Conclusiones

In the leading cases of Luther v Borden ²⁴⁷ and Pacific States v Oregon,²⁴⁸ that will be analysed later, it was argued by those supporting a textual interpretation of the clause, that based on its position in the Constitution, Congress is the indirectly recognised branch of government that is granted enforcement powers under the Guarantee Clause.²⁴⁹ They supported this view by claiming that since Article IV section 3 delegates powers to the Congress to admit new states, and Article V gives the powers to Congress to propose amendments to the Constitution, Article IV section 4 must have been intended to delegate the enforcement powers of the Guarantee Clause to Congress.²⁵⁰ However, as Hasen highlights, this interpretation is strongly in opposition of the other clauses included in the Constitution that specifically grant Congress with

246 Wiecek (n 51) 168; Bonfield (n 143) 514.

247 Martin Luther v Luther M Borden and Rachel Luther v Luther M Borden (1849) 48 (7 How) US 1.

248 Pacific States Telephone & Telegraph Co v Oregon (1912) 223 US 118.

249 Hasen (n 144) 8.

250 ibid.

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power, since those commence with ‘Congress shall.’²⁵¹ No such wording can be found in the Guarantee Clause.

V.1.1. Congress, the Guarantee Clause and slavery

The Guarantee Clause soon emerged during the debates of Congress, for instance, about the admission of Missouri in 1818 and 1819, which state did not outlaw slavery at the time.²⁵² During these debates, the representatives of the Northern states also claimed that the Constitution of Illinois was unrepublican as the Northwest Ordinance of 1787 prohibited slavery, which was allowed under its constitution.²⁵³

It is intriguing to highlight that the Framers in 1787 did not regard a state unrepublican if slavery was existed within the state. Thus, if one is to follow the originalist and textualist method of interpretation solely based on the Guarantee Clause, a state may be deemed republican even if slavery existed within it. However, a non-originalist interpretation of the Constitution would allow for a state to be deemed unrepublican if slavery existed within its boundaries, if it could be demonstrated that the values of society have changed sufficiently for the freedom of all individuals to be deemed a fundamental constitutional value at the time.

The debate surrounding slavery and the Guarantee Clause appeared once again with the Tallmadge Amendment, which aimed to prohibit slavery in Missouri through the prohibition of new slaves and the manumission of the children of the slaves.²⁵⁴ However, this amendment sparked a further fundamental debate that highlighted the different standpoints of the Southern and Northern states on the issues of slavery and a republican government. The Southern states argued the Guarantee Clause did not allow the federal government to interfere with the ‘domestic institutions and internal affairs of the states.’²⁵⁵

251 ibid.

252 Bonfield (n 143) 531; Wiecek (n 51) 142.

253 Wiecek (n 51) 142.

254 Annals of Congress, House of Representatives, 15th Congress, 2nd Session 1169 and 1170; ibid 143.

255 ibid.

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Fuller, representing the views of the Northern states, highlighted that when Ohio and Indiana were admitted to the United States, based on the Northwest Ordinance of 1787, Congress was able to impose a condition on their admittance to outlaw slavery in their Constitution.²⁵⁶ This would thus signal the adoption of the non-originalist method of interpretation of the Constitution by Congress, where the eradication of slavery was deemed to be a fundamental constitutional value.

However, Fuller also argued that Congress was unable to impose a similar condition for Missouri because of Article III of the Louisiana Purchase Treaty of 1803 between the United States and France.²⁵⁷ This Article proclaimed:

The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess.²⁵⁸

However, he argued that this Article could not apply in this case, since it would have bound Congress to act unconstitutionally by not abiding the federal Constitution when admitting the state.²⁵⁹

Fuller, seemingly adopting a non-originalist method of interpretation, further asserted that despite claims to the contrary, Congress does have a right, and ‘a duty’ to examine the state asking for admission.²⁶⁰ He further argued that the Guarantee Clause granted Congress the power to examine the state, and required it ‘to ascertain that her constitution or form of government is republican.’²⁶¹ While performing such examination, Fuller claimed, Congress should take into consideration Paragraph 2 of the Declaration of Independence that declared ‘that all men are created equal.’²⁶² He

256 Annals of Congress, House of Representatives, 15th Congress, 2nd Session 1171 and 1172.

257 Louisiana Purchase Treaty of 1803 between the United States of America and the French Republic, Article III.

258 ibid.

259 Annals of Congress, House of Representatives, 15th Congress, 2nd Session 1172 and 1173.

260 ibid 1179.

261 ibid.

