The Guarantee Clause

The Guarantee Clause: Congress’ Duty to Oppose Theocracy in the United States

by Robert M. Petrusak

[Editor’s note: New Gingrich has called for a Federal ban on Sharia law in America.]

Theocracy is inherently oppressive and contrary to America’s core values. It regards God as the sovereign and source of law. It therefore places the coercive power of the state–including interpretation and enforcement of law–in the hands of believers. It excludes non-believers from the body politic and brings them suffering. In total contrast, the Declaration of Independence regards God not as a source of coercive power, but as a guarantor of inalienable rights including liberty and equality. The Declaration states that government derives its sovereign authority or “just powers” not from God, but “from the consent of the governed.” This concept of popular sovereignty is reflected not only in the preamble of the Constitution, but also in the “Guarantee Clause” of Article IV, Section 4 which obligates the federal government to preserve a republican form of government in every state. The Constitution also precludes theocracy through the First Amendment’s ban on laws respecting establishments of religion or prohibiting “free exercise” of religious beliefs.

Political Islam or “Islamism” is theocratic. It may be defined as a belief that Islam should control society and politics, not simply personal religious life. Accordingly to the eminent scholar Bernard Lewis, the ideal Islamic polity recognizes God as sole sovereign and law-giver and assigns believers the task of spreading His revelation until the entire world accepts it. This is to be achieved by extending the authority and membership of the community that follows God’s law, the Shariah, which deals with the acquisition and exercise of power and the duties of ruler and subject. [1] Accordingly, Shariah is not simply a prescription for exercising personal belief through activity such as prayer and diet. It is a system of laws that affects the conduct of both believers and non- believers in Islamic theocracies. More ominously, expansion of the community that regards God as sovereign suggests contraction and disempowerment of the community which does not.

Political Islam therefore challenges the United States Constitution, particularly its embrace of liberty, equality, and popular sovereignty. There is concern that this challenge includes not only violent terrorism but an ideological struggle against non-Islamic courts and legal systems and the principle that the people, not God, are the source of political and legal authority .There is similarly concern that Islamists seek to establish “functionally Islamic governments” in every nation [2] and that toward this end, they will create divisive alternative communities by insinuating Islamic rules of conduct for the temporal world into courts and other institutions. There is even concern that Islamism will limit traditional free speech through application of its restrictions on defamation of religion or blasphemy. [3]

Such concerns have resulted in “anti-shariah legislation” in various states and subsequent court battles over whether such laws violate the constitutional rights of Muslims. However, such concerns raise issues of national importance because efforts to make public institutions Shariah-compliant may violate not only the First Amendment’s provisions on religion or free speech but also the Fourteenth Amendment and Article VI of the Constitution. The former guarantees due process and equal protection; the latter proclaims the supremacy of federal statutes, treaties and constitutional provisions. Moreover, Article IV, Section 4 creates an affirmative federal obligation to guarantee a non-theocratic, “Republican Form of Government” in every state.

The very essence of republican government is the belief that sovereignty rests with the people. [4]. Our Constitution is derived exclusively from the people and alterable only by them through elected representatives. Similarly, elected representatives and elected or duly-appointed judges, not religious leaders, enact and interpret our statutory law. [5] These principles of popular sovereignty support the Article IV guarantee of republican government and are related to the concept of equality. Thus, the guarantee clause would be invoked in the struggle against slavery and in the post-Civil War struggle to include freed slaves in the body politic. [6] In this regard, the Fourteenth Amendment guarantee of equal protection evolved from our concept of republican government, [7] and a state that denies this fundamental right similarly violates Article IV, Section 4. The introduction into American courts, of laws or legal principles derived from a sovereign God or religious texts cannot be tolerated and the federal government has a clear responsibility to keep theocracy out of state courts and other public institutions.

