Scalia Gives Life To Founders’ Fears

by KrisAnne Hall 

Justice Scalia’s opinion in Arizona v. Inter Tribal Council of Arizona, Inc. (Arizona voter ID laws) is a misapplication of constitutional principles and the framers’ intent and results in the further dissolution of State sovereignty.  Ironically, the framers actually predicted Scalia’s conclusion and feared its consequences.  There are three matters that must be understood in this case:
The National Voter Registration Act of 1993 (NVRA) requires a state to “accept and use” a uniform federal form to register voters for federal elections. (emphasis added)
Article 1 Section 4 Clause 1 of the Constitution (Election Clause) permits Congress to make a law or alter State voting regulations regarding the Times, Places and Manner of holding Elections for Senators and Representatives.

“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 (sic) Senators.”

Article 1 Section 2 Clause 1 of the Constitution (Voter Qualification Clause) establishes that the power rests within the States to identify the qualifications of voters within that State.

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

Scalia asserts that since the Election Clause permits the Congress to “override” State law in regard to the “time, place, and manner” of congressional elections, then the NVRA’s requirement to “accept and use” a uniform federal form as a mandate upon the States prevents them from making any voter qualifications in addition to the federal form.  This “logic” creates a contradiction within the Constitution.  Since Arizona has the constitutionally established power to define voter qualification, but according to Scalia, no power to require proof of compliance with these qualifications, they in reality, have no power at all.  Scalia has functionally told the States that their power to define a voter is subject to federal regulation.  This is NOT what the framers of this nation intended.  James Madison speaks to this very issue:

“The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress would have been improper.” The Federalist No. 52

There was much opposition and debate over the inclusion of the Election Clause within the Constitution.  The problem the framers had, the same issue in this case, was the vagueness of the words “time, place, and manner.”  The framers feared that someday the central government would use this phrase to transfer power over the election process from the States to itself.  Listen to the arguments made against this provision from the North Carolina Ratifying Convention 25 July 1788: 

Mr. Spencer: These words are so vague and uncertain, that it must ultimately destroy the whole liberty of the United States. It strikes at the very existence of the states, and supersedes the necessity of having them at all.
Mr. Bloodworth: This Constitution, if adopted in its present mode, must end in the subversion of our liberties…We know that there is a corruption in human nature. Without circumspection and carefulness, we shall throw away our liberties. Why is this general expression used on this great occasion? Why not use expressions that were clear and unequivocal?
Mr. Maclaine: The clause enables Congress to alter such regulations as the states shall have made with respect to elections.

Ironically, Scalia’s transfer of power to the federal government was the very thing feared by those who opposed this clause.
Scalia tries to invoke Alexander Hamilton’s words from Federalist No. 59 as a means to support his position:  “[E]very government ought to contain in itself the means of its own preservation…”  What Scalia fails to do is openly convey the context in which Hamilton was making that statement.   Without this context, one might assert that Hamilton believed that the central government possesses an “inherent right to self-preservation.”  Hamilton did not believe that, nor did any of those recorded during the history of the Constitutional conventions.

Hamilton makes no argument that the central government is superior to the States.  When Hamilton said the government should have a means to preserve itself, he was trying to ease the fears of those who asserted the Election Clause was dangerous to that end.  Hamilton knew the government they created was one in which the States held most of the power and the central government had very little power.  He believed he was giving the central government an aid to survive in the face of such great State power.  A more complete reading of Hamilton’s reasoning in Federalist No. 59, 60 and 61 shows that Hamilton did not approve of the central government “swallowing up” the states, he just thought it would never be allowed to happen.  He called the idea, the product of a wildly fanciful imagination and highly improbable.  Hamilton believed that if the central government attempted to do what Scalia has granted them the power to do, there would be extreme consequences from the people.

“so improper a spirit…could never be made without causing an immediate revolt of the great body of the people,–headed and directed by the state governments…so fundamental a privilege, in a country so situated and so enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government; without occasioning a popular revolution, is altogether inconceivable and incredible.” Federalist No. 60

Hamilton did not believe such an usurpation could be achieved without military force:

“I imagine, it will hardly be pretended, that they could ever hope to carry such an enterprise into execution, without the aid of a military force sufficient to subdue, the resistance of the great body of the people…. Would they not fear that citizens not less tenacious than conscious of their rights would flock from the remotest extremes of their respective states to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people?” Federalist No. 60

Hamilton’s disbelief in the ability of the central government to assume this tyrannical power which Scalia has asserted was not unique.
“The possible abuse here complained of never can happen as long as the people of the United States are virtuous. As long as they continue to have sentiments of freedom and independence, should the Congress be wicked enough to harbor so absurd an idea as this objection supposes, the people will defeat their attempt by choosing other representatives, who will alter the law.” Mr. Nichols Virginia Ratifying Debates June 14, 1788.
“Nothing would support government, in such a case as that, but military coercion. Armies would be necessary in different parts of the United States. The expense which they would cost, and the burdens which they would render necessary to be laid upon the people, would be ruinous. I know of no way that is likely to produce the happiness of the people, but to preserve, as far as possible, the existence of the several states, so that they shall not be swallowed up.”  Mr. Spencer North Carolina Ratifying Convention 25 July 1788  


“If the Congress make laws inconsistent with the Constitution, independent judges will not uphold them, nor will the people obey them. A universal resistance will ensue. In some countries, the arbitrary disposition of rulers may enable them to overturn the liberties of the people; but in a country like this, where every man is his own master, and where almost every man is a freeholder, and has the right of election, the violations of a constitution will not be passively permitted. Can it be supposed that in such a country the rights of suffrage will be tamely surrendered?”  Mr. Steele North Carolina Ratifying Convention 25 July 1788.
This is obviously a much more important case, than deciphering the meanings of words.  Even the framers of the Constitution, seeing the problems with vagueness of words, knew this was not just an issue of the proper application of terms, but a matter between liberty and tyranny.  Unfortunately, in the framer’s perspective, Justice Scalia has chosen tyranny.   A more disturbing question arises Hamilton’s argument, “Where are the citizens Hamilton describes who would only be subdued in this manner by the power of an army?”