Rewriting the Guarantee Clause: Justifying Direct Democracy in the Constitution

Kevin M. Wagner, Florida Atlantic University

Abstract

Using the shifting meaning of the Guarantee Clause, this paper illustrates how the judiciary subtly redefines the meaning of the Constitution to meet the demands of a dynamic society allowing shifts to occur gradually in the governing structure. Government structure and authority, despite being based on a fixed written constitution, has changed and evolved based on the application of various stimuli such as social or technological change, or shifting demographics. The Guarantee Clause began as a largely anti-majoritarian provision intended to limit the influence of popular opinion in state governance. Over time, stimuli generated by events, such as the Industrial Revolution, the growth of literacy and increased participation, created a shift in how people perceived democracy and democratic process resulting in a schism between the intentions of the drafters of the Constitution and the beliefs of the governed. With no alteration of the language itself, the judiciary helped reshape the Guarantee Clause so that it no longer bars popular participation in governance, but rather is understood to support it.