The Most Constitutional Right

Shortly after the election of 2016 was resolved, with a plurality of voters nationally favoring Hillary Clinton but the Electoral College favoring Donald Trump, it became a bromide of Trump supporters that “We live in a republic, not a democracy.” And this bromide is repeated from time to time by people discussing a variety of political or governmental issues in a variety of contexts. Chances are good you’ve had some variant of that phrase deployed against you in your own discussions. For my part, I’ve taken to challenging an interlocutor deploying it to explain what that phrase actually means. I believe I know the correct answer, and it turns out that people recoil from it.

To live “in a republic, not a democracy” means that sometimes the legally valid actions of the government are contrary to the wishes of the majority. The majority does not always rule. So we seek some other form of legitimacy for a governmental act. So far as I can tell, there are two bases for legitimacy that a governmental act contrary to the wishes of the majority can claim. The first is when that governmental act is in furtherance of a fundamental right, and the second is when that act is in furtherance or fulfillment of a pre-existing law that did command a sufficient majority when it was enacted but has not yet been changed. These dovetail in the instance of a right which is enshrined in the Constitution, which is nothing more (and nothing less) than the supreme law of the land, mostly enacted more than two centuries ago by what we accept to be a super-majority of the people it thereafter governed, and whose amendments have also been adopted by representatives of super-majorities of citizens.

In a recent case decided by the Ninth Circuit, Juliana v. United States, a group of young people challenged a slate of Federal policies, statutes, and regulations concerning fossil fuel extraction and usage. Their argument was that the government, by permitting and in some cases encouraging the burning of fossil fuels, is actively catalyzing global climate change to their tangible detriment, a detriment which can be forecast with substantial certainty today but whose effects will not be felt until the future. Interestingly, the government did not challenge their scientific contentions, but rather addressed the case on the question of standing. A three-judge panel of the Ninth Circuit split and the majority “reluctantly” found that the issues raised by the case were within the scope of the political question doctrine. “You’re right,” the majority told the plaintiffs, “but you need to convince Congress or the voters of that, not us.”

A below-the-fold issue in the case was raised by the dissent, and raises an issue which may well have application in the near future in a very different context. Consider the following clauses of the United States Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Preamble.

*  *  *  *  *

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. Article IV, Sec. 4.

*  *  *  *  *

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amend. IX.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Amend. X.

Does this imply that there is a right to the existence of the government created by the Constitution? In other words, mustn’t the government defend not only its own existence, but also its own fundamental structure as a democratic federal republic of vertically and horizontally divided powers, and as a guarantor of the rights of its citizens? The dissent argued so. Forgive the lengthy quote:

Much like the right to vote, the perpetuity of the Republic occupies a central role in our constitutional structure as a “guardian of all other rights,” Plyler v. Doe, 457 U.S. 202, 217 n.15 (1982). “Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society… .” Cox v. New Hampshire, 312 U.S. 569, 574 (1941); see also The Ku Klux Cases, 110 U.S. 651, 657-68 (1884). And, of course, in our system, that organized society consists of the Union. Without it, all the liberties protected by the Constitution to live the good life are meaningless.

*  *  *  *  *

[T]he framers formed the Constitutional Convention with “the great object” of “preserv[ing] and perpetuat[ing]” the Union, for they believed that “the prosperity of America depended on its Union.” The Federalist No. 2, at 19 (John Jay) (E. H. Scott ed., 1898); see also Letter from James Madison to Thomas Jefferson (Oct. 24, 1787)14 (“It appeared to be the sincere and unanimous wish of the Convention to cherish and preserve the Union of the States.”). In pressing New York to ratify the Constitution, Alexander Hamilton spoke of the gravity of the occasion: “The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed—the fate of an empire, in many respects the most interesting in the world.” The Federalist No. 1, at 11 (Alexander Hamilton) (E. H. Scott ed., 1898). In light of this animating principle, it is fitting that the Preamble declares that the Constitution is intended to secure “the Blessings of Liberty” not just for one generation, but for all future generations—our “Posterity.”

The Constitution’s structure reflects this perpetuity principle. See Alden v. Maine, 527 U.S. 706, 713 (1999) (examining how “[v]arious textual provisions of the Constitution assume” a structural principle). In taking the Presidential Oath, the Executive must vow to “preserve, protect and defend the Constitution of the United States,” U.S. Const. art. II, § 1, cl. 8, and the Take Care Clause obliges the President to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3. Likewise, though generally not separately enforceable, Article IV, Section 4 provides that 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 . . . against domestic Violence.” U.S. Const. art. IV, § 4; see also New York v. United States, 505 U.S. 144, 184-85 (1992).

