California Constitutional Law: The Guarantee Clause and California’s Republican Form of Government
David A. Carrillo & Stephen M. Duvernay
62 UCLA L. Rev. Disc. 104
The Guarantee Clause of the U.S. Constitution provides, in relevant part, that “[t]he United States shall guarantee to every State in this Union a Republican1 Form of Government.”2 The Supreme Court traditionally treated Guarantee Clause claims as nonjusticiable political questions, starting with the Supreme Court’s refusal to get tangled in a mid-19th century skirmish between two factions claiming to be the one true government of Rhode Island.3 Consequently, this constitutional provision lay dormant for much of the nation’s history. This changed two decades ago when, in New York v. United States,4 the Supreme Court reexamined the conclusion that cases under the Guarantee Clause are nonjusticiable and cracked the courthouse door to Guarantee Clause claims.5
Ultimately, New York raised more questions than it answered. The Court did not squarely address the broader issue of justiciability, and the opinion offers only a few limited guideposts for future claims. This much is clear: After New York, some questions raised under the Guarantee Clause may be justiciable under some circumstances. Commentators subsequently seized on the uncertainty of the New York decision as an opportunity to divine the Guarantee Clause’s meaning and suggest what circumstances should give rise to a justiciable claim.6 But while professors and pundits heavily debated these issues over the last twenty years, lower courts provided little intervening guidance on Guarantee Clause claims, and New York remains the Supreme Court’s last word on the subject.7
Though the full scope and import of the Guarantee Clause remains open for interpretation, this Article takes a modest approach. It evaluates whether California’s mechanisms of direct democracy are consistent with the requirement, implicit in the Guarantee Clause, that the state provide a republican form of government. The Article describes how a California court could approach a claim that an initiative violates the Guarantee Clause by viewing the matter from a structural viewpoint. We conclude that, from this structural perspective, a state’s use of direct democracy does not necessarily conflict with the Guarantee Clause. Furthermore, California’s initiative system is consistent with its obligation to provide a republican form of government. We also consider (and reject) the idea that, in its new formative phase, the Guarantee Clause be adapted to protecting individual rights.
Part I of this Article examines the constraints the Guarantee Clause imposes on the structure of state government. Part II examines whether in general institutions of direct democracy comport with those constraints. Part III argues that popular sovereignty in California is congruent with the purpose of the Guarantee Clause, and its structural limits are adequate to preserve the state’s republican form of government against direct democracy’s excesses. Finally, Part IV argues that the structural nature of the Guarantee Clause makes it ill-suited to protecting individual rights from particular uses of the initiative process.
I. The Guarantee Clause’s Structural Framework: State Integrity, Republican Institutions, and State Flexibility
Pinning down the scope and substance of the Guarantee Clause in the absence of clear guidance from the Supreme Court poses a significant challenge. We find persuasive Professor Fred Smith’s recent analysis of the text and purpose of the Guarantee Clause. Thus, we begin by outlining Professor Smith’s work useful framework for discussing the provision.8
Smith identifies two key concepts that animate the Clause. First, Article IV, Section 4 is directed in significant part to the protection of “state integrity,” and specifically, to protecting the “existence, stability, and parity” of the states against internal and external threats.9 The Guarantee Clause serves this end by way of the “republican principle” that “affirmatively guarantee[s] that the ultimate power in state governments rest[s] in the hands of the people.”10 Second, this “republican principle” has a structural focus that encompasses popular sovereignty and majority rule within a system of representative government.11 Thus, although the Guarantee Clause imposes constraints on the structure of state government—it “necessarily implies a duty on the part of the States themselves to provide” a republican form of government12—it does not foreclose a state’s ability to experiment within the broad sphere of republicanism.13
The Supreme Court’s decision in New York is in accord. Though brief, the analysis in that case is consistent with this dual focus on structural stability and flexibility. There, after assuming the claim was justiciable, the Court held that the challenged statute did not violate the Guarantee Clause because it did not interfere with the states’ political independence or popular electoral accountability14 and did “not pose any realistic risk of altering the form or the method of functioning of [the state’s] government.”15
Similarly, Professor Smith and the New York decision are consistent with the original American conception the republican form of government. James Madison explained in the Federalist Papers that the motivating concern behind the guarantee was the specter of nonrepublican political institutions (“aristocratic or monarchial innovations”) that could subvert the stability of a state and weaken the Union.16 But he acknowledged that the states would retain authority to define and experiment with the structure of their government so long as they remain republican.17 As Professor Mayton put it,
[T]he Guarantee Clause is more than just a negative, more than a federal veto respecting “aristocratic or monarchial innovations.” As well, the Clause assures a particular flexibility in state government, which is the states’ “right” to choose and to experiment with various forms of government and “to claim the federal guarantee” for those choices and experiments: Subject only to the condition that these choices and experiments remain within the zone of popular sovereignty. It is by this assurance of the states’ right to choose and to “claim the federal guarantee” for their choices, that the Guarantee Clause stands as a considerable part of federalism.18
California took advantage of the opportunity to experiment with its own unique version of a republican state government, in which the electorate exercises significant power through institutions of direct democracy. Part II examines how California’s institutions of direct democracy square with the Guarantee Clause.
