Paul Finkelman’s account of antebellum decisions gets Justice Taney right, but not Justice Marshall, and especially not Justice Story.
This post consists of two parts: (1) thoughts prompted by re-reading John Hart Ely’s Democracy and Distrust; and (2) something resembling a meditation on the Guaranty Clause. As the reader will see, I am not able to articulate the connection between the two topics in anything but the most general terms. I hope others may be able to do so.
1. a. I first read Democracy and Distrust as a third law student, shortly after it was published. At the time, I dismissed its reasoning as entirely ad hoc, and I was annoyed by the reassurances of classmates that Ely was a constitutional conservative. Admittedly, as in an earlier-published article, Ely’s book continued to heap scorn on the reasoning of Roe v. Wade, but if going toe-to-toe with Justice Blackmun in a battle of wits had ever been an act of bravado, by 1980 it had the same point value in the game of academic iconoclasm as wearing denim slacks to a faculty party. In any respect that mattered, the world of Constitutional law described at the end of Ely’s book looked essentially no different from the way it had looked before. Indeed, to the extent the book was merely an elaboration of the famous Carolene Products footnote, I thought the owl of Minerva had a lot of damn nerve preening itself after having taken wing 40 years after its cue.
A few months ago, I picked up the book again and learned that time really does mellow us all. I am more inclined to believe that Ely’s search for an alternative to interpretivism was motivated in equal measures by an intellectually honest disagreement with its tenets and a sincere desire to recreate a virtue he saw and admired in interpretivism. I think Democracy and Distrust leads off with a repudiation of interpretivism not because of showmanship or hostility, but because that repudiation is the logical lead in to Ely’s frankly stated belief that interpretivism is more consonant than its rivals with what Ely called “the underlying democratic theory of our government.” The importance Ely attached to this fact is evidenced throughout the book, but perhaps no where more clearly than in its first chapter, where Ely says,
[T]he usual brand of non-interpretivism, with its appeal to some notion to be found neither in the Constitution nor, obviously, in the judgment of the political branches, seems especially vulnerable to a charge of inconsistency with democratic theory. . . This, in America, is a charge that matters.
On a second reading of the book, I am convinced that Ely set himself the task of recreating in his own thinking the consonance he saw between interpretivism and the democratic ethos, if not the even more arduous task of going that consonance one better.
b. Do not get me wrong. I am no more convinced by the argument of the book today than I was thirty years ago. To the contrary, after more than three decades, the apotheosis of the Warren Court seems not only provincial but quaintly provincial. However, I no longer believe that Ely pulled this rather unimpressive rabbit out of his hat because he had stuffed the forlorn rodent in there to begin with.
c. To be sure, Democracy and Distrust assumes its conclusions to a remarkable extent. However, that is not necessarily because Ely himself loaded the dice. Instead, it seems that Ely took as a given the reductionist account of democracy that I understand dominated American political science in the 1950s. The hallmark of this vintage theory is that in their political behavior, voters will subordinate every actual ideal, belief, impulse, or wish each of them may hold as an individual in favor of the tiny handful of “interests” imputed to them because of a group characteristic. Thus, for example, union households were presumed to vote a straight Democrat ticket in the ordinary course. If the returns suggested a different voting pattern, the election results were presumptively skewed by some factor (low turn out, gerrymandering, “mystification,” etc.) that prevented the interests of union households from being fully expressed.
Because Ely accepted this assumption without question, he assumed that there was an objectively measurable standard for the slice of the pie each “interest group” should get from the political process. Thus, Ely viewed deviations from this standard as evidence of a malfunction in the democratic process of a type that justified judicial intervention. Given the presuppositions of Democracy and Distrust, it was inevitable that under Ely’s “theory of judicial review,” the judicial thumb never would be removed from the left pan on the scales of justice.
d. I intend no mockery in saying this. To the contrary, I like to believe that if his life had not been cut short prematurely, eventually Ely would have freed himself from the intellectual confines of what had passed for political theory during his formative years. Indeed, as I re-read Democracy and Distrust, I was impressed several times to see how close – in a few cases, how frustratingly close — Ely’s notion of “representation-reinforcement” came to a more refined theory of judicial review despite the limitations of the frame of reference he adopts. What interests me most about Democracy and Distrust after a second reading are its “near misses,” such as Ely’s qualified endorsement of “visibility” in the legislative process (pages 125-31); his regret over the abandonment of the delegation doctrine (pages 131-34); and (of greatest pertinence here), his rejection of Luther v. Borden (1849) as categorically incorrect (footnote at page 118-19).
