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Guarantee of Republican Form of Government??

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  • Legalbear
    *223 But the only significance that Luther could have for our immediate purposes is in its holding that the Guaranty Clause is not a repository of judicially
    Message 1 of 1 , Aug 3, 2013

      *223 But the only significance that Luther could have for our immediate purposes is in its holding that the Guaranty Clause is not a repository of judicially manageable standards which a court could utilize independently in order to identify a State's lawful government. The Court has since refused to resort to the Guaranty Clause—which alone had been invoked for the purpose—as the source of a constitutional standard for invalidating state action. See Taylor & Marshall v. Beckham (No. 1), 178 U. S. 548 (claim that Kentucky's resolution of contested gubernatorial election deprived voters of republican government held nonjusticiable); Pacific States Tel. Co. v. Oregon, 223 U. S. 118 (claim that initiative and referendum negated republican government held nonjusticiable); Kiernan v. Portland, 223 U. S. 151 (claim that municipal charter amendment per municipal initiative and referendum negated republican government held nonjusticiable); 224*224 Marshall v. Dye, 231 U. S. 250 (claim that Indiana's constitutional amendment procedure negated republican government held nonjusticiable); O'Neill v. Leamer, 239 U. S. 244 (claim that delegation to court of power to form drainage districts negated republican government held "futile"); Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (claim that invalidation of state reapportionment statute per referendum negates republican government held nonjusticiable);[49] Mountain Timber Co. v. Washington, 243 U. S. 219 (claim that workmen's compensation violates republican government held nonjusticiable); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U. S. 74 (claim that rule requiring invalidation of statute by all but one justice of state court negated republican government held nonjusticiable); Highland Farms Dairy v. Agnew, 300 U. S. 608 (claim that delegation to agency of power to control milk prices violated republican government, rejected).


      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. In Georgia v. Stanton, 6 Wall. 50, the State sought by an original bill to enjoin execution of the Reconstruction Acts, claiming that it already possessed "A republican State, in every political, legal, constitutional, and juridical sense," and that enforcement of the new Acts "Instead of keeping the guaranty against a forcible overthrow of its government by foreign invaders or domestic insurgents, . . . is destroying that very government by force."[50] Congress had clearly refused to 225*225 recognize the republican character of the government of the suing State.[51] It seemed to the Court that the only constitutional claim that could be presented was under the Guaranty Clause, and Congress having determined that the effects of the recent hostilities required extraordinary measures to restore governments of a republican form, this Court refused to interfere with Congress' action at the behest of a claimant relying on that very guaranty.[52] Baker v. Carr, 369 US 186, 223-25 - Supreme Court 1962


      With a lineup like this, consisting of nothing of failures, it will take some creative thinking to get this issue in front of a court. Bear




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