Article IV, Section 4 of the United States Constitution guarantees to every state a “Republican form of government.”
Some in Raleigh, however, seem confused by this provision.
They seem to believe that Article IV, Section 4 guarantees a Republican Party form of government. And that this means they have constitutional license to take any and all measures to keep the Republican Party in power.
The most recent examples of this are the Republican-controlled legislature’s efforts to weaken the powers of the governor’s office in reaction to the election of a Democrat, Roy Cooper. Convening in the waning hours of the McCrory Administration in a last minute ‘emergency’ session, the legislature passed Senate Bill 4 and House Bill 17 which, together, included a series of measures that: 1) restructured the State Board of Elections and the State Ethics Commission into a new State Board of Elections and Ethics Enforcement and limited the governor’s authority to appoint nominees to the newly created board; 2) imposed an unprecedented obstruction to the governor’s ability to staff key members of his administration by subjecting his appointments to advise and consent limitations; and 3) entrenched the outgoing governor’s political appointments in state government by transforming their status from political appointees to career state employees.
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Then as if these actions weren’t enough, the Republican leadership attacked an independent, three-judge panel reviewing the constitutionality of these provisions, asserting that the panel’s “decision to legislate from the bench will have profound consequences.”
These actions are the antithesis of what a republican form of government actually entails.
First, a republican form of government requires debate and deliberation. Laws that address how government should be structured are nuanced and complex; and they demand serious discussion. But the General Assembly jammed through Senate Bill 4 and House Bill 17 with little or no notice to the public, with no meaningful debate on their merits, and without any justification for deviating from the normal rules of deliberative process upon which a republican form of government necessarily depends.
Second, a republican form of government demands adherence to and respect for the separation of powers. As the North Carolina Supreme Court noted last year in State ex. rel McCrory v. Berger, “the principle of separation of powers is a cornerstone of our state and federal governments” and “is absolutely necessary to preserve the blessings of liberty.” This is because preserving an appropriate balance of power between the legislative, executive, and judicial branches checks against governmental overreach, abuse of authority, and tyranny. Further, separation of powers is necessary because it grants each branch the authority to effectively do its job. D espite the fact that Senate Bill 4 and House Bill 17 imposed similar obstacles to the governor’s ability to fulfill his constitutional obligations, the General Assembly chose once again to ignore basic separation of powers principles.
Third, a republican form of government rests on the foundation of the ultimate supremacy of the rule of law. This requires paramount respect for the independence of the judiciary. The suggestion by the Republican leadership that a court will suffer “profound consequences” if it does not reach the result that the leadership desires flies in the face of this principle and is a direct attack on judicial independence and on the rule of law.
Some in Raleigh might find the word “democratic” to be anathema. But those persons would do well in reading the United States Constitution as a whole. Because, if they did, they would learn that the terms “republican” and “democrat” were not partisan labels to the Framers. They were foundational concepts designed to ensure that “we the people” live in a functioning democracy that respects the will of the majority. And, if they checked their history, they might also discover that that the Constitution was designed to guard against arbitrary one-party rule, and not, as they would have it, to effectuate a monolithic state.
The Constitution’s guarantee of a “republican form of government” expresses our nation’s commitment to the democratic process and the rule of law. And Republicans should be proud that their party, the party of Lincoln, was founded on these very premises. But the time has come for those who carry the banners of Republican Party leadership to live up to the ideals that forged its existence. They should recognize that amassing political power for its own sake does not constitute a republican form of government.
Bill Marshall is a UNC law professor and a former assistant legal counsel to President Bill Clinton.