II. Direct Democracy and the Guarantee Clause
The Supreme Court has not addressed the merits of whether direct democracy institutions are within the flexibility furnished to the states under the Guarantee Clause. When the question reached the Court, predictably it held the case was nonjusticiable.19 But the Court has recognized that “a State is afforded wide leeway when experimenting with the appropriate allocation of state legislative power.”20 And California cases dating back over a century confirm that direct democracy is complementary to the state’s republican form of government.21 Indeed, the California Supreme Court has emphasized that “notwithstanding our continuing representative and republican form of government, the initiative process itself adds an important element of direct, active, democratic contribution by the people.”22
This is consistent with the experience of other states evaluating their own institutions of direct democracy. For example, the Washington Supreme Court observed that “[n]o court in this or any other jurisdiction has invalidated any law on the ground that its passage by initiative violated the Guarantee Clause.”23 After noting that the weight of authority supported the conclusion that Guarantee Clause challenges to initiatives were not justiciable, the court rejected such a challenge as frivolous because even “[t]hose courts which have treated the issue as justiciable have uniformly rejected the contention that use of the initiative process is inconsistent with the ‘republican form of government’ guaranteed by U.S. Const. art. IV, § 4.”24 Those decisions are effectively the last word on the subject, as we have found no subsequent serious challenge to direct democracy institutions in federal courts or state courts of last resort.25
Despite the ready acceptance of direct democracy by those courts, scholars continue to squabble over whether direct democracy is antirepublican.26 In light of the apparent lack of interest in this issue by the Supreme Court, and the absence of any real judicial support for ending direct democracy institutions, for practical purposes, this remains a schoolyard debate. And so it is unrealistic to forecast that either the United States or California Supreme Court would rely on the Guarantee Clause to dismantle the state’s initiative system, particularly given both courts’ reticence to rely on that clause for far more modest purposes.27 Therefore, it is unlikely that the near future will see a high court decision (state or federal) holding that the mere inclusion of direct democracy features in a state constitution violates the Guarantee Clause. But acknowledging the practical reality does not end the discussion. We still must consider, from a doctrinal standpoint, why this is the right answer. In other words, it is well enough that courts are unwilling to dismantle direct democracy institutions on Guarantee Clause grounds—in the next part we will explore a supporting rationale.
