The States Rights Question

The 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.

It 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 oversight.

In 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.

In 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,” was instigated by Andrew Jackson who believed a popular election would propel him to power.

Thus, 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.

Given 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.

Moreover, 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.

A 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.

What 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.

What 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.

If 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.

That, 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 inconsistency.

December 12, 2000

Jeffrey Tucker is manager of