The Final Extremity

There is a final extremity. To understand our rights then, we have to consider the Guarantee clause.​



Article IV sec 4:


“The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the Executive (when the legislature cannot be convened) against domestic violence.”


Why is the Guarantee clause worded the way it is? The Framers knew the dangers of complex wording. “Every state in this union shall have a republican form of government.” is simpler. Why not that?

If a rich state lends money to a poor state, can the rich state require the poor state to govern itself as the rich state wants? No, because the United States is above the individual states.

“The Congress shall guarantee to every state in this Union a republican form of government.” Why not that?

If Congress lends money to a poor state, can Congress pass a law requiring the poor state to govern itself as Congress wants? No. This situation is currently a problem in the European Union, but it can’t happen here because the United States is above Congress.

“The United States shall have a republican form of government.” Why not that?

Can the United States eliminate statehood and be run just by Congress? No, because it guarantees a government to each state.

“This Constitution shall guarantee to every state in this Union a republican form of government.” Why not that?

The Constitution is above the United States, and can be amended, even to the extent of completely replacing it, by Article V; and Article V uses a republican form of government, which the Constitution already requires the United States to guarantee to each state. Can the Constitution be amended to remove Article IV, sec 4?

Not against the people’s will. Why not?


“The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the Executive (when the legislature cannot be convened) against domestic violence.”

and

Preamble: “We the people of the United States […] do ordain and establish this Constitution for the United States of America.”


The people of the United States are above the Constitution, even Article V.

The Preamble asserts a dangerous truth: the people can abolish it all. But it’s a necessary assertion because it protects the people against the use of Article V to establish a tyrannical Constitution.

People have been worried about a last-ditch attempt to force a Constitutional Convention on us. There are a lot of legal problems with this, described in The Con-Con Con and Valid Amendment, but we won’t address those here. There are two larger points the people must understand.

First, 1787 can’t happen today. The Framers made sure of it. The Articles of Confederation required any amendment to be ratified by every state. The Framers didn’t amend them, but dropped the Articles altogether and started from scratch. Nothing in the Articles prohibited that, so it was just barely legal.

The Constitution prohibits what the Articles didn’t think of prohibiting. By asserting that a convention can be called to generate amendments to be proposed, it requires that even a completely new Constitution be installed using Article V. There’s no way around it.

Article V requires that any amendment or even a new Constitution be ratified by either ¾ of the state legislatures, or ¾ of state conventions. Congress decides which of these methods will be used. They can’t mix and match.

Second, Congress, state legislatures and by extension any delegates to a Constitutional Convention are required to support the Constitution above all. A Constitutional Convention can’t make its own rules. And the most important clause in the Constitution asserts the people’s right to ordain and establish the Constitution for the United States.

Articles V and VII are all that is needed to amend the Constitution, but they aren’t the only requirements for a new Constitution. A new Preamble is also required. Without a Preamble it’s not a Constitution for the United States as we have defined it.

“We the people” are distinguished from the delegates to the original Convention and from the state legislatures in the Constitution’s last paragraph. Articles V and VII must be satisfied for a new Constitution so we the people can’t just vote one in, but only we the people can ordain and establish it as one by means of a Preamble.

In the last extremity the people of the United States can refuse to ordain and establish any passed and ratified new Constitution.

This doesn’t apply to amendments that don’t create a new Constitution.

We’d have to determine whether the passed and ratified text amounts to a new Constitution. Then we’d have to decide how to determine the people’s will: probably by a popular vote. In the meantime the original Constitution would continue to govern the USA.

Because Article IV, sec 4 asserts the type of government the United States will have, removing it would make a new Constitution. It can’t be removed, even by Articles V and VII, against the people’s will.

If a republican form of government as set out in the Constitution fails us and is used to create a tyrannical Constitution, we can revert to direct democracy. But only then. No popular vote is needed to accept a passed and ratified new Constitution, only to refuse one.

“We the people of the United States of America shall guarantee to every state in this Union a republican form of government.” Why not that?

Because that in itself doesn’t assert a republican form of government. It asserts pure democracy. Once the Preamble protects us against tyranny in the final extremity, we can rely on a republican form of government in every other case, even in the Constitution’s most fundamental clauses. We don’t need pure democracy for anything else.


Pure democracy is dangerous. The power to establish tyranny by a popular vote is too dangerous to give it any room to squeeze itself into the Constitution. We have to protect ourselves from ourselves.

But what guarantees that we will reject a tyrannical new Constitution? Self-preservation.

What guarantees that we won’t reject any Constitution at all? Self-preservation.

The Framers wrote a flawed document that they knew would require at least one major amendment (ending the 3/5ths clause, and slavery). But it is in all other respects a protective document. We have too much to lose by abandoning it.

People will act to protect their rights in extremity. That’s our ultimate protection against ourselves, going back to the fundamental Enlightenment philosophy that underlies the whole Constitution.