Is Buyer’s Remorse Reason for C.U.S. Article 4 §4 Claim
Editor's note: On Saturday, April 30, 2005, The President and the Executive
Secretary of the Unalienable Rights Foundation [URF] were the guest of Shu
Barthomew's radio program On The Commons. URF received via Shu an inquiry from
one of Shu's listeners. That inquiry and our response is found below.
You have called upon the kind offices of Shu Barthomew, host
and producer of radio program On The Commons to forward to us your e-mail
in which you wrote:
I've read that no challenge to Article 4 Section 4 (US - the republican
form of government clause) has ever been successful in the history of the US
constitution. But never before in our history has our right to a
"republican form of government" been trampled as with these
adhesion contracts created by merchants of mass-produced housing.
The largest housing mills in history - in collusion with the CAI's army
of management contract creators - conscript each new
"neighborhood" into a widely promulgated adhesion contract that
deliberately circumvents our "inalienable rights". The allegation
that we surrendered our Constitution in exchange for simple housing may as
well be an accusation of treason against WE THE PEOPLE. The accusers should
be shot for such stupidity, IMO!!!
I'll gladly take the stand as a witness in any Federal court case - as
long as I'm not paying for the legal fees. To that end I intend to fight
this Domestic Enemy until one of us is DEAD.
Before addressing your concerns and comments it is important for us to read
Art. 4, and §4 of the Unites States Constitution [C.U.S.] in their entirety,
unabridged and without editorial comments.
C.U.S. Article 4 §4 reads as follows:
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.
One could argue that this provision of the C.U.S. can be read in several
different ways and accordingly the interspersions of this provision would vary
according to those readings. However, the language is clear as to the meaning of
this provision of the C.U.S..
The guarantee the US is making when it guaranteeing "to every State in
this Union a Republican Form of Government" in this provision of the C.U.S.
is that of suffrage in the Congress.
We are indeed fortunate that we can avail ourselves of the considerable
records that the men who laboured in the creation of the Constitution kept of
the circumstances of their pursuit. One of the most revered records of this
legislation is in the hand of James Madison. We find in Madison’s Records of
the Federal Convention of 1787 on Wednesday, August 8, the approval of the
amended version of Article 4 §4 C.U.S.. along with his clear narrative leading
to the approval of Article 4 §4 C.U.S..
The background of Article 4 §4 C.U.S. can further be found in St. George
Tucker’s treatise in his works, BLACKSTONE'S COMMENTARIES: WITH NOTES OF
REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED
STATES; AND OF THE COMMONWEALTH OF VIRGINIA. IN FIVE VOLUMES. WITH AN APPENDIX
TO EACH VOLUME, CONTAINING SHORT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY
TO FORM A CONNECTED VIEW OF THE LAWS OF VIRGINIA, AS A MEMBER OF THE FEDERAL
UNION. BY ST. GEORGE TUCKER, PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND
MARY, AND ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA. PHILADELPHIA:
PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL, NO. 17, SOUTH
SECOND-STREET. ROBERT CARR, PRINTER.1803.(Blackstone’s) a/k/a American
6. The United States shall guarantee to every state in the 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. C. U. S.
Art. 4. Sec. 4.
It is an observation of the enlightened Montesquieu, that mankind would
have been at length obliged to submit to the government of a single person,
if they had not contrived a kind of constitution, by which the internal
advantages of a republic might be united with the external force of a
monarchy; and this constitution is that of a confederacy of smaller states,
to form one large one for their common defense. But these associations
ought only to be formed, he tells us, between states whose form of
government is not only similar, but also republican. The spirit of
monarchy is war, and the enlargement of dominion; peace and moderation is
the spirit of a republic. These two kinds of government cannot
naturally subsist together in a confederate republic. Greece, he
adds, was undone, as soon as the kings of Macedon obtained a seat among the
Amphictions . If the United States wish to preserve themselves from a
similar fate, they will consider the guarantee contained in
this clause as a corner stone of their liberties .
The possibility of an undue partiality in the federal government in
affording it's protection to one part of the union in preference to another,
which may be invaded at the same time, seems to be provided against, by that
part of this clause which guarantees such protection to each of them. So
that every state which may be invaded must be protected by the united force
of the confederacy. It may not he amiss further to observe, that every
pretext for intermeddling with the domestic concerns of any state, under
colour of protecting it against domestic violence is taken away, by that
part of the provision which renders an application from the legislative, or
executive authority of the state endangered, necessary to be made to the
federal government, before it's interference can be at all proper. On the
other hand, this article secures an immense acquisition of strength; and
additional force to the aid of any of the state governments, in case of an
internal rebellion or insurrection against authority... The southern states
being more peculiarly open to danger from this quarter, ought to be
particularly tenacious of a constitution from which they may derive such
assistance in the most critical periods.
322. C. U. S. Art. 1, Sec. 9.
323. L. V. Edi. 1794, c. 85.
324. It hath been said on the floor of the house of representatives of the
United States, "that it had been repeatedly decided, that the United States
would not permit themselves to be brought into their own courts." The
editor had supposed that that clause of the constitution, which declares that
"the judicial power shall extend to all cases, in law and equity, arising
under the constitution.," had prescribed a different rule of decision. Nor
can he, even now, form a different opinion upon the subject; believing that
there is as much reason that a legal or equitable claim against the United
States, should receive a judicial discussion, and decision, as any similar claim
which might be made on their behalf. And though he doubts, as to the mode in
which a judicial enquiry into the justice of a pecuniary claim against them may
be instituted, yet he cannot doubt that the constitution meant to afford the
right to every citizen of the United States.
