Digby reposted ‘Fools, drunks, and the United States of America’ from James Fallows’ newsletter on Saturday. Fallows examines how this country growing both in size and population beyond the founders’ wildest dreams has taken us to “where the rules no longer reflect the check-and-balance, big-vs-small design conceived in the 18th century, and where practice is pushing those rules to their limit.” Our democracy now strains the definition of republican. Majority rule is no longer a rule but a guideline, and in many states mere window dressing.
Profound changes, Fallows observes, have driven “a shift from protecting minority rights, which a diverse society should and must do, to enabling minority rule, which ultimately means a denial of democracy.” One of our major political parties, headed toward a future as a permanent minority (if not demographic extinction) has abandoned the original principle of majority rule for rule as a minority. Its very name is now a political joke.
Recently, I tried provoking a Twitter conversation on the topic by poking Marc Elias of Democracy Docket:
By “when do we” I meant the Department of Justice.
Fallows wrote:
Thus we have Democratic candidates for president winning the national vote in seven of the eight past elections—but appointing only three of the nine current members of the Supreme Court. Thus we have Senators representing less than one-third of the population blocking proposals supported by most of the public. Thus we have even worse failure-of-democracy structures in many state governments, for instance as laid out by political scientist David Pepper here. Thus we have the voting-restrictions and gerrymandering plans I needn’t detail but that we read about every day.
I’ve posted that Pepper video below as I don’t want readers to miss it.
What I referenced in my tweet is twofold. The Constitution requires the federal government to guarantee that each state have a government that is republican in form.
Article IV, Section 4
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Secondly, the enabling legislation for admitting new states to the union requires them to adhere to that principle. The language varies slightly from case to case but derives both from the Northwest Ordinance of 1877 (passed under the Articles before ratification of the Constitution) and from Article IV, Section 4.
The Enabling Act of 1816 for admitting Indiana, for example. The new state (Sec. 4):
whenever formed, shall be republican, and not repugnant to those articles of the ordinance of the thirteenth of July, one thousand seven hundred and eighty-seven, which are declared to be irrevocable between the original states, and the people and states of the territory northwest of the river Ohio
Or the Alaska Statehood Act (1959):
SEC. 3. The constitution of the State of Alaska shall always be republican in form and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.
There were a few states admitted between those dates. You may live in one.
I am not an attorney (clearly), but it seems that in a sense our republic is no longer constitutional. Or at least the governments of several states that pledged upon admission to govern according to the principle of majority rule and by the principles laid out in the Declaration of Independence are in violation of their contracts, contracts the federal government is constitutionally obliged to enforce.
The question is which branch(es) of our tripartite government enforces them?
Scholars Gabriel J. Chin and Erin M. Hawley at the Constitution Center explain:
The Guarantee Clause also does not require any particular form of republican governmental structure. Thus, in cases such as Pacific States Telephone & Telegraph Co. v. Oregon (1912), the Supreme Court has refused to invalidate various forms of direct democracy permitted by state law, such as popular initiative and referendum, on the ground that they violate the Guarantee Clause. While these decisions were often on jurisdictional grounds, they are consistent with James Madison’s observation in The Federalist No. 43 that “the States may choose to substitute other republican forms.”
It is also clear that federal actions regarding states, authorized by other parts of the Constitution, do not ordinarily violate the Guarantee Clause, even if those federal actions prevent a particular state decision from going into effect. Under the Supremacy Clause, federal law will sometimes supersede otherwise valid state laws.
The question whether a Guarantee Clause challenge may be heard in federal court—that is, whether it is judicially enforceable—is a difficult one. In Luther v. Borden (1849), the Supreme Court held questions involving the Guarantee Clause nonjusticiable, meaning that any remedy for a violation would lie with Congress or the President, not the federal judiciary. Nearly one hundred years later, the Court sweepingly declared that the guarantee of a republican form of government cannot be challenged in court. Colegrove v. Green (1946).
More recently, however, the Supreme Court has left the door open to a Guarantee Clause challenge, intimating that the justiciability of such a claim must be decided on a case-by-case basis. Nevertheless, because protection against invasion or domestic violence is normally available only from Congress and the President, the structure of this section suggests that the political branches have at least the primary duty to carry out its obligations.
By more recently, the pair may mean suits brought against states over redistricting. In North Carolina’s Rucho v. Common Cause, the Supreme Court ruled that partisan gerrymandering claims are nonjusticiable. The plaintiffs argued that partisan gerrymandering was a violation of the 1st Amendment, the Equal Protection Clause of the 14th, and Article I sections 2 and 4 of the U.S. Constitution.
But perhaps it is time somebody challenge whether some of these same governments are in violation of Article IV, Section 4.
After last week’s case from Mississippi challenging Roe, one could imagine a Republican state attorney general arguing with a straight face that so long as the state’s government has the “form” of a republican one, then the constitution (and the enabling act) is satisfied.
That, in turn, recalls what Heather Cox Richardson said last week about such an interpretation:
In 1858, Abraham Lincoln deplored the state laws discriminating against Black Americans, as well as immigrants in the North and West. He challenged Illinois Senator Stephen A. Douglas, who said that discriminatory state laws—including laws that protected human enslavement—were just fine so long as those few men allowed to vote liked them.
Lincoln held that our country aspired to equality and was falling short. Douglas believed that so long as the people who already had the vote (white men) continued to vote, Richardson told her Thursday Facebook live viewers [25:45], democracy was satisfied.
How satisfied are you?
Update: “‘from’ of a republican one” should be “form.” Fixed it.