Will Obama Stand by the Guarantee?

With legislators of the Democratic Party fleeing Wisconsin and Indiana and protesters swarming the capitol at Columbus, Ohio, it won’t be long before Americans start asking whether President Obama is prepared to honor what is known as the guarantee clause. This is the fourth section of Article Four of the United States Constitution. It requires that the United States guarantee to each state a republican form of government. It is not a reference to the Republican Party, which didn’t exist at the time the Constitution was written, but rather to the form of government that interposes elected representatives to pass legislation.

It is hard to recall many moments that more directly echo the concerns of the founders than the situation America faces today, with a mobs of protesters, some bused in from out of state by labor unions bent on protecting their financial interests, occupying the state house at Madison and the governor there under heavy guard. Democratic legislators of Indiana are also reported to be fleeing to neighboring states to preclude a quorum being convened at Indianapolis, where the legislature is also considering a bill that would curb union power. At Ohio, a mob was gathering in the capitol in an effort to block efforts of the legislature to protect taxpayers from the public service unions.

This is exactly the kind of thing the Founders feared when they wrote the guarantee clause. The most famous of the expressions of the concern animating the clause are given in 10 Federalist, in which the father of the Constitution, James Madison, wrote of the promise of a national government to “break and control the violence of faction.” The most common source of faction he attributed to the “various and unequal distribution of property.” Wrote Madison: “Those who hold, and those who are without property, have ever formed distinct interests in society.”

He wrote: “Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern Legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the Government.”

What Madison was arguing was that the existence of the national government would prevent the whole country from falling into factious strife, which, he wrote, “may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.” He warned that “a religious sect may degenerate into a political faction” in part of the country, that states could be seized by “a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project.” But he doubted the whole country would. And so the guarantee clause.

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No doubt it will be said that America is nowhere near having to engage the guarantee clause. Republican government isn’t yet gone, or even nearly gone, from Wisconsin, Ohio, and Indiana. But there is no doubt that it is being tested, and it is not so hard to imagine it breaking down. What is so startling about the current crisis is that the chief executive officer of the federal government, bound by oath to preserve, protect, and defend the Constitution, is a party to the scheme by which the very legislators who form the core of republican government in the states are fleeing to states controlled by the President’s party — a circumstance the Founders clearly hoped to avoid by wording the consitutional oath the way they did.