The guarantee clause of Article IV was authored by James Madison to protect our Republic from the disintegration which would begin if even one state were to become an enclave of anti-republican government.[8] While Madison feared the tyranny of unchecked popular majorities, he also believed that individual states could revert to monarchal rule.[9] His concern that establishment of anti-republican principles in one state could eventually threaten the entire nation remains highly relevant in a contemporary world troubled by Islamists seeking implementation of Shariah. In fact, the monarchy which Madison feared was based on the divine right of kings and would have brought religious principles into any provincial monarchist regime. Not surprisingly, Madison was also the primary contributor to the First Amendment’s prohibition of an establishment of religion. [10] This amendment and other provisions of the Bill of Rights were not initially applied against the states.[11] However, after the enactment of the Fourteenth Amendment, the First Amendment’s “establishment clause” would eventually become a means of protecting equality from religious sentiment in state governments and their local subdivisions.[12] This preserved the republican form of such governments.

Efforts to bring specific laws or obligations derived from religious authority into secular government are neither new nor inconsequential.[13] However, authority to define and prohibit anti-republican violations lies primarily with Congress, not the judiciary.[14] After the 1841-42 Dorr Rebellion in Rhode Island, the Supreme Court held that the enforcement of the guarantee clause raised political questions not justiciable by the courts.[15] Accordingly, a dearth of judicial decisions finding establishments of religion in violation of the guarantee clause does not prevent Congress from concluding that introduction of religious law undermines republican government. To the contrary, the Supreme Court’s position that enforcement of the guarantee clause is a political rather than a judicial decision, obviously places responsibility on Congress to protect the various freedoms associated with our democracy. Such freedoms unquestionably include the right to be free from religious authority that could limit free speech or free exercise of a different faith, or similarly determine the rights of parties in court.

Congress has authority under the guarantee clause to curb the growth of any ideological system that would subvert or destroy representative government. [16] As defined above, Political Islam constitutes such a system and promotion of an alternate legal system based on religious law will eventually divide this nation into separate communities. Evidence of Islamist intentions to subvert our society from within and support a theocracy or “global Islamic state,” was introduced in federal court in a relatively recent terrorism-funding trial .and Islamic extremists have conducted subversive and terrorist activity on American soil.[17] As a friendly loan shark is abetted by the violence of local mobsters, non-violent political activists can benefit from violent terrorism as the intimidating tactics of the latter make the seeming moderation of the former more palatable. In other words, “without the climate of intimidation created by the terrorists, the non-terrorists would be ignored, not appeased.”[18]

There is concern that the ultimate objective of an Islamic state or nation may be pursued through infiltration of existing state and federal institutions to create shadow governments. [19] Establishment of such alternative authorities could be extremely divisive particularly if they serve communities that follow an alternative legal system. In this regard, at least one state regards the formation of “any government” outside of existing lawful authority as a form of treason. [20] State courts will only exacerbate the divisive tendencies of religion if they allow religious laws or legal interpretations to determine rights of certain parties such as Muslim husbands accused of spousal rape. [21] The creation however gradual, of alternative legal standards based on religion similarly violates the Fourteenth Amendment as well as Article IV, Section 4.

The United States needs a Congressional resolution declaring all theocracy to be contrary to the various principles of republican government set forth in the United States Constitution. The resolution would similarly declare that religious authority is a constitutionally prohibited basis for legislation, for the interpretation of law and for the adoption of any official rule or policy in all legislatures, courts and agencies of government. Far from being a radical departure from core values, such a resolution would give effect to what the founders intended in Article IV, Section 4. It would maintain our character as a cohesive nation undivided by theocratic communities which could attain significant influence in certain states or regions. Criticism that such a resolution could restrict judicial use of the natural law principles that built the Anglo-American common law would be meritless. The principle of popular sovereignty represents a new era of positive law based on representative government. Such law is derived from secular needs for criminal codes, commercial codes and the many other statutes that govern our society.

Apologists for Shariah and Islamism will undoubtedly wave the banner of religious freedom and denounce such congressional action as “Islamophobic” and contrary to America’s core values. However, it is surely not “Islamophobic” to oppose all theocracy particularly since our nation has an equally strong tradition of preserving the secularism of our public life. The Supreme Court upheld this tradition in the latter nineteenth century when a member of the Mormon faith claimed that a divinely-ordained obligation to practice polygamy exempted him from criminal responsibility.[22] In holding that religious beliefs may not trump the application of our criminal law, the Court effectively upheld the supremacy of our Constitution and prevented religious communities from becoming enclaves of national disintegration.

