a representative of America; he flattered himself he came here in some degree as a Representative of the whole human race; for the whole human race will be affected by the proceedings of this Convention.”
As a result, it was unsurprising when Morris spoke up to say that the proposed phrase may leave awful state laws in place.
“Mr. GOUVERNEUR MORRIS thought the resolution very objectionable,” Madison wrote. “He should be very unwilling that such laws as exist in Rhode Island should be guarantied.”
William Houston of New Jersey, a mathematics professor and abolitionist who served as a Captain in Washington’s army, agreed – but he was more concerned with not encouraging legislation that prolonged slavery and debt peonage.
“Mr. HOUSTON,” Madison noted, “was afraid of perpetuating the existing constitutions of the states. That of Georgia was a very bad one, and he hoped would be revised and amended.”
At that point, several men stood up to point out that they were debating the federal government’s power to “guarantee a Republican Form of Government” to all states — but what if power-hungry people in a particular state rose up in rebellion and seize control of that state’s government, effectively ending statewide republicanism and establishing a minor dictatorship or cult?
What if that state then challenged the capacity of other states to establish a government that reflects the will of the people?
Or have you attempted to take them over by corrupting them from inside or by invading them? (This was no idle fear: both events occurred only 74 years later, in 1861.)
Nathaniel Gorham of Massachusetts was especially vociferous about this, given the state’s long history of efforts by both wealthy landowners and Pilgrim clergy to transform it into a tyrannical theocracy (leading Roger Williams to flee and split off Rhode Island in the 1670s).
If something like this happened again and succeeded, Gorham wondered, shouldn’t the federal government have the authority to intervene and guarantee the states surrounding Massachusetts and its residents a republican form of government in which those with political power had to answer to “the people” rather than just the clergy or the wealthy? What would happen if a rich oligarch proclaimed himself a monarch?
“Mr. GORHAM thought it strange that a rebellion should be known to exist in the empire,” Madison wrote, “and the general government should be restrained from interposing to subdue it. At this rate, an enterprising citizen might erect the standard of monarchy in a particular state; might gather together partisans from all quarters; might extend his views from state to state, and threaten to establish a tyranny over the whole,—and the general government be compelled to remain an inactive witness of its own destruction.” [emphasis added]
In response, Pennsylvania’s James Wilson, an abolitionist and researcher of Greek democracy, proposed an alternative phrase for the Fourth Section of the Fourth Article of the Constitution:
“[T]hat a republican form of government shall be guarantied to each state; and that each state shall be protected against foreign and domestic violence.”
That solved the problem.
“This seeming to be well received,” Madison noted, “Mr. MADISON and Mr. RANDOLPH withdrew their propositions, and, on the question for agreeing to Mr. Wilson’s motion, it passed, nem. con.” Madison went home to compose his letter to Jefferson when the meeting closed for the day.
The discussion that day resulted in Section 4 of Article IV of the Constitution:
“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.”
It’s a wonderful clause, with the potential to be as powerful as the Commerce Clause (which JFK and LBJ used to compel Southern integration), but it’s never been employed in any significant manner since it was penned on that hot July day in 1787.
When the “Guarantee Clause” first came before the Supreme Court, slavery was still the rule of the country, and Chief Justice Roger Taney, a former slaveholder, was eager to preserve it that way by limiting the authority of the Clause.
Taney decided in Luther v Borden (1849), seven years before attempting to enshrine slavery in the law of every state in the union with his Dred Scott decision, that his Supreme Court would never be permitted to intervene with state rights on the basis of the Guarantee Clause.
“Under this article of the Constitution,” Taney wrote, “it rests with Congress to decide what government is the established one in a state.”
In other words, Taney said that the concept of a “Republican Form of Government” has yet to be defined by law or past interpretations of the Constitution: hence, it is political. And politics is the domain of Congress, not the Supreme Court, which must stick to the letter of the law.
On that basis, succeeding Supreme Courts reiterated Taney’s position that the subject was political and not one for the courts to determine: instead, it was up to Congress to decide whether to “guarantee a Republican Form of Government” to — or within — any given state at any time in the future.
