US Constitution

[Hugh R. Tobin]

DEMOREP1 at aol.com wrote:
> 
> A. Mike Ossipoff wrote:
> 
> And the fact that the electoral college is in the Consitution doesn't mean
> that it can't violate the Constitution & be unconstitutional. The
> Constitution initially provided for the return of escaped slaves, but now
> it's well-established that slavery violates other parts of the Constitution
> in a big way & would be unconstitutional. So the Constitution's initial
> provison for the electoral college could be considered (because it is) wrong,
> and in violation of individual rights, and obsolete & inappropriate for now,
> as is the Constitution's initial provision for return of escaped slaves. [end
> of excerpt]
> ----
> B. The U.S. Supreme Court repeatedly upheld slavery before the U.S. Civil War
> and the fugitive slave clause (Art. IV, Sec. 2, Cl. 2) especially in the
> infamous case of Dred Scott v. Sanford, 19 Howard 393 (1857), which drove
> John Brown to his famous raid at Harper's Ferry, Virginia in 1859 which in
> turn caused the southern oligarchy to create militias and to attempt to
> secede in 1860-1861 after Lincoln's minority rule election in 1860.
> The 13th Amendment ratified Dec. 6, 1865 abolished slavery (at the cost of
> some 620,000 dead).
> 
> The Court tries to uphold everything in the Constitution based on the
> principle that repeals by implication are not favored.
> The equal protection clause in the 14th Amendment, Sec. 1 only applies to
> laws within a State, not between States.
> ---
> 

DEMOREP is right, of course, that the electoral college cannot be
unconstitutional.  It is not quite as simple as saying that the
equal protection clause applies only against the states, though this is
how the written Constitution reads.  The Supreme Court now speaks
unashamedly of the "equal protection component of Fifth Amendment Due
Process," somehow finding in the Fifth Amendment's prohibition on the
federal government's depriving people of life, liberty, or property
without due process of law, a general principle of equal protection that
the drafters of the 14th amendment felt it necessary to set forth
separately.  See, for example, Adarand Constructors v. Pena, 115 S. Ct.
2097, 132 L. Ed. 2d 158 (1995).  We know now that equal protection
requires one-person one-vote (Baker v. Carr, Reynolds v. Sims, etc.),
though this was not well understood before the 1960s, which arguably
could explain why the malapportioned electoral college went unchallenged
for so long.  So why (Mr. Ossipoff might ask) could the Supreme Court
not
conclude that the electoral college -- and, of course, the apportionment
of the Senate -- are unconstitutional under an enlightened reading of
the Fifth Amendment?  But here the defenders of the status quo have a
stronger argument than "no repeal by implication": the 12th Amendment
reaffirms the use of electors to choose the President, and the 17th
reaffirms that there are 2 senators from each state.

-- Hugh Tobin