William & Mary Bill of Rights Journal
Abstract
[...] Of special significance is Madison’s defense of the Guarantee Clause in Federalist 43, in which he argued that the Clause is intended to prevent “aristocratic or monarchical innovations” by the states. This phrase is a critical clue to uncovering the full meaning of the Guarantee Clause. Yet scholars have mentioned it only in passing and divorced from its historical context, as part of apocryphal claims that the Clause supports radical modern causes. This is unfortunate because Madison’s phrase, properly construed, speaks volumes.
Preliminarily, the phrase shows that the Guarantee Clause was originally understood to prevent changes of a monarchical or aristocratical nature—not just the extreme (and, today, unlikely) situation when a state formally establishes an aristocracy or monarchy. It should therefore be obvious that we need not wait until a state crowns a king to find that it has violated the Clause. But just what did Madison, not known to choose his words carelessly, mean by “innovations?” As used by the Founders, the word was a term of art usually understood to mean, quite pejoratively, novel changes to the structure of government. Such innovations, especially when implemented under the auspices of an emergency, were strongly disfavored under the common law tradition. The Founding generation fully embraced this long-standing principle (which, for ease of reference, I will call the anti-innovation principle), including in the Declaration of Independence. Indeed, by 1787, the anti-innovation principle was deeply engrained in the American understanding of “Republican” government.
Viewed against this historical backdrop, a vital but long-neglected purpose of the Guarantee Clause comes into focus. As I will demonstrate, the Clause was originally understood to encompass the anti-innovation principle. This Article examines the evidence supporting this interpretation beginning, in Part I, with a review of the origins of the anti-innovation principle. Part II explores the refinement of the anti-innovation principle in the Colonial era. Part III turns to the emergence of a prototype of the Guarantee Clause in the Confederation era. Part IV discusses the drafting of the Guarantee Clause at the Philadelphia Convention. Part V brings us to the ratification debates relevant to the Guarantee Clause. The Conclusion sets forth my parting thoughts.
This abstract has been taken from the author's introduction.