Guest Essayist: Gary Porter

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What is the purpose and impact of Article IV, Section 4 of the U.S. Constitution in that “The United States shall guarantee to every State in this Union a Republican Form of Government”? How does this form relate to the republican (representative) styles such as Commission Form, County Administrator, Elected Executive, City-County Consolidation, Constitutional Row Offices or Home Rule Authority to ensure power remains in the hands of each American, preventing a monarchy or aristocracy in each state and local government?

Further, what is a republic, why must Congress guarantee each state has and maintains a “Republican Form of Government” and how does it do this?

To the Framers of the Constitution, democracy was a hideous form of government. The colorful Fisher Ames, in one of his more measured criticisms, wrote: “Democracy, in its best state, is but the politics of Bedlam; while kept chained, its thoughts are frantic, but when it breaks loose, it kills the keeper, fires the building, and perishes.” Monarchy was obviously unacceptable; a confederation had been tried and found wanting; this left a republic. But a republic which, according to Dr. Benjamin Franklin, must be “kept.” The Constitution’s Article 4 Section 4 contributes to the “keeping.”

The first difficulty Congress faces in guaranteeing each of the fifty States has and maintains a “republican form of government” involves the lack of a consensus over what signifies this “republican form of government.” There never has been a consensus and likely never will be.

James Madison, writing as “Publius,” took a stab at the definition of a republic in 1787/88. Across several of the Federalist essays he identifies seven “republican” attributes. These are neatly summarized by Scott T. Whiteman in his short essay What is a Republic Anyway?[i]

They include:

  1. A government operating under separation of powers; Federalists Nos. 9, 47, 28, 76
  2. Representatives governing during a limited term and/or during good behavior; Nos. 9, 39
  3. Representatives elected by the people; Nos. 9, 39
  4. Power residing in the People; No. 39
  5. A government that is deliberative in action; No. 71
  6. Acknowledging the right of the people to alter or abolish their government; No. 78
  7. A government that prohibits grants of entitlement or nobility; No. 84

Contemporary authors believe additional attributes should be included, such as the Rule of Law and absence of a Monarchy.[ii]

It is easy of course to distinguish a republic from direct democracy, but must all of Madison’s seven features be present before a political entity can be declared “republican?”

When a U.S. territory applies for statehood, Congress first passes an Enabling Act which gives the applying territory the authority to draft a proposed constitution, which is then approved by the state’s citizens and submitted for review by Congress to ensure it reflects the “republican form.” Beyond allowing Congress to ensure the basic requirements of republicanism are met, this also provides Congress the opportunity to identify anything else it objects to in the way the state intends to conduct its affairs. On rare occasions Congress has insisted upon changes to the proposed state constitution before admission, such as when Congress insisted that Utah (the 45th state) first prohibit polygamy.[iii] Similar polygamy prohibitions were required of Oklahoma (46th state), New Mexico (47th state), and Arizona (48th state).

How does Congress ensure a state maintains its republican form? Here is where it gets sticky.

In 1841, Rhode Island was still operating under a government established by their royal charter of 1663. The charter strictly limited suffrage and made no provision for amendment. Groups protesting these restrictions in the charter held a popular convention to draft a new constitution and to elect a governor. In response, the existing charter government declared martial law and set out to “put down the rebellion” (called the Dorr Rebellion, after ringleader Thomas Dorr). One of the “rebels,” Martin Luther (no relation to the 1517 reformer), whose house was damaged during a search by law officers, brought suit claiming the old state government was not “a republican form of government” and all its acts, including its declaration of martial law, were thereby invalid. In Luther v. Borden. (1849)[iv], the Supreme Court declared in dictum that interpretation of the Guarantee Clause is a political, not a judicial question. Said another way: a “Republican Form of Government,” like “High Crimes and Misdemeanors,” is whatever Congress says it is. As noted in the Heritage Guide to the Constitution, “Citizens of a state who believe their state government has departed from the “republican form” should apply to Congress for relief rather than to the courts.”[v]

More modern charges of departure from a “republican form” involve the issue of popular referendums, which critics say embrace direct democracy. By way of review, in a referendum, the voters decide a policy issue outside the purview of their elected representatives. A referendum obtaining a majority vote generally goes into effect without further action by the legislature. The use of initiatives and referendums is written into the constitutions of twenty-six states, particularly those in the west, and these states contain over fifty percent of the U.S. population so many Americans encounter them. Popular initiatives, referendums, or popular recall of elected representatives are admittedly all forms of direct democracy, but does the use of one mean the government is no longer republican? Every state except Delaware ratifies state constitutional amendments through a vote of their citizens rather than by their elected representatives. This is similar to one of the two methods of ratifying a U.S. Constitutional amendment, does this depart from “republicanism.” No one has complained of this to the courts. Ironically, as morbid proof that we don’t have a democracy in America, in the thirty-one states where voters popularly- approved constitutions prohibitions of same-sex marriage, all it took was one Supreme Court decision (Obergefell v. Hodges) to overturn them all.