e. It is interesting to note that Ely’s discussion of the Guaranty Clause is cited in Deborah Merritt’s highly influential article, The Guarantee Clause and State Autonomy: Federalism For a Third Century, 88 Colum. L. Rev. 1, 45 n.253 (1987). That article, in turn, was relied on in the majority opinion written by Justice O’Connor’s in New York v. United States (1992), which laid the cornerstone for the Court’s anti-commandeering jurisprudence. One footer on which that cornerstone rests is the principle of accountability. See D.H. Merritt, supra, at 61-62, cited in New York v. United States for the following proposition:
[W]here the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision. Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation.
New York v. United States comes close to saying that it is proper for the Court to reinforce the processes by which the accountability of elected officials to the voters is maintained, at least where the Court acts strictly within the confines of federalism as a structure. Of course, accountability-reinforcement is different from representation-reinforcement in many important ways. Nonetheless, representation-reinforcement clearly belongs to the same family of norms as one of the norms underlying federalism that is identified by New York v. United States and by Professor Merritt’s article. It seems fair to conclude that the Guaranty Clause is the closest thing to a point of tangency between Democracy and Distrust and subsequent jurisprudence.
2. a. The Guaranty Clause is fascinating in the most downright sense of that word I can think of. It is beguiling both as a mystery and as a temptation. Admittedly, the major cause of the fascination is not textual, or at least it is not textual in quite the same way that the Privileges and Immunities Clause is textually interesting. The allure of the Guaranty Clause owes a great deal to something outside the constitutional text but as intimately related to the constitutional text as anything outside it can be. The subject matter of the clause is republican government, and republicanism plays a well known and pivotal role in Publius’s account of the Constitution.
Given the subject matter of the Guaranty Clause, then, it is very difficult to accept that it has no more significance than what was accorded to it in Luther v. Borden (1843). The difficulty is compounded by the Court’s disposition of Pacific States Telephone & Telegraph Co. v. Oregon (1912). The plaintiff in that case sought relief from a tax imposed under a state law that had been adopted by a plebiscite pursuant to an Article of Oregon’s constitution that delegated legislative authority to a legislature but reserved the power to adopt laws by popular referendum. On the theory that enforcement of the Republican Form of Government Clause is committed solely to Congress, the Court dismissed the appeal for want of jurisdiction. Dismissing the appeal on jurisdictional grounds seems dangerously close to repudiating the assertion in Marbury v. Madison that “It is emphatically the province and duty of the judicial department to say what the law is.”
b. As with anything properly called fascinating, the deeper one probes into the Guaranty Clause, the more of a puzzle it seems to be. The historical record shows that what became the Guaranty Clause was submitted to the convention in Philadelphia because of Shay’s Rebellion. However, the text of the Guaranty Clause all but demands that the Republican Form of Government promise be interpreted to refer to changes in the type of regime that arise because of something other than armed force, i.e., because of something other than invasion or insurrection, which are covered separately in the clause.
Turning to Story for an explanation is not helpful. He could find only about three hundred words for Article IV, Section 4 as a whole, none of them having any obvious relationship with circumstances outside of invasion or insurrection. By contrast, on the subject of the President’s power to receive Ambassadors and other public ministers, Story is a proper little chatterbox, devoting some 1,500 words to the subject and making a few nice distinctions along the way. Thus, when it comes to the promise of a Republican Form of Government, Story is not only inexplicably terse; he is suspiciously uninformative. It is as if he had decided to say as little as possible on the topic.
c. Moreover, context is not entirely helpful, either. In fact, the Republican Form of Government promise seems just enough out of place in Article IV to require even further explanation. Article IV superficially resembles a multi-lateral treaty, with a convention on the recognition of “foreign” judgments; reciprocal pledges of rendition; guaranties of parity in the treatment of each others’ citizens as sojourners or temporary inhabitants of another state party (disturbingly and disappointingly tempered by a partial renunciation of the law of the soil); rules for the admission of other sovereigns to the convention and the organization formed by it; the presupposition that outstanding boundary disputes would be settled other than by force; a recognition that the organization of the states might exercise hegemony over territory belonging to no one of them in particular, etc.
