March 7, 2011 – Article I, Section 04, Clause 1-2 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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 Article I, Section 4, Clauses 1-2

1:  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 Senators.

2:  The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December,5  unless they shall by Law appoint a different Day.

Article I, Section 4, cl. 1, delegates to the state legislatures the authority to determine the time, place and manner of electing Senators and Representatives. However, with one qualification that has been rendered effectively moot by the 17th Amendment, Congress may supersede state law.

This is one of few clauses in the Constitution that affirmatively require the exercise of authority by the states. It raises interesting questions about the applicability of the traditional “default” view that all powers not affirmatively delegated to Congress or explicitly denied to the states, are reserved to the states or the people, as reflected in the 10th Amendment. Does this explicit provision “create” power for the states to act? Or, does the clause require the states to exercise a power they already have, but that they could ignore in the absence of this command?

Justice Stevens, writing for the majority, and Justice Thomas, writing for four dissenters, debated that issue in a fascinating case, U.S. Term Limits v. Thornton, in 1995. Term Limits addressed the constitutionality of an Arkansas state constitutional amendment that imposed term limits on its Senators and Representatives. Technically, the opinion involved the interpretation of the “qualifications” clause of Article I, Section 2, clause 2, whether term limits constituted an unconstitutional addition to the listed qualifications. But both sides (especially Justice Thomas) explored the applicability of Article I, Section 4, and the question of state power to act when the Constitution is silent.

The majority held that the states have no powers to act in matters that spring exclusively out of the existence of the national government created by the Constitution, unless the Constitution itself delegates that power to the states. Justice Stevens quoted the brilliant early-19th century nationalist Justice Joseph Story that, “No state can say, that it has reserved, what it never possessed.” He also noted that Alexander Hamilton, writing in Federalist 59, had warned of the danger to the Union’s existence if the states had the exclusive power to regulate Congressional elections.

In Stevens’s view, the Constitution created the national government ex nihilo, and the states had reserved powers only in those areas previously within their legislative discretion. Hence, since there was no affirmative grant to states to add qualifications for federal representatives, such power did not exist. Stevens viewed Article I, Section 4, as evidence for this proposition, as it (in his view) delegated authority to the states to act that, in the clause’s absence, would not have existed, while giving Congress ultimate control.

Stevens’s position makes it unclear why the clause is needed at all. Presumably, if the states do not have the inherent power to control the manner of election of the national legislature, but such power rests instead in the federal government, Congress already has ultimate control over the manner of election. Also, if this was delegation to the states, there is no need to declare what the states “must” do, and what Congress “may” do.

Justice Thomas found Stevens’s view to be exactly backwards. Since the states once had all powers, including the power to create whatever Union they wanted, or none at all, they also retained whatever authority they had not surrendered or that was not denied them in regards to the composition of the national government. Since the Constitution does not deny the states the power to add (but not subtract) from the listed qualifications, term limits are constitutional. Moreover, Article I, Section 4, does not detract from the general position that the states have all reserved powers. Thomas saw this provision not as a delegation to the states from the people, created by the Constitution. Rather, this is an imposition on the states of a duty to act, where otherwise none would exist.

Thomas pointed out that, without such a clause, the states could still determine the time, place, and manner of electing members of the national legislature. But they also might refuse to elect members of Congress, to cripple the federal government just as Hamilton warned. This clause, then, imposed a duty on the states (“must”) to exercise that power, subject to the authorization to Congress (“may”) to override the states’ choices. As a corollary, if the clause did not exist, Congress would have no power to act.

Until 1842, Congress left regulation of such elections to the states. States did not adhere to a single standard of electing Representatives (Senators were still elected by state legislatures). Often, at least some Congressmen were elected at-large. In that year, Congress began to require that single-member districts be used. By 1911, federal law mandated that such districts be “composed of a compact and contiguous territory and containing as nearly as practicable an equal number of inhabitants.”

