In 1787, from May to September, a group of 55 delegates traveled from their states, leaving their families, jobs, friends and home to spend hours on end in an “unbearably hot”, stuffy room in Pennsylvania debating and writing the new U.S. Constitution.
They were doing something unprecedented. They were creating, through careful thought, debate and foresight—rather than revolution, siege or coup—a brand new government, with the primary goal being the perpetuation and preservation of liberty.
Do you realize how rare, how precious, this type of event was? Historically speaking, there’s little to compare it to.
These men consternated, debated, argued, and fought over every jot and tittle of the document, down to the last sentence.
With this in mind, as Americans, we should strive to understand every jot and tittle of the Constitution protecting our liberty from government. Otherwise, why have the Constitution?
Article VI: Clause 3
How many of you have read or know off the top of your head what Article VI, Clause 3 of the Constitution says?
My guess is that very few of you know this off the top of your head, and yet, it’s a critical (as all aspects of the Constitution are) part of our government’s job description and one we would be remiss to skip over.
Here’s the direct clause from the Constitution:
“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.”
As with every part of the U.S. Constitution, it’s important to understand the historical context surrounding why those 55 men felt that this clause should be included in the final draft of the Constitution and why they wrote it the way did (These men did legitimately fight over specific phrases, words and punctuation).
The authors of the Constitution fully believed that the best form of government was a Republican form of government, one where the people don’t have a direct say but do have influence over those that do have a direct say.
Further, the Constitution’s authors contended that the federal government’s power over states could only extend so far. So, they had to figure out just how far the reach of federal power needed to extend in order to preserve liberty, while also making sure that federal power never extended so far that it crippled state power, a power they felt was also essential to preserving liberty.
The federal government is not the only government capable of tyranny.
State governments are as well.
The founders knew this. They knew the propensity for men with power to abuse that power, no matter the level of power. So, if they gave too much power to the federal government to prevent state government abuse, then the state governments couldn’t appropriately check the federal government’s power, leaving the door wide open for federal tyranny.
And yet, if they gave the states too much autonomy from the federal government, the state governments would have nothing to check their power and they could potentially corrupt into a tyranny.
This is the tenuous challenge these 55 men faced when creating the new federal government.
Hence, Article VI, Clause 3 of the U.S. Constitution.
This clause guarantees the type of government states will have. In other words, the Constitution empowers the federal government to guarantee citizens of every state a representative REPUBLICAN form of government.
According to Chin and Hawley of the Constitution Center: “The Clause requires the United States to prevent any state from imposing rule by monarchy, dictatorship, aristocracy, or permanent military rule, even through majority vote. Instead, governing by electoral processes is constitutionally required.”
That’s it. The federal government is empowered to prevents states from turning into military dictatorships or any other form of government than Republican. (Interesting to think about given the current state of politics in individual states today)
Here’s the key. The founders were careful to phrase this clause in a way that both empowers and limits the federal government. In one way, it empowers the federal government to step in should the form of government in a state ever devolve into tyranny, and at the same time it limits the federal government’s ability to intervene into state government affairs to just that.
Again, Chin and Hawley explain: “However, the Guarantee Clause does not speak to the details of the republican government that the United States is to guarantee. For example, it is difficult to imagine that those who enacted the Constitution believed the Guarantee Clause would be concerned with state denial of the right to vote on the basis of race, sex, age, wealth, or property ownership. Article I, Section 2 of the Constitution left voting qualifications in the hands of the states, although state authority in this area has been altered by subsequent amendments.”
Hawley explains: “The Guarantee Clause thus acts as a limited check on the federal government’s ability to interfere with state autonomy.”
So, the courts have maintained that the federal government cannot meddle with how a state chooses to conduct their Republican form of government. Whether or not the states choose to use referendums or initiatives or choose to never use them is entirely up to the state. In short, everything, from elections—federal and local—government make-up and the like, are exempt from federal government intrusion.
But, should a state government suddenly turn into a tyranny, the federal government is Constitutionally equipped and obligated to step in.
The founders carefully tiptoed over this tightrope, attempting to prevent federal abuse but also equipping the federal government just enough power to be able to step in and prevent state abuse when necessary.
See how this works?
A few final notes to take away from this clause. This dynamic has changed a bit in favor of federal power as a result of a few key amendments. The amendments changed some functions about how states conduct their elections and run their governments. The Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments all changed certain aspects of elections (no poll tax, no denial from voting based on age, race or sex).
The Court has also maintained that should the federal government step in to make sure a state government has not veered from a republican form of government, only the legislative and executive branches are equipped to do so. The clause specifically says that the federal government is to protect states from invasion and on “Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
In other words, “The question whether a Guarantee Clause challenge may be heard in federal court—that is, whether it is judicially enforceable—is a difficult one. In Luther v. Borden(1849), the Supreme Court held questions involving the Guarantee Clause nonjusticiable, meaning that any remedy for a violation would lie with Congress or the President, not the federal judiciary” (Chin and Hawley).
Do you now grasp why understanding every jot and tittle is so important? Liberty depends on our knowledge and ability to keep our government accountable to every aspect of the Constitution. The Constitution is our government’s job description, so why do treat it as if it’s a mere list of recommendations?
Liberty must be protected from all levels of government, and the founders did their best to walk that careful tight rope balancing the powers between the state and federal governments in a way that best preserves and promotes liberty.
As citizens of both America and our states, it’s incumbent upon us to make sure we never fall from that tight rope.
The Liberty Belle