Although the Guaranty Clause falls short of a mutual defense pact, it fits the treaty model of Article IV to the extent that it represents a commitment by the group not to abandon any one of its members in the event of war or insurrection. Except for the Republican Form of Government pledge, then, Section 4 embodies a “No State left behind” principle. To that extent, it can be shoehorned into the “treaty” model because each state might foresee that promise as a potential advantage to itself in the future, and therefore might bargain for it with other states.
Still, the Republican Form of Government pledge does not fit the treaty model in quite the same way as the other provisions of Article IV. Since the balance of Section 4 covers both of the only two modalities for involuntary regime change, the Republican Form of Government Clause looks like a “promise” to “protect” each sovereign from its own voluntary choices regarding its internal structure. Sovereigns do not ordinarily trade something valuable for a promise of intervention in their internal affairs. To this extent, the Republican Form promise more closely resembles Article I, Section 10’s ban on the states’ creation of any titles of nobility, which, if it “protects” each state in its capacity as a sovereign, does so only as an incident of imposing a limitation on the state’s pre-Constitutional sovereign power.
Moreover, the protection afforded by at least some portions of Article IV, such as the Full Faith and Credit Clause, are in principle at least potentially useful to each citizen of a state. For example, anyone could become a judgment creditor, and judgments are more valuable if they can be transcribed to foreign courts at face value. By contrast, would-be aristocrats are worse off rather than better off as the result of a state’s being “protected” from the establishment of an aristocracy. Thus, it is not the state as a whole that benefits from the protection of Article I, Section 10, cl. 1. The real beneficiary of the ban on creating titles of nobility is the people in their collective capacity as the citizenry of a state.
d. Despite its location in Article IV, does the Republican Form of Government pledge fit this model, i.e., is it substantively a limitation on governmental power for the protection of the sovereignty of the people of each state? I think it can be read that way. However, I must admit that there is at least one interpretation that better explains the clause’s inclusion among the treaty-like provisions of Article IV.
The reassurance that all states will remain republics is a significant matter for each state because each state has a common border with at least one other state. As a general rule, it is not good to share a border with certain types of regimes, including most especially with a monarchy. By definition, a monarch has no place further to go on the national stage of his own country. If preeminence in his own country is not enough for him, the monarch necessarily must look to the international arena as a venue for the satisfaction of his remaining ambitions.
The easiest target of a monarch bent on greater glory is likely to be a land adjoining his own. Moreover, the danger posed by the warlike ambitions of a king or a despot is not necessarily confined to the immediate reach of his army. Especially in the context of relatively small states, border wars tend not to remain bilateral. Thus, in a nation like theUnited States, the common interest of each state is well served if no monarchical form of government can arise in any of them.
e. Of course, the interpretation of the Republican Form of Government promise offered immediately above causes it to benefit in practice the states other than the one against which it might be invoked. Thus, far from settling things, this interpretation merely opens a vista on to a host of additional questions. Here are a few:
I. Might the clause serve more than one purpose, such as precluding the establishment of a regime more likely than other forms of government to engage in war plus acting as a restriction on governmental power?
II. If the clause is not judicially enforceable as a direct restriction on governmental power, can it legitimately be taken into account in deducing any constitutional norm that is judicially enforceable?
III. If the Republican Form of Government pledge is at least in part a limitation on governmental power for the protection of the sovereignty of the people of each state, is it a limitation only on each state’s power vis-à-vis its own internal organization? To put this question another way, given that it is the United States that issues the guaranty, might the promise imply a limitation on federal legislation tending to subvert a principle of accountability on which republicanism rests?
IV. Since the ban on state creation of titles of nobility seems to preclude the voluntary establishment of an aristocratic government within a state, and the anti-insurrection and anti-invasion promises safeguard against the establishment or installation of an oligarchy or a tyranny, why didn’t the Founders simply include in Article IV a pledge by each state not to elect or create a king? To put this question another way, does the wording of the Republican Form of Government clause reflect a concern about whether direct democracy at the state level is compatible with the structure of the national government ordained by the Constitution?
V. To come full circle, if you agree with me that Ely came to fundamentally wrong conclusions in Democracy and Distrust, did mistakes creep into his reasoning because he set the wrong goal for himself, i.e., because he failed to consider that a theory of judicial review may have a sufficient guaranty of neutrality if it comports with the principles of republican self-government?