Constitution 7: Article 4 and Federal State Relations

Article IV of the Constitution defines the relationship between the states and the federal government and establishes additional federal powers over intrastate relationships. Under Article 4, all the states are equal to each other and must respect each other’s laws and recognize official decisions made by other states, guarantees a republican form of government in each state, protects the nation and the people from foreign or domestic violence, and determines how new states can join the Union. It also

As the preceding six blogs have indicated, the Articles of Confederation provided no legally enforceable structure for the states to interact with each other. During the period leading up to the Constitutional Convention of 1787, there were frequent conflicts among the states regarding the matters dealt with in Article IV, and it is a testimony to the success of the Article that today it is regarded as one of the least controversial parts of the Constitution. This does not mean that there has not been and may not be future conflicts that return the provision to prominence. It is important to note that the matters dealt with appear immediately after the establishment of the organs of government. This testifies to its importance at adoption of the Constitution.

Section 1: Full Faith and Credit Clause

Section 1 provides that full faith and credit be given by each State to the public acts, records, and judicial proceedings of every other state. In order to provide a means for this to occur, Article IV empowers Congress to prescribe the manner in which such acts, records and proceedings are to be proved and the effect of such proof.

During the period of the Articles of Confederation, it was not always the case that the several states fully recognized the laws and proceedings of other states. The intention of the founders was to improve on the situation before adoption of the Constitution. To do this, Section 1 of Article IV requires that states recognize and take due notice of and respect for the actions of other states. Unlike the Articles of Confederation, the second clause of this section permits the Federal Government to establish how this full faith and credit is to occur. In fact, Congress has enacted laws that implement this constitutional power. [1]

Section 2: Privileges and Immunities

Section 2 of Article IV provides that the citizens of each state are entitled to all privileges and immunities of citizens in the several states. In addition, this section provides that person charged in any state with treason, felony, or other crime, who flee from justice, and are found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having Jurisdiction of the crime. [2]

The purpose of this provision is ensure that each state granted to citizens of other states the same rights that they were granted by their home state. Thus, states are to treat all citizens of the United States fairly and equitably. The second sentence was designed to allow for the extradition of criminals, so that every state is required to extradite to any other state criminals properly charged under state law for trial in the state in which the crime was committed.

This provision is of particular importance today, as extraditions occur all the time. Perhaps more importantly, it allows citizens of the various states to travel freely, knowing that they will not be deprived of civil rights and privileges just because they have traveled for work or pleasure to another state.

Section 3: Admission of New States

Section 3 of Article IV provides that new states may be admitted by the Congress into this Union; However, no new State shall be formed or erected within the Jurisdiction of any other State; nor any state can be formed by the union of two or more states, or parts of any states, without the consent of the legislatures of the States concerned as well as of the Congress.

The Articles of Confederation had no provision dealing with this important matter other than to provide for Canada’s admission if it so desired. [3] As indicated previously, there were disputes among the states regarding the how and which new states were to be admitted. In addition, there were jealousies between the several states that needed to be mollified. This provision was added to regulate the admission of new states to the union by making admission a federal matter. In order to protect the interests of existing states, Congress is forbidden to admit states containing parts of what was previously another state without the consent of the states concerned. This provision has continuing importance for at least the states of Kentucky, Tennessee, Maine, West Virginia came into the Union by this method. [4]

Article 4, Section 3 also provides that Congress alone has the power to dispose of and make all rules and regulations respecting territory or other property belonging to the United States; and, nothing in the Constitution can be construed as to prejudice claims of the United States, or of any state. Madison notes that this provision was made necessary to make clear the power of Congress regarding the Western territories, which had already been the subject of conflict. [5]

Section 4: the Guarantee Clause

Article 4, Section 4 obligates the United States to guarantee to every State in the Union a republican form of government, and to protect each of them against invasion and domestic violence. This latter duty is activated upon application of the legislature or the Executive (when the legislature cannot be convened) against domestic Violence.