III. California’s Structural Constitutional Protections Are Adequate Safeguards for the State’s Republican Government Against Direct Democracy
We rejected in the previous Part the concept that all direct democracy features in a state constitution necessarily violate the Guarantee Clause. The question remains, however, whether particular initiatives can violate the Guarantee Clause. Certainly, a law that fundamentally alters “the form or the method of functioning”28 of a state’s republican institutions may run afoul of the Clause. But California’s initiative process cannot achieve that degree of change. As discussed below, the California Constitution contains structural safeguards that ensure the initiative process cannot fundamentally change the structure or framework of the state government. California’s primary safeguard29 is the restriction on the ability to revise the California Constitution. The California Constitution provides that “[t]he legislative power of this State is vested in the California Legislature . . . but the people reserve to themselves the powers of initiative and referendum.”30 It further explains that “[t]he initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”31 The initiative power can be used to amend, but not revise, the California Constitution.32 This binary scheme categorizes an initiative measure as either a revision or an amendment. Revisions are laws that “fundamental[ly] change . . . the basic governmental plan or framework” set forth in the California Constitution.33 An amendment is any law that effects a more modest addition or change to the state’s constitution.34 The state constitution imposes a much higher procedural barrier to enacting revisions than it does for amendments,35 while judicial doctrine prevents accomplishing structural changes through the procedurally more expedient amendment route. These procedural and substantive limitations impose a critical check on the initiative power—one that to an extent parallels the Guarantee Clause’s focus on governmental structure.
The California Supreme Court’s decisions reinforce the view that the state’s initiative process is consistent with the Guarantee Clause. For example, in Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, the Court rejected a challenge that an initiative (Proposition 13, Cal. Const., art. XIII A) was invalid because it constituted a revision rather than an amendment.36 In rejecting the challenge, the Court cited the initiative system itself as evidence that reliance on direct democratic processes does not render the state’s government antirepublican:
[W]e are convinced that article XIII A . . . does not change our basic governmental plan. Following the adoption of article XIII A both local and state government will continue to function through the traditional system of elected representation. . . . It should be borne in mind that notwithstanding our continuing representative and republican form of government, the initiative process itself adds an important element of direct, active, democratic contribution by the people.37
Since New York, commentators have also suggested that California’s structural limitation on the state’s initiative process and the Guarantee Clause have similar effects:
[The] amendment revision distinction [sic] may be analogous to the Guarantee Clause. Initiatives which restructure California government in an anti-republican manner may constitute revisions of the constitution, hence beyond the initiative power. California courts have the power to enforce this constitutional limitation, having done so on several occasions.38
The comparison between the Guarantee Clause and the California Constitution, however, has limits. Being consistent with the Guarantee Clause is different from being its analogue. While the Guarantee Clause is directed at securing and preserving a republican form of government, the California Constitution does not place any substantive limits on the revision power, which could, in theory, be used to accomplish antirepublican ends. Preservation of republican virtue is not the object of California’s restrictions on initiative amendments, nor is it a necessary result of enforcing the restriction. The virtue protected is preserving the integrity of the state government from a certain degree of change without a duly deliberative process.
Consequently, it is important to emphasize a key distinction between the Guarantee Clause and the amendment/revision dichotomy under California law. While the Guarantee Clause is directed at securing and preserving a republican form of government, the California Constitution does not proscribe the ability to revise the constitution in an antirepublican manner. This means a revision establishing a California monarchy could be procedurally proper under the state constitution but unconstitutional under Article IV.
Those theoretical distinctions aside, one practical point is quite clear: Key to the effectiveness of California’s structural constitutional protections for the state’s republican form of government is the willingness of the California Supreme Court to enforce the constitutional requirements for revisions against creative direct democracy efforts. The California Supreme Court most recently and comprehensively addressed the revision/amendment issue in Strauss v. Horton.39 That decision demonstrates the state high court’s commitment to the view that the revision/amendment distinction exists to police attempts at restructuring the state government rather than efforts to redefine individual rights.
In Strauss, opponents of Proposition 8 challenged the validity of that initiative, arguing that it constituted a revision that could not be adopted through the initiative process. After extensive analysis of the relevant precedent, the Court summed up what makes a constitutional revision:
[T]he numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes “far reaching changes in the nature of our basic governmental plan” or, stated in slightly different terms, that “substantially alter[s] the basic governmental framework set forth in our Constitution.”40
From there, the Court concluded that the measure was a constitutional amendment that could properly be adopted by initiative because “Proposition 8 works no such fundamental change in the basic governmental plan or framework established by the preexisting provisions of the California Constitution—that is, ‘in [the government's] fundamental structure or the foundational powers of its branches.’”41
A few points from Strauss underscore how the Court’s interpretation and enforcement of the amendment/revision distinction closely track the purpose of the federal Guarantee Clause.
