Original Crime, Federalism, and the Guarantee Clause

May 18th, 2011

Gerard Magliocca has another fascinating post discussing the Guarantee Clause in the context of Federalism.

The Guarantee Clause (Art. IV, s. 4) provides:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Garard notes that during the Pullman Strike, the Governor of Illinois argued that in the absence of an “application of the Legislature,” the Federal Government could not intervene in state matters. This last bit though, was quite interesting in light of my research into original crime:

In effect, the Guarantee Clause can be read as affirmatively privileging state authority over criminal law, which is stronger than the thought that Congress simply lacks enumerated power in that area. Lot of people complain about the growth of federal criminal law, and they make a Commerce Clause argument against that trend (think Lopez) or invoke the Tenth Amendment.  It turns out that the best textual support for state autonomy in garden-variety criminal matters, though, comes from the Guarantee Clause.

I’m not quite sure what “garden-variety criminal matters” would be implicated. The Guarantee Clause only seems to come into play in cases of “invasion.” In the absence of such disorder, how would this federalism provision limit the power of the feds and preserve state autonomy?

I’ll have to consider this further for my Original Crime article, if I ever actually get to it.