The first clause of this section, in somewhat different language, was contained in the Virginia Plan introduced in the Convention and was obviously attributable to Madison. 321 Through the various permutations into its final form, 322 the object of the clause seems clearly to have been more than an authorization for the Federal Government to protect States against foreign invasion or internal insurrection, 323 a power seemingly already conferred in any case. 324 No one can now resurrect the full meaning of the clause and intent which moved the Framers to adopt it, but with the exception of the reliance for a brief period during Reconstruction the authority contained within the confines of the clause has been largely unexplored. 325
In Luther v. Borden, 326 the Supreme Court established the doctrine that questions arising under this section are political, not judicial, in character and that ''it rests with Congress to decide what government is the established one in a State . . . as well as its republican character.'' 327 Texas v. White 328 held that the action of the President in setting up provisional governments at the conclusion of the war was justified, if at all, only as an exercise of his powers as Commander-in-Chief and that such governments were to be regarded merely as provisional regimes to perform the functions of government pending action by Congress. On the ground that the issues were not justiciable, the Court in the early part of this century refused to pass on a number of challenges to state governmental reforms and thus made the clause in effect noncognizable by the courts in any matter, 329 a status from which the Court's opinion in Baker v. Carr, 330 despite its substantial curbing of the political question doctrine, did not release it. 331
Similarly, in Luther v. Borden, 332 the Court indicated that it rested with Congress to determine upon the means proper to fulfill the guarantee of protection to the States against domestic violence. Chief Justice Taney declared that Congress might have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere, but that instead Congress had by the act of February 28, 1795, 333 authorized the President to call out the militia in case of insurrection against the government of any State. It followed, said Taney, that the President ''must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress'', 334 which determination was not subject to review by the courts.
In recent years, the authority of the United States to use troops and other forces in the States has not generally been derived from this clause and it has been of little importance. 335
[Footnote 321] ''Resd. that a Republican government . . . ought to be guaranteed by the United States to each state.'' 1 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 22. In a letter in April, 1787, to Randolph, who formally presented the Virginia Plan to the Convention, Madison had suggested that ''an article ought to be inserted expressly guaranteeing the tranquility of the states against internal as well as external danger. . . . Unless the Union be organized efficiently on republican principles innovations of a much more objectionable form may be obtruded.'' 2 Writings of James Madison, G. Hunt ed. (New York: 1900), 336. On the background of the clause, see W. Wiecek, The Guarantee Clause of the U.S. Constitution (Ithaca: 1972), ch. 1.
[Footnote 322] Thus, on June 11, the language of the provision was on Madison's motion changed to: ''Resolved that a republican constitution and its existing laws ought to be guaranteed to each state by the United States.'' 1 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 193-194, 206. Then, on July 18, Gouverneur Morris objected to this language on the ground that ''[h]e should be very unwilling that such laws as exist in R. Island ought to be guaranteed to each State of the Union.'' 2 id., 47. Madison then suggested language ''that the Constitutional authority of the States shall be guaranteed to them respectively against domestic as well as foreign violence,'' whereas Randolph wanted to add to this the language ''and that no State be at liberty to form any other than a Republican Govt.'' Wilson then moved, ''as a better expression of the idea,'' almost the present language of the section, which was adopted. Id., 47- 49.
[Footnote 323] Thus, Randolph on June 11, supporting Madison's version pending then, said that ''a republican government must be the basis of our national union; and no state in it ought to have it in their power to change its government into a monarchy.'' 1 id., 206. Again, on July 18, when Wilson and Mason indicated their understanding that the object of the proposal was ''merely'' to protect States against violence, Randolph asserted: ''The Resoln. has 2 Objects. 1. to secure Republican government. 2. to suppress domestic commotions. He urged the necessity of both these provisions.'' 2 id., 47. Following speakers alluded to the dangers of monarchy being created peacefully as necessitating the provision. Id., 48. See W. Wiecek, The Guarantee Clause of the U.S. Constitution (Ithaca: 1972), ch. 2.
[Footnote 324] See Article I, Sec. 8, cl. 15.
[Footnote 325] See generally W. Wiecek, The Guarantee Clause of the U.S. Constitution (Ithaca: 1972).
[Footnote 327] Id., 42.
[Footnote 328] 74 U.S. (7 Wall.) 700, 729 (1869). In Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868), the State attempted to attack Reconstruction legislation on the premise that it already had a republican form of government and that Congress was thus not authorized to act. The Court viewed the congressional decision as determinative.
[Footnote 329] Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912); Kiernan v. City of Portland, 223 U.S. 151 (1912); Davis v. Ohio, 241 U.S. 565 (1916); Ohio v. Akron Park District, 281 U.S. 74 (1930); O'Neill v. Leamer, 239 U.S. 244 (1915); Highland Farms Dairy v. Agnew, 300 U.S. 608 (1937). But in certain earlier cases the Court had disposed of guarantee clause questions on the merits. Forsyth v. Hammond, 166 U.S. 506 (1897); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875).
[Footnote 330] 369 U.S. 186, 218 -232 (1962). In the Court's view, guarantee clause questions were nonjusticiable because resolution of them had been committed to Congress and not because they involved matters of state governmental structure.
[Footnote 331] More recently, the Court speaking through Justice O'Connor has raised without deciding the possibility that the guarantee clause is justiciable and is a constraint upon Congress' power to regulate the activities of the States. New York v. United States, 112 S.Ct. 2408, 2432-2433 (1992); Gregory v. Ashcroft, 501 U.S. 452, 463 (1991). The opinions draw support from a powerful argument for utilizing the guarantee clause as a judicially enforceable limit on federal power. Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988).
[Footnote 333] 1 Stat. 424.
[Footnote 335] Supra, pp. 472-473, 557-561.