The constitutional principles which prevented Mormon polygamy in the nineteenth century apply equally to Islamist Sharia in the twenty-first. These principles hold that while Congress or state legislatures lack power over religious opinion or belief, they remain free to prohibit practice of religious beliefs which violate social duties or subvert good order.[23] In other words, religious beliefs are beyond the reach of government until they are converted into activity –including conspiracy, criminal solicitation and other inchoate offenses– which violate society’s laws, regulations or policies.

A belief that a global state under religious law should replace the United States Constitution can remain a protected exercise of religion until it becomes action, agreement, or solicitation of action to destroy our Republic. Similarly, religious authority or obligation may not constitutionally override the laws created by representative government or influence judicial interpretations of such law. As theocracy contradicts the core values of America’s founding, the insinuation of Shariah similarly subverts republican government. Accordingly, the time for national action through Congressional initiative not available to the courts is long overdue.
The author served as a deputy district attorney, police administrator and assistant state attorney general in Colorado. Since retiring, he received a master’s degree
in American History from George Mason University, with emphasis on American foreign policy in the Middle East.

1. Lewis, Bernard, The Crisis of Islam: Holy War and Unholy Terror, pp 7-8

2. McCarthy, Andrew C., The Grand Jihad: How Islam and the Left Sabotage America, p. 145, passim

3. Hagmann, Douglas J., “Obama advancing Islamic Sharia Law Prohibiting Criticism of Islam,”

4. Toren, Jonathan; “Protecting Republican Government from Itself, The Guarantee Clause of Article IV, Section 4,” 2 New York University Journal of Law and Liberty 371, 372, 387-90; Amar, Akhil Reed, “The Central Meaning of Republican Government, Popular Sovereignty, Majority Rule and the Denominator Problem,” 65 U. Colo. L. Rev. 749, 755-764 (1994)

5. See Duncan v. McCall, 139 U.S. 449 (1891) (people are source of all political power and have right to have it exercised through elected representatives) See also United States v. Downey, 195 F. Supp. 581 (S.D. Ill. 1961) (republican form of government includes right to an independent judiciary whose rules of procedure are made by duly constituted state officials, not outside authorities) .

6. Amar, supra., at 770-782; See also: Texas v. White, 74 U.S. 700 (1869) (secession viewed as violation of republican government guaranteed by Article IV)

7. Amar, supra, at 755; See also: Hoxie School District No. 46 of Lawrence County, Arkansas v. Brewer, 137 F. Supp 364 (E. D. Ark. 1056; aff’d 238 F. 2d 91 (state officials invoked guarantee clause when threatened during efforts to implement Fourteenth Amendment with regard to school desegregation)

8. Toren, supra, at 371, 372-74, 377-79

9. Ibid, at pp. 378-85

10. See e.g., Alley, Robert S. ed., James Madison on Religious Liberty, pp. 37-94

11. Barron v. City of Baltimore, 32 U.S. 243 (1833)

12. Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), Engel v. Vitale, 370 U.S. 421 (1962) Everson v. Board of Education, 330 U.S. 1, 15-16 (1947) See also, Gelman, Susan and Looper-Friedman, Susan, “Thou Shalt Use the Equal Protection Clause for Religion Cases (Not Just the Establishment Clause).” 10 U. Pa.J.Const.L 665;

13. See: Reynolds v. United States, 98 U.S. 145 (1878) (religious duty to practice polygamy not a defense to charge of bigamy) See also: McCarthy, supra., at 345 (at taxpayer expense, state of Minnesota established system of interest free mortgages in accordance with Islamic ban of usury).

