This long-forgotten clause may thwart Trump

In addition to the U.S. Immigration and Customs Enforcement and Border Patrol actions in Minnesota, President Donald Trump has now called for a “nationalization” of elections. Minnesota is once again in the thick of things, and the aim is, in Trump’s words, to “take over” voting in several states. For a Republican party that once prided itself on small government, such federal incursions might initially seem counterintuitive.

So how does the administration justify its big government incursions? Central to the administration’s rhetoric has been the Constitution’s language of “invasion.” That language appears in Article IV, Section 4, which requires the federal government to protect states against “invasion.”

But when looked at more closely, the same clause could provide Minnesota officials with a political vocabulary to reframe questions of federal versus state authority. Minneapolis Mayor Jacob Frey has already inverted the language of invasion, suggesting the federal government is doing the invading. As he argued after the Alex Pretti shooting, “a great American city is being invaded by its own federal government.”

Yet the guarantee clause also contains another, frequently overlooked phrase: that the United States must “guarantee to every State in this Union a Republican Form of Government.”

If “a Republican Form of Government” means anything, it means protecting citizens and states from arbitrary centralized power, not authorizing more of it, as we’ve seen in Minnesota, Maine and elsewhere.

Governor Tim Walz, Attorney General Keith Ellison and elected representatives more generally should clearly articulate what is at stake. This is not only a partisan dispute about immigration, due process, or individual rights, although it is all of that. It is also a constitutional conflict over whether states retain the form of self-governing republics or trade their independence — the heart of republican liberty — for dependence and subordination.
The guarantee clause has long been treated as dormant, but historically it was understood as a safeguard against vindictive reprisal by any power, foreign or domestic. As James Madison wrote in Federalist Paper No. 43, the purpose of the clause is “to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises.” The enforcement surges in Minnesota and Maine bear all the hallmarks of vindictive reprisals, in this case against Govs. Walz and Janet Mills.

The clause commits the federal government not only to defending states from external attack but to preserving republican self-government within them, which, according to the long tradition of republicanism, means freedom from arbitrary power; rule through law rather than intimidation; and governance that tracks the interests of its people — citizens and non-citizens alike. When federal authority relies on fear and force, the threat is not merely to individual rights but to republican self-government itself.

There is now ample evidence that the ICE crackdown is not an aberration but part of a broader governing style defined by arbitrariness, the very condition republican government is meant to guard against. It replaces government by law with government by discretion. The Founders treated such arbitrariness as a central danger to self-rule, and state leaders should invoke that constitutional tradition directly.

State governors, attorneys general, and the public are not powerless in the face of this shift, but their most important tool is not necessarily a lawsuit. It is constitutional narration. By invoking the guarantee clause explicitly, state leaders can reframe these confrontations as conflicts over republican self-government. Naming federal operations as incompatible with a republican form of government changes the terrain of debate to broad and high-stakes questions of political authority and constitutional legitimacy.

Such an approach is in line with a long tradition of American popular constitutionalism, in which political officials and the public assert constitutional limits when formal legal remedies lag behind events. It gives governors and anyone who considers themselves a “small-r” republican a vocabulary for demanding transparency and limits on coercion, and for rallying legislatures, mayors and the public around a shared constitutional principle.

A republican form of government ties law and liberty together. Arbitrary rule, in contrast, is the very condition that the Constitution and the Declaration of Independence sought to guarantee against. State leaders have good reason to begin invoking that guarantee.

• Jonathan Masin-Peters is a lecturer in political and social theory at Harvard University. The Minnesota Reformer is an independent, nonprofit news organization dedicated to keeping Minnesotans informed and unearthing stories other outlets can’t or won’t tell.