A Congress that wanted to could, in theory, use the Guarantee Clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, Radical Republicans in Congress found their constitutional power to reconstruct the South chiefly in the Guarantee Clause, which they used to protect the rights of Black Americans from revanchist state governments.
Since Reconstruction, however, no Congress has wanted to use the Guarantee Clause to protect the rights and liberties of Americans. It’s a vestigial part of our constitutional history, atrophied from disuse.
The same goes for sections 2 and 3 of the 14th Amendment. Section 2 states that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” It then specifies that if the right to vote for federal office is “denied” or “in any way abridged, except for participation in rebellion” to “any of the male inhabitants” of such a state, then “the basis of representation therein shall be reduced” in proportion to the denial in question.
Section 3 also deals with representation. It states that
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.
The purpose of section 2 was to invalidate the Three-Fifths clause of the Constitution and to prevent state governments from disenfranchising Black voters. And the purpose of section 3 was to prevent former Confederate leaders from holding state and federal office. But while the 14th Amendment gives Congress the power to enforce its provisions by “appropriate legislation,” Congress has never exercised its ability to deny representation to states that violate the right of citizens to vote, nor has it used its ability to disqualify those lawmakers who have engaged in acts of rebellion or insurrection. In the wake of Jan. 6, Representatives Cori Bush and Alexandria Ocasio-Cortez called on Congress to investigate and expel members who aided the attack, but their demands went nowhere.
It’s here that you can see why I think it’s important to talk about these seemingly idle provisions. As recent events have made clear, powerful reactionaries are waging a successful war against American democracy using the counter-majoritarian institutions of the American political system, cloaking their views in a distorted version of our Constitution, where self-government means minority rule and the bugaboos of right-wing culture warriors are somehow “deeply rooted” in our “history and traditions.”
But the Republic is not defenseless. The Constitution gives our elected officials the power to restrain a lawless Supreme Court, protect citizens from the “sinister legislation” of the states, punish those states for depriving their residents of the right to vote and expel insurrectionists from Congress.