Doesn’t the Guarantee Clause Forbid Initiatives?
The issue is that the Guarantee Clause might be used by opponents who might hold that it might Forbid Initiatives in a Republican form of Government
The Constitution’s guarantee clause does not explicitly forbid initiatives or allow direct democracy; the issue is unresolved. Specifically, Article IV, section 4 of the U.S. Constitution (the Guarantee Clause) states 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.”
Note that this Solution shall check and remedy representative democracy, not supersede it.
- On one side, it is argued that the words “republican form of government” should be narrowly construed to exclude any form of direct democracy, in effect saying that the U.S. is a republic and is not a democracy. Support for and against this position can be found in various writings by the Founding Fathers.
- On the other side, it is argued that the Founding Fathers were simply giving the States a broad assurance that there would be no new monarchy or dictatorship in whatever form. The actual wording of the guarantee tends to support this interpretation because the same paragraph also refers to protection against invasion and domestic violence. At that time monarchy still had wide support and was a serious and feared possibility. It was George Washington himself who squelched the movement to crown him by refusing to participate.
The Supreme Court in 1912 held that a challenge to the constitutionality of a State initiative was not subject to judicial review. In other words, final confirmation of their constitutionality could not be resolved by the Constitution and the issue was left in limbo. Nevertheless, this decision has allowed State initiatives to be used without further serious challenge. “Generally, it is recognized that a state government is republican if Congress seats its members” (Vile, p109). Consequently, direct democracy legislation has, by its adoption in State constitutions become virtually approved de facto as part of the Constitution.
Today, republics around the world allow various degrees of direct legislation. They all consider themselves to be republics in which supreme power is held by the citizens entitled to vote. There seems to be agreement that a degree of direct legislation is entirely compatible with, and healthy for, a republican form of government.
Nevertheless, the planned nationwide Initiatives Amendment would undoubtedly cause opponents to raise the guarantee clause arguments again, possibly delaying it for a long time since the argument has no conclusion within the Constitution as currently worded. Therefore, in the Planned Amendment, an article is included to clarify that State initiatives and referendums and U.S. initiatives are consistent with a republican form of government. The States are the beneficiaries of the Guarantee, and will, by ratifying this Amendment, accept this constitutional interpretation and thereby they will make themselves indisputably constitutional.