How The Founding Fathers Foresaw Extremism in The States — And How They Planned to Stop it
By David Pepper
How would Americans respond if the leaders of a European country, in a short time, did all of the following:
Rigged rules so they won most legislative elections and maintained power however the voters voted; engaged in rampant corruption; changed public laws to make it harder for opposition voters and parties to compete, or even protest; undermined offices designed to play neutral roles in elections; attacked the independence of their courts; and directly defied the outcomes of voted referenda?
We wouldn’t simply describe these as narrow attacks on individual rights. We would say, far more loudly and with greater concern, that the country at large was abandoning democracy.
This is precisely what is happening in countless states across America, but our actions don’t match the urgency of the moment. To make matters worse, because these same states also play a vital role in setting the rules of national elections, their descent away from democracy ultimately poses a critical risk to our national democracy as well.
This is why this week’s Senate debate about voting rights is so crucial. Given what’s happening in states, legislation to stop attacks on democracy is desperately needed. A majority of both the U.S. House and Senate appear to support it. But its passage hinges on whether the filibuster can be used to stop it.
What would the Founders say about that?
Knowing how fragile their new country was, the Founders erected numerous protections to sustain it at the federal level. Even as they created a federalist system, paying great deference to states on most matters, they did so on one essential condition: State governments needed to reflect and represent the will of the people.
This was such an important element in their Constitutional framework that they placed a remarkable responsibility on the new federal government. They guaranteed it in the Constitution itself: “The United States shall guarantee to every State in this Union a Republican Form of Government . . . “
And what did they mean by “Republican Form of Government”?
Scholars and political figures have examined and debated the phrase for generations. And while there’s some disagreement on its precise contours, there’s a consensus on what they meant generally. As Professor Akhil Amar emphasizes, its roots tell the story: “publica”; “poplicus.” Government must be derived from the people; the people are sovereign. James Madison dedicated Federalist 39 to defining “republican form” of government as “a government which derives all its powers directly or indirectly from the great body of the people.”
And why did the Founders place the onus of enforcing this guarantee on the federal government? First, from recent lived experience, they worried about both corruption and factions poisoning governance within individual states. But as Madison wrote in Federalist 43, they also worried that with states wielding a wide range of roles and powers within the new nation’s overall governing structure, including over elections themselves, anti-democratic movements in those states risked undermining the entire national endeavor. Thus, “the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations.”
Or as Professor Amar has written, think of it as “a kind of democratic insurance policy.”
A guaranteed one.
That is how we need to examine what’s happening in states across our country today. In framing and responding to what’s happening in our statehouses, pro-democracy leaders need to think more broadly, in the same way the Founders framed the issue: all 50 states must be run by governments where the people are sovereign. Anti-democratic takeovers of states run afoul of that Constitutional promise. And they must be stopped before they spill over into poisoning the entire nation’s governance.
Once framed this way, the stakes change. Even the teams change. Those who care about democracy must unite to wage that fight more broadly than just along party lines.
And that framing dramatically colors the argument over whether the filibuster should apply.
The on-the-ground reality—that through rigged legislatures, voter suppression and a willingness to defy even their own constitutions, countless statehouses can hardly be categorized as functioning democracies — makes use of the filibuster impossible to defend.
A common defense mounted for the filibuster is that it’s needed to defend states’ rights. But this argument runs up against the Guarantee Clause. States’ autonomy on many issues is worthy of deference, but only on the presupposition that those state governments are legitimately representative of the people in the first place. If a state no longer satisfies the basic definition of a republican form of government — if its operation no longer has any connection back to the people of that state — states’ rights offer a hollow objection to federal corrective action. And if the actions in question are steps to further wall off those in power from their own people, the objection carries even less weight. The Guarantee Clause states that in such moments, the federal government “shall” correct the problem. Of all occasions where the filibuster might be used, using it to block Congress from fulfilling a guarantee by citing the concerns of states who are the object of that guarantee — and falling woefully short of it — makes no sense.
It’s long past time that the United States government lived up to the guarantee of democracy in every state in the country.
It’s our Constitutional duty.
David Pepper (@DavidPepper) is the author of “Laboratories of Autocracy” (forthcoming) and the Former Chair of the Ohio Democratic Party.