Academic journal article Harvard Law Review

The "Guarantee" Clause

Academic journal article Harvard Law Review

The "Guarantee" Clause

Article excerpt

CONTENTS  INTRODUCTION I.   THE EIGHTEENTH-CENTURY MEANINGS OF "GUARANTEE"      A. Dictionary Definitions of "Guarantee" and "Guaranty"      B. "Guarantee" as an International Law Term of Art II.  "GUARANTEE" IN THE GUARANTEE CLAUSE AS A TERM OF ART      A. The Founding-Era Background: Interstate Relations as         International Relations      B. Textual Evidence         1. Location, Location, Location: The Article IV            Guarantee Clause         2. The Syntax of the Guarantee Clause            (a) The Object of the Guarantee Clause            (b) The Subject of the Guarantee Clause      C. Contextual Evidence         1. The Articles of Confederation and the State Land Claims            Controversy            (a) Drafting the Articles of Confederation            (b) Demands for "Guarantees" of Territorial Integrity                During the Confederation Period         2. The Framing and Ratification Debates            (a) The Philadelphia Convention            (b) The Ratification Debates         3. Post-Ratification Evidence            (a) Early Commentaries on the Guarantee Clause            (b) Early Jurisprudence Under the Guarantee Clause         4. Summary III. IMPLICATIONS      A. Substantive Interpretation of the Guarantee Clause      B. Justiciability of Claims Asserted Under the Guarantee Clause CONCLUSION 

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 construed 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 thorough 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 questions to only those situations involving either "a textually demonstrable constitutional commitment of [an] issue to a coordinate political department" 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 challenges 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) Jack Balkin, (10) Erwin Chemerinsky, (11) John Hart Ely, (12) and Laurence Tribe. (13) The courts themselves have also begun to question the longstanding assumption that Luther compels a categorical prohibition on adjudicating Guarantee Clause claims. In its most significant recent pronouncement on the Clause, the Supreme Court nudged open the door to future Guarantee Clause litigation by suggesting "that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions." (14) And though lower courts have been relatively cautious in taking up the Court's invitation, a handful of lower court decisions have concluded that the political question doctrine no longer stands as an inflexible barrier to adjudicating claims under the Guarantee Clause. (15) For example, in its 2014 decision in Kerr v. Hickenlooper (16)--subsequently vacated on alternative jurisdictional grounds--the Tenth Circuit concluded that the political question doctrine posed no obstacle to federal adjudication of a claim that a state constitutional amendment adopted through a voter initiative process conflicted with the constitutional guarantee of a "Republican Form of Government. …

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