262 Declaration of Independence 1776.

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thus claimed that ‘it cannot be denied that slaves are men,’ and, thus, ‘in a purely republican government born free.’²⁶³ Fuller reasoned that in determining whether slavery complied with republican ideals, Congress could rely on the Declaration of Independence. He argued that this was possible since the Declaration of Independence could be regarded as ‘an authority admitted in all parts of the Union a definition of the basis of republican government,’ based on which all men should have

‘equal rights.’²⁶⁴ However, this view did not prevail.²⁶⁵ It did, however, signal that the Guarantee Clause could be utilised in its positive aspect, if a non-originalist method of interpretation was followed, allowing the advances in society regarding the transformed viewpoint on slavery to be incorporated into the Constitution. Moreover, it also signalled that the negative aspect of the Guarantee Clause and its originalist method of interpretation may also be utilised if states did not prohibit slavery, if such a transformed viewpoint was to be accepted.

The majority of Congress, composed of Southern states preceding the Civil War, however, clearly rejected a dynamic interpretation of a republican government. They claimed that since the states where slavery still existed were regarded republican when they were admitted to the United States, they could not be held unrepublican based on a changing viewpoint because they did not ‘substantially deviate’ from a republican form of government.²⁶⁶ The Northern states, however, aimed to rely on the Guarantee Clause to argue that slavery was contrary to the ideals of a republican government, as proclaimed in the Declaration of Independence.

It is fundamental to highlight that such a debate could emerge because no clear definition of what a republican form of government under the Guarantee Clause was provided. Therefore, it became a constitutional uncertainty that had to be managed by Congress at the time.

V.1.2. Congress, the Guarantee Clause and the early stages of Reconstruction

263 Annals of Congress, House of Representatives, 15th Congress, 2nd Session 1180.

264 ibid 1181.

265 Bonfield (n 143) 531–532.

266 ibid 532.

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As a subsequent step in the development of the Guarantee Clause, President Lincoln in July 1861 declared that if a state wished to secede from the United States, it was no longer regarded a republican government under the Guarantee Clause.²⁶⁷ He stated, ‘[to] prevent its going out is an indispensable means to the end of maintaining the guaranty mentioned.’ In other words, he argued for the prevention of secession through the use of the Guarantee Clause.²⁶⁸

Several proposals were subsequently submitted to Congress to address the Reconstruction and possible re-admission of the Southern states to the Union after the end of the Civil War. The first of such proposals was submitted by Baker, who claimed that the federal government should govern these states ‘as territories’

following the conclusion of the Civil War.²⁶⁹ This would involve, he maintained, sending governors to control these states.²⁷⁰ Additionally, Sumner proposed a more radical resolution in the Senate in the subsequent session. He argued that the seceded states lost all their ‘constitutional and legal right.’²⁷¹ He further claimed, similar to the previous arguments of Fuller, that slavery could not exist in a republican government.²⁷² Moreover, he argued that the seceded states should not be governed as territories, but control over them should be ‘assumed’ by Congress.²⁷³ It was only providing Congress with these powers, Sumner claimed, that the inhabitants of these states would be provided with the protection of their rights under the Constitution.²⁷⁴

Until 1864, however, it was the President, who led the Reconstruction under the Guarantee Clause and ‘appointed military and civilian governors for the seceded states’ once they were under Union control.²⁷⁵ In his Ten Percent Plan for Reconstruction, President Lincoln argued that the seceded states would be given the protection of the Guarantee Clause.²⁷⁶ However, this required ten percent of those

267 Abraham Lincoln, ‘Special Session Message July 4, 1861’

<http://www.presidency.ucsb.edu/ws/?pid=69802> accessed 1 September 2017; Wiecek (n 51) 171.

268 Lincoln (n 268); Wiecek (n 51) 171.

269 Congressional Globe 37^th Cong, 2^nd Session 45 (1861).

270 ibid.

271 Congressional Globe 37^th Cong, 2^nd Session 46 (1861).

272 Congressional Globe 37^th Cong, 2^nd Session 47 (1861).

273 ibid.

274 ibid.

275 Wiecek (n 51) 184.

276 ibid.

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who were entitled to vote in 1860 to organise a government that ‘recognised emancipation under executive order […] or congressional statute.’²⁷⁷ This implies that the executive was presumed as the branch of the federal government responsible for enforcing the Guarantee Clause.

However, Congress challenged this authority soon after his Plan by passing the Wade-Davis Bill.²⁷⁸ Davis argued that the Guarantee Clause - contrary to the claims of the President – vested Congress with ‘a plenary, supreme, unlimited political jurisdiction, paramount over courts.’²⁷⁹ Congress was thus allowed to enact ‘every legislative measure necessary and proper to make it effectual; and what is necessary and proper.’²⁸⁰ Crucially, he also argued that neither the President nor the Supreme Court could overrule the decisions of Congress in this regard, only the people.²⁸¹ Despite the Bill passing through both Houses, Lincoln vetoed the Wade-Davis Bill.²⁸²

