Concerns (Regarding the New Jersey Senatorial Race)
Sunday, October 6, 2002
by Henri-Paul Bolineau
I am very concerned about two things that have appeared on your website recently. The first is your reference in one of the responses to a letter to the 'vox Populi' section to the New Democratic Party and the Social Credit Party being the two major political parties in British Columbia. When I was still going to school out in Vancouver some ten years or so ago, I seem to remember the Liberals gaining seats at the expense of the Social Credit Party to become the second party in the province behind the NDP. I hope you duly note this correction to what you have said.
But I am even more concerned about something that you said about the Constitution of my adopted country, the United States of America. In an item you placed in the News section of your home page in red-color type the other day, the following was written:
The GOP's appeal is based on many of the issues brought before the Nation's highest court two years ago in the case of Bush v. Gore arising out of the infamous debacle involving the 2000 Presidential Election in the State of Florida. The Republican argument is essentially that Article I, Section 4, clause 1 of the United States Constitution, which states that [t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof... precludes a State's Judiciary from at all altering such State regulation of Federal elections (taking the view that "Legislature" here literally refers to the State Legislature only); the Democrats' counterargument, as was the case in Bush v. Gore, will almost certainly include the notion that a State's Legislature (=the legislative branch itself) cannot be divorced from that State's Judiciary (which applies and interprets the acts of the Legislature to cases- including this one- which come before it) and that, in any event, the term "Legislature"- as used by the Framers of the Constitution- refers to the whole of State Government and Administration (Executive and Judiciary as well as the Legislature per se), since- to take one obvious example- State Governors (not inherently part of a State's Legislature itself) have to sign acts of the Legislature regulating elections into law or have any veto of same overridden by the Legislature.
I don't see how the Democrats can possibly claim "that a State's Legislature (=the legislative branch itself) cannot be divorced from that State's Judiciary (which applies and interprets the acts of the Legislature to cases- including this one- which come before it) and that, in any event, the term "Legislature"- as used by the Framers of the Constitution- refers to the whole of State Government and Administration (Executive and Judiciary as well as the Legislature per se)". It seems pretty cut and dried that when the Constitution says, as you have correctly quoted it, "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...", there can be absolutely no question that "Legislature" simply means "Legislature". How can it possibly be otherwise?
I am most interested in an explanation to this because I am in the process of applying for United States citizenship (I was born and raised in Canada, as you might have guessed) and I know I will have to come to understand the U.S. Constitution in order to become an American citizen. How can I understand a Constitution when it actually says "Legislature" but so many I assume educated people can then contend that "Legislature" really means "Legislature plus other parts of the government as well"? Why doesn't- as you say the Republicans claim- "Legislature" here literally refer to the State Legislature only?
Thank you for answering my questions and addressing both my concerns.
In his capacity as Researcher/Commentator for 'The Green Papers', Mr. Berg-Andersson responds:
First, to allay your first concern, you are- indeed- correct: as early as elections back in 1991, the Legislative Assembly of the Province of British Columbia had the Liberals second in seats to the New Democrats ahead of the Social Crediters in third. I happened to have attended a session of the B.C. Legislative Assembly in Victoria back in the 1980s when the Social Credit Party was still the governing party and the New Democrats were the Opposition and I also know that there were more than a few decades where the Social Crediters and New Democrats- and not the Liberals and Progressive Conservatives of national Canadian politics- were the two "majors" battling it out for control of provincial politics in British Columbia.
I did not at all intend to mislead anyone: my point was merely that it is possible for a constituent unit of a Federation (using a Province of Canada in analogy to a State of the Union known as the United States of America) to be dominated by Political Parties having nothing at all to do with whatever the Major Parties might be on the national/Federal level- that the United States having a two-Major Party system is neither essential nor inevitable.
As to your second concern, which is the more serious one you seem to have: that is, your not understanding how the use of the term "Legislature" in the phrase "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof..." might, in fact, not refer to the State Legislature alone-- One has to go back to the Constitutional Convention of 1787 in Philadelphia and the delegates thereto (known collectively as "the Framers of the Constitution"), specifically asking and then answering the question: what did these Framers know at the time they were using the term "Legislature" in the document they were then putting together? Only then can one fully understand what the Framers themselves meant to convey with that very term "Legislature".
When the 13 British colonies which became the United States of America declared themselves to be "free and Independent States" in 1776, their former colonial- now to be "State"- governments were suddenly to be divorced from the governmental apparatus of the British Empire: there were to be no more Royal Governors appointed by the British Crown, no more appeal from the highest colonial- now State- court to the Privy Council in England; the colonial assemblies- now to be the legislatures of what were now States- were more or less cast adrift (though, admittedly, they themselves were responsible for their own being so cast).
