The Guarantee Clause of the U.S. Constitution

By William M. Wiecek | Go to book overview

8
The Progressive Era

Since 1867 the guarantee clause has lingered in a state of desuetude. It has emerged only twice: in the years 1900- 1920 it was the focus of debates over some of the new forms and functions undertaken by the state governments, and in 1962 the 113-year-old connection between the clause and the doctrine of political questions was severed.

Two salient features of the clause's history converged during the Progressive era. First, attorneys revived and read into the guarantee clause an early "natural-law" interpretation of the principles of republican government. This use of the clause was decisively repudiated by the courts. Second, the doctrine of judicial abstention in political question cases was restated forcefully by the Supreme Court, thereby removing the courts further than ever from an active role in developing the substantive standards of republicanism. Both developments culminated in the 1912 decision of Pacific States Telephone and Telegraph Co. v. Oregon, a case that ranks with Luther v. Borden and Baker v. Carr as one of the three most important in the history of the guarantee clause.

A natural-law conception of the guarantee clause originated before the Civil War. Antislavery theorists believed that slavery was incompatible either with the specific

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The Guarantee Clause of the U.S. Constitution
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Abbreviations xi
  • Introduction 1
  • Part I - Beginnings 9
  • I - Origins 11
  • 2 - Drafting And Ratification 51
  • 3 - Domestic Violence 78
  • 4 - Luther V. Borden (1849) 111
  • Part II - Fruition 131
  • 5- Slavery in The American Republic 133
  • 6 - Reconstruction: Crescendo, 1861-1867 166
  • 7 - Reconstruction: Diminuendo, 1867-1877 210
  • Part III - Desuetude 245
  • 8 - The Progressive Era 247
  • 9- Baker V. Carr (1962) 270
  • Epilogue 290
  • Suggested Secondary Readings 305
  • Index 315
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