A republican form of government
or The little known case of Dorr’s War.
In December 1865, less than a year after Lee’s surrender at Appomattox, President Andrew Johnson declared Reconstruction complete. Radical Republicans in Congress were appalled. During President Johnson’s eight month “Presidential Reconstruction,” incidents of violence and terror against freed persons and Republicans by white supremacists were barely suppressed throughout the South, despite the occupation of the Union army.
Southern states, meanwhile, had refused to extend suffrage to freedmen, had enacted “Black codes” enshrining white supremacy into state law, and had voted ex-confederates into local, state, and federal elected offices in overwhelming numbers. Several southern states had not ratified the Thirteenth Amendment abolishing slavery, and several of those that had done so purported to limit its effect by adding provisos that the Amendment did not grant the central government authority to legislate the status of freed persons.1
In reaction, Congress refused to seat the incoming southern representatives or senators when Congress reconvened. The Radical Republicans sprang into action, enacting the Civil Rights Act of 1866 to enforce civil (but not political) rights for freed persons.2 The “Radical Reconstruction” was on.
Congress proceeded to divide up the conquered South into five military districts subject to army oversight. In order to secure readmission to the Union, the ex-Confederate states were required to adopt new constitutions, implement black suffrage, and ratify the Fourteenth Amendment, which would in turn bolster the constitutional imprimeur of the new Civil Rights Act.
The quandary of the Reconstruction
It was imperative that the southern states be excluded from Congress. A perverse side effect of the Thirteenth Amendment was that it actually would increase the South’s representation in Congress by nullifying the Three-Fifths Clause. As I have described, the Three-Fifths Clause blunted the electoral power of the South by discounting their slave populations by two-fifths for purposes of calculating representation in the House of Representatives.
Now that the slaves were free, they counted a full five-fifths for purposes of House representation, even though they had still been excluded by the southern states from the franchise. In a nightmare scenario, the ex-Confederate states could return to Congress as a predominent force and undermine or even undo Reconstruction.
But under what authority did Congress occupy coequal sovereign states, deny their duly elected congressmen, and direct the course of their state governments? During the Civil War, the Supreme Court had allowed the government treat the enemy as a foreign belligerent or alternatively as a gaggle of wayward states as it suited the Union’s need in the Prize Cases. But now the hostilities were over. If, as the federal government had maintained, the place of the southern states in the Union had remained “perfect and unimpaired” all along, what was Congress’s justification for reconstructing their governments?
Professor White describes Congress’s “three powerful constitutional weapons” in The Republic for Which It Stands:
The first was familiar: the right of Congress to determine its own membership, that is the power to reject members even if they had won elections in their states. The second, untested, weapon was the constitutional clause guaranteeing every state a republican form of government. This was, in Senator Charles Sumner’s words, a “sleeping giant.” Nothing else in the Constitution gave “Congress such extreme power over the states.” The third were the war powers that allowed the continuing occupation of the South.
While it is true that Congress has discretion to determine its own membership, one assumes they should not abuse that discretion by denying admission on an arbitrary or self-serving basis, in the same way one assumes presidents can’t pardon themselves. Perhaps, on the other hand, as I have suggested, Congress’s war power does imply a corresponding authority to legislate the ensuing peace. But awkwardly, Congress had never invoked its war power by declaring war against the Confederacy, precisely to vindicate its position that the Confederacy had never existed in the first place. That left the Constitution’s guarantee to every state of a “republican form of government.”
The Guarantee Clause
Article IV, section 4 of the Constitution, often referred to as the Guarantee Clause, provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” As Professor Frazier writes, the concerns that inspired the framers of the Constitution to include the Guarantee Clause arose out of the chaos of the previous Confederation3 period. During Shays’s Rebellion, debtors in Massachusetts banded together to shut down the state’s courts in order to prevent foreclosures. The overmatched state government had to outsource its peacekeeping function by enlisting a privately financed militia in order to quell the insurrection.
Fear that an uprising like Shays’s Rebellion could spill over into neighboring states and spread anarchy or populist authoritarianism like wildfire throughout the Union drove the recognition that a stronger central government was necessary to protect the internal integrity of the states themselves. Professor Frazier concludes that in the Guarantee Clause “states acquiesced to the possibility of federal intervention to prevent an anti-republican contagion from spreading both within and beyond the state’s borders.”