In two of the 13 former colonies, this was not much of a problem: Connecticut and Rhode Island were, at the time of the American Revolution, so-called "corporate" or "charter" colonies; they each had an elected legislature, an elected Governor, a judiciary system that, except for the issue of no longer entertaining an avenue of appeal to the Privy Council, was not to be changed all that much by the new situation. Therefore, these two colonies-become-States continued to operate under their colonial charters (Connecticut would not write its first written State Constitution as we understand that term today until 1818; Rhode Island would not write a State Constitution until 1843, the State's hand forced by the events of 1841-1842 known as 'Dorr's Rebellion'). But the remaining 11 colonies-become-States had had colonial governance very closely tied to the now-former Mother Country (as I have already noted in this response, there were to be no more Crown-appointed Governors and no more judicial appeals to King-in-Council); thus, these States had to now draft new instruments of government- the first written State Constitutions- as a result of Independence.
The system of governance in these new State Constitutions varied considerably. Americans today are not used to such differences between the States in how the different branches of government operate: in 2002, all but one State (Nebraska) has a bicameral Legislature and all 50 States nowadays require their respective Governors to sign bills passed by the legislature into law as well as allow their chief executives some veto power over legislation (with the ability of the State's legislature to override the Governor's veto by a supermajority). But, back in the 1780's, such uniformity in governance from State to State was not the case.
Take the veto power of a Chief Executive, for example: the Framers, indeed, gave such veto power to the President of the United States in the Constitution they were drafting; however, while they did utilize much of the language related to the veto power enjoyed by the Governor of Massachusetts found in that Commonwealth's Constitution of 1780 (one of the Framers- James Wilson- even cited the appropriate section of the Massachusetts document in his own draft of the veto provision that became part of Article I, Section 7, clauses 2 and 3), the Framers were clearly thinking more of the Royal Veto as utilized by the King of England while they considered giving similar power to the new "elected King" the President was, in many ways, to be.
In any event, Massachusetts was more the exception than the rule: Massachusetts' veto provision was largely based on that found in the New York State Constitution of 1777; however, in the New York document, the veto was exercised not by the Governor alone but, rather, by the Governor-in-Council (this "Council" consisting of the Governor, the Chancellor [the State's judge in Equity (in the early days of the Republic, this office was actually considered to be at the head of a State's judicial system rather than a Chief Justice)] and judges of the Supreme Court [in New York, as it still is today, the trial court of general jurisdiction but which, back in the 1780s, also heard appeals from the State's inferior courts of limited jurisdiction]).
In the 1776 Constitution of New Jersey, there was a similar role for an institution known as the Governor-in-Council, except that- rather than exercising a veto over legislation per se- the "Council" part of Governor-in-Council was also the upper house of New Jersey's bicameral legislature and, thus, had a negative on legislation passed by the lower house, the Assembly, in that way. In Georgia's Constitution of 1777, to take one more example, the "legislature" was a single house known as the House of Assembly; there was an Executive Council presided over by the Governor to which bills passed by the House of Assembly were sent for review: the Governor-in-Council could recommend changes in legislation and resubmit such amended bills to the House of Assembly for repassage but there was no veto power in the modern sense of the term for Georgia's Chief Magistrate.
The point of all this is that the relationship of the Legislature (as a legislative body of a State of the Union) to its Executive (or, for that matter, to its Judiciary: in New Jersey, to take one example, under the State's original 1776 Constitution, the Governor-in-Council also functioned as the highest court of appeal in the State- the lineal antecedent of the New Jersey State Supreme Court the 2 October ruling of which in the case flowing from Senator Torricelli's withdrawal is so controversial and the source of the issue in the very 'vox Populi' to which I am now responding!) was not at all as cut-and-dried back at the time the Framers were working through the Summer of 1787 in Philadelphia as it might be in State after State today.
So, what could the Framers of the U.S. Constitution have really meant when they used the term "Legislature" in their then-new document-- not only in Article I, Section 4, clause 1 but in other parts of the U.S. Constitution as well? I addressed this in one of my Commentaries on this website [entitled 'OUT OF DIVISION, DECISION'- dated 13 December 2000] as we came to the end of the Florida 2000 election debacle. The issue regarding the term "Legislature" back in that particular legal catfight was the use of that very same term in Article II, Section 1, clause 2, where the U.S. Constitution reads as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors [for President and, since the adoption of the 12th Amendment, Vice-President]...
