Silence of the New Jersey Lambs - Why isn’t the state legislature reacting?

National Review Online ^ | 10/10/02 | Mark R. Levin

[wcdukenfield]

Does the Constitution empower the U.S. Supreme Court to be the nation's board of elections? Of course not. Yet more and more conservatives are joining liberals in promoting this distortion of our republican form of government.

Article I, section 4, paragraph 1 of the Constitution states, in relevant part: "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 choosing senators."

The New Jersey supreme court's decision seems wholly inconsistent with state election law and clearly accommodates the political shenanigans of the Democratic party. Under such circumstances, it's the responsibility of the state legislature to reign in a rogue court--yet the New Jersey legislature has been completely silent. Apart from some rhetorical flashes, even New Jersey's Republican officeholders have made no concerted effort to act on their outrage or redress the problem.

What can they do? They can use parliamentary procedures to make life very difficult for the Democratic governor, Jim McGreevey, and slow down the legislative process. The Democrats have mastered this technique; Republicans should have learned from them by now.

The Republicans can make a constant drumbeat of their objections during floor debates and committee hearings. They can attach riders to bills and withhold their cooperation on any number of issues. But, to date, they've joined their Democratic colleagues in passive acceptance of the New Jersey supreme court's ruling.

Moreover, Article I, section 5, paragraph 1 of the U.S. Constitution states, in relevant part: "Each House shall be the judge of elections, returns and qualifications of its own members..."

Consequently, the final authority to determine the results of congressional elections is Congress--not the U.S. Supreme Court. Indeed, not only is this power explicitly granted to Congress, but there is also absolutely no mention of any role for any court, including the U.S. Supreme Court.

The U.S. Supreme Court has no more authority to address the rules for electing senators and congressmen than does the New Jersey supreme court, assuming there are no other federal constitutional issues involved. Otherwise, the Framers' language has no meaning.

In Bush v. Gore, the concurring opinion of the three conservative justices indicates that they believed that Article II, section 1, paragraph 2 granted state legislatures the final word with respect to the appointment of presidential electors. The Constitution states: "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress..."

Here again, the Framers were specific in authorizing state legislatures to set the rules for electing a president and vice president. And, in fact, the Florida legislature was poised to intervene and overturn the Florida supreme court's attempt to rewrite state election laws and deliver the presidency to Al Gore. This is precisely the process set forth in the U.S. Constitution. But the U.S. Supreme Court stepped in.

Had the constitutional process played out, George W. Bush would have been president under any scenario, for the new House of Representatives would have picked the president--and the majority of the state delegations that would have voted was controlled by the Republicans. The process wouldn't have been pretty, but it would have worked. (Of course, the U.S. Supreme Court had been put in the untenable position of being asked to address the lawlessness of the Florida supreme court, which made it difficult for the justices to ignore the matter.)

It's very important that we not place political expediency above the rule of law, as liberals often do. We must urge our elected representatives to uphold their sworn responsibility to enforce the Constitution, and not to look to courts for relief in matters where the courts have no authority. This kind of forum-shopping undermines the Framers' clear and specific language. We must place our faith in the Constitution, not in the results of a given election.

[TheDon]

Best Title of the Day BUMP!

[TheDon]

This is the best commentary I've found on the NJ fiasco. I was quite surprised to hear so many commentators making the statement that there were no US Constitutional issues involved. I do disagree with the author that the Supreme Court has no role, but I will give his arguments some thought as I have not considered them before. There is a great deal of merit in not going to the least democratic branch of the gov't in matters of this nature.

Another point to be made is that the Executive branch need not follow the Court's ruling either. Of course in this instance, the Gov. is not only a Dem., he's a principal behind this scam!

[PhilipFreneau]

The New Jersey Legislature is irrevelant. Left wing jurists have control of the state.

[Dog Gone]

Great essay by Levin. He has the constitutional issues correctly articulated.

[b4its2late]

Mark, I agree on this post too.... Good piece.

[Afronaut]

Spitting in the wind

[KeyBored]

"What can they do? They can use parliamentary procedures to make life very difficult for the Democratic governor, Jim McGreevey, and slow down the legislative process. The Democrats have mastered this technique; Republicans should have learned from them by now."

Not to take the spinless Repubs. side in this, but it's not quite as simple as it's stated. There are more than the two players.

There's the unbiased (sic) media, and then there are Joe and Jane Sheeple who get their info from said media.

Whenever democreeps play political hardball, you have the unbiased (sic) media acting as their cheerleading section. When the repubs do it (e.g. the gov't "shutdown" in '95 orchestrated by Newt Gingrich) you have the unbiased (sic) media playing the role of inquisitor.

And Joe and Jane, being the sheeple that they are, blithely swallow what PeterDanTom tells them.

[Defiant]

Would everyone have felt that way if the Fla. legislature was solidly democrat? I think not. The fact is, what the Fla. Supremes tried to do was unconstitutional AND against the federal law that forbids changes in voting laws after the election's been held. The SCOTUS was right to intervene, and the Fla. Legislature would have been right to play its constitutional role, too, if need be.

[holdonnow]

You're giving a political response to a principled, constitutional point. I suppose I could respond by asking -- what would have happened if the Warren Court still ruled at the U.S. Supreme Court? Gore would be president today. The point is that one either believes in a constitutional system, or one doesn't. You've not addressed the specific language in the Constitution that sets forth the process for selecting presidents and senators and congressman. You've simply said, or at least implied, that your happy with the result.

[Ken H]

This article nails down the constitutional issues exactly right, IMO.

It is the clearest explanation I've read of how the Constitution is being violated by the Judiciary.