When a later law eliminated that last requirement, substantial malapportionment occurred. Eventually, the Supreme Court waded into this “political thicket,” using another related provision, Article I, Section 2, to strike down apportionment that resulted in districts of disproportionate populations. A nearly absolute “one man-one vote” equality emerged to assure that, as nearly as practicable, “one man’s vote in a congressional election is to be worth as much as another’s.”

Additional questions raised by this clause are whether Congress could regulate primaries that, after all, are an integral part of the election process (based on Supreme Court opinions, today it probably could) or financing of Congressional elections (yes, within the broad contours of the First Amendment). Congress can prescribe the mechanics of voting, as well.

State laws are still important. For example, states still control the requirements for recounts, as a number of candidates in various close races in November, 2010, discovered. As well, states have different rules (and interpretations by state courts) for replacing candidates who drop out shortly before the election. Frank Lautenberg of New Jersey was permitted to replace corruption-plagued Democratic Senator Robert Torricelli on the ballot when the latter withdrew a month before the election. On the other hand, Texas Republicans were not permitted to replace Tom DeLay’s name on the ballot when he withdrew five months before the election.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums.  Read more from Professor Knipprath at: http://www.tokenconservative.com/ .

 
9 replies
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    Judicial Review amazes me here in how justices seem to look everywhere other than the Organic Law and the originating conventions that formed the law.

    Under the Articles of Confederation there was the practice of “rotational term limits” in appointing delegates to Congress.

    “Article V…No State shall be represented in Congress by less than two, nor more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years;…”

    Then, each delegate may serve a couple of concurrent terms; but could not serve too many concurrent terms in a period of time. The delegates may come back if reelected and serve more terms but their had to be a break in their service. It was argued that rotational term limits were ideal than the more present movement for absolute term limits because rotational term limits encouraged good behavior. This was to encourage delegates to be accountable to their constituents so that they may still have favor to be reelected in a future term after taking a break. The present day’s movement for absolute term limits does not espouse such a value. The absolute term limits somewhat induce “lame duck” behavior where statesmen can do whatever is their passion without regard of their future “political career”.

    What is very telling about the term limits, state rights debate is the fact that the new U.S. Constitution did not codify rotational term limits than what the Articles of Confederation had. Further, the 1st Congress put the Articles of Confederation in the Organic Law as the principal law of the land; but nobody in the court system seems to be paying much regard to that fact. In any argument of constitutional law, the Organic Law should be the starting point rather than the gamut of the peer-based case law of opinions made over the centuries later. Judicial Review under the Common Law has it that one must consult the received sense and the eye of the legislature passing the law above that of case interpretations handed down later.

    The Constututional Convention debated absolute term limits, rotational reeligible term limits, and no limits at all using many of the existing state governments as models. The delegates decided on no term limits on account that the vastness of the electorate would likely not be coopted by the intrigues of a few. That says it all. In addition, Federalist 53 accounts each house is to judge the elections, qualifications, and returns of its own members. States coming up afterwards with their own term limit laws on federal legislatures would have duly been barred in the Constitution if the delegates of the Constitutional Convention portended such an outcome because the states themselves were used as models with term limits and were intentionally not afforded in the Constitution as was in the Articles of Confederation before it.

    Reply
  2. admin
    admin says:

    Professor Knipprath – thank you for joining us today! The issue of state vs. federal control of elections has always been confusing to me, and I have been working in politics for over 25 years! Fascinating that Article I, Section 4, Clause 1 “is one of few clauses in the Constitution that affirmatively require the exercise of authority by the states.”

    I want to take an opportunity to commend and thank Constituting America Founder and Co-Chair Janine Turner for having the foresight to design this project in such a way that we are able to study the Constitution in such small pieces, essentially clause by clause, for the next 90 days! A broader study might have missed the important detail of today’s clause!