I wrote, back in that now-nearly two year old Commentary:
For example, there was the erroneous theory- put forth by the Bush lawyers (but really taken and run with by the Republican leadership of the Florida House of Representatives)- that the term "legislature" in Article II, Section 1, clause 2 of the U.S. Constitution refers to the Legislature of a State alone as a body when, historically, it is a "term of art" referring to the entirety of the State's politicolegal system (it had to be just such a "term of art" back in 1787: Connecticut and Rhode Island were- at the time- both still operating under their colonial charters, neither of which embodied separation of powers to the fullest degree [in Connecticut, in fact, the upper house of the General Assembly- its Senate- functioned as, in effect, a Governor's Council as well as the Supreme Court of Errors, then that State's highest judicial body])- contemplating the State's Constitution, Legislature, Executive and Judiciary as a whole; I myself often enough read through the election codes of all 50 states plus the District of Columbia while doing research of various types for this site throughout this past Fall's campaign and I did not see one single statute passed by the Legislatures of the several States that their Governors did not have a say in (either to sign it or to veto it, subject to future override). The further concept, flowing from this theory (and pushed, admittedly rather half-heartedly, by the Bush legal team), that the Florida Judiciary had no real right to review/apply/interpret Florida election law absent a specific grant was even more ludicrous (in the second oral argument, U.S. Supreme Court Justice Kennedy- who, after all, was in the majority of the split decision which resulted- openly worried about a State Legislature being so "unmoored" from its own Constitution).
We have the exact same issue here, even given the somewhat different context (an election for someone to fill a Federal office from a State- in this case, a U.S. Senate seat, as opposed to an election for a State slate of persons charged with themselves electing a Federal officer of the Nation- that is, a State's Electors for President and Vice-President): can a State Legislature really be permitted to be so- to use Mr. Justice Kennedy's own words- "unmoored" from its own Constitution under cover of a possibly too narrow application/construction of the word "Legislature" as found in Article I, Section 4, clause 1? Can a State Legislature, therefore, really do whatever it bloody well pleases as regards "times, places and manner of holding elections" for Federal office- without any input whatsoever from the State's own courts as to the application/interpretation of the State's Election Law on this subject should someone subsequently bring a legal challenge to it?? The very fact that a State's Governor (clearly not part of the State Legislature as that term is construed by those taking the Republicans' side in the current matter involving the New Jersey Senate race) must- by the terms of the State's own Constitution- sign Election Law passed by the State Legislature into law before it can become law (else a veto by the Governor must be overridden by a supermajority of the State Legislature as an institution in order for it to become law) suggests otherwise!
There was, back in 1787, no way for the Framers of the U.S. Constitution to know the form that government in the several States might take in the future, so they used the term "legislature" in that document as just such a 'term of art' to refer to the entire law-making and law-enforcing machinery of State government (a similar 'term of art' is where the U.S. Constitution refers to "the Executive Authority" of a State- for example, being permitted to call a Special Election for the U.S. House of Representatives [see Article I, Section 2, clause 4]; there was no way for the Framers to know what form such "Executive Authority" might take: what if, for example, a State of the Union were governed like a Province of Canada- with a parliamentary system and, thus, a premier as head of a government responsible to the legislature?-- the "Executive Authority" would not then be a State Governor!).
If a State's legislature passes a bill regulating elections- including Federal elections, if that bill is then signed into law by the State's Governor (or, should the Governor veto the bill, if the legislature successfully overrides the veto) and if the new law passes constitutional muster in any challenge to that law brought in the State's own courts, then- and only then- has the State's "legislature", in the way the Framers would have understood that term- acted to properly regulate under the terms of Article I, Section 4, clause 1; however, if such a bill is not signed into law by a State's Governor and that State's legislature does not subsequently successfully override the resultant veto, then that legislature's latest- but ultimately failed- attempt to regulate the "times, places and manner of holding elections" is of no legal validity whatsoever: likewise, if a bill so regulating elections should become law (either with the Governor's signature or over the Governor's veto) but the State's courts thereafter question that law's constitutionality in cases or controversies brought before them, the law is also of no legal validity whatsoever... and that is how "so many... educated people can then contend that 'Legislature' really means 'Legislature plus other parts of the government as well' " even where the Constitution "actually says 'Legislature'".
Good luck on your eventually becoming a citizen of these United States... and know that you have just gotten your first lesson in American Constitutional Jurisprudence.