1. State Integrity. The analysis in Strauss demonstrates how the design of the California Constitution promotes state integrity, just as the Guarantee Clause does: California already has a republican form of government, and the restrictions on revisions act to preserve that status quo. The California Supreme Court’s treatment of the amendment/revision issue in that case is an application of the overarching principle that the procedural and substantive constraints preserve the state’s fundamental governmental framework by requiring significantly more process to revise the constitution than is needed to amend it by initiative. The Court’s fidelity to the strictures imposed on the initiative process and its defense of the constitutional structure writ large are consistent with the concept of state integrity that animates the Guarantee Clause.42
2. Popular Sovereignty and the Principle of Majority Rule. Another prevailing theme in Strauss is reliance on the popular sovereignty principle encoded in the state constitution that “[a]ll political power is inherent in the people” and that the people may “alter or reform their government.”43 This is the essence of popular sovereignty. To that end, Californians have devised a system in which the constitution may be amended by initiative on a majority vote. In the words of Justice Kennard, “[w]hen the voters have validly exercised this power, as they did here, a judge must enforce the Constitution as amended.”44
This may seem, at first, to be counterintuitive: How is popular sovereignty, as expressed through the initiative, consistent with republican government? After all, doctrinaire republican government theory holds that although the people have a right to form and to participate in government (which they exercise by choosing their representatives), once that choice is made the previously diffuse participatory right of the people is vested in the representative alone and nothing remains of the people’s right.45
But the right to ordain, alter, and abolish a constitution is central to republican government.46 If that is true to some degree for a limited government of enumerated powers like the federal government, then it must be even more so for a plenary state government. While the delegation and social contract theories of the federal constitution, and its lack of direct democracy tools, suggest that going forward the people have delegated all their power to the representative government so created,47 California better embodies the “consent of the governed” theory, as the people and the electorate exercise powers on an ongoing basis.48 If popular sovereignty, majority rule, and reformative powers are all supports for a republican government, then the fact that those powers exist in greater measure in California’s government (compared with the federal government) should provide greater security for a republican form of state government.
3. The Revision Process is an Overriding, Fundamentally Republican Check. The revision process provides an independent level of republican protection. A measure that alters California’s “basic governmental plan or framework” cannot be passed by initiative. Therefore, such a law would be subject to the republican restriction of the revision process, namely, proposal by a two-thirds majority of the Legislature or through constitutional convention, followed by popular ratification in a statewide election.49 This ensures that any law that could implicate the Guarantee Clause necessarily would be channeled through the revision process, where it would be vetted either by the Legislature or in convention, and then approved by the people, before it takes effect. These more-burdensome procedural requirements ensure that potential revisions benefit from greater involvement from the elected representatives or the electorate (or both), and the higher bar imposed by the deliberative process makes revisions simultaneously less likely to occur and more likely to be well-considered when they do.50 This system strongly favors the status quo, viz., a representative republic with significant direct democracy institutions, over truly radical changes.51 From any of those perspectives, then, the revision’s procedural requirements operate to preserve a republican form of government in California.
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In sum, the California Supreme Court’s interpretation and enforcement of the distinction between amendments to, and revisions of, the state constitution are aligned with the scope and purpose of the Guarantee Clause and are consistent with maintaining California’s extant republican form of government. Next, we consider the idea that, despite its structural nature, the Guarantee Clause can be pressed into service as a protector of individual rights.
