Will Congress use its unused 232-year-old power — just in time to save our republic?
The founders of this nation, and the framers who wrote our Constitution, created (as Ben Franklin famously said) a constitutional republic: a government "deriving its just powers from the consent of the governed" through citizens' (then white men) right to vote.
They referred to this as "republicanism" because it was based on the Greek and Roman republics (then thousands of years in the past but still remembered and idealized), and when put into law they called it "a Republican Form of Government."
Today that form of government is in crisis in America, as that core right to vote that defines republicanism is under attack by Republican legislators in red states across our nation.
"In emergency, break glass" is the almost-never-used option available should a building catch fire or otherwise be in crisis. There's a similar alarm and safety valve built into the U.S. Constitution that, like that glass in so many buildings, has never before been used to protect our republic.
It's called the Guarantee Clause, and it's the basis of the Right to Vote Act that has passed the House and is stalled by a Republican filibuster in the Senate.
The Guarantee Clause, however, has never been used as a part of our everyday politics or law: Most people, in fact, have never heard of it.
It's never been used or adopted as law by the courts so it's essentially "potential power," a powerful but tightly coiled force quietly waiting for a real emergency, buried deep in our Constitution for 232 years.
But it comes alive when Congress activates it for the first time, which could be right now because the Freedom to Vote Act does just that, explicitly firing it up by name.
Joe Manchin is one of its co-sponsors, although it's mostly an effort by Sens. Amy Klobuchar (its main sponsor), Tim Kaine, Angus King, Jeff Merkley, Alex Padilla, Jon Tester and Raphael Warnock. On the Republican side, it appears to have support from Alaska's Lisa Murkowski.
And when you understand the background of the Guarantee Clause, the urgency and the consistency of the Right to Vote Act with the framers' vision about the possibility of this political moment is unmistakable:
July 18, 1787
It was a brutally hot summer in Philadelphia that year, and a week and a day after a mob chased down Mrs. Korbmacher on the streets outside Independence Hall (then the seat of the Pennsylvania legislature) and beat her to death for witchcraft.
Inside the hall, the delegates were writing the Constitution for a new nation, and the question had come up whether the new U.S. government should have the power — or the obligation — to "guarantee" that no state could so change its laws as to deprive its citizens of a "Republican Form of Government."
This was particularly important, as British law at the time specifically outlawed republicanism: only monarchy was allowed, and citizens had to swear fealty to the king. Nowhere in the "civilized world" of 1787, in fact, was it legal for a nation to elect their own representatives and live under their own laws, all made and enforced "by the consent of the governed" through "a Republican Form of Government."
At the end of the long, intense day, James Madison wrote a short letter to Thomas Jefferson, who was then the U.S. envoy to France and living in Paris, assuring him 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."
In fact, those notes taken during the Convention wouldn't see publication for another roughly 50 years, after all the men in the hall were dead, a concession to numerous delegates who'd essentially sold out their wealthy acquaintances by ensuring a republican democracy or allowing slavery to continue (there were compromises on both sides, some of which, like the Electoral College and setup of the two-votes-only-regardless-of-population Senate, cripple us to this day).
Before them for debate that day was proposed constitutional language: "That a republican constitution and its existing laws ought to be guarantied to each state by the United States."
An immediate objection came up from both New York's Gouverneur Morris and New Jersey's William Houston, because that language would allow the new states to keep laws that some delegates thought weren't "republican" in nature.
Morris, in particular, was an outspoken abolitionist and (from the left) wanted slavery phased out, and also opposed (from the right) laws like the one Rhode Island's legislature was then debating that would have equalized all wealth in that state every 13 years. That "Jubilee" idea was a prescription for chaos, Morris believed, and thus a threat to the new republic.
The judgment of history weighed on Morris. Madison later recounted that, "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."
Thus it was no surprise when Morris rose to object that the proposed language could keep terrible 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."
New Jersey's William Houston, a mathematics professor and abolitionist who served as a captain in Washington's army, concurred — although he was more concerned with not wanting to encourage laws that maintained 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 which point several men rose to point out they were debating the power of the federal government to "guarantee a Republican Form of Government" to all the states — but what if power-hungry people in a particular state were to rise up in rebellion and seize control of that state's government, thus ending statewide republicanism and creating a minor dictatorship or cult?
And then, what if that state then threatened other states' ability to have a government reflecting the will of the people?
Or tried to take them over either by corrupting them from within or invasion? (This was not an idle fear: Both happened just 74 years later, in 1861.)
Massachusetts' Nathaniel Gorham was particularly outspoken about this, given that there had been attempts by both rich landowners and Pilgrim clergy in his state over the past century to turn the state into a dictatorial theocracy (leading Roger Williams to flee and split off Rhode Island in the 1670s).
