Volume 109
Issue 1
October '20

Written By: Alejandro J. García

Abstract

The Guarantee Clause of the U.S. Constitution, located in Section 4 of Article IV, provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” What reads like a lynchpin of the Founders’ federal experiment has become little more than a quaint footnote of constitutional law. Neither the Supreme Court nor the political branches have made any meaningful use of this rich text. Scholars have long struggled to find its meaning and usefulness and have instead mostly focused on whether it is justiciable.

Some recent scholarship has begun to look at what the Clause meant to the Founding Generation. This Note inserts itself in that scholarly debate by arguing that the public of 1787 most likely understood the Guarantee Clause through the lens of contract law. Guarantees, also known as guaranties, were and still are a common contractual device for ensuring the payment of debts by having a third party secure the debt. Under this framework, this Note argues that the Guarantee Clause places the federal government as the guarantor to an obligation of maintaining a “Republican Form of Government,” owed by states to each other. No published article or note has explored such a potential meaning of the Guarantee Clause, and this Note seeks to open an entirely new line of inquiry into the Clause’s meaning.

In large part, this Note is a response to Professor Ryan C. Williams’s recent article on the Guarantee Clause. In the article, Professor Williams argues that the Clause should be seen through the lens of eighteenth-century treaty law. This paper works to provide an alternative, and arguably more persuasive, private law lens for understanding the Guarantee Clause. It undertakes detailed etymological and contextual analysis to get at the meaning of the “guarantee.” Moreover, the Note looks at contemporary usage of the term “guarantee” to conclude that the term was more commonly used in both law and business to refer to the eponymous contractual device, rather than treaty mechanisms.

In a period characterized by challenges to federal–state and state–state relations, a better-understood Guarantee Clause could serve as a strong tool to protect the Republic. By placing it within an ancient and well-developed framework of contract law, this Note seeks to advance understanding of the Clause and promote its revival from desuetude.

Continue reading The Republican Guaranty Contract.