Thread by @DavidPepper

THREAD -- let's do some real originalism, shall we?

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!

Read on...

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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?!

Just wait...

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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)

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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 ... 4/

...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...

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...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...

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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..

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..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...

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...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.. 9/

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.. 10/

Without that assumption in place, the entire system falls apart, as the Founders feared.

Giving statehouses unfettered power when they aren't tied back to the people is precisely the nightmare the Founders feared.

And here's the problem...it's exactly what's happening...

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All around the nation, extremely gerrymandered legislatures are rushing through toxic policies directly contravening the will of their states. Ohio & Texas are both pro-choice states, for example. But their rigged legislatures are pushing forward abortion bans w no exceptions...

Same w crazy gun laws, attacks on equality, banning books, insane vax policies. All completely disconnected from the will of the people of these states, but with districts so rigged, hardly a single member of these bodies face accountability for their votes. Even worse..

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...just as the Founders feared, through organizations such as ALEC and others, these statehouses have become corrupted by elite "rich" interests to do their bidding as opposed to that of the people.

Tax breaks. Anti-climate policies. Privatizing everything. You name it...

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...they do it, even when the public outcomes suffer as a result

Bottom line: too many states do not meet any definition of a "Republican Form" of gov't. The people simply aren't sovereign in far too many of them. They represent fringe and monied interests...not the people...

It's exactly what the Founders feared.

It's why things are so out of balance. It's also why the talk of the independent state legislature theory is so dangerous--because it'd remove even LEGAL accountability to non-democratic states that are already immune from the people..

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So what should we do? Many things, as I outline in my book and often tweet.

But with respect to this Clause itself, Congress must finally act, especially as the specter of the ISL emerges. They have a Constitutional obligation to protect democratic governance in states...

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It's part of the oath that they took when they were sworn in, and it's a duty that outweighs any allegiance to procedures such as the filibuster.

Under the auspices of that power, they can and must pass robust anti-gerrymandering & other pro-democracy protections to...

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...restore democratic governance in states. To make the people of these states sovereign again. And unlike other powers they have, this is a power that the Supreme Court has ruled for a century is a political one, beyond their review...

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And to the extent the Court props up these rigged statehouses through whackadoodle theories & rulings like the ISL, the MORE the federal government MUST respond with actions that ensure those statehouses are, in the end, democratically government. It's the strongest power...

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...available to do so.

Finally, the Guarantee Clause is also one of the strongest counter-arguments to the ISL theory itself. If the Founders guaranteed that states would be Republican Forms of gov't, would they really have meant to give those same statehouses lawless..

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...power, the power to immunize themselves from the people in their states, which essentially assures they will NOT be Republican Forms of government.

That simply makes no sense. Today, or on originalist terms.

Bottom line: the Constitution could not be more clear...

Central to the founding vision was a constitutional guarantee that every state is governed as a Republic--what we today think of as democratic governance.

The fact that we are falling short of that guarantee in dozens of states is the root cause of the downward...

spiral we are seeing today.

Through our policies, politics and the law, we must double down in fulfilling that guarantee in EVERY STATE now. For every American.

For some in politics, that may feel bold. But it's exactly what the oath they took commands them to do.

END

This is supposed to say BEFORE, but I can’t edit it now. :)

One other thing, of course….for far more on all this and what we can do, you can get my book here: amazon.com/Laboratories-A…

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