Turning to local government and the question of republicanism, we find that local government can take many forms.

In the Commission form of government, often encountered in cities or counties, voters elect a small commission, typically of five to seven members who comprise the legislative body of the city or county and, as a group, are responsible for taxation, appropriations, ordinances, and other general functions. Individual commissioners are also usually assigned specific executive responsibilities such as public works, finance, or public safety. This form of government thus combines legislative and executive functions in the same body.

In the County Administrator form, an Administrator is usually appointed by an elected council/commission. The Administrator then is responsible for administration of all governmental departments, subject to the council’s control.

The Elected Executive form is similar except that the Executive is elected by the polity instead of being appointed by the council or commission.

Constitutional Row Officers derive their name from the fact that the departments were first listed in a row on election ballots. In the Commonwealth of Pennsylvania, for example, row officers include: Clerk of Court, Controller, Coroner, District Attorney, Prothonotary, Recorder of Deeds, Register of Wills, Sheriff and Treasurer.

Home Rule Authority describes the power of a local city or county to set up its own system of self-government without requiring a charter from the state. Full home rule is allowed in thirty state constitutions and limited home rule in another nine.[vi] A city or county that adopts a home rule charter has the ability to amend its governmental organization and powers to suit its needs; in essence, they establish a local constitution.

As you can see, each of these forms embraces a republican form of government, at least in that elected representatives are used for day-to-day governing rather than involving the people themselves.

According to the U.S. Census Bureau, in 2012, there were 89,004 local governments in the United States.[vii] This included such things as school boards and regional planning authorities.[viii] Compare this with the fact that there are only 50 state governments and one (albeit ginormous) national government and you can see where the bulk of governing takes place in these united States: at the local level. Americans interested in serving their fellow citizens are advised to set their sights on local government. However, a brief and certainly not statistically significant analysis of current U.S. Representatives found only three in ten first served in local government. Twice as many held their first elective office in one of the 7,383 state legislature seats (nationwide).[ix]

While many Americans seem to give little attention to their national government, even fewer are interested in their local governments, particularly who is to represent them in those governments and how they actually govern. Voter turnout in national elections is alarmingly low, but turnout in state and local elections even worse;[x] some school board and city council members have reportedly been elected by only 10-15 percent of the eligible voters. And elections at the state and local level are often decided by amazingly small margins, even by a single vote.[xi] Our citizens’ lack of interest in local government can be confirmed by attending or viewing any televised city council or county board of supervisors meeting. There, with few exceptions, you’ll find a nearly empty room with the council members speaking, if to anyone but themselves, to a small handful of citizens. This is ironic since the day-to-day lives of Americans are arguably more influenced by local laws, codes and ordinances than those of their state or nation, local zoning laws being a prime example. On the other hand, polls show more Americans (71%) trust their local governments than their state governments (62%).[xii]

The cry of: “take back our democracy” is often heard these days, particularly from many on the political left. It is a silly notion, considering that our republican form of government is what is really at stake. But the phrase is useful; it brings in donations, lots of donations. Instead of waving “take back our democracy” signs , might I instead suggest we form a line and register as candidates for every elected office, from dog-catcher on up?

Next time you see your Congressman or Congresswoman, ask them how Congress guarantees to each state a republican form of government and see what response you get.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

 

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[i] https://www.theamericanview.com/constitution-course-supplemental-assignments/what-is-a-republic-anyway/.

[ii] Heritage Guide to the Constitution, David F. Forte and Matthew Spalding, ed., Washington, D.C. 2014, Guarantee Clause, p. 369.

[iii] https://en.wikipedia.org/wiki/Utah#Utah_Territory_(1850%E2%80%931896).

[iv] Luther v. Borden. Luther v. Borden, 48 U.S. (7 How.) 1 (1849).

[v] Heritage Guide, p. 370.

[vi] https://en.wikipedia.org/wiki/Home_rule_in_the_United_States.

[vii] https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html.

[viii] The 89,004 includes 3,031 counties, 19,522 municipalities, 16,364 townships, 37,203 special districts and 12,884 independent school districts.

[ix] https://en.wikipedia.org/wiki/List_of_United_States_state_legislatures.

[x] https://www.governing.com/topics/politics/gov-voter-turnout-municipal-elections.html.

[xi] https://www.npr.org/2018/11/03/663709392/why-every-vote-matters-the-elections-decided-by-a-single-vote-or-a-little-more.

[xii] https://news.gallup.com/poll/195656/americans-trusting-local-state-government.aspx.

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