If such a thing were to happen again and succeed, Gorham wondered, shouldn't the federal government have the power to intervene so it could guarantee the states around Massachusetts and its residents a republican form of government, where those with political power had to answer to "the people" rather than just the clergy or the rich? What if a wealthy oligarch declared 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."
In response, Pennsylvania's James Wilson, a scholar of Greek democracy and an abolitionist, suggested different language for the fourth section of the Constitution's fourth article:
"[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 did the trick.
"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." The convention then adjourned for the day and Madison went home to write his letter to Jefferson.
That day's debate is what gave us 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 an amazing sentence, that could be as sweeping in its power as the Commerce Clause (which John F. Kennedy and Lyndon Johnson used to force integration of the South), but has never really been used in any meaningful way since it was written on that hot summer day in 1787.
The first time this "Guarantee Clause" came before the Supreme Court, slavery was the law of the land and Chief Justice Roger Taney, a former slaveholder, was determined to keep it that way by bottling up that clause's power.
Seven years before he tried to cement slavery into the law of every state in the union with his Dred Scott decision, Taney ruled in Luther v. Borden (1849) that his Supreme Court would never be allowed to interfere with states' 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: The definition of what a "Republican Form of Government" actually means isn't yet laid out in the law or previous interpretations of the Constitution: Therefore, it's politics. And politics is the province of Congress, not the Supreme Court, which must limit itself to law.
On that foundation, later Supreme Courts repeated Taney's assertion that the question was political and not one to be decided by the courts: Instead, it was up to the politicians in Congress if they were going to "guarantee a Republican Form of Government" to — or within — any particular state at any point in the future.
Taney was quoted "lucidly and cogently" in Pacific States Telephone & Telegraph v. Oregon (1912) and Chief Justice John Roberts noted in 2019, "This Court has several times concluded that the Guarantee Clause does not provide the basis for a justiciable claim."
Thus, to this day, it's up to Congress, not the court, to decide what a "Republican Form of Government" is and how Congress will guarantee it to and/or within every state.
Which brings us to today, and how Congress can end partisan gerrymanders, dial back the power of money in politics and guarantee the right of every American citizen to vote without undue difficulty.
The opening of the Freedom to Vote Act lays it out clearly:
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.'"
The proposed law even notes as justification for its existence how the Supreme Court has dropped — or laid down — the ball and therefore 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 ensures a "Republican Form of Government" in America through the following reforms:
- Automatic voter registration and online registration for 16-year-olds who will be 18 and thus eligible to vote in the next election
- Same day voter registration nationwide
- Ending partisan gerrymandering
- Limiting campaign contributions to a maximum of $10,000
- Criminalizing "pass through" groups to get around campaign finance laws
- Requiring companies to fully and rapidly disclose all election spending over $10,000
- Requring all websites (like Facebook) with more than 50 million users to create a publicly available and publicly searchable archive of political ads
- Bringing web-based election expenditures under the same disclosure rules as TV
- Making it a federal crime to prevent a person from registering to vote
- Requiring 14 consecutive days for early voting, at least 10 hours each day
- Requiring easy access to polling places for rural and college campus voters, and easy access to voting for all voters by public transportation
- Guaranteeing that all voters, nationwide, can vote by mail with no excuses necessary
- Guaranteeing that all voters can put themselves on a permanent vote-by-mail list and automatically receive a ballot in the mail
- Requiring states to give voters the ability to track their mail-in ballots to be sure they're counted or to contest any challenge to their ballot
- Forbidding states from forcing mail-in voters to have their ballots witnessed, notarized or jump through other onerous hoops
- Requiring secured and clearly labeled ballot drop boxes in all jurisdictions
- Requiring the Post Office to process all ballots on the day they're dropped off and without postage
- Requiring states to keep voting lines shorter than 30 minutes in all cases and places
- Allowing people waiting in line to vote to receive food or water from others
- Restoring the right to vote to all felons who have served their sentences, in all states
- Prohibiting voter "caging," where failure to return a postcard gets you purged
- Prohibiting states from deleting voters from the rolls because they haven't recently voted
- Empowering voters to sue in federal court any state or local officials who interfere with their right to vote
- Criminalizing intimidating, threatening or coercing any election official or election worker
- Requiring federal prosecution of anybody who tries to harm or undermine public officials by doxxing the personal information of an election worker or their immediate family
- Making it a federal crime to publish or distribute false information about elections (when, where, etc.)
- Increasing federal penalties for voter intimidation or otherwise interfering with your absolute right to vote
- Keeping partisan "poll watchers" at least eight feet from voters in all circumstances, including while voting
- Requiring paper ballots in all cases and all elections (there are exceptions for disabled voters)
- Requiring post-election audits
- Providing criminal penalties for any candidate or campaign that fails to fully and immediately report any interactions with foreign governments
- Giving lower-income individuals $25 they can use to give to candidates in $5 or more increments
Some have even gone so far as to introduce laws that authorize their legislatures to ignore or reject votes they don't like, in anticipation of the 2024 election.
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