As James Madison explains in Federalist No. 43, it means that “in a confederation based on Republican principles and composed of Republican members, the supervising government should clearly have the power to defend the system against aristocratic or monarchical innovations.”
He continues: “The more intimate the nature of such a Union can be, the greater the interest of its members in each other’s political institutions; and the greater right to insist that the forms of government under which the pact was entered into should be substantially maintained.”
Of course, in modern times there is no real chance of a state becoming a ‘monarchy’ or ‘aristocracy’ in the 18th century sense. So why does the warranty clause matter, and what does it mean? How can one determine whether a state has maintained a “republican form of government”?
We normally turn to the Supreme Court for an answer to such a question. But here the court has postponed the congress. In Luther v. Borden in 1849 – a lawsuit that involved the authority of a Rhode Island government still operating under its original royal charter and resting on the guarantee clause – Chief Justice Roger Taney (later of Dred Scott’s disgrace) stated:
According to this article of the Constitution, it is up to Congress to decide which government is established in a state. Since the United States guarantees every state a Republican government, Congress must necessarily decide which government will be established in the state before it can determine whether it is Republican or not.
Taney’s statement stood firm, just over 60 years later, in Pacific States Telephone and Telegraph Co. v. Oregon, when the court dismissed a claim that the warranty clause made direct referendums unconstitutional by stating that it was outside the scope of jurisdiction. of the Supreme Court to enforce the guarantee of a Republican government. “That question,” wrote Chief Justice Edward White in his majority opinion, “has long been established by this court in accordance with government practice from the outset as political in nature, and therefore not recognizable to the judiciary, but solely by the Constitution.” subject to the discretion of Congress.”
This remains the judgment of the court. But it’s not the only view. In his famous 1896 dissent in Plessy v. Ferguson, Judge John Marshall Harlan cited the warranty clause in his order against Louisiana’s Jim Crow segregation law. If allowed to stand, he wrote:
a power would remain in the States, through sinister legislation, to disrupt the blessings of liberty; regulating civil rights common to all citizens, based on race; and to place in a state of legal inferiority a large group of American citizens, now part of the political community, called the people of the United States, for whom and by whom, through representatives, our government is run. Such a system is contrary to the constitutional guarantee of a republican form of government to any state, and can be brought down by action of Congress or by the courts in fulfilling their solemn duty to uphold the supreme law of the land. , anything in the constitution or laws of any state notwithstanding.
In this view of the guarantee clause, the touchstone for “a republican form of government” is political equality, and when a state has political inequality after a certain point, Congress or the federal courts step in to restore the balance.
In a 2010 article for the Stanford Law Review, Jacob M. Heller called this a “death by a thousand cuts” approach to enforcement, one in which lawmakers and courts understand that “anything that hinders the Republican form of the state is a step closer to the ultimate unraveling of the republican form of government of a state.”
Even if handled this way, the Supreme Court can rule that the judiciary cannot do anything to ensure a “republican form of government.” Chief Justice John Roberts suggested the same in Rucho v. Common Cause in 2019, noting that the plaintiffs’ objection to a previous North Carolina legislative map “seems better based on the warranty clause,” but that the court “concluded several times” that the clause “does not provide the basis for a valid claim.”