    I appreciate the detail in Professor Knipprath’s essay about important Supreme Court decisions, and Congressional legislation that have affected the way congressional districts are created, and elections are held. I have often wondered about the path our country took to get to our current federal and state electtion process, as the Constitution only sets out very broad guidelines.

    Thank you to all of you who are blogging with us, and adding your voice!

    You may have noticed that our website was down this weekend, as the server that hosts our website suffered a catastrophic crash. We have lost most of the previous commentary, on our blogs. If any of our regular participants have “saved” this commentary into a Word Document, please send to us at constitutingamerica@yahoo.com and we will post it under the appropriate essay! Or, if you have the time to go back and comment on some of your favorite essays, we would greatly appreciate the assistance in rebuilding our blog.

    Thank you for your service to our country by your Patriotic Participation in this ongoing civic dialogue and debate!!

    Blessings,
    Cathy Gillespie

    Reply
  3. Susan
    Susan says:

    I think like Dred Scott was revisited and overturned we should revisit U.S. Term Limits v. Thornton. Under the argument that Term limits are with the States purview to establish conditions.

    Reply
  4. Debbie Bridges
    Debbie Bridges says:

    Ralph, I’m intrigued by your discussion of Rotational Term Limits. That’s an excellent way to help avoid Lame Duck behavior. I also agree with Justice Thomas regarding the States right to institute term limits. It’s up to the States to control further requirements on being a Representative or Senator. If a citizen of one state doesn’t like the requirements then they may find it easier to move to a state that doesn’t have term limits. BUT, on the other hand, maybe it would be better to have an amendment added to the Constitution adding Term Limits or Rotational Term Limits as an added requirement because it would provide continuity to Congressional and Senatorial requirements.

    Cathy, Thanks for explanation about website. I thought maybe my computer was misbehaving when I couldn’t get into responses from last weeks posts. I would have thought that the server would have backed up their data.

    Reply
  5. Ron Meier
    Ron Meier says:

    As we discussed several days ago, our founders assumed (incorrectly, but in good faith) that voters would “throw the rascals out” every two or six years if they weren’t doing their job. They didn’t anticipate that “professional” politicians would be the problem that they have become in the 20th and 21st centuries. We all can cite specific members of Congress who many of us would agree are not doing the work our founders expected and who are concerned more about their own political careers than the welfare of the Republic. Not being a lawyer, I have no idea how to work around this, but I do like the idea of required rotations off for some minimum period of time after, say, xx number of years. For example, maybe after 5 terms in the House and 2 in the Senate, a sabatical of 5 terms (House) and 2 terms (Senate) would be required. That way, no Congressman would be able to serve more than half a work life in the U. S. congress.

    Reply
  6. Joerg Knipprath
    Joerg Knipprath says:

    Thank you for responding to this post. Ralph’s comments about rotational term limits are particularly salient. While such an approach might allow a particularly qualified person to regain the office after a “time-out,” it would diminish the accretion of individual power that has turned certain districts into virtual fiefdoms of the long-term incumbent. Such rotational systems (as well as straight-out prohibitions on re-election) are well known in the constitutional history of republics and other participatory political systems. However, they have applied to executive or administrative offices, not to legislators. Even the Articles of Confederation are ambiguous in that regard, as the Confederation Congress had executive, administrative, and legislative powers, unlike the Constitution’s more formal separation of powers. The Philadelphia Convention rejected term limitations even for the President, with Hamilton’s Federalist 72 painting a dark picture of corruption and venality by the incumbents if such limitations were adopted. Of course, the 22nd Amend. has dealth with this issue for the executive.

    Limitations on legislative terms is more at odds with republican tradition. As Ron points out, the Framers expected a vigilant electorate to throw the rascals out. That is a project more likely to succeed when the electors themselves are more limited by requirements of showing some economic success or stake as a substitute measure for intelligence, maturity, and interest in, and dedication to, public affairs. Today we seek to expand voting to as many people as possible, qualified or not. Same-day and post-card voter registration, dubious provisional ballot counting, and the antics of government-funded voter registration drives by ACORN and others, come to mind. While there may well be some social argument in favor of such a system, it also dilutes the quality of the votes cast and makes many of the participants particularly susceptible to voting for incumbents who just keep goodies coming into the district.

