Originalism the Reactionaries Hate

Nova · Apr 8, 2023

the "originalism" that Federalist Society judges want NO part of, but it's a major constitutional principle that could save the union - if that's a thing they were interested in doing (they aren't)

Thread by @DavidPepper on Thread Reader App – Thread Reader App

The Guarantee Clause: Art. IV, Section IV of the Constitution.
Maybe the most important clause in the Constitution no one pays attention to.
But at this fraught time for our democracy, we must! Congress must!

To show how important it was, the Guarantee Clause comes directly AFTER a major commitment made in the Constitution: that the United States would "protect each [state] from invasion."
Now what could be more important than protecting states from invasion?!

Here it is: "the United States shall guarantee to every State in this Union a Republican Form of Government"

"Shall"

"Guarantee"

No stronger words in law than that
And what did the Founders mean by "Republican Form" of Gvt?
(hint: it's not what the far right thinks)

As scholars of the Founding have written at length, the revolutionary concept of "Republican" was that it established that the PEOPLE were sovereign.
As opposed to the system they were tossing out: where the Monarchy, the crown, was sovereign

Basically, what we casually refer to as democratic governance today, where elected officials represent collectively the people of that state, is what they meant
And it's what they GUARANTEED state governments to be.
Now why did they feel the need to guarantee this in the Constitution?

Ironically they did so for the very reason that we worry about statehouses today
In the Federalist Papers & elsewhere, Madison and others were explicit--they knew in the balancing act of the new Constitution, they were giving states a lot of power over the new nation's democracy.
But they also worried that statehouses were easily susceptible to corruption, or capture by elite and "rich" interests, as they called them, or the monarchy itself
They worried that in the wrong hands, states unmoored from the people could be used to undermine the entire nation's democracy. And that interests hostile to the people could harness statehouses--using them as a backdoor to get their agenda accomplished against the interests of the people and the new Republic

And they were so worried about this that they included in the Founding document a "guarantee" that the United States would never let this happen. It was such a serious concern that they used language found nowhere else in the Constitution
And yes, they gave the power to the United States government to fulfill the guarantee. So when you hear talk about the powers of state legislatures, and this whacko theory of the independent legislative theory, ALL of that was premised on an assumption that those states represented the people. That they exhibited the basics of a Republican Form of government.. Without that assumption in place, the entire system falls apart, as the Founders feared.
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Originalism the Reactionaries Hate

Nova livin on the edge of the ledge Writer

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Originalism the Reactionaries Hate

Nova livin on the edge of the ledge Writer

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