Jason Mazzone, University of Illinois College of Law, has posted The Incorporation of the Republican Guarantee Clause, which is forthcoming in the Notre Dame Law Review:
This Article makes the case for understanding the Fourteenth Amendment to incorporate the Republican Guarantee Clause of Article IV. Incorporation shifts the focus of the Guarantee Clause from the interests of states to the interests of citizens; from protecting popular sovereignty as a political ideal to safeguarding more specifically rights that citizens hold and exercise in a republican system. Once incorporated, the Guarantee Clause should be understood to require states themselves to maintain a republican form of government and to act to correct departures from republicanism within their own governing arrangements. In addition, an incorporated Guarantee Clause informs the meaning of rights protected against state interference under Section 1 of the Fourteenth Amendment: safeguards for privileges and immunities, due process of law, and equal protection of the laws, are all usefully understood with an eye to republicanism. So, too, an incorporated Guarantee Clause informs the meaning of provisions of the Bill of Rights when they are applied to state governments. Incorporation also has implications for the national government: its role shifts from a duty owed to the states to an obligation to protect from state interference citizenship rights that serve republican ends. Finally, incorporation alters the traditional assessment that Guarantee Clause claims are nonjusticiable.--Dan Ernst