This part of this provision is called the “Guarantee Clause.” The provision is designed to ensures that each state’s form of government is a representative democracy. At the time the Constitution was formed, democratic republican institutions had not fully developed. As Madison notes in the Federalist Papers, there was a need for the states to have assurances against the creation of monarchies or aristocracies in any state, which would have created difficulties for the union. [6]While today, no one considers that any state would want to be ruled as a monarchy or oligarchy of some kind, at the time it was not be so clear, as the attempt by Aaron Burr to establish a state ruled by himself indicates. The founders put this provision in the constitution to prevent such an event.

The section also gives Congress the duty to protect the states from an invasion by a foreign country and/or from violent uprisings within a state. It authorizes the legislature of each state (or the executive, if the legislature cannot be assembled in time) to request federal help with riots or other violence. This provision has both historical and current importance. Historically, Madison recognized that the union would be in constant fear of invasion, and the powers ceded to the union would render the states helpless unless the national government had the obligation to defend the several states not just from foreign invasion but also from domestic disturbance. In a quote that our current government might ponder, Madison writes that, “A protection against invasion is due from ever society to the parts composing it. The latitude of expression used here seems to secure each State not only against foreign hostility but against ambitious or vindictive enterprises of its more powerful neighbors.” [7]

Conclusion

Article IV of the Constitution provides an opportunity to think about the nature of the political union that the founders envisioned. As indicated with respect to the Preface to the Constitution, the goal of the founders was not to create a perfect, but a “more perfect” union. [8] The former colonies were bound together by the Articles of Confederation, but the nature of the legal bond created stresses and difficulties because the powers of the national government were not sufficient to prevent constant strife, a strife that threatened the common bond and mutual affections of the states. Article IV is a practical article designed to provide a better constitutional structure within which the bonds of union could continue and be strengthened.

The Greek word, “Pragma” is a word mentioned in a prior blog. It is a form of love that is built upon commitment, understanding, and long-term best interests. It is a love that leads into and flows from a kind of covenant commitment that underlies and supports a relationship. The founders, in drafting the Constitution, were creating a covenantal, legal structure that would underlie and support the union of the states, which was more than a political union—it was a culture and society formed by social bonds deeper than mere law.

The situation we face today is that the legal structure of our union and the activities of political units, often does not support the deeper political love that that must underlie and is the ultimate goal of the union we have. I have made reference in a footnote to the situation at the Southern border of the nation. There is no question but which one party hopes to make itself the permanent dominant party as a result of the actions being taken, actions which are not in the best interests of several of the states, and arguably not in the interests of any of the states. By defending the borders of the nation, and even seeking the best interests of states not ruled by the dominant political party, the bonds of unity would be strengthened. The same thing could be said of the refusal of Congress to guarantee both freedom of speech over the internet and to restrict the power of oligarchs to control the political system. It seems to me that, while not a violation of the Constitution per se, it does involve a failure to guarantee a functional republican/democratic form of government for the nation and the states.

A return to the ideals and goals of the founders is not a retreat into the past. Instead, it is a movement into the future, a movement that will involve change, innovation, and careful attention to strengthening the social bonds that underly our political system.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] 28 U.S.C. § 1738, declares that The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto. The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. (June 25, 1948, ch. 646, 62 Stat. 947.)

[2] A portion of the section was overturned by the 13th Amendment, which abolished slavery. Originally this provision required escaped slaves to be returned to their state of origin. This was made obsolete by the Thirteenth Amendment, which will be the subject of a later blog.

[3] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 43 (Madison). All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.”

[4] https://www.thoughtco.com/article-iv-constitution-4159588..

[5] Federalist Papers, 43 (Madison).

[6] Federalist Papers, 43 (Madison). Madison quotes Montesquieu on this matter and relates the experiences of European confederations where there were differing forms of government.

[7] Federalist Papers, 43 (Madison). In my view the situation at the southern border involves the unwillingness of the duty that the Federal government has to protect the borders of the several states. It would be interesting to see what would happen if a state invoked this provision over this matter.

[8] United States Constitution, Preface (1787).

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