325. C. U. S. Art. 4.
326. C. U. S. Art. 4.
328. C. U. S. Art. 4.
329. Spirit of Laws, B. 9. c. l and 2.
330. On this subject, see Federalist, vol. 2. p. 60 to 64.
My reading of C. U. S. Art. 4, Madison’s treatise on the Federal Convention
of 1778, and Tucker’s treatise appear to be not in agreement with your
position on the meaning and intent of C. U. S. Art. 4. It appears to me that
what you are addressing as a C. U. S. Art. 4 issue is in fact no more than an
end run around the benefit of a bargain issue that is tied to private contract
issues and not a C. U. S. Art. 4 issue.
I see the issue being that after the purchase of a property subject to an
association’s  regulations and  ability to enact private legislation not
to the liking of the buyer, the buyer is not happy with the benefits of his
bargain contract terms. I further see a buyer who wants to change the benefits
of his bargain as a result of the buyer’s initial failure to recognize the
consequences of the association’s  regulations and  ability to enact
private legislation would bear on the buyer’s enjoyment of his home - limiting
the buyer’s ability and rights to be lord of the manor. The buyer has to
answer to another lord of the manor, the association.
I do not see what you have described as a C. U. S. Art. 4 issue - as what you
have described is no more than a matter of state suffrage - read Madison’s notes on the
federal Convention of 1778. Again what you have described is a property subject
to an association’s  regulations and  ability to enact private
legislation not to the liking of the buyer, the buyer is not happy with the
benefits of his bargain contract terms. The buyer was free to either accept or
reject the association’s  regulations and  ability to enact private
legislation by not buying into the association.
Baron de Montesquieu
Spirit of Laws
Of Laws in the Relation They Bear to a Defensive Force
1. In what Manner Republics provide for their Safety. If
a republic be small, it is destroyed by a foreign force; if it be large, it is
ruined by an internal imperfection.
To this twofold inconvenience democracies and aristocracies
are equally liable, whether they be good or bad. The evil is in the very thing
itself, and no form can redress it.
It is, therefore, very probable that mankind would have been,
at length, obliged to live constantly under the government of a single person,
had they not contrived a kind of constitution that has all the internal
advantages of a republican, together with the external force of a monarchical,
government. I mean a confederate republic.
This form of government is a convention by which several
petty states agree to become members of a larger one, which they intend to
establish. It is a kind of assemblage of societies, that constitute a new one,
capable of increasing by means of further associations, till they arrive at such
a degree of power as to be able to provide for the security of the whole body.
It was these associations that so long contributed to the
prosperity of Greece. By these the Romans attacked the whole globe, and by these
alone the whole globe withstood them; for when Rome had arrived at her highest
pitch of grandeur, it was the associations beyond the Danube and the Rhine --
associations formed by the terror of her arms -- that enabled the barbarians to
Hence it proceeds that Holland,
Germany, and the Swiss cantons are considered in Europe as
The associations of cities were formerly more necessary than
in our times. A weak, defenceless town was exposed to greater danger. By
conquest it was deprived not only of the executive and legislative power, as at
present, but moreover of all human property.
A republic of this kind, able to withstand an external force,
may support itself without any internal corruption; the form of this society
prevents all manner of inconveniences.
If a single member should attempt to usurp the supreme power,
he could not be supposed to have an equal authority and credit in all the
confederate states. Were he to have too great an influence over one, this would
alarm the rest; were he to subdue a part, that which would still remain free
might oppose him with forces independent of those which he had usurped, and
overpower him before he could be settled in his usurpation.
Should a popular insurrection happen in one of the
confederate states, the others are able to quell it. Should abuses creep into
one part, they are reformed by those that remain sound. The state may be
destroyed on one side, and not on the other; the confederacy may be dissolved,
and the confederates preserve their sovereignty.
As this government is composed of petty republics, it enjoys
the internal happiness of each; and with regard to its external situation, by
means of the association, it possesses all the advantages of large monarchies.
2. That a confederate Government ought to be composed of
States of the same Nature, especially of the republican Kind. The Canaanites
were destroyed by reason that they were petty monarchies, that had no union or
confederacy for their common defence; and, indeed, a confederacy is not
agreeable to the nature of petty monarchies.
As the confederate republic of Germany consists of free
cities, and of petty states subject to different princes, experience shows us
that it is much more imperfect than that of Holland and Switzerland.
The spirit of monarchy is war and enlargement of dominion:
peace and moderation are the spirit of a republic. These two kinds of government
cannot naturally subsist in a confederate republic.
Thus we observe, in the Roman history, that when the Veientes
had chosen a king, they were immediately abandoned by all the other petty
republics of Tuscany. Greece was undone as soon as the kings of Macedon obtained
a seat among the Amphyktyons.
The confederate republic of Germany, composed of princes and
free towns, subsists by means of a chief, who is, in some respects, the
magistrate of the union, in others, the monarch.