What exactly is a “republican form of government”? Professor Frazier argues that the “core of the guarantee in the minds of the Founding generation appears to have been rule by the people.” In particular, elected officials should derive their authority from the “great body of the society, not from an inconsiderable proportion, or a favored class of it” as James Madison put it in Federalist # 39. Madison elsewhere described right of suffrage as “one of the fundamental articles of republican government.”
In Luther v. Borden, the Supreme Court held in 1849 that the Constitution grants to the political branches (rather than the courts) the authority to decide what is or is not a republican form of government. That case arose out of the aftermath of the Dorr War, in which Thomas Dorr, a citizen of Rhode Island, unsuccessfully attempted in 1841 to overthrow the government of his state, resulting for a time in there being two separate governments both claiming to be the legitimate authority in the state.
Dorr’s infant regime was eventually stamped out by the established state authorities, but his aborted attempt did result in the calling of a state constitutional convention to adopt a new state constitution.4 The resulting constitution of 1843 is still the constitution of Rhode Island today.
Luther, a member of the Dorrite rebellion, meanwhile sued Borden, a Rhode Island state official who had arrested Luther, searched his home and supposedly damaged his property in the process. Luther alleged that because the previous state constitution, which was in fact just the original colonial charter granted by King Charles II in 1663, so strictly limited the franchise that the government of Rhode Island was not republican. Consequently, Luther argued, Borden’s arrest under color of state authority had been illegal.
But the court punted in a decision penned by Chief Justice Taney, of Dred Scott infamy, holding that what constitutes a republican form of government is a non-justiciable political question reserved to the other branches of government, in particular, to Congress:
Under this article of the Constitution, it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.
Republicans in the Reconstruction Congress like John Bingham explicitly relied on Luther as justification for congressional authority to implement the Radical Reconstruction under the Guarantee Clause. But what had changed in the governments of the southern states that made them unrepublican now?
One answer was that Congress had discretion to update the definition of republican government, that in essence the Guarantee Clause was one of those provisions of the Constitution that was intended to evolve over time. Even if denial of the franchise to African Americans in the south had not been thought inconsistent with republicanism at the nation’s Founding, it had become so over time due to changing attitudes about the meaning of that term. That argument was awkward, however, because northern states also restricted voting rights racially.
More obviously, though, something major had changed: the ratification of the Thirteenth Amendment had freed all enslaved persons in the Union. The southern states were no longer denying votes to mere slaves, individuals who were excluded entirely from the political community. They were instead disenfranchising huge swaths of their free populations. Although both northern and southern states limited the franchise along racial lines, the effect on suffrage was vastly greater in the south because the proportion of African Americans was much greater there. Thus, it was not so much the race of disenfranchised ex-slaves, but rather their new status as free men,5 which triggered the republican problem. Professor Amar explains the distinction:
Northern voting restrictions, though illiberal and deeply regrettable to leading Reconstructionists, were not actionably nonrepublican because the vast majority of Northern free males could in fact vote. Southern whites-only rules, by contrast, offended the basic republican ideal of a government that derived its power from the great mass of citizens.
Professor Amar concedes that one might find this rationale by the Republicans to be “self-serving” but reminds us that the alternative facing the North was the return of the unreconstructed southern states to Congress, unburdened by the three-fifths compromise.
The inglorious Redemption
Yet in the end, they allowed just that. The outcome of presidential election of 1877 between Republican Rutherford Hayes and Democrat Samuel Tilden was bitterly disputed. The Democrats offered to stop contesting the election if the Republicans would end Reconstruction. In order to secure the presidency, the Republicans gave up on Reconstruction and sold the freed slaves down the river. Meanwhile, in the Slaughterhouse Cases, the Civil Rights Cases, and numerous other contemporaneous decisions, the Supreme Court too betrayed the promise of the Reconstruction Amendments. Thus, was the unreconstructed South redeemed and Jim Crow unleashed. The forgotten legacy of Reconstruction would slumber for a century, until the Civil Rights Revolution of the 1960s.
In fact, Mississippi did not ratify the Thirteenth Amendment until 2013.
Johnson vetoed the bill, but Congress overrode the veto, the first major use of that power in American history.
Not to be confused with the Confederacy.
Actually Dorr had a non frivolous claim to be the duly elected governor under a constitution voted for by a majority of the state’s white males. The story of Dorr’s War is fairly bonkers and you will not regret reading more about it.
You would justifiably ask, what about the ladies?! The doctrine of virtual representation is beyond the scope of this post, but suffice it to say, not great.