Less than a century after the country’s founding, the perpetuity principle undergirding the Constitution met its greatest challenge. Faced with the South’s secession, President Lincoln reaffirmed that the Constitution did not countenance its own destruction. “[T]he Union of these States is perpetual[,]” he reasoned in his First Inaugural Address, because “[p]erpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.” President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861) … . While secession manifested the existential threat most apparently contemplated by the Founders—political dissolution of the Union—the underlying principle applies equally to its physical destruction.

This perpetuity principle … prohibits only the willful dissolution of the Republic.

*  *  *  *  *

[T]he perpetuity principle [ought not] be rejected simply because the Court has not yet had occasion to enforce it as a limitation on government conduct. Only over time, as the Nation confronts new challenges, are constitutional principles tested. For instance, courts did not recognize the anticommandeering doctrine until the 1970s because “[f]ederal commandeering of state governments [was] such a novel phenomenon.” Printz v. United States, 521 U.S. 898, 925 (1997). And the Court did not recognize that cell-site data fell within the Fourth Amendment until 2018. In so holding, the Court rejected “a ‘mechanical interpretation’ of the Fourth Amendment” because “technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes[.]” Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018). Thus, it should come as no surprise that the Constitution’s commitment to perpetuity only now faces judicial scrutiny, for never before has the United States confronted an existential threat that has not only gone unremedied but is actively backed by the government.

The mere fact that we have alternative means to enforce a principle, such as voting, does not diminish its constitutional stature. Americans can vindicate federalism, separation of powers, equal protection, and voting rights through the ballot box as well, but that does not mean these constitutional guarantees are not independently enforceable. By its very nature, the Constitution “withdraw[s] certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”  [W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)]. When fundamental rights are at stake, individuals “need not await legislative action.” [Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015)].

Juliana v. United States (9th Cir. Jan. 17, 2020, Docket 18-36082) Josephine L. Staton, J., dissenting, slip op. at 36-42 (emphases and cleanups in bold and italics added).

If this right exists, it is an implicit Guaranty clause applicable to the federal government. One might have any number of reactions to this portion of Judge Staton’s dissent.

For instance, a member of the Federalist Society might see in it a bold claim to kritarchy, an expansion of what I must assume is held to be an already-objectionable doctrine in Barnette that certain matters are removed from the political decision-making arena entirely. Others might see it as a querulous attempt to invoke mighty Constitutional principles in a vain attempt to justify a dissenting vote from a case which necessarily could not be allowed succeed lest it smother corporate interests, Congressional sovereignty, or both. Still others might say, this is perhaps fundamentally right but really dangerous stuff because herein lies the basis of a claim for holding the government responsible for every wrong, perceived or real, in existence. And I suspect most people will chalk it up to her expressing frustration with an issue called out by the majority: the failure of the political branches to meaningfully address the issue of climate change. After all, even if we accept the existence of this right as a given, what’s really being complained about here is lawmaking that enacts bad policies. The Constitution, as we all know, leaves ample room for the political branches to pursue bad policies without violating the fundamental law.

Still, Staton is describing something fundamental, something that sounds pretty critical. And she’s doing so in a way that calls it an unenumerated Constitutional right. For a right to have meaning, it requires an interest susceptible of being wronged. In other words, to understand what this right is, we need to understand how it would be abridged and how that abridgement might be vindicated. So it seems like we would need to see the government doing things in a way which is contrary to the basic structure of government outlined in the Constitution. This gets into both separation of powers jurisprudence and federalism jurisprudence, plus some other things.

For instance, what if Congress abdicates an impermissible degree of its power to the President? We already have law about that. This sounds like the sort of thing Judge Staton is talking about: a substantial abdication of lawmaking power from the Legislature to the Executive. And there is a way to test it. we can apply what’s known as the “nondelegation doctrine.” This was made explicit in a decision by then-Chief Justice Robert Taft in J.W. Hapton, Jr. & Co. v. United States, 276 U.S. 394 (1928):

In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination. … [If Congress] shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power. Id., at 406 & 409.

So we know how this gets decided: as in J.W. Hampton, someone who is on the enforcement end of an executive regulation has standing to go to court and challenge that regulation’s validity. (In J.W. Hampton, it was a tariff that the company did not want to pay; Congress had purportedly given the President authority to increase the tariff from time to time, but failed to describe under what conditions doing so would be appropriate.) The Court gets to decide when a Congressional delegation of authority has surpassed Congress’ sole power to make laws in such a case.

The explicit, state-applicable Guaranty Clause is not justiciable; it is up to Congress to determine and remedy a violation of a state’s obligation to provide for a republican form of government. ¹ “Just as the Court has consistently held that a challenge to state action based on the Guaranty Clause presents no justiciable question so has it held, and for the same reasons, that challenges to congressional action on the ground of inconsistency with that clause present no justiciable question.” Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Judge Staton appears to acknowledge this, albeit quickly, in her dissent.

