If a state lawfully amended its constitution to establish an elected monarchy, would the United States Constitution prohibit such an action? What if the elected monarch had all governmental powers but could be recalled by the voters? How close to a monarchy could a state get? For example, could a state amend its constitution to vest the governor, elected say for five years at time, with the authority to appoint and dismiss—to thus make answerable to the executive—all members of the legislative or judicial branches? Would such formulations of government violate the Federal Constitution? If so, who would—or could—be responsible for enforcing a constitutional prohibition on such an act?

The United States Constitution establishes, in the Republican Guarantee Clause, that “The United States shall guarantee to every State in this Union a Republican Form of Government . . . .” In 1849, the Supreme Court noted in Luther v. Borden that the guarantee of republican government had largely been left to the political branches. In 1912, the Court decided it lacked jurisdiction to hear an appeal invoking the Republican Guarantee Clause in Pacific States Telephone & Telegraph Co. v. Oregon, holding that the Court in Luther had rendered claims brought under the clause nonjusticiable political questions. Decades later, the Court handed down its decision in Baker v. Carr, which more thoroughly explained the nature of “political question[s]” and outlined when courts have jurisdiction. 

Since the Court’s decision in Baker v. Carr, the majority of scholarship examining the Republican Guarantee Clause has discussed the provision in light of the Court’s decisions in areas such as apportionment and partisan gerrymandering. This scholarship has often focused on whether the Court’s cases would be better reasoned by relying on the Clause, whether there are limits to Congressional power under the Clause, or whether the Clause should be justiciable. 

Recent scholarship has provided a new examination of the Republican Guarantee Clause through the paradigms of treaty and contract law, revisiting the view that the Clause is primarily a promise between the government of the United States and the governments of the several states, as well as emphasizing its role as a commitment between and among the several states to preserve republicanism. Professor Carolyn Shapiro recently shared an insightful analysis on the nature of the Republican Guarantee Clause as a structural guarantee to preserve both the individual parties to the agreement—the United States and the several states—but also the system of federalism generally. Professor Shapiro aptly considers the structural guarantee in light of (antidemocratic) “spillovers,” wherein “laws or practices in one state have effects in others.”

This Note considers the impact of the structural guarantee paradigm on today’s legal landscape, and in particular the effects and opportunities that such a structural guarantee offers to state attorneys general. In Part I, this Note surveys the development of republicanism and the Republican Guarantee, with a particular focus on the Founding era. In Part II, this Note turns to historical and modern examples of spillovers and surveys the special challenges faced today. In Part III, this Note turns to the persons uniquely positioned to make use of the Republican Guarantee Clause in this structural capacity—state attorneys general—and considers the potential ethical challenges these officers may face in trying to invoke the structural guarantee to defend their states. In Part IV, this Note concludes that state attorneys general may ethically and constitutionally make use of the structural guarantee.

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