Subsequently, President Johnson relied on the Guarantee Clause to claim that the President should act as the enforcer under this provision and appointed governors to the occupied states.²⁸³ During the Thirty-Ninth Congress, however, Congress declared its will to assume powers under the Guarantee Clause. Colfax argued, relying on a non-originalist interpretation of the Constitution, that during the Reconstruction, the republican ideal that ‘protection to all men in their inalienable rights’ should be guaranteed by Congress.²⁸⁴ He reasoned that this originated from the ‘first and highest obligation’ of Congress ‘to guarantee to every state a republican form of government.’²⁸⁵ It is argued that this method of interpretation was a non-originalist one as he did not rely on textualist techniques arguing that it was Congress who should take on the role of the enforcer and he did not rely on the original intent technique to infer these powers. Whether this non-originalist method of interpretation is, however,

277 ibid.

278 ibid 185.

279 Congressional Globe 38^th Cong, 1st Session App 82 (1864).

280 Congressional Globe 38^th Cong, 1st Session App 82 (1864).

281 ibid.

282 Wiecek (n 51) 187.

283 ibid 189.

284 Congressional Globe 39^th Cong, 1st Session 5 (1865).

285 Ibid.

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correct is debatable as the Constitution did not lay down specifically that it should be Congress adopting this role.

Sumner also reinstated the same position in his proposed bill in the Senate, and argued that since Congress was given powers to determine ‘what is a republican form of government,’ the seceded states cannot be considered republican.²⁸⁶ He further proposed that where no state government had been established, no government could be considered as republican where manumitted slaves were denied the right to vote even though ‘they constitute the majority of the citizens’ of a state.²⁸⁷ Whilst the proposals of Sumner were rejected, the same ideology resurfaced soon after.

Shellabarger claimed - similar to the earlier positions submitted to Congress by Sumner - that the seceded states ceased to be able to claim any protection under the Constitution once they rebelled and, in fact, ceased to be states.²⁸⁸ Thus, in order to be readmitted to the United States, these states had to satisfy the Guarantee Clause and establish republican forms of government.²⁸⁹

Subsequently, Sumner, once again, submitted a resolution to the Senate based on the Guarantee Clause. He argued that based on this clause, ‘no oligarchy, aristocracy, caste, or monopoly’ could exist and individuals could not be denied their rights based on their ‘color or race.’²⁹⁰

The first time that similar proposals would be passed was in 1866, when Congress passed the following resolution submitted by Broomall:

That whenever the people of any state are thus deprived of all civil government [by rebellion], it becomes the duty of Congress, by appropriate legislation, to enable them to organize a state government, and in the language of the Constitution, to guarantee to such state a republican form of government.²⁹¹ Thus, Congress, with the passage of this resolution, assumed the power of enforcer under the Guarantee Clause. A crucial moment, following this declaration, was the

286 Congressional Globe 39^th Cong, 1st Session 2 (1865).

287 ibid.

288 Congressional Globe 39^th Cong, 1st Session 142 (1866).

289 Ibid.

290 Congressional Globe 39^th Cong, 1st Session 592 (1866).

291 Wiecek (n 51) 199.

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passing of the Civil Rights Bill despite the veto of the President.²⁹² Lawrence, in highlighting the importance of the Bill, argued that a state cannot be regarded republican without it guaranteeing the protection of ‘political’ and ‘essential civil rights, recognized and confirmed by the Constitution’ of all its citizens.²⁹³ The guarantee of such a form of government was, however, entrusted upon Congress, as Lawrence claimed, and, thus, had to be applied.²⁹⁴

In the Report of the Joint Committee on Reconstruction, the ideals above seemed to emerge in a consolidated manner.²⁹⁵ The Report claimed that the federal government could ‘take notice’ of no constitutions of the rebel states.²⁹⁶ It, in effect, argued that no state constitution was left in these states because they withdrew ‘their representatives in Congress,’ renounced ‘the privilege of representation, by organizing a separate government,’ and levied ‘war against the United States.’²⁹⁷ Moreover, it declared that only Congress was granted powers to recognise the forms of government in the readmitted states as republicans under the Guarantee Clause.²⁹⁸ Therefore, states should be required to organise constitutional conventions and submit the draft constitutions to the people before they could be re-admitted.²⁹⁹ It is only then that a legislature may be formed as a republican form of government, and could ask for representation at Congress.³⁰⁰

The forerunner of the Military Reconstruction Act 1867 utilised the Guarantee Clause to argue that the governments in the seceded states were of military origin and, thus, could not be considered republican. The Reconstruction Act, on the other hand, abandoned the Guarantee Clause as it major constitutional basis.³⁰¹

292 ibid 200.

293 Congressional Globe 39^th Cong, 1st Session 1836 (1866).

294 ibid.

295 Report of the Joint Committee on Reconstruction (20 June 1866).

296 Report of the Joint Committee on Reconstruction (20 June 1866) VIII.

297 ibid.