14. State of Ohio ex rel Bryant v. Akron Metro Park District for Summit County, 281 U.S. 74 (1930) Luther v. Borden, 48 U.S. 1 (1849)

15. Luther v. Borden, supra.

16. Oil Workers International Union v. Elliot, 73 F. Supp 942 (N.D. Tex. 1947)

17. See “An Explanatory Memorandum on the General Strategic Goal for the Group in North America,” introduced in United States v. Holy Land Foundation, Crim No. 3:04-CR-0240-P, United States District Court for the Northern District of Texas, Dallas Division, available as Appendix II in Report of Team B II, Shariah: The Threat to America: An Exercise in Competitive Analysis, An example of substantial subversive activity specifically, seditious conspiracy, was established in United States v. Rahman, 189 F. 3d 88 (2nd cir. 1999) substantial terrorist activity against the United States need not be established in footnotes

18. McCarthy, supra. pp. 27-28

19. See Report of Team B II, supra., pp. 124-25

20. Code of Virginia, 18.2-481 (3)

21.A New Jersey appellate court overturned the ruling of a trial judge who had declined to issue a restraining order after having concluded that a Muslim husband did not act with the requisite intent for sexual assault because of religious belief. Nonetheless, an excerpt from the appellate decision illustrates the conflict between religion and law enacted by representative government to criminalize spousal rape.

22. Reynolds, supra.

23. Reynolds, supra., 98 U.S. at 164

Bill Warner, Director, Center for the Study of Political Islam
Copyright © 2013 CBSX, LLC,
Use as needed, just give credit and do not edit.

