-Caveat Lector-
THE FRAMERS' DESIGN
Tuesday,December 12,2000
By KRIS W. KOBACH
AS the Florida Legislature meets to consider whether to appoint
the state's presidential electors itself (thereby ensuring that
Florida meets the Dec. 12 and Dec. 18 deadlines), Al Gore's
minions are attempting to whip up national indignation at the
prospect of such "interference." The Gore spin machine has kicked
into high gear, portraying the Legislature's actions as an
illegitimate usurpation of power.
In fact, nothing could be further from the truth. Under the U.S.
Constitution, the Legislature is the sole holder of the power to
determine Florida's electors - a power that it may delegate to
the voters of the state if it so chooses.
The Constitution's words are crystal-clear: "Each State shall
appoint, in such Manner as the Legislature thereof may direct, a
Number of Electors . . . "
When it comes to setting the election rules in each state, the
legislatures possess the final word. Indeed, the exclusive word.
It is, in legal terms, a "plenary" power - a power that is
absolute, full and unqualified. The U.S. Supreme Court
recognized this more than a century ago when it acknowledged that
"the appointment of these electors is thus placed absolutely and
wholly with the legislatures of the several states."
This is much more than a convenient safety net for George W.
Bush: It is a reflection of how the Framers of the Constitution
thought a republican form of government should properly choose
its chief executive.
The delegates to the Constitutional Convention in 1787 debated
long and hard about how the president should be selected. Early
on, the subject produced strident disagreement. Many options
were considered, including selection by Congress (as in the
British Parliament), direct election by the people, selection by
the governors of the states and selection by a body of electors.
By the end of the Convention, the Electoral College was seen as
the only solution that could maintain the separation of powers,
safeguard the interests of the smaller states and allow the
people to play an (indirect) role in presidential selection.
Once the Electoral College system was agreed upon, the next
question was how to appoint the electors. Ultimately, the
Framers concluded that state legislators should be entrusted with
this important responsibility. The state legislatures could
appoint presidential electors themselves, as some states did up
through 1860, or they could allow the people to vote for the
electors. But in either case, the people's elected
representatives in each state would be the wardens of the
process.
This structure reflected an all-important principle in the
Framers' republican scheme of government: The most important
decisions must be made by legislators.
As James Madison put it, members of the Legislative Branch would
inevitably be guided by "their attention to the views of their
respective constituents and their regard for the public good."
Thus, throughout the Constitution, the greatest powers rest with
legislatures. The power to declare war, for example, was given
not to the commander in chief but to the Congress. And the power
to ratify federal constitutional amendments was given not to
state governors or judges, but to state legislatures.
Similarly, the power to determine how presidential electors would
be chosen was vested in the state legislatures. Legislators,
whatever their flaws, were accountable to the people. They
could, therefore, be trusted to act in the people's best
interest.
The Framers did not even consider allowing courts to set the
rules for the selection of the president. This was an
intrinsically political process, not a judicial one. State
legislatures were best suited to the job. If they erred or acted
unfairly, the people would hold them accountable at the polls.
Judges, on the other hand, are not so easily called to task. The
Florida Supreme Court is a case in point. The four-justice
majority that demanded statewide manual recounts of the undervote
will never have to defend before the voters its radical reshaping
of Florida election law.
Americans have always been a litigious people. As Alexis de
Tocqueville observed presciently in 1848, "There is hardly a
political question in the United States which does not sooner or
later turn into a judicial one."
The Framers designed the Constitution to protect against this
tendency in the all-important selection of the president. The
final word at each stage of the process rests either with the
state legislatures or with Congress. They need only have the
courage to say it.
Kris Kobach is a professor of constitutional law, legal history
and legislation at the University of Missouri-Kansas City School
of Law.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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