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The “Guarantee” Clause Contents THE “GUARANTEE” CLAUSE Ryan C. Williams CONTENTS INTRODUCTION ............................................................................................................................... 604 I. THE EIGHTEENTH-CENTURY MEANINGS OF “GUARANTEE” ................................ 612 A. Dictionary Definitions of “Guarantee” and “Guaranty” ............................................ 612 B. “Guarantee” as an International Law Term of Art ...................................................... 615 II. “GUARANTEE” IN THE GUARANTEE CLAUSE AS A TERM OF ART ........................ 620 A. The Founding-Era Background: Interstate Relations as International Relations .................................................................................................... 621 B. Textual Evidence .............................................................................................................. 625 1. Location, Location, Location: The Article IV Guarantee Clause .......................... 625 2. The Syntax of the Guarantee Clause ........................................................................ 629 (a) The Object of the Guarantee Clause .................................................................... 630 (b) The Subject of the Guarantee Clause .................................................................. 631 C. Contextual Evidence ........................................................................................................ 634 1. The Articles of Confederation and the State Land Claims Controversy .............. 635 (a) Drafting the Articles of Confederation ............................................................... 636 (b) Demands for “Guarantees” of Territorial Integrity During the Confederation Period ........................................................................................... 639 2. The Framing and Ratification Debates .................................................................... 646 (a) The Philadelphia Convention .............................................................................. 646 (b) The Ratification Debates ..................................................................................... 651 3. Post-Ratification Evidence ........................................................................................ 661 (a) Early Commentaries on the Guarantee Clause .................................................. 661 (b) Early Jurisprudence Under the Guarantee Clause ........................................... 666 4. Summary ....................................................................................................................... 671 III. IMPLICATIONS ........................................................................................................................ 674 A. Substantive Interpretation of the Guarantee Clause ................................................... 674 B. Justiciability of Claims Asserted Under the Guarantee Clause ................................. 679 CONCLUSION ................................................................................................................................. 687 602 THE “GUARANTEE” CLAUSE Ryan C. Williams∗ Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case, leading many to predict that its eventual demise is only a matter of time. The interpretive possibilities inherent in a judicially enforceable Guarantee Clause have tantalized generations of constitutional theorists, leading to a significant body of research attempting to uncover what was meant by the provision’s oblique reference to “a Republican Form of Government.” But this research has almost completely ignored a separate inquiry that is equally critical to understanding the provision’s meaning and significance — namely, what it means for the United States to “guarantee” such republican government to the states. This Article seeks to shed new light on the original meaning of the term “guarantee” in the Guarantee Clause by looking to an unexpected source — namely, eighteenth-century treaty practice. The language of the Guarantee Clause closely parallels language that was frequently used in seventeenth- and eighteenth-century treaties. The interpretation of such treaty provisions was informed by well-settled background principles of international law, which attached particular legal significance to the term “guarantee.” As used in eighteenth-century treaties, the term “guarantee” signified a diplomatic commitment whereby one nation pledged its support to the protection of some preexisting right or entitlement possessed by another sovereign. Importantly, however, such provisions were deemed to exist solely for the benefit of the guaranteed sovereign and conferred no separate rights or entitlements on the nation pledging the guarantee. Viewing the Guarantee Clause through the lens of eighteenth-century treaty practice casts significant doubt on claims by modern scholars that the provision should be understood as a repository of judicially enforceable individual rights. Rather, both the text of the provision and contextual evidence regarding its original understanding strongly suggest that the provision more likely reflected a quasi-diplomatic, treaty-like commitment on the part of the federal government to its quasi-sovereign component states. This evidence lends new, and heretofore unappreciated, support to the Supreme Court’s longstanding practice of treating Guarantee Clause claims as beyond the scope of judicial cognizance. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Assistant Professor, Boston College Law School. I would like to thank Will Baude, Mary Bilder, Pamela Bookman, Sam Bray, Rebecca Ingber, Tom Lee, Ethan Leib, Ryan Liss, and Tejas Narechania for helpful comments and conversations in the development of this article. The Article also benefitted immensely from insightful feedback obtained in workshops at Notre Dame Law School and Boston College Law School, as well as from the hard work and valuable contributions of the editors and staff of the Harvard Law Review. 603 604 HARVARD LAW REVIEW [Vol. 132:602 INTRODUCTION In 1867, Senator Charles Sumner famously likened the Article IV Guarantee Clause to “a sleeping giant in the Constitution.”1 Nearly a century and a half later, and despite persistent prodding from scholars,2 litigants, and even the occasional judge,3 the giant continues to slumber. The roots of this somnolence are conventionally traced to the Supreme Court’s 1849 decision in Luther v. Borden,4 which has long been con- strued as requiring that all constitutional challenges based on the Clause be treated as involving nonjusticiable political questions.5 There are signs, however, that the giant may be starting to stir. The political question doctrine is a shadow of what it once was, having been dealt a critical blow by the Supreme Court’s 1962 decision in Baker v. Carr.6 In Zivotofsky ex rel. Zivotofsky v. Clinton,7 one of its most thor- ough recent engagements with the doctrine, the Court continued the trend of diminishing its scope. The Zivotofsky Court reinforced and elaborated the Court’s previously articulated limitation of political ques- tions to only those situations involving either “a textually demonstrable constitutional commitment of [an] issue to a coordinate political depart- ment” or “a lack of judicially discoverable and manageable standards for resolving it.”8 As the force of the political question doctrine has waned in other domains, the use of that doctrine to insulate Guarantee Clause chal- lenges from any form of judicial review has grown increasingly difficult to defend. The refusal of federal courts to entertain challenges under the Guarantee Clause has drawn criticism from a veritable “who’s who” of modern constitutional theorists, including Professors Akhil Amar,9 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 CONG. GLOBE, 40th Cong., 1st Sess. 614 (1867) (statement of Sen. Sumner). 2 See infra notes 9–13 (citing scholarly critiques of the political question limitation on Guaran- tee Clause claims). 3 See infra p. 605 (discussing recent case law that suggests that certain Guarantee Clause claims may be justiciable). 4 48 U.S. (7 How.) 1 (1849). 5 Id. at 46–47; see also, e.g., New York v. United States, 505 U.S. 144, 184 (1992) (“The view that the Guarantee Clause implicates only nonjusticiable political questions has its origin in Luther . .”). But see Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. REV. 1908, 1911–13 (2015) (contending that this understanding of Luther is mistaken and that claims under the Clause were not held to be nonjusticiable until the Court’s decision in Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912)). 6 369 U.S. 186 (1962). 7 566 U.S. 189 (2012). 8 Id. at 195 (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)). 9 AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 276–80 (2005);
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