Acting under the authority assumed to be given it by the guaranty clause, Congress, at the conclusion of the Civil War, assumed an almost complete control over the reconstruction of governments in those States. There can be no question, however, but that in doing so an interpretation was given to that clause which it is difficult to justify. Practical exigencies may have necessitated the federal authority that was exercised, but that violence was done to the meaning of this, clause must be admitted. A fair interpretation of this clause would have given to the Federal Government at the most nothing more than the right to' assist the citizens of the several States in establishing and maintaining governments republican in form and loyal to the Union. When this clause was discussed in the Constitutional Convention of 1787 it was explained by one member that its object was "merely to secure the States against dangerous commotions, insurrections, and rebellions;" and Madison, writing in The Federalist, said: "It may possibly be asked what need there could be for such a precaution, and whether it may not become a pretext for alteration in the state governments without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the General Government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the General Government should interpose by virtue of this constitutional authority, it will of course be bound to pursue the authority. But the authority extends no further than a guaranty of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance."

11 War a fuller discussion of martial law, and its limitations, see post, Chapter LXII (Martial Law. 723. Martial Law Defined).

Instead, however, of guaranteeing existing governments in the Southern States, or of assisting their citizens in establishing republican governments, the Federal Government, in pursuance of the various Reconstruction Acts passed by Congress, went on itself to assume the practical control of the establishment of new governments; and these governments it termed republican in form, though they were imposed upon the States against the will of the great bulk of their citizens, and were maintained in existence by the support that the federal bayonet was able to give them. Furthermore, Congress even then refused to admit the States to a full enjoyment of constitutional rights until they had amended their Constitutions in certain specific ways, and ratified the Fourteenth and Fifteenth Amendments to the federal Constitution. In so doing, not only was violence done to the guaranty clause, but the States in question were deprived of that equality with the other States of the Union to which they were constitutionally entitled.

In an earlier chapter it has been pointed out that in the famous case of Texas v. White12 the Supreme Court construed the "guaranty" clause of the United States Constitution to authorize Congress to establish and maintain governments in those States which had attempted secession from the Union. It will be remembered, however, that in that case the court did not feel itself called upon to pass upon the constitutionality of any of the particular provisions of the Reconstruction Acts which were enacted by Congress in the exercise of that power, but was content with satisfying itself that the government which had been established and had been in actual operation, had been recognized by Congress, and was, as such, competent to bring suit in behalf of the State of Texas, which, it was declared, had never been, despite its ordinance of secession, out of the Union.13

In White v. Hart14 an attempt was made to have the Supreme Court hold void certain provisions of the reconstruction Constitution of Georgia on the ground that the Constitution had been adopted under the dictation and coercion of Congress, and was not thus, in reality, the act of the State. The Supreme Court replied: "Congress authorized the State to frame a new Constitution, and she elected to proceed within the scope of the authority conferred. The result was submitted to Congress as a voluntary and valid offering, and was so received and so recognized in the subsequent action of that body. The State is estopped to assail it upon such an assumption. Upon the same grounds she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department." In short, the court held that whether or not Congress was justified in requiring of the State that, as a condition to her again enjoying representation in Congress, she should adopt a Constitution containing certain provisions, the State had yielded and adopted a Constitution as required. It was therefore her act, and its provisions were valid as such. Had she continued to refuse to accede to the conditions imposed by Congress, it might ultimately have been necessary to decide whether those conditions were constitutionally requirable. But having yielded to them, the court very properly held that it could not examine into the motives or circumstances which led the State to do so.

127 Wall. 700; 19 L. ed. 227. 13 See ante, p. 85.

14 13 Wall. 646; 20 L. ed. 685.