IV. Direct Democracy, the Guarantee Clause, and Individual Rights
As discussed above,52 revision issues under the California Constitution, like the Guarantee Clause, concern the form of government. Thus, revision issues under the California Constitution are analytically and doctrinally distinct from equal protection issues under the U.S. Constitution. The Strauss decision therefore correctly focused on whether the structure of California’s government was affected by Proposition 8 and not “whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.”53 Nevertheless, the Strauss court considered arguments about the initiative’s effect on individual rights and the decision invites discussion of a common claim made by opponents of direct democracy: The Guarantee Clause should be used to police against majoritarian excesses and strike down exercises of direct democracy that infringe individual constitutional rights, particularly rights that protect minority groups.54
It is not difficult to read Strauss and be sympathetic to this line of thinking. The Court’s treatment of the issue of individual rights in Strauss is instructive. In response to the argument that Proposition 8 constituted a revision because it “‘eliminat[ed]’ or ‘stripp[ed]’ same-sex couples of a fundamental constitutional right,” the Court found that Proposition 8 had only a “limited effect” on the privacy, due process, and equal protection rights of same-sex couples, and that it left the core substantive constitutional rights recognized in the Marriage Cases intact.55 In reaching this conclusion, the Court reiterated that measures that discriminate on the basis of sexual orientation generally are subject to strict scrutiny under the state’s equal protection guarantee.56 Importantly, the Court left open the question of “whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse, would constitute a constitutional revision under the provisions of the California Constitution.”57
Even assuming one agrees with this description of equal protection, it remains an equal protection issue—one not capable of resolution under the Guarantee Clause. Even if an initiative threatening widespread and substantial infringement of minority rights could constitute a revision, it almost certainly would violate other fundamental constitutional rights. Under either approach, the structural issue would be secondary to the discriminatory abridgment of individual rights. Accordingly, it would be unnecessary in such a case to reach the difficult questions of whether the measure is a revision or whether the Guarantee Clause is violated, because the case would be more amenable to resolution on other grounds.
This highlights the primary pitfall of adapting the Guarantee Clause to protect individual rights. At its core, the Guarantee Clause is directed at the structure of state government and is not a backstop to secure individual rights. There is no need to stretch the Guarantee Clause beyond its limits to protect individual rights that are specifically protected by other constitutional provisions.58 A litigant claiming that an initiative destroys or infringes her rights already has several tools at her disposal: she could bring a due process or equal protection challenge, assert a takings claim, or even rely on the Privileges or Immunities Clause59—to say nothing of California’s independent constitutional guarantees.60 Those protections are directed at precisely the sort of evils that proponents of the individual rights theory fear will result if the initiative process runs amok.61 Finally, not only is the Guarantee Clause unnecessary to enforce individual rights, but conjuring up substantive Guarantee Clause rights to strike down an initiative is inapt—it would be akin to raising a Third Amendment challenge to a warrantless search of your house.62
There is little doctrinal basis, and little practical reason, to shoehorn an individual rights defense theory into the Guarantee Clause. That clause serves its intended purpose as a structural provision, and the many provisions expressly aimed at protecting individual liberty already serve their purpose. True, for every wrong there is a remedy.63 But use the right tool for the job.
The Guarantee Clause secures to each state a republican governmental structure. Within those bounds the people retain the ultimate authority to define the framework and substance of their state government. California’s system of direct democracy is both the product and embodiment of the people’s power. And yet the state’s direct democracy institutions are designed to insulate California’s form of government from fundamental change by popular whim and to ensure that such a change is vetted through republican processes. Although it may sound like a difficult balance to strike, the decision in Strauss confirms that the existing structural constitutional protections serve that end.
Furthermore, simply because the Guarantee Clause remains largely undefined does not transform the provision into a constitutional safeguard-of-last-resort for enforcing individual rights, and the U.S. Supreme Court’s silence cannot support expanding the provision so far beyond its core protection of governmental structure. The courts remain free to enforce fundamental individual rights under the constitutional provisions designed to secure them. After all, we have made it this far without using the Guarantee Clause for such an expansive purpose, and the Republic still stands.
Overlooked in this debate are the roles of the people, the political process, and the operation of the very republican government secured by the Constitution. California’s voters elect their representatives. The state’s citizens are at liberty to petition, lobby, cajole, and protest to effectuate change. Voters can recall politicians, run for office, invalidate legislative statutes, and enact their own initiative statutes and constitutional amendments. These ordinary acts of participatory democracy are the keystone of our political system, the expression of the republican principle that animates the Guarantee Clause. It is the people who bear ultimate responsibility for their government, good, bad, or ugly.64
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