A Congress that wanted to could theoretically use the guarantee clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, radical Republicans in Congress found their constitutional power to reconstruct the South, primarily in the guarantee clause, which they used to protect the rights of black Americans from revanchist state governments.
However, since Reconstruction, no Congress has wanted to use the guarantee clause to protect the rights and freedoms of Americans. It is a rudimentary part of our constitutional history, atrophied by disuse.
The same goes for Sections 2 and 3 of the 14th Amendment. Section 2 states that “representatives are distributed among the various states according to their respective numbers, counting the whole number of persons in each state, excluding the non-taxed Indians.” It then specifies that if the right to vote for federal office is “denied” or “shortened in any way except for participation in rebellion” to “any of the male residents” of such a state, “the basis of representation therein will be reduced” in proportion to the relevant refusal.
Section 3 also deals with representation. It says that
No person may be a senator or representative in Congress, or elector of president and vice president, or hold office, civil or military, under the United States, or under any state which, having previously sworn an oath, is a member of Congress, or as an officer of the United States, or as a member of a state legislature, or as an executive or bailiff of any state, in support of the Constitution of the United States, will have been involved in insurrection or rebellion against the same, or aid and comfort given to the enemies thereof.
The purpose of Section 2 was to invalidate the Constitution’s three-fifths clause and prevent state governments from depriving black voters of their right to vote. And the purpose of Section 3 was to prevent former Confederate leaders from holding state and federal office. But while the 14th Amendment gives Congress the power to enforce its provisions through “appropriate legislation,” Congress has never exercised its power to deny representation to states that violate the voting rights of citizens, nor has it it uses its power to disqualify those lawmakers who have participated in acts of rebellion or insurrection. In the wake of Jan. 6, Representatives Cori Bush and Alexandria Ocasio-Cortez called on Congress to investigate and expel members who aided the attack, but their demands got nowhere.
Here’s why I think it’s important to talk about these seemingly useless provisions. As recent events have made clear, powerful reactionaries are waging a successful war against American democracy using the counter-majoritarian institutions of the American political system, disguising their views in a distorted version of our constitution, where self-government means minority government. and the bugaboos of the right-wing culture are warriors somehow “deep ingrained” in our “history and traditions.”
But the Republic is not defenseless. The Constitution gives our elected officials the power to control a lawless Supreme Court, protect citizens from states’ “sinister laws,” punish those states for depriving their citizens of the right to vote, and ban insurgents from the state. to expel Congress.