After Justice Barrett completely humiliated Justice Jackson—joined by every justice other than Jackson’s partners in anarchy, Sotomayor and Kagan—for describing constitutional jurisprudence as “boring ‘legalese’” and proclaiming an “imperial judiciary,” it seems timely, especially with a radical, socialist, Muslim mayoral candidate now the overwhelming favorite to govern the nation’s largest city, that we better understand the limits of the judicial branch, and conversely, the power of the executive.
Even though we still argue at the fringes of constitutional meaning, the Constitution itself uses language that couldn’t be clearer: “the right of the people to keep and bear Arms shall not be infringed” and “Congress shall make no law...abridging the freedom of speech.” But no language is more powerful and direct than that in little-known Article IV Section 4: “the U.S. shall guarantee to every state...a republican form of government.” Guarantee! The Framers saved their strongest language in the Constitution for its very structure.
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Fascist governments, communist governments, socialist governments, monarchies, and even direct democracies (although those labels did not exist at the time, all but communism were familiar types of government) were anathema to the Founders.
Yet, despite its obvious importance, the Constitution is silent on the question of what actually constitutes a republican form of government. John Marshall, however, wrote in Marbury v. Madison that questions of this nature would certainly be the purview of the judiciary: “It is emphatically the province and duty of the judicial department to say what the law is.”
However, Marshall did not answer that question. Decades later, in 1849’s Luther v. Broder, the Court concluded that, when it came to defining what constitutes a republican form of government, it was not the Court’s role to define it.
Rhode Island, notoriously the last state to sign the Constitution (and only doing so after being threatened with being subject to tariffs as a foreign country), was still operating under its colonial Charter of Charles II from 1663, which only guaranteed the right to vote to white land holding men and provided no mechanism for amendments. Only after an uprising, a coup, the imposition of martial law, and massive arrests of the “insurgents,” did the case land before the Supreme Court.
Chief Justice Robert Taney wrote the unanimous opinion. Given that he wrote Dred Scott v. Sandford, which declared the Missouri Compromise unconstitutional, even though it was repealed three years earlier, and held that the Constitution protects slaves as property that no law can undo thereby, the first hint of the rogue doctrine of substantive due process, was surprisingly restrained in this instance:
Much of the argument on the part of the plaintiff turned upon political rights and political questions, upon which the court has been urged to express an opinion. We decline doing so. [...] This tribunal...should be the last to overstep the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums. [...] But whether [the government is of a republican form] is a question to be settled by the political power.
Hence, Taney created the “Political Questions Doctrine,” which precludes the judiciary from interfering in matters of political questions. This was not a one-off; the Court has been asked to adjudicate the Guarantee clause no less than 10 times, always with the same answer, articulated in 1912’s Pacific States Tel. & Tel. Co. v. Oregon:
The judicial power of the United States will not be extended to interfere with the authority of Congress or of the Executive so as to make the guarantee contained in § 4 of Art. IV of the Constitution one of anarchy, instead of order.
The long precedence of restraint in this area is shocking given how the courts have chimed in on every conceivable political question from abortion to gay marriage. Yet, here, in the question of what constitutes a republican form of government, the Court has never deviated from its self-imposed silence.
But how far can Congress or the president go? Pretty much, all the way.
After the Civil War, a recalcitrant South refused Reconstruction. Grant sent troops into the southern states—under the Guarantee Clause—to ensure blacks had the right to vote, that the states ratified the 14th Amendment and made universal property and legal rights, and to force them to write new constitutions.
The federal power exercised under the Guarantee Clause would not stay limited to obvious issues of governance, but would come to be applied more broadly. In the Enabling Act of 1894, Congress, using the Guarantee Clause, made criminalizing Mormon bigamy a precondition for Utah to become a state.
States arguing the federal government had no power to impose its will under the Guarantee Clause did not fare well. Georgia, along with Texas and Louisiana, sued Secretary of War Ed Stanton, claiming the Reconstruction Act was a gross unconstitutional violation of states’ rights. Again, the Court said that the actions taken by the federal government “are political and not judicial, and therefore not the subject of judicial cognizance.”
Essentially, the Court has ruled that a republican form of government is whatever Congress or the President says it is, right down to marrying only one woman or, I guess today, one man.
It is not a stretch at all for President Trump to proclaim, for instance, that DEI violates the Guarantee Clause, and only a government that strictly adheres to meritocracy is acceptable. Civil service based on anything else—aristocracy, hereditary, wealth, or most perniciously, race—is repugnant to republican governance and has been from Cicero to Madison.
So when Zohran Mamdani decides his socialist utopia includes making property taxes inversely proportional to pigment, refusing to follow federal law, institutionalizing DEI, and defunding the police, he is giving Trump all the ammunition he needs to send in the troops to restore a republican form of government, and Justice Ketanji Brown Jackson can pound sand.
Huck Davenport is a pseudonym.
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