If you can keep it

One of the questions raised by Bush v. Gore was whether there was any limit to what states can do with their own governments. Could they, for example, adopt communism? Eliminate the vote altogether in favor of a theocracy? There is a republican form of government clause in the U.S. Constitution, but it's never been used, so far as I know.

I raise the question because separation of powers, a basic tenet of American government, is under assault nationwide in a series of school funding cases. Ohio has gone round and round on it, til the supreme court finally gave up when the legislature continually did not listen to it.

Kansas is in the midst of its own version of this sort of constitutional crisis, with the court issuing an order that a $142 million spending increase--5 percent of the state education budget--was not enough. Ten percent minimum.

If courts can order legislatures to do anything, but in particular, to spend particular amounts, what is left of separation of powers?

LAGuy adds: The judiciary is part of a republic. There's no question they can make orders consistent with their findings. The question is not merely can they overstep their boundaries, but who gets to decide. I mean, if citizens are guaranteed something (say, a quality education), and the state keeps refusing to give it, what are the courts to do but try to enforce the law?

As I believe ColumbusGuy knows, the republican form of government clause has been brought up a number of times before the Supreme Court, especially after the Civil War. The Court declared the issue is non-justiciable. In other words, it's up to the Congress, not the courts, to decide some state's freedom has been taken away and send in the troops. I'm not only sure Congress won't send troops to overturn a state court decision regarding state law, I'm glad they won't.

So who else can solve the problem? Well, you got a legislature and a governor--they can decide to ignore the court's decision and wait to see who backs down (the Andrew Jackson option). Apparently this is what's happening in Ohio. But I don't think it's much of a solution. It wreaks havoc with the rule of law. And lord help you if the feds get involved.

So is there any hope left? Sure. It's with the people. They still have the franchise. It might take a while, but sooner or later, through normal, republican means, they can see to it that the judges are replaced, and the new judges know their place. Now when your judges start declaring elections illegal, that's when you got a real republican clause claim.