So if there is a perpetuity-of-government right that is somewhere in the same territory as nondelegation and Guaranty, the right would be against a fundamental failure of the structure of government itself. And if no one has the right to go to court and allege a violation of the State-level Guaranty Clause, who gets to decide when something like that has happened at the Federal level?

The case that comes to mind immediately is Bush v. Gore, 531 U.S. 98 (2000). Here, the Court was confronted with a high-pressure decision in the closely-contested presidential election of 2000 in Florida, whose electoral votes would be decisive as to the outcome of the vote for the next president in the Electoral College. There, the Court determined that the manner of judicial supervision of the recount process proceeding under Florida law violated the Equal Protection Clause of the XIV Amendment, and vacated the decision of the Florida Supreme Court to certify the Gore slate of electors. The reversal and remand effectively instructed the Florida Secretary of State to certify the Bush slate instead (though it was not explicit, a Bush certification was the decision which the Florida Supreme Court had previously reversed). At no point in this decision, however, was the existence of a fundamentally democratic republic questioned: the case revolved around equal protections arguments, and whether various county registrars and thus voters in various counties were being treated equally. (And there are other flaws with the hurried reasoning and glaringly partisan breakdown of the Court’s votes too, which I do not purport to address here.)

If it’s true that there is an implied right to the existence of a Constitutional government, Bush v. Gore itself represents something of an attack on it. After all, Congress itself can decide upon which slate to recognize. This was how the contested election of 1876 between Rutherford Hayes and Samuel Tilden was decided: Florida, South Carolina, and Louisiana all reported competing slates and another elector from Oregon was stricken from its slate (Oregon law at the time prohibited someone who held state office from serving as a presidential elector). Congress resolved the issue itself. It passed a law called the Electoral Commission Act, convening a bipartisan body in which allegedly a political bargain was struck. Following the Commission’s advice, the Republican Congress recognizing the Hayes slates but agreeing to the Democrats’ demand that Federal troops be withdrawn from southern states, effectively ending Reconstruction. While condemned by many as a “corrupt bargain,” the Electoral Commission and the Compromise of 1877 represented a political resolution to a disputed presidential election. In the wake of those events, the Electoral Count Act of 1887 was passed, providing that in the event of the submission of competing slates of electors, whichever the slate which has been certified by the appropriate executive of that state (usually the Secretary of State) is counted, unless both houses of Congress overrule that certification by majority votes. (Bush v. Gore was of questionable authority because it carved an exception out of that act, purportedly based upon the Equal Protections Clause.)

So basic Constitutional government provides for mechanisms — clumsy and subject to political pressuring, perhaps — for the political branches of government to resolve issues of election problems. Judicial intervention in that fundamentally political process, as has already been extensively argued, arrogates to the Courts the properly political resolution of such disputes. Arguably, it violates the “Perpetuity of Government” right Judge Staton would have had the majority adopt in Juliana. But if the Supreme Court itself issues a ruling, and Congress and the president go along with it because it’s to their advantage or they lack the ability or will to successfully challenge it (as was the case in Bush v. Gore) then there isn’t really much that can be done: the public requires a substantial degree of durable outrage sufficient to reverse course in both congressional and presidential elections, which may take a long time to wind around.

I think what we’d look for by way of future exploration of this possible unenumerated right would have to be some kind of overtly authoritarian action by the executive. There are those who believe the incumbent President is likely to do such a thing, and some who allege he already has. In my opinion, what they’re really seeing is the breadth of the judiciary’s reluctance to apply the nondelegation doctrine combined with Congress’ failure to assume the leadership role in the bulk of contemporary governmental decision making. It might take something like a declaration of martial law or some sort of proclamation or Congressional act purporting to suspend the Constitution. Again, this sort of thing seems unlikely, but less so the more you think that the existing government has authoritarian tendencies.

In such a case, either the President actually has an overwhelming justification to declare martial law, or the President has an utter and complete disregard of the Constitution. In either event, such a president will simply disregard whatever any court says about the legality of his actions, and power will at that point rest with members of the military who will have to choose a side quickly and under enormous pressure. In this sense, there is no difference between the United States and any other nation facing a fundamental challenge to its system of government. That’s ultimately where I wind up with Judge Staton: by the time we confront the most fundamental Constitutional right of them all — the right to be governed by the Constitution at all — we’re necessarily at a fairly urgent state of affairs that won’t be effectively resolved by the courts under any circumstances.

1. So far as I can tell, Congress discharges this obligation when it reviews a State’s constitution and organic law upon its admission to the Union, and at no other time; I don’t find any other examples of Congress taking legislative action against a state for restructuring its government in a non-republican form.