US Constitution

[Tom Round]

It's highly impertinent for me, a non-US-citizen, to offer a commentary on 
two aspects of the US Constitution that have come up recently in this 
discussion (and not directly related to voting methods), but I'll do it 
anyway; anyone who objects can delete this now.

On Saturday, 26 October 1996, Mike Ossipoff wrote:
And the fact that the electoral college is in the Constitution doesn't mean 
that it can't violate the Constitution & be unconstitutional.

DEMOREP wrote:
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), ... [snip] 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 legally. Slavery was not abolished by Supreme Court 
reinterpretation of the existing Constitution, but instead by amendment of 
the Constitution. Mike is right, however, that the letter of one part of a 
Constitution can violate the spirit of another part, as a moral and 
political issue. If the spirit of the US Constitution can be said to embody 
justice, due process and human equality (drawing on its preamble and on the 
Declaration of Independence), then the Fugitive Slave Clause certainly 
violates it. Some legal philosophers, pre-eminently Prof Ronald Dworkin, 
would go even further and argue that an immoral clause which contravenes the 
moral spirit of the document ought to be read down as narrowly as possible, 
or even interpreted in a way that renders it a dead letter. However most 
judges would baulk at actually setting aside the black-letter words of the 
document they are supposed to be interpreting.

[Might I say parenthetically that I find it tricky at times to work out 
exactly which parts of the Constitution are repealed or altered by the 
Amendments, due to the practice of adding them as separate articles on the 
end. (Eg, the 15th Amt originally penalised states which denied the vote to 
free male inhabitants over 21; is this amended by the Nineteenth Amendment, 
which gave women the vote in 1920? Probably it is, but how much then of the 
15th remains?) Here in Australia, we adopt the simpler expedient of changing 
the wording of existing sections, striking out omitted words and/or 
inserting new words.]

Certainly you can make a political argument, addressed to whichever body has 
power to ratify amendments to a Constitution, based on consistency: "The 
Constitution requires equality of voting power for all local, state and 
other federal elections, so to be consistent we ought to abolish the 
Electoral College and make the Senate population-based." An outdated lacuna 
that sits oddly with the rest of the Constitution may well become an 
embarrassment, though that doesn't make it invalid.

The reason for this is that "leges speciales de generalibus abrogant" - 
Latin for "specific clauses override general clauses". If one clause says 
"All elections shall be by equal suffrage" while another says "Each State 
shall have three Senators", then you have to stretch the general rule of 
equality to accomodate the specific rule about equal Senate representation 
for states unequal in population ... not vice versa. Likewise, as DEMOREP 
said, the 14th Amt only prevents a state from denying "any person within its 
jurisdiction" the equal protection of the laws. If California's block vote 
system gives every Californian more effective voting power than every Rhode 
Islander, well, too bad legally, Rhode Islanders aren't within California's 
jurisdiction. I think Delaware tried to sue New York (??) in the 1960s to 
make it adopt either a district or a proportional system for allocating 
Electoral votes, but the Supreme Court threw it out.

Which leads to the second point - about the "reformed States" adopting a 
better Presidential electoral system by uniform laws. Someone raised the 
point that this may require the consent of Congress under Article 1, Section 
10, Clause 3, being a "Compact or Agreement", and that a big-party-dominated 
Congress might not grant such consent. Others suggested ways around this: 
eg, that a voluntary agreement to standardise laws is not a binding 
"Compact", that there may be accepted exceptions such as extradition or 
waste dumps, etc. (I read that the purpose of the clause was that the 
Founders feared that inter-state agreements might become the basis for 
cabals and plots against the Union. Well, the clause didn't stop the 
Confederacy getting kicked off!)

I suggest, with all modesty as an outsider, another avenue. That is, the 
Constitution says simply that "each State shall appoint, in such manner as 
the Legislature thereof may direct, a number of Electors ..." This 
discretion would be subject to a few constraints (eg, no poll taxes, no 
equal protection denials) but otherwise it leaves each State with wide 
discretion to direct the manner of "appointing" its Electors.

I submit that this specific clause would prevail, in case of conflict, over 
the Compacts clause, and thus that a State's decision to base the election 
of its Presidential Electors on the results of a "Memorandum of 
Understanding" among the reformed states would not count as a "Compact" that 
requires the approval of Congress.

Otherwise the Compacts Clause could get ludicrously wide in its breadth - it 
could, perhaps, even strike down the accepted practice of having all or most 
State's elections on the first Tuesday after the first Monday in November 
..?

Tom Round

-------------------
Overflow-Cc: TomR at orgo.cad.gu.edu.au (Tom Round),
   100245.2440 at compuserve.com ('Geoff Powell'),
   afreeman at acslink.net.au ('Andrew Freeman'),
   BMusidla at email.dot.gov.au ('Bogey Musidlak'),
   crabb.deane at pi.sa.gov.au ('Deane Crabb'),
   dunnmj at ozemail.com.au ('Martin Dunn'),
   GGoode at VTRLMEL1.TRL.OZ.AU (Goode, Geoff),
   j.pyke at qut.edu.au (John Pyke, QUT Law School),
   jhtaplin at cygnus.uwa.edu.au ('John H Taplin'),
   lee at cs.mu.oz.au ('Lee Naish'),
   martinw at cse.unsw.edu.au ('Martin Willis'),
   MDT at ozemail.com.au ('Matthew Townsend')