𝐓𝐡𝐞 𝐎𝐫𝐝𝐞𝐫 𝐎𝐟 𝐓𝐡𝐞 𝐔𝐧𝐫𝐮𝐥𝐞𝐝

Page 2 of 2

So advocates assured the public that Congress’s power over congressional elections would be extremely limited. They said the proviso was designed only for emergencies. As I reported in my 2010 study of the Elections Clause:

“[𝑻]𝒉𝒆 𝒑𝒓𝒐𝒑𝒐𝒏𝒆𝒏𝒕𝒔’ 𝒅𝒆𝒄𝒊𝒔𝒊𝒗𝒆 𝒂𝒓𝒈𝒖𝒎𝒆𝒏𝒕 … 𝒘𝒂𝒔 𝒐𝒏𝒆 𝒕𝒉𝒂𝒕 𝒉𝒂𝒅 𝒇𝒊𝒓𝒔𝒕 𝒃𝒆𝒆𝒏 𝒓𝒂𝒊𝒔𝒆𝒅 𝒂𝒕 𝒕𝒉𝒆 𝒇𝒆𝒅𝒆𝒓𝒂𝒍 𝒄𝒐𝒏𝒗𝒆𝒏𝒕𝒊𝒐𝒏: 𝒕𝒉𝒂𝒕 𝒕𝒉𝒆 𝑻𝒊𝒎𝒆𝒔, 𝑷𝒍𝒂𝒄𝒆𝒔 𝒂𝒏𝒅 𝑴𝒂𝒏𝒏𝒆𝒓 𝑪𝒍𝒂𝒖𝒔𝒆 𝒘𝒂𝒔 𝒏𝒆𝒆𝒅𝒆𝒅 𝒕𝒐 𝒆𝒏𝒂𝒃𝒍𝒆 𝑪𝒐𝒏𝒈𝒓𝒆𝒔𝒔 𝒕𝒐 𝒑𝒓𝒆𝒔𝒆𝒓𝒗𝒆 𝒊𝒕𝒔 𝒐𝒘𝒏 𝒆𝒙𝒊𝒔𝒕𝒆𝒏𝒄𝒆. 𝑰𝒏 𝒂𝒃𝒔𝒆𝒏𝒄𝒆 𝒐𝒇 𝒂 𝒄𝒐𝒏𝒈𝒓𝒆𝒔𝒔𝒊𝒐𝒏𝒂𝒍 𝒑𝒐𝒘𝒆𝒓 𝒕𝒐 𝒓𝒆𝒈𝒖𝒍𝒂𝒕𝒆 𝒄𝒐𝒏𝒈𝒓𝒆𝒔𝒔𝒊𝒐𝒏𝒂𝒍 𝒆𝒍𝒆𝒄𝒕𝒊𝒐𝒏𝒔, 𝒂 𝒈𝒓𝒐𝒖𝒑 𝒐𝒇 𝒔𝒕𝒂𝒕𝒆𝒔 𝒄𝒐𝒖𝒍𝒅 𝒅𝒆𝒔𝒕𝒓𝒐𝒚 𝒕𝒉𝒆 𝑯𝒐𝒖𝒔𝒆 𝒐𝒇 𝑹𝒆𝒑𝒓𝒆𝒔𝒆𝒏𝒕𝒂𝒕𝒊𝒗𝒆𝒔 𝒃𝒚 𝒓𝒆𝒇𝒖𝒔𝒊𝒏𝒈 𝒕𝒐 𝒑𝒓𝒐𝒗𝒊𝒅𝒆 𝒇𝒐𝒓 𝒕𝒉𝒐𝒔𝒆 