    There were other limitations on entrenched politicians (though long-serving politicians were by no means unknown). One such limitation was the shorter life expectancy. More significant, though, was that holding legislative office was, for the vast majority very much a part-time job. There was only so much that could be done in a four or six-week session. Moreover, since one’s job as a legislator was not one’s sole, or even primary, source of income, there was not the pressure to hold on to the position for dear life as exists for the “lifers” today.

    Rotation and term limits may limit the growth of personal power, but it does not limit the power of government. To be sure, they reinforce each other, as increasing the scope of government increases the power of those in government. Term limitations and rotations are probably on balance necessary today in a way they were not 200 years ago. But, ultimately those are band-aids for a problem of run-away government that requires a stronger corrective.

    Reply
  7. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    One of the concerns about constitutional term limits by the founders is that the office holders may use sleight of hand to get around it. This was particular with the executive office when debated with a term of seven years. Four years and no term limits was agreed to.

    The state’s assigned constitutional duty to regulate the Time, Places, and Manner of holding elections but subject to the Congress begs the question on what necessarily means the “Manner”. And if states take up term limits as a “Manner” of elections then Congress could just as well regulate that to. So an amendment is in order, which I have draft recently in a list of articles entitled “Congress 2.0”.

    Congress 2.0
    Article Twenty: Rotational Term Limits Amendment
    1) No Senator, Representative, or Elector of the United States shall be chosen except in accordance with any state law methods of rotation, limiting the number of concurrent terms allowed by that state, the omission of which as passive consent to enduring tenure afforded on good Behavior and approval by re-election.
    2) The twenty-second article of amendment to the Constitution of the United States is hereby repealed.

    This would then put Rotational Term Limits in the hands of the states. At present 37 states already have term limit measures in place for state officials in one form or another. That is only 1 prospective state away to ratify a conciliary amendment.

    As for a more stronger corrective measure on federal power, other measures can be had like:

    Article Three: State Revenue Amendment
    1) No revenue shall be appropriated for any State budget except for taxes levied within the State.
    2) All taxes collected within a State shall be deposited in a State held escrow, the outlays of which shall be paid to the Treasury of the United States the portion of which is collected as federal income, among other direct taxes in that State.

    Article Four: Simple Income Tax Amendment
    1) Federal income tax shall be afforded a standard tax Rate without Penalty, Inducement, or Jeopardy of audit except for concerning the veracity of income.
    2) All income taxes shall be filed within the State of which the income is paid toward State taxes.

    Reply
  8. Janine Turner
    Janine Turner says:

    Thank you Professor Knipprath for your eloquent essay and generosity of time! It is super that you came back to blog with us. Whew! This was a complicated subject! This may be a bit off track, but what I found fascinating is that the election process was still so unorganized in the year 1842. In modern times, we expect other fledgling democracies to have a fully operational government in a short period of time. Upon reflection, it took the United States quite a long time to find their way – though we were the first to set upon such an arduous task. And as is represented in the recent Supreme Curt ruling of 1995, we are a nation constantly seeking definition of our Founding Fathers’ true intentions. Hence the roadmap of our United States Constitution has a validity, if for no other reason, we seek from it interpretations to guide our paths.

    I also liked your comments in your blog response that touched upon the responsibility of the electorate to base their decisions, hence their votes, on knowledge of not only the candidate, the issues, but also on an understanding of the United States Constitution. As John Adams said, “Liberty cannot be preserved without a general knowledge among the people.”

    Thank you, and thanks to all the great Patriots’ who are blogging with us!

    God Bless,
    Janine Turner

    Reply

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