The recent decision by our Supreme Court to continue to allow state courts to overrule state legislatures in establishing the methods of elections within their state continues a “status quo” not found in any originalist or textualist interpretation of the Constitution. Thus the Court has taken a giant step backward from their initial decision basis seen in their ruling earlier this year regarding the Second Amendment. Apparently the Court’s interpretation, not making, of Constitutional law is not always to be based on the meaning of the Framers as revealed by careful study of what they did and said when they actually did and said it.
The body of the Constitution contains far more substance referencing the makeup, election of, actions of, and powers of the Congress, our elected body, than that of the Executive Branch or of the Judicial Branch (the latter of which, Constitutionally, could be served by one Supreme Court Justice without any other courts at the federal level if Congress so chose). As clearly revealed in the Federalist Papers by Jay, Madison, and Hamilton, the Legislative Branch was to predominate over the others, with the Judiciary the weakest. While all three branches were granted checks and balances against the others, Congress, as the only branch subject to frequent popular judgment, was to have authority above the other two branches. Since the underlying principle of federalism, as established in the Constitution, was to assign all powers not specifically enumerated to the federal government to the States as granted by the people, that “balance” favoring the authority of the legislative (representative) branch over the executive and judicial branches remained intact. Federal law was to be subsidiary to that of the Constitution and the States. This subsidiarity, less so than under the Articles of Confederation, allows the States to be experimenters in how specifically our more perfect union is to evolve. No where is this clearer than in the Constitution’s assignment of the power to run elections to the State legislatures.
Article 1 Section 4 of the Constitution, so far unamended, states “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing (sic) Senators.” Only Congress, another legislative branch directly responsible to the people, may alter the methods chosen by the State legislatures in running their elections for national office. No mention of any powers or actions of a Judicial Branch, State or Federal, appears anywhere in the Constitution. When, during the aftermath of the Civil War, States ran afoul of new amendments of that Constitution as well as its foundational principles and new laws passed by Congress, the violations were initially dealt with, until the notoriously contested election of Rutherford B. Hayes in 1876 when Federal oversight of Reconstruction ended. However, Congress returned to its responsibilities and delegated powers in the 1960’s and thereafter with further Voting Rights Acts and other actions to bring State experiments with indirect discrimination back towards the supreme law of the land. We note that the Supreme Court, over the intervening almost century, had been all over the map in its electoral interventions. Certainly their history of self-reversal regarding election law as they defined it in varying times under their “new” interpretations of the Constitution is an excellent example of why the Framers did not want the Judicial Branch empowered in this venue.
But now our Supreme Court has retained that ungranted authority and power to the Judicial Branch, essentially because “that’s the way it has been for many years”. So was the “separate but equal” principle under Plessy v. Ferguson. If State Courts retain final authority, with actions unimpeachable by their State Legislatures, over election “Times, Places, and Manner”, then their actions are only subject to review by the Supreme Court, no longer even Congress. That de facto principle, Supreme Court decisions as above laws passed by Congress, actions of the Executive, and equivalent as interpretations to the Constitution itself, was itself specifically forbidden in intent according to the Federalist Papers, written by Framers who wished to clearly explain their intent and meanings to the laity who were needed to establish and empower that document. Their words were designed to be understood by the average citizen, not contorted to the beliefs and legalistic lingos of the educated glitterati of that or any other day. As one of those laity who believes the Framers meant what they said and did in the language and meanings of those times, for all times, I find that our Supreme Court has dealt an important defeat to federalism. And to the Constitution.