The dubious origin of the fourteenth amendment


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The supposed constitutional justification of the Reconstruction Act, most frequently asserted by its supporters, was the view that such legislation would come within the power of Congress under the guarantee of “a republic form of government” to each State by the United States.54

Whatever justification for other portions of the Reconstruction Act may or may not be found in this constitutional provision, there could clearly be no sort of a relationship between a guarantee to a State of “a republican form of government” and an abrogation of the basic and constitutional right of a State, in its legislative discretion, to make its own choice between ratification or rejection of a constitutional amendment proposal submitted t the state legislatures by the Congress of the United States. To deny to a State the exercise of this free choice between ratification and rejection, and to put the harshest sort of coercive pressure upon a State to compel ratification, was clearly a gross infraction—not an effectuation—of the constitutional guarantee of “a republican form of government.”

Beyond this, the whole idea that Article IV, § 4, could confer upon Congress power to alter the governmental structure of a State—particularly a governmental structure of the general type relating in the thirteen original States at the time of the adoption of the Constitution—has been most effectively refuted by Madison. Writing in The Federalist, No. 43, Madison poses two questions respecting the provision for a guarantee to each State of “a republican form of government”:

“It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves.”

He then proceeds to give his answers to these questions, and he answers the second question:

“...the authority extends no further than to a guaranty of a republican form of government, which supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican Constitutions; a restriction which it is presumed, will hardly be considered as a grievance.”55

Elsewhere in the same number of The Federalist, Madison reiterates his basic concept56 that Article IV, § 4, unquestionably recognizes the then existing state governments as republican in form, and protects them against innovations or changes of a non-republican character.

It is interesting to note that the Supreme Court, in Minor v. Happersett,57 enunciated a doctrine58 completely in accord with Madisonian ideology that the type of government, existing in the original States when the Constitution was adopted, established a standard for the meaning of the term “republican form of government” in this constitutional provision.

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