Whittier Law Review
In this article, I suggest that Congress re-pass its progressive legislation under the jurisdictional basis of its Guarantee Clause power. While arguments for justiciability continue to be made, a pragmatic way to achieve it has not been spelled out. Part II will lay out versions of republicanism I hope to see discussed in the context of the Guarantee Clause. Part III will explore republicanism's excessive attention on the courts, recommending the aforementioned approach of Jeremy Waldron. Part IV will briefly suggest how some of the legislation recently curtailed by the Supreme Court might be justified under a theory of legislative, as opposed to court-centered, republicanism. Part V will show how the fixation on justiciability in the Guarantee Clause discourse is misdirected, making the same error as the republican revival. Part VI will address why the Guarantee Clause is a hopeful place to look for congressional authority to enact republican ends; the argument is, based on the Clause's history in the courts as well as in Congress. The Conclusion will make clearer the point of this approach to republicanism and the Guarantee Clause: By refocusing energy to give Congress some powers under the Clause, progressives can send a much stronger message to the courts to discover and manage a Guarantee Clause jurisprudence.
Ethan J. Leib,
Redeeming the Welshed Guarantee: A Scheme for Achieving Justiciability, 24 Whittier L. Rev. 143 (2002-2003)
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/91