Dusting Off the Guarantee Clause for North Carolina

By GENE NICHOL

One of my friends jokes that many of North Carolina’s major political difficulties, in recent years, result from a typographical mistake. Members of our General Assembly have apparently believed Art. IV of the US Constitution “guarantees to every state” a Republican party government, rather than, as it actually reads, a “Republican Form of Government.” No doubt they act that way.

The Guarantee Clause, as lawyers call it, sounds in our national mission. James Madison, in Federalist No. 39, explained the provision demands a “government which derives all its powers from the great body of the people, not from an inconsiderable proportion or a favored class.” (No small irony there, in 1787.) American states, Madison wrote, are required to embrace “the capacity for self-government and (decision by) will of the majority.” Professors have particularized the standard indicating “republican government requires popular sovereignty, a balance and separation of powers, and limited government.”

Art. IV, therefore, is a federally-enforceable assurance that state governments fit the American scheme. Signing on, for us, means something. We’re “all in” for representative democracy. Beyond that commonality, North Carolina’s Justice James Iredell also warned that states straying from the republican form might infect others, “subverting the freedom of the remaining states.” The national government, therefore, warrants that all states secure the “blessings” of self-governance to their citizens.

Of course any lawyer would also concede the Guarantee Clause has hardly proven to be a favored source for constitutional litigation. Its contours are thought too vague, its demands too precatory. We have assumed it will be enforced principally through our politics, not our courts. But in North Carolina that’s not working.

The US Fourth Circuit Court of Appeals has already held our General Assembly broke essential bonds of popular sovereignty by repeatedly and purposefully disenfranchising black citizens through its redistricting, reapportionment, voter ID and polling access determinations. These transgressions alone, the court acknowledged, threaten the legitimacy of the present government. But as every North Carolinian knows, the democracy-crushing crusade hasn’t stopped there.

First, of course, our legislative leaders readily and happily admit that they seek, on every available occasion, with remarkable effectiveness, to stack the electoral deck against Democrats. Because this dramatically marginalizing practice has yet to be ruled unconstitutional, and because Democrats behaved similarly when in power, Republicans seemingly take political gerrymandering to be the path of high virtue. But few practices are more debilitating to self-government than the ins purposefully changing the rules of engagement to handicap the outs. Good governance doesn’t actually embrace cheating.

Legislators have now also moved to cancel primary elections for judges — in an apparent step toward complete control of the judicial system. (Remember the naïve and halcyon days when we would have been shocked to hear that an election was simply being cancelled?). Tampering with judicial selection, altering court structures, limiting powers of judicial review, and plying their oft-proven skills of unconstitutional gerrymandering haven’t been enough to satisfy the voracious appetite for domination. Complete judicial submission is required.

When dissatisfied with the results of the recent gubernatorial and attorney general elections, the General Assembly moved to significantly debilitate and intrude upon both offices – despite North Carolina’s constitutional command that “the legislative, executive and judicial powers shall forever be separate and distinct.” Announcing all-encompassing ascendancy, legislators proclaimed an appropriate separation of powers means, as Humpty Dumpty put it, “just what [we] choose it to mean – neither more nor less.” Republican supremacy, it turns out, is the only standard that matters.

Nor have local government elections been spared. Disfavored results have simply been voided — as in a banana republic. Like good totalitarians, Republican leaders effectively declared: we believe in democracy only so long as Tar Heels vote the way we prefer. Otherwise, we’ll call the shots. And the list is longer of course – attacks on free speech, rights of assembly, academic freedom and access to justice – as if this was North Korea instead of North Carolina. Popular sovereignty, apparently, isn’t all it’s cracked up to be.

A Guarantee Clause challenge to the General Assembly’s legislative program here is, no doubt, a long shot. Or even worse. But it shouldn’t be. The Guarantee Clause is the constitution’s anti-tyrant provision. It is true that spirited litigants can continue to attack individual suppressive enactments as they, endlessly, arise. Defenders will continue to explain, dishonestly, that the measures are in service of some mysterious neutral end. But a Guarantee Clause review might explore the entire, overarching, democracy-defeating project – which is, at its core, foundationally un-republican and, Art. IV indicates, un-American. It’s a clause for emergency. In North Carolina, we’re in one.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law and in 2015 started the Poverty Research Fund at the University of North Carolina School of Law after the UNC Board of Governors closed the state-funded Poverty Center. He is also President Emeritus of College of William & Mary.

From The Progressive Populist, November 15, 2017

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