298 Report of the Joint Committee on Reconstruction (20 June 1866) XIV and XV.

299 Report of the Joint Committee on Reconstruction (20 June 1866) XV.

300 Ibid.

301 Wiecek (n 51) 205–207.

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V.1.3. Congress, the Guarantee Clause and the later stages of the Reconstruction

The withdrawal of claims for powers under the Guarantee Clause may also be observed in the later stages of the Reconstruction. As Wiecek highlights, there had been many instances where Congress could have utilised its powers under the Guarantee Clause following the adoption of the Military Reconstruction Act 1867.³⁰² Such instances, he argued, were expelling black members from the legislature in Georgia in 1868, ‘the near-civil war in Arkansas from 1872 to 1874,’ or ‘similar conditions in Louisiana in 1872.’³⁰³

Despite both the President and the Supreme Court allowing and even explicitly asking Congress to act under the Guarantee Clause in these instances, Congress refrained from taking any actions.³⁰⁴ The members of Congress, although claiming that the purpose of this clause was to ‘enable them to keep the states in their orbits, to preserve them from anarchy, revolution and rebellion,’³⁰⁵ thus, left these crises to be solved by the President.

Even though Georgia denied the rights of black men to sit in the legislature, the Congress did not address whether this complied with the ideals of a republican government when re-admitting the state.³⁰⁶ The only condition that was imposed on Georgia was that of ratifying the Fifteenth Amendment, which ensured that after ratification, all necessary votes were guaranteed in Congress for the passing of this Amendment.³⁰⁷

In the meantime, the position of Congress on what constituted a republican form of government transformed substantially from the views of, for instance, Sumner, which were presented during the earlier stages of the Reconstruction era. Howard, thus, claimed during the Forty First Congress that ‘a republican government is a government in which the laws of the community are made by their representatives, freely chosen

302 ibid 210.

303 ibid.

304 ibid 210–211.

305 Congressional Globe 40^th Congress, 1 Session 193 (1867).

306 Wiecek (n 51) 216–219.

307 ibid 219.

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by the people.’³⁰⁸ He subsequently claimed that it was ‘impossible […] to give the word

“republic” any more exact or precise meaning than that.’³⁰⁹ Thus, Congress seemed to shy away from the vast responsibility of enforcing the Guarantee Clause and determining what a republican government would have entailed.

This position became even more apparent during the Arkansas crisis of 1872 to 1874.

Despite his initial hesitation, President Grant declared that the group supporting Baxter in Arkansas, as opposed to the other three groups claiming power, was the republican form of government in the state, and thus ordered those opposing Baxter to cede.³¹⁰ A House Select Committee on Arkansas Affairs was subsequently established to determine which government of the state was ‘republican.’³¹¹ The conclusions of this Committee further demonstrated that Congress did not desire to act as the enforcer of the Guarantee Clause or act as the check on the powers of the President exercised under this clause.³¹² The Committee concluded that the government of Arkansas, backed by the President, was ‘republican in form’ and there was ‘reasonable peace and quiet’ in the state.³¹³

The support of Congress for nominating itself as the enforcer of the Guarantee Clause received the final blow in its response to the Louisiana crisis. In this response, despite a bill having been submitted based on the Guarantee Clause for Congress to settle the crisis, Congress rejected this bill.³¹⁴ This rejection was based on the argument that the Guarantee Clause could not be used to resolve this crisis because the powers granted to the federal government under it were ‘too great’ and would be ‘too extreme a remedy.’³¹⁵

V.1.4. Congress, the Guarantee Clause and its silence

308 Congressional Globe 41^st Congress, 1^st Session 2022 (1870).

309 Congressional Globe 41^st Congress, 1^st Session 2022 (1870).

310 Wiecek (n 51) 221–223.

311 ibid 224.

312 ibid 225.

313 ibid.

314 ibid 228–229.

315 ibid 229.

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The silence of Congress on the Guarantee Clause continued into the twentieth century. For instance, Congress failed to invoke any powers it may possess under the Guarantee Clause, even when Huey P Long, ‘the American Hitler,’³¹⁶ governed Louisiana in an undeniably unrepublican way.³¹⁷ The legislative provisions that the 'Kingfish' enacted included the creation of a 'secret police', the imposition of state censorship against any criticism of his government, and of 'martial laws without any

The silence of Congress on the Guarantee Clause continued into the twentieth century. For instance, Congress failed to invoke any powers it may possess under the Guarantee Clause, even when Huey P Long, ‘the American Hitler,’³¹⁶ governed Louisiana in an undeniably unrepublican way.³¹⁷ The legislative provisions that the 'Kingfish' enacted included the creation of a 'secret police', the imposition of state censorship against any criticism of his government, and of 'martial laws without any