Inhabitants--Justiciability?

Randy Barnett rbarnett at BU.EDU
Wed Jul 26 09:17:44 PDT 2000


Having tried to follow this debate while in Europe, I did have
one reaction to some of what has been said.  There seems to be
a certain gleefullness in pointing out the pointlessness of the
strictures of the 12th Amendment in light of how easy it would
be to comply with its dictates by switching registrations.  I
tend to agree with those who have suggested that this would not
constitute compliance with the Amendment.  Cheney appears to
be an "inhabitant" of Texas and the Texas electors cannot cast
votes both for Bush and for Cheney.

But the other point that has been made is that, because this
stricture allegedly serves no contructive purpose now, we should
disregard it.  Assuming this claim is right (and putting aside
the question of justiciability), however, I see great value in
enforcing this restriction--or having the electors follow the
restriction.  For doing this in so (assumedly) trivial a case
where the consequences one way or the other are not particularly
profound, would have the profound effect of reinforcing in the
public mind and in the minds of the legal elite, that the Constitution
ought to be respected even where some may disagree with it.
And a deference to its explicit requirements here would make
more likely a deference to its explicit requirements at other
times and places.

Indeed, one wonders if those who advocate disregarding of this
requirement (assuming it does apply here) do so precisely because
they want to make the symbolic point that the explicit requirements
of the Constitution should be ignored when they conflict with
our best judgments of policy or justice, etc.

(I apologize in advance if I am unable to reply to those who
may take me to task for this post.)

Randy E. Barnett

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