Republican Form of Government

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REPUBLICAN FORM OF GOVERNMENT

The Constitution requires that "The United States shall guarantee to every State in this Union a Republican Form of Government" (Article IV, section 4). The ideal of republican government antedated the Constitution and supplied some substantive criteria for the guarantee. The concept of republican government has changed and expanded over time, but it has influenced constitutional development only indirectly.

thomas jefferson's 1776 draft constitution for Virginia, various Revolutionary-era state constitutions, and the northwest ordinance (1787) mandated republican government in the states or territories. When the guarantee clause was adopted at the constitutional convention of 1787, the concept of republican government had identifiable connotations to the Revolutionary generation. In a negative sense, it excluded monarchical government and the creation of nobility. Because the Framers believed that internal disorder threatened republican institutions, they fused the guarantee clause with the clause in Article IV authorizing the federal government to suppress domestic violence. But in its positive connotations, republican government implied popular sovereignty, a balance and separation of powers, and limited government.

The contributions of alexander hamilton and james madison in the federalist reflected these negative and positive emphases. In numbers 6, 21, 22, 25, 34, and 84, Hamilton stressed the nonmonarchical character of republican governments and the need for a central authority powerful enough to suppress insurrections so as to forestall republican degeneration into absolutism. Madison, however, in numbers 10, 14, 39, and 43, emphasized the representative and majoritarian nature of republican government, contrasting it with direct democracies. shays ' rebellion in central Massachusetts (1786–1787), rumors of monarchical plots and overtures late in the Confederation period, and federal response to the whiskey rebellion (western Pennsylvania, 1794) lent weight to the emphasis that Hamilton reflected.

Conservative judges in the antebellum period insisted that statutes must conform to "certain vital principles in our free republican governments," in the words of Justice samuel chase in calder v. bull (1798) (seriatim opinion.) He claimed that "the genius, the nature, and the spirit of our state governments" voided unconstitutional legislation even without specific constraints in the state constitutions. Thus the concept of republican government became a fecund source of authority for judges seeking to restrain legislative innovation that affected property in such matters as liquor prohibition and the Married Women's Property Acts.

In Rhode Island's Dorr Rebellion (1842), frustrated suffrage reformers abandoned hope that the state's conservative political leadership (called the "Freeholders' Government") would rectify the severe malapportionment and disfranchisement that existed under the royal charter of 1662, which still served as the state's constitution. They therefore applied the declaration of independence literally to write a new constitution at a convention elected by the votes of all adult males, including those not entitled by existing law to vote. They then elected a government under the new constitution, including the "People's Governor," Thomas Wilson Dorr. The Freeholders, relying on Hamilton's nonmonarchic conception of republican government, insisted that a government was republican if it enjoyed the support of the enfranchised voters. By imposing martial law, the Freeholders crushed the Dorrite government. They then instituted suffrage reforms under a new state constitution.

The Dorr Rebellion was the matrix for luther v. borden (1849), where Chief Justice roger b. taney provided the first significant judicial hints about the meaning of republican government. Though Taney rebuffed Dorrite efforts to have the Court declare the Freeholder and subsequent regimes illegitimate, he conceded that "according to the institutions of this country, the sovereignty in every State resides in the people of the State, and … they may alter and change their form of government at their own pleasure." But he nullified this concession by applying the political question doctrine: whether the people have altered their government is a question to be decided by the political branches of the national government (Congress and the President), whose determination is binding on the courts.

The constitutional controversy over slavery turned partly on the nature of republican forms of government. In the debates over the admission of Missouri in 1819–1821, antislavery congressmen asserted that slavery was inconsistent with republican government. abolitionists later maintained that slavery violated natural law by depriving slaves of the right to their liberty, their persons, and their labor. Southern spokesmen after 1835 developed the position that slavery was not only compatible with republicanism, but actually conducive to it, creating a leisured master class freed for the disinterested pursuit of civic responsibilities.

The slavery controversy echoed in debates on Reconstruction between 1862 and 1875. Many Republicans supported policies that would have given blacks the vote, assured equal rights for all, and excluded southern states from representation in Congress until they had eradicated the vestiges of slavery and secessionist sentiment. They demanded that Congress force these improvements on the southern state governments. Democrats and other conservatives, on the other hand, identified the essence of republicanism with self-government—for whites only. Though adoption of the military reconstruction acts (1867–1868) evidenced a Republican willingness to exact certain minima from the southern states, such as the program reflected in sections 1 through 4 of the fourteenth amendment, the party soon fell back to a more compromising position. Senator jacob howard of Michigan reflected a Republican consensus late in Reconstruction when he defined a republican form of government as one "in which the laws of the community are made by their representatives, freely chosen by the people.… [I]t is popular government; it is the voice of the people expressed through their representatives." He was echoed by Chief Justice melville w. fuller in In re Duncan (1891): the "distinguishing feature of [the republican] form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies."

However, the Supreme Court has otherwise consistently declined to specify substantive characteristics of a republican form of government, sometimes using the political-question doctrine to avoid doing so. Chief Justice morrison r. waite observed in minor v. happersett (1875) that "no particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated." In Pacific States Telephone and Telegraph Co. v. Oregon (1912) Chief Justice edward d. white refused to declare that direct-democracy innovations such as the referendum or the initiative fell afoul of the constitutional guarantee. In the previous year, though, President william howard taft vetoed the Arizona/New Mexico admissions bill because it provided for judicial recall. Taft condemned the "possible tyranny of a popular majority." In baker v. carr (1962) Justice william j. brennan refused to use the guarantee clause as a basis for requiring reapportionment, relying instead on the equal protection clause. But he trimmed back the breadth of the political question doctrine, leaving open the remote possibility that the Supreme Court might someday take on a more active role in delineating the substantive content of republican forms of government.

Unless it does so, however, the nature of republican government will be determined largely outside judicial forums, and the constitutional guarantee of republican government in the states will be enforced, as it has been consistently since before the Civil War, by Congress and, derivatively, the President.

William M. Wiecek
(1986)