The Guarantee Clause and Federalism

One of the critical stories in my Bryan book is about the Pullman Strike of 1894.  This national railroad shutdown, led by Eugene Debs, ended when President Grover Cleveland sent troops into Chicago to take out the headquarters of the strikers and arrest their leaders.  One of the many interesting constitutional issues raised by these events was the debate between the President and John Peter Altgeld, the Governor of Illinois who sympathized with the strike, over the meaning of the Guarantee Clause.

To the extent that we think about the Guarantee Clause, it is as the ultimate expression of federal power. Since “[t]he United States shall guarantee to every state in this union a republican form of government,” that means that Congress can under certain circumstances refuse to seat the representatives or Senators from an aberrant state (as during Reconstruction) or can place a state under federal receivership (as was contemplated when Huey Long was running Louisiana in the 1930s).

There is, though, a federalism component of the Clause.  The last portion says that the United States “shall protect each of [the states] against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.”  During the Pullman Strike, Governor Altgeld insisted that this provision prohibited the federal government from intervening in a state to prevent anarchy or lawlessness without that state’s consent (though the issue was not litigated when the Supreme Court reviewed the President’s actions in In Re Debs.)  In effect, the Guarantee Clause can be read as affirmatively privileging state authority over criminal law, which is stronger than the thought that Congress simply lacks enumerated power in that area.

Lot of people complain about the growth of federal criminal law, and they make a Commerce Clause argument against that trend (think Lopez) or invoke the Tenth Amendment.  It turns out that the best textual support for state autonomy in garden-variety criminal matters, though, comes from the Guarantee Clause.

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3 Responses

  1. Joe says:

    The clause was cited in cases like Gregory v. Ashcroft, but I think the issue is that it was deemed a political question, so people try to find an alternate route.

  2. S.M. Abeles says:

    Good point.

  3. KN says:

    Is it so easy to move from “domestic violence” to garden-variety “criminal law” (in your argument that the Clause may affirmatively privilege state authority over crim law)? For the former, I think mostly of events that can be cast as insurrections against government (Shays, the Dorr War, slaves turning on masters). I don’t find it intuitive to even be thinking about routine crime or crime policy (e.g., CA marijuana legalization).

    I concede I don’t know much about how expansively the Clause was interpreted in the late 19th c for things like the Pullman strike, but even labor strife does not strike me as being in the garden-variety “crime” neighborhood.