The States Rights Question

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Left thinks it has hit a rhetorical home run accusing the majority
of the Supreme Court of hypocrisy on states rights. As the slogan
on the placard displayed on says, "Whatever Happened
to States Rights!" A Yale University law professor speaking
on National Public Radio went so far as to decry that the court's
"intellectual consistency" as the key reason that a vote
to stop the recount won't be credible with voters.

is certainly true that this current court has been more attentive
to the rights of the states than any previous one in the postwar
period. That's not to say states rights in a constitutional sense
are back. It only means that in some narrow areas of government
regulation and judicial authority, the court has turned back some
cases to the states claiming that the Constitution permits no federal

taking on the voting dispute in Florida, is the Court being hypocritical?
Better to ask the question from another angle. Under a Constitutional
system, would the Florida Court be able to force a hand-count of
disputed ballots without the authority of the Florida legislature?
The answer is no.

the first American elections, the electors were appointed by legislatures
without any popular vote whatsoever. The movement toward mass voting
for the president didn't commence until the 1820s. And the movement
that brought it about, written about by Professor
Holcombe in his piece “Origins of the Electoral College,”
instigated by Andrew Jackson who believed a popular election would
propel him to power.

the point made by the Left cuts both ways, and more seriously against
the Left than it does the Right. If we really adhered to states
rights, the Florida legislature would simply appoint the electors
that it wanted and be done with it. There would be no recounting
of votes, much less an attempt to divine the intentions of anonymous
voters who turned in spoiled ballots. The electors would be instructed
to vote for the president that the legislature wanted, and, given
the party makeup of the Florida legislature, that choice would certainly
be George W. Bush.

this history, you can't at the same time trumpet the fact that Gore
"won the popular vote" and then invoke the rights of the
state of Florida. If Florida really had rights against the federal
government as it once did, there would have been no popular election
and there would be no controversy today.

under the original Constitutional structure, the U.S. Senate would
not quarrel with the choice of the state legislature since the same
body would have appointed the Senator in the first place. That's
because the popular election of senators did come along until the
Progressive Era. And as John
MacMullin has pointed out
, the change imposed by the 17th amendment
dealt a fatal blow to full representation by the states in shaping
federal policy.

final change from the original structure we see today is that the
president has vastly more authority over the affairs of the nation
than he did at the beginning. His powers vastly exceed those enumerated
in the Constitution, which circumscribed him drastically. His every
decision was to be ratified by the Senate, which is to say the states,
particularly his power to make war. He was also constantly subject
to the impeachment threat, which the framers believed would operate
as an ever-present sword of Damocles hanging over his head.

these changes to the original constitutional structure did was nationalize
the process by which the president is chosen. That change would
imply a concomitant responsibility of the U.S. Supreme Court to
have some authority in overseeing the elections, because, of course,
he now has vast authority to overrule the states, go to war, regulate
the economy, and otherwise intervene in the affairs of all Americans.

the supporters of Gore seem to want, then, is a Supreme Court that
adheres to the original model of the Constitution in this one rare
instance, while retaining all violations of states rights and the
nationalizations of the office inherent in our present system. It
is they, therefore, who are hypocrites in this case who celebrate
federal intervention in all state and local affairs, except when
such interventions would seat a president they oppose. And after
Gore is seated, you can bet that all talk of the rights of the states
would again be consigned to the history books.

What does survive from the original Constitution is Article II, sec 1, clause 2, which, as the Bush brief to the Supreme Court points out, grants to the state legislature the exclusive control over the appointment of electors. That a court in Florida has stolen that constitutional right does indeed suggest a case for intervention, if only to protect the people against an unruly, pro-centralization court that cares nothing about the rights of the state as traditionally understood.

we want to restore states rights in the fullest sense, let's do it. But let's do it across
the board. Repeal the 17th amendment. Abolish the imperial
powers of the president. Restore the power of the state legislatures
to pick electors independent of the popular vote. End popular elections
for the President and return to the days when it was largely a ceremonial
office held by a person anointed by the state legislatures and ratified
by the U.S. House of Representatives.

however, his not the vision of those now waving "States Rights"
placards outside the U.S. Supreme Court to protest the courts decision
to intervene in the dispute over the election. In their model of
states rights, the power flows only one direction: toward the center.
It is the placard wavers, then, who are the real source of intellectual

12, 2000

Tucker is manager of

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