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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, December 01, 2004 ::
    "Guarantee"-ed failure

    Boston Globe: U.S. Justices Won't Hear Mass. Case, i.e. an appeal from Goodridge. Well of course not. This appeal was based on the "guarantee" clause, Article IV, Section 3: "The United States shall guarantee to every State in this Union a Republican Form of Government...." This is the archtypal non-justiciable clause, ever since 1849. Everyone is reasonably sure the clause does not mean that all states have to have GOP governors and legislative majorities, tee hee, but no one knows what it does mean.

    (I have a hunch there's an anti-Catholic kick behind it: rule by a Catholic monarch was considered the antithesis of "a Republican Form of Government," and the Founders could not forget that the country was bordered by territories belonging to the crowns of France and Spain. Notice the "Invasion" clause that comes right after the Guarantee clause, separated only by a comma, which is less than separated New England and New York from Quebec, or Georgia from Florida.)

    The suit the Supremes turned aside asked them to hold, basically, that the Massachusetts Supreme Judicial Court deprived Massachusetts of a "Republican Form of Government" by taking it upon itself to redefine marriage in that state. Courts violate the Guarantee Clause when they make decisions best left to legislatures? Oh yeah, I can see the U.S. Supreme Court holding that....

    :: David M. Wagner 3:08 PM [+] ::

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