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Reconstructing the Congressional Guarantee of Republican Government Vanderbilt Law Review Volume 73 Issue 3 Issue 3 Article 2 4-2020 Reconstructing the Congressional Guarantee of Republican Government David S. Louk Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Constitutional Law Commons Recommended Citation David S. Louk, Reconstructing the Congressional Guarantee of Republican Government, 73 Vanderbilt Law Review 673 (2020) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol73/iss3/2 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Louk_galleyed (Do Not Delete) 4/10/2020 2:39 PM Reconstructing the Congressional Guarantee of Republican Government David S. Louk* The Republican Guarantee Clause of Article IV, Section 4 promises that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Although this clause might seem to confer significant power to oversee the political structures of the states, ambiguity about the Clause’s meaning, coupled with the Supreme Court’s historic disinclination to define its contours, have led some observers to question whether the Clause is a paper tiger. While recent scholarship has focused mostly on what a “Republican Form of Government” might entail, less attention has been given to the threshold questions of who might serve as guarantors of the Clause and precisely what forms of action they might take under it. This Article concludes that while all federal branches may have a role to play as guarantors of republican government, the logic, location, and history of the Republican Guarantee Clause suggest that the Clause most directly empowers the political branches, and especially Congress, to act as guarantor. Often forgotten, but of critical importance, is that the Clause served as the chief constitutional basis for Reconstruction after the Civil War, and it helped pave the way for ratification of the Fourteenth and Fifteenth Amendments in the southern states. This history suggests that the Clause and those Amendments— on which twentieth-century voting rights legislation was based—should be understood and interpreted in light of one another. This Article explores the role the Clause might play as an alternative source of federal legislative power to guarantee basic political processes alongside—or in place of—these Reconstruction Amendments. These questions have renewed significance today, given recent and frequent constitutional confrontations between Congress and the Supreme Court regarding the scope of Congress’s constitutional power to interpret and enforce the Reconstruction * Academic Fellow, Columbia Law School; J.D., Yale Law School, 2015; Ph.D., Jurisprudence & Social Policy Program, UC Berkeley, 2019. For excellent comments, suggestions, and conversations at various stages of this project, my sincere thanks to Wendy Brown, Heather Gerken, Daniel Hemel, Kinch Hoekstra, Cameron Kistler, Chris Kutz, Gillian Metzger, Christina Ponsa-Kraus, Robert Post, David Pozen, Richard Primus, Reva Siegel, Sarah Song, Karen Tani, and the participants at the Columbia Law School Academic Fellows Workshop. Special thanks to B., as always. 673 Louk_galleyed (Do Not Delete) 4/10/2020 2:39 PM 674 VANDERBILT LAW REVIEW [Vol. 73:3:673 Amendments. Most recently, in Shelby County v. Holder (2013), the Court struck down portions of the Voting Rights Act as extending beyond Congress’s Fifteenth Amendment Enforcement Clause power. Around the same time, many state governments began to impose new restrictions on voter registration and access to the ballot box. These new measures, coupled with the Supreme Court’s holding in Rucho v. Common Cause (2019) that legal challenges to partisan gerrymandering are not justiciable in federal courts, has provoked renewed calls for federal protections to guarantee fairness in state political processes. Other recent developments, including the 2020 coronavirus pandemic, have also led to calls for greater congressional oversight of state electoral procedures. This Article considers whether the Clause might serve as an additional constitutional basis for federal legislation and explores the interpretive arguments Congress might raise to justify the power to reform electoral processes in the states under the Clause. This Article also questions the prevailing view that the Supreme Court has always treated the Clause as functionally nonjusticiable. It argues that even following established precedents, the contemporary Court might well engage with the merits of legislation and litigation commenced under the Clause, given the Court’s recent penchant for enhanced scrutiny of congressional enforcement powers under the Reconstruction Amendments. Such challenges would spark a historical constitutional confrontation between Congress and the Court as to the meaning of the Clause. The Court might take one of several approaches when interpreting Congress’s power to legislate under the Clause, and this Article concludes that the Clause is the rare constitutional provision that would seem to grant both the courts and the political branches independent and complementary bases to guarantee republican government. Judicial scrutiny of congressional actions taken under the Clause should be heightened when congressional efforts can more readily be achieved by the states or by the courts and diminished when only Congress or president could effectively serve as the guarantor. INTRODUCTION ............................................................................... 676 I. THE COURT AND CONGRESS AS CONSTITUTIONAL INTERPRETERS ..................................................................... 686 A. The Coequal Interpreters Account: The Republican Guarantee Clause, the Political Question Doctrine, and Legislative Constitutionalism .......................... 687 B. The Judicial Supremacy Account: The Reconstruction Amendments and Juricentric Constitutionalism .................................................... 691 II. THE POLITICAL BRANCHES AS GUARANTORS OF REPUBLICAN GOVERNMENT ................................................. 699 Louk_galleyed (Do Not Delete) 4/10/2020 2:39 PM 2020] GUARANTEEING REPUBLICAN GOVERNMENT 675 A. Presidential Action to Guarantee Republican Government in Rhode Island ................................... 700 B. Civil War–Era Congressional and Presidential Restoration—and Redefinition—of the Republican Form of Government ................................................ 705 1. Presidential Invocations During and After the War ......................................................... 708 2. Congressional Reconstruction of Republican Forms of Government ................................... 711 3. Guaranteeing Ratification of the Fourteenth and Fifteenth Amendments ......................... 715 4. Judicial Deference to Republican Reconstruction .............................................. 718 III. THE COURTS AS GUARANTORS OF REPUBLICAN GOVERNMENT ...................................................................... 722 A. A Guarantee of Federal Noninterference in Minimally Republican State Sovereigns ................. 722 B. A Guarantee Against Plebiscites and Delegations of Lawful State Authority ........................................ 729 C. A Guarantee of Individual Rights Inherent in Any Republican Form of Government ............................. 733 IV. INTERPRETATION AS CONFRONTATION: THE COURT, CONGRESS, AND THE MEANING OF THE REPUBLICAN GUARANTEE CLAUSE ........................................................... 734 A. A Twenty-First-Century Legislative Guarantee of Republican State Governments ............................... 736 B. Constitutional Confrontation: How the Court Might Review Congressional Action and Interpretation .... 740 1. Justiciability ................................................. 741 2. The Meaning of Each Part of the Clause ..... 743 a. “The United States” ........................... 744 b. A “Republican Form of Government” ...................................... 744 c. “Guarantee” ....................................... 747 3. Modes of Judicial Scrutiny ........................... 751 a. The Katzenbach “Any Rational Means” Analysis ................................ 751 b. The Boerne “Congruence and Proportionality” Analysis .................. 752 c. A Departmentalist “Necessary and Proper” Analysis ................................ 753 CONCLUSION ................................................................................... 755 Louk_galleyed (Do Not Delete) 4/10/2020 2:39 PM 676 VANDERBILT LAW REVIEW [Vol. 73:3:673 The United States shall guarantee to every State in this Union a Republican Form of Government . —Article IV, Section 41 INTRODUCTION The civics-textbook account of the U.S. Constitution is that it sets out a separation of powers by allocating particular roles and functions to each of the three branches of government.2 Article I specifies the legislative powers and responsibilities of Congress, Article II sets forth the executive powers of the president, and Article III describes the judicial authority of the Supreme Court and lower federal courts. Yet the structure of the Constitution is not quite so straightforward. Section 4 of Article IV, for instance, provides in one clause that “[t]he United States shall guarantee to every State . a Republican Form of Government,”3 but
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