Page:The Green Bag (1889–1914), Volume 24.pdf/238

 The Editor's Bag THE PLENARY POWER OF CON GRESS TO ORDAIN A "RE PUBLICAN FORM OF GOVERNMENT" THE provision of the federal Con stitution under which "the United States shall guarantee to every state in this Union a republican form of govern ment" has never been construed by the Supreme Court as authorizing the fed eral courts to employ their own power for the enforcement of this guaranty. In Luther v. Borden (7 How. 1) the Supreme Court held that the power to determine which of two contending gov ernments of a state was legal had been given by the Constitution to Congress, and delegated by that body to the President to the extent of giving him discretion to determine when he should lend military aid and which government he should recognize as lawful. The Court said that this power of the Presi dent "must be respected and enforced in the federal tribunals. In so far, there fore, as there might be any justiciable question of the authority of the President or of Congress, the Court recognized such authority, but impliedly denied the question of the legality of a state government to lie within the purview of a federal court. In Texas v. White (7 Wall. 700) the Supreme Court construed the same provision of the Constitution as author izing Congress to establish the "Recon struction" governments of the states

which had seceded in the Civil War, but avoided passing upon the constitution ality of particular provisions of the Reconstruction acts. These two cases illustrate the attitude of the Court, which has been one of passive support to Congress or the President, as opposed to one of active assertion of its own prerogative. The question of the legality of a state government has thus been treated as an appropriate subject for legislative or executive rather than for judicial action, — in the terminology of the Court, as a "political" rather than as a "judicial" question. The actual intent of the Constitution might appear to be that all branches of the federal govern ment should share the power and re sponsibility of enforcing the guaranty, and there would seem to be no reason in principle why state constitutions in conflict with the federal Constitution should be more immune from judicial nullification than state statutes. The Supreme Court, however, has never had the boldness to claim such authority. At the same time, while it has been the general policy of the Supreme Court to treat the question of the meaning of the words "a republican form of govern ment" as political and outside its juris diction, this policy has not been adhered to with absolute logical consistency. Otherwise the Court, in Minor v. Happersett (21 Wall. 162), would have refused jurisdiction of the question whether a state government in which women are