U.S. S.C. Intervention into Florida Dispute
doughr at ACAD.UDALLAS.EDU
Thu Dec 7 12:26:05 PST 2000
There is clearly a lot to Mark Graber's point here. (See Federalist 48: "The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.")
Yet, when faced with this danger, the Constitution takes steps to deal with it -- 2 houses, exec. veto, etc. If the danger here was one of untrammeled state legislatures, wouldn't the wording of Article II be different? I.e., instead of saying "in such Manner as the Legislature thereof may direct," wouldn't it have been "in such Manner as the State may direct"? The sentence begins by reference to the State, and then explicitly changes to say "Legislature." Of course some have argued that that really means the State (or the regular processes by which states deal
with such things, meaning the whole gamut of statutory enforcement and judicial interpretation). But, if the fear was of the legislature wouldn't that have been addressed? (Maybe it is in some other manner?)
University of Dallas
Mark Graber wrote:
> There is, I believe, a general consensus among constitutional historians that the persons responsible for the constitution were very concerned with untrammelled legislatures, particularly untrammelled state legislatures. Given their belief in the importance of constitutional limitations on the power of the legislative branch, I think the best originalist interpretation of Article II is that the legislature is constrained by the state constitution, though this is an inference from general principles, not based on any specific claim made by specific framers.
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