I am currently in the process of proofreading my son’s second book. My primary job is to root out typos, spelling errors, grammatical mistakes, and inappropriate word choices. I am well qualified for this task, having undergone rigorous training by the nuns at Our Lady of Sorrows School. I probably outlined more sentences than some people have written. My job does not include suggesting changes in the substantive content of the book. If it did, my son would likely never let me near the manuscript.
It is a work of intellectual history, focused on the Reconstruction period. It examines the thought of various philosophers, politicians and activists as they debated the constitutional basis for imposing changes on the Southern States as the war came to a close. The war would have been a waste of time, they thought, if the Southern states were merely incorporated back into the union without requiring them to make fundamental changes in the way they operated, particularly, of course, with the way they treated black people.
There were several philosophical arguments put forth to justify imposing changes on the Southern States as a condition of allowing them to re-enter the Union. One, especially, caught my attention, as it’s something we might think about invoking today.
Article 4, section 4 of the Constitution provides that:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Usually referred to as the “Guarantee Clause” is has been largely ignored through most of our history. I seem to recall once being taught that it was essentially toothless. My son notes in the book that Roger Taney, of Dred Scott fame, actually ruled in a case involving the clause that Congress alone could enforce the guarantee, as opposed to the courts. The folks pushing the clause during Reconstruction were arguing that a republican form of government necessarily reflected the principles outlined in the Declaration of Independence, e.g., equality and government based on the consent of the governed as the popular understanding of those concepts evolves over time. That meant, they argued, that among other things, the federal government was within its rights to declare slavery illegal everywhere, with no need for a constitutional amendment to do so, and it meant that states could be required to have universal manhood sufferage. Apparently some (but not all) of them had still not yet gotten around to think that women had the right to consent to their government.
We all know how Reconstruction worked out. The folks who were pushing these ideas were successful in the sense that they enacted the 13th through 15th Amendments, but their true objectives were undermined as the courts and the political parties stepped aside and let the white people in the south impose a system of apartheid, with the courts somehow finding that the 14th Amendment actually was intended to give corporations rights and that it really had nothing much to do with black folks.
But I digress.
It occurred to me that the Democrats of today (no resemblance to the Democrats of the Reconstruction period) might consider reviving the Guarantee Clause argument that the Reconstruction “radicals” developed.
Right now, one of the greatest threats to democracy in this country is the fact that many of our states do not have republican forms of government in any reasonable interpretation of the term. It is, as Jefferson would have said, self evident that a government is not subject to the consent of the governed if it is designed to be controlled by a minority of the governed. That is precisely what is happening in many of our states, with computer enabled hyper-gerrymandering enabling Republicans to dominate in state legislatures in states where more people vote for Democratic candidates than for Republicans. The Supreme Court ducked the opportunity to do something about this gerrymandering, since it suits the interests of the conservative majority to enable the approaching autocracies, by declaring it a political question, outside of the court’s jurisdiction. Those folks back in Reconstruction days agreed, and argued that it was up to Congress to do what must be done to assure a Republican form of government in the states.
There is a reasonable chance that the Democrats will have majorities in both houses after the 2024 election, with no need to bow to the demands of either Joe Manchin or Krysten Sinema. Should the Democrats get into that position, they should seriously consider invoking that Guarantee Clause to do something about gerrymandering in the states. It would be entirely consistent with the Constitution’s directive that the federal government guarantee a republican form of government to the people of each state.
Of course, there’s no guarantee that the Congressional guarantee would be enforceable. Those folks in Reconstruction days argued that the courts had no role with respect to the clause, but of course our current Supreme Court would disagree. Though it has declined to deal with gerrymandering, calling it a political issue, it will no doubt feel free to step in to preserve unfair gerrymandering, despite the fact that it has ruled that it can’t do anything to stop unfair gerrymandering and despite the fact that it would be yet another example of hypocrisy on the part of the reactionaries on the court. Still, it wouldn’t hurt for the Democrats to push hard on the issue.