3 Responses

  1. Pip Power

    PART 1

    By Dennis L. Cuddy, Ph.D.
    June 27, 2011
    Power Elite (PE) agent Lord Herbert Samuel (Jew) was one of the first to refer to the establishment of a “new world order” (House of Lords, May 16 and August 7, 1918). As a member of the Milner Group that controlled British foreign affairs from the beginning of the 20th century until WWII, Samuel in 1921 appointed Hajj Amin al-Husseini as Mufti and head political administrator of Arab Palestine. Lord Alfred Milner, who was in charge of executing PE member Cecil Rhodes’ secret “scheme to take the government of the whole world,” on June 27, 1923 in the House of Lords said regarding Palestine that there “must always remain not an Arab country or a Jewish country, but” an international country in which all the world has a special interest”I think some Mandatory Power will always be required.”
    While al-Husseini was in Palestine, Hassan al-Banna founded the Muslim Brotherhood (MB) in Egypt in 1928, and it has been from this organization that radical Islamic groups such as Hamas, Islamic Jihad, and al Qaeda have come (Mark Hosenball and Michael Isikoff of Newsweek have reported connections between al Qaeda and MB members Mamoun Darkazanli and Youssef Nada). Former CIA agent Robert Baer in Sleeping With the Devil explained how the U.S. “made common cause with the [Muslim] Brothers” and used them “to do our dirty work in Yemen, Afghanistan and plenty of other places.”
    In the 1930s, the MB supported Adolph Hitler (distributing his Mein Kampf), and by 1936 with only 800 members began to oppose British rule in Egypt. By 1938, the MB’s membership had grown to 200,000, and by the late 1940s to at least a half million.
    In 1933, when Adolph Hitler came to power in Germany, Young Egypt (Green Shirts) was also founded in October of that year by Ahmed Hussein who had been greatly influenced by al-Husseini. Young Egypt supported Hitler and the Nazis, and one of its early members was Anwar Sadat who helped the Nazis during WWII. In a September 18, 1953 letter to the Egyptian news daily Al Mussauar, he expressed his admiration for Hitler.
    During WWII, President Roosevelt was no real friend of the Jews. In Secretary of State Edward Stettinius’ papers, he wrote that during FDR’s meeting with Stalin at Yalta (February 4-11, 1945), Stalin asked FDR if he intended to make any concessions to King Saud of Saudi Arabia. And then Stettinius wrote:
    “The President replied that there was only one concession he thought he might offer, and that was to give him the 6 million Jews in the United States.”
    The outrageousness of this remark by FDR is perhaps rivaled only by the hypocrisy of his “Day of Infamy” speech regarding the Japanese attack on Pearl Harbor on December 7, 1941, because two weeks earlier (Nov. 25) he had talked with Secretary of War Henry Stimson about how they “should maneuver them [Japan] into the position of firing the first shot”!
    This quote comes from the diary of Stimson, who was a Council on Foreign Relations member as well as the Skull & Bones member who initiated George H.W. Bush into the same Yale University secret society.
    After WWII, Gamal Abdel Nasser (a leader of Young Egypt) led the July 1952 coup against the monarchy in Egypt, becoming president in 1956. At first, the CIA indirectly supported Nasser. In The Game of Nations, CIA agent (in Egypt) Miles Copeland revealed the agency subcontracted more than one hundred Nazi specialists in security and interrogation techniques to help Nasser. However, as Nasser grew stronger, CIA director Allen Dulles saw him as a threat who could ally Arabs and Muslims far beyond Egyptian national boundaries. Copeland said Dulles told him,
    “If that Colonel [Nasser] of yours pushes us too far, we will break him in half.”
    The MB had originally supported Nasser, and the 1952 revolt, but they became disenchanted with him when it became apparent he would not establish an Islamic state. They were blamed for an assassination attempt on him in 1954, and according to Copeland, interrogations of MB members after the attempt revealed they were merely a “guild” that fulfilled the goals of western interests:
    “Nor was that all. Sound beatings of the Muslim Brotherhood organizers who had been arrested revealed that the organization had been thoroughly penetrated, at the top, by the British, American, French and Soviet intelligence services, any one of which could either make active use of it or blow it up, whichever best suited its purposes.”
    On the book jacket for Devil’s Game: How the United States Helped Unleash Fundamentalist Islam (2005) by Robert Dreyfuss, one reads:
    “Among the hidden stories of U.S. collusion with radical Islam that Dreyfuss reveals here are President Eisenhower’s 1953 Oval Office meeting with a leader of the Muslim Brotherhood, and the United States’ later alliance with that group and their Saudi patrons against Egypt’s President Nasser. Dreyfuss meticulously documents the CIA’s funding of the Iranian ayatollahs in the coup d’etat that restored Iran’s shah to power, the United States’ support for Saudi Arabia’s efforts to create a worldwide Islamic bloc as an antidote to Arab nationalism, and the longstanding ties between Islamic fundamentalists and the leading banks of the West. With clarity and rigor, Dreyfuss also chronicles how the United States looked the other way when Israel’s secret service supported the creation of the radical Palestinian group Hamas”. Devil’s Game reveals a history of double-dealing and cynical exploitation that continues to this day”as in Iraq, where the United States is backing radical Islamists, allied with Iran’s clerics, who have surfaced as the dominant force in the post-Saddam Hussein Iraqi government.”
    The Saudis were opposed to Nasser and became the primary supporters of the MB on the Arabian Peninsula and beyond. According to author Martin Lee in Razor Magazine (2004), MB members were
    “employed as teachers and imams in Saudi mosques, schools and government agencies, where they promoted the extremist doctrine of Sayyid Qutb, the Brotherhood’s leading scribe and theorist” [who] provided a Koranic justification for violence” [against] corrupting Western influences”. One of [Osama] bin Laden’s instructors in religious studies was” the exiled brother of Sayyid Qutb, who taught classes on the imperatives and nuances of Islamic jihad”. Muslim Brotherhood veterans have played a prominent role during every phase of bin Laden’s terrorist odyssey.
    As a college student he was mentored by Abdullah Azzam, a Palestinian [Muslim] Brother”. Bin Laden transferred his base of operations to the Sudan in 1991. For the next five years, bin Laden and his inner circle were holed up in Khartoum courtesy of Sheikh Hassan al Turabi, the Sorbonne-educated head of the Muslim Brotherhood’s Sudanese branch”. Bin Laden [went] back to Afghanistan in 1996″. [Al Qaeda member] Khalid Sheikh Mohammed” self-described mastermind of the 9/11 operation” cut his teeth on the Kuwaiti chapter of the Muslim Brotherhood.” For part two click below.
    © 2011 Dennis Cuddy – All Rights Reserved

  2. Democracyistheanswer

    A federal ban on Sharia may not be necessary if the Supreme Court enforces the provision against theocracy already present in the Constitution.



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