In Pacific States Telephone & Telegraph v Oregon (1912), Taney was cited “lucidly and cogently,” and Chief Justice John Roberts said in 2019 that “this Court has several times concluded that the Guarantee Clause does not provide the basis for a justiciable claim.”
As a result, it is still up to Congress, not the Court, to determine what a “Republican Form of Government” is and how Congress would guarantee it to and/or within each state.
That leads us to today, and how Congress can put an end to political gerrymandering, limit the role of money in politics, and ensure that every American citizen has the right to vote without undue hardship.
The Freedom To Vote Act begins with a straightforward statement:
“Congress also finds that it has both the authority and responsibility, as the legislative body for the United States, to fulfill the promise of article IV, section 4, of the Constitution, which states: ‘The United States shall guarantee to every State in this Union a “Republican Form of Government.”’” [emphasis added]
The proposed legislation even cites the Supreme Court as having dropped — or set down — the ball, and so Congress must pick it up:
“Congress finds that its authority and responsibility to enforce the Guarantee Clause is clear given that Federal courts have not enforced this clause because they understood that its enforcement is committed to Congress by the Constitution.”
The Freedom to Vote Act assures that America has a “Republican Form of Government” by requiring:
Automatic voter registration and online voter registration for 16-year-olds who will turn 18 and so be able to vote in the following election.
Across the country, same-day voter registration is available.
Abolition of partisan gerrymandering.
Contributions to campaigns are limited to a maximum of $10,000.
Criminalizes the use of “pass through” entities to circumvent campaign funding restrictions.
Companies must fully and promptly declare any election expenditure in excess of $10,000.
Requires all websites (such as Facebook) with more than 50 million users to produce a publicly accessible and searchable record of political advertisements.
Web-based election expenditures are subject to the same disclosure regulations as television expenditures.
It becomes a criminal offense to prohibit someone from registering to vote.
Early voting must be done for 14 days in a row, for at least 10 hours each day.
It is necessary for rural and college campus voters to have easy access to polling sites, as well as for all voters to have simple access to voting by public transit.
Ensures that all voters throughout the country may vote by mail with no excuses.
Guarantees that all voters may be added to a permanent vote-by-mail list and automatically get a ballot in the mail requiring states to allow voters to trace their mail-in votes to ensure that they are counted or to appeal any challenge to their ballot.
States are prohibited from requiring mail-in voters to have their votes witnessed, notarized, or to jump through other onerous hurdles.
All jurisdictions must have ballot drop boxes that are safe and well labeled.
Requires the Post Office to process all ballots on the same day they are sent and without the need of postage.
States are required to maintain voting queues no longer than 30 minutes in all circumstances and locations.
Allows those in line to vote to get food or water from others.
All convicts who have fulfilled their terms in all states are granted the right to vote.
Prohibits “caging” of voters, in which failure to return a postcard results in exclusion.
States are prohibited from removing voters from the register just because they haven’t voted in a long time.
Allows voters to sue any state or municipal authorities who interfere with their right to vote in federal court.
Intimidating, threatening, or coercing any election officer or election worker is a crime.
Requires federal prosecution of anybody who attempts to injure or undermine public authorities by doxxing an election worker or their immediate family.
Makes it a federal criminal to publish or transmit fraudulent election information (when, where, etc.)
Increases federal penalties for voter intimidation and other violations of your inalienable right to vote.
Keeps political “poll watchers” at least 8 feet away from voters in all situations, including voting.
In all cases and elections, paper ballots are required (there are exceptions for disabled voters)
Post-election audits are required.
Provides criminal sanctions for any candidate or campaign that fails to record any dealings with foreign governments completely and promptly.
Gives low-income people $25 that they may use to donate to politicians in $5 increments.
The Freedom To Vote Act is becoming more important as many Republican-controlled states openly (and ironically) undermine true “republican ideals” of representative governance by implementing laws that pre-rig election results.
In preparation of the 2024 election, some have even gone so far as to create legislation authorizing their legislatures to disregard or reject ballots they don’t like.
Because “it’s a republic, ma’am, if you can keep it,” passing this legislation must now be the Senate’s top priority.