Dick Cheney and the 12th amendment
TUSHNET at WPGATE.LAW3.GEORGETOWN.EDU
Mon Jul 24 16:24:17 PDT 2000
Here's another take on the "problem," linking it to the Court's recent federalism decisions (and drafted on the assumption that Cheney is in fact the chosen one).
Richard Cheney and the Supreme Court
Sometimes little events tell us a lot. This time Richard Cheney*s selection as a vice-presidential candidate tells us something about the Supreme Court*s recent crusade to rebuild federalism as part of our constitutional system.
Preparing for his selection, Mr. Cheney switched his voter registration from Texas to Wyoming. Why? Because the Constitution says that the members of the Electoral College from Texas can*t cast their ballots for a president and a vice-president from Texas. If the election is close, Governor Bush might be elected president, but without Texas*s electoral votes, Mr. Cheney might not be elected vice-president.
Why does the Constitution set up this voting system? Because in 1789 (and in 1804, when the system was modified to its present form), federalism really mattered. People in each state cared a lot about their state*s special interests. They assumed that people from New Jersey would do what they could as senators, members of Congress, or president, to advance New Jersey*s special interests. A government headed by a president and vice-president from the same state would be too responsive to that state*s special concerns.
Mr. Cheney*s residency switch shows that we don*t think about our states in the same way. The constitutional provision is now just a technicality. We think it*s perfectly fine if the vice-presidential candidate changes his residency to get around an obstacle the Constitution places in the way of his selection. After all, no one thinks that Mr. Cheney is deeply committed to the interests of Texas as a state (or, for that matter, to the interests of Wyoming as a state). And Hillary Clinton has even decided to run for the Senate from the State of New York.
Federalism is based on the special attachments people have to their own states. But the way Mr. Cheney*s selection came about shows that lots of people today really don*t have such attachments. When I make that point in teaching my constitutional law classes, someone always says, *Well, maybe people in New Jersey or Arizona don*t have strong feelings about their states as states, but what about Texas?* Mr. Cheney*s residency switch shows that at least some nominal Texans don*t feel that Texas is all that special either.
The Supreme Court seems to have overlooked the way our attachments to our states have weakened. Over the last few years it has struck down several federal laws because they didn*t respect the division of power between the national government and state governments. These laws included part of the Violence Against Women Act and part of the Age Discrimination in Employment Act. Next year it*s going to consider whether Congress went too far in enacting part of the Americans With Disabilities Act and federal environmental laws.
The Court thinks that state governments are important, as indeed they are. But the ease with which we accept Mr. Cheney*s change in residency shows that we don*t think they are as important as the Constitution*s framers did. States do not give us the kind of identity that the framers themselves gained from living in their states.
As Justice Souter suggested last year, our understanding of the Constitution*s requirements should change as the role the Constitution*s fundamental institutions play in our lives changes. And that includes the states. After all, if all that*s at stake in federalism in choosing the best way to administer our governments, James Madison answered the point well: If *the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration.*
Mr. Cheney*s residency switch shows that, unlike the Constitution*s framers, we think that federalism is basically just a technicality. The Supreme Court*s recent crusade on behalf of federalism rests on a very different belief. The fact that Mr. Cheney*s action seems so unremarkable shows why the Court*s crusade lacks firm grounding in our understanding of the Constitution. If federalism is just a technicality when we have to choose a public official as important as the vice-president is today, surely it should be no more than a technicality when Congress decides that it*s important to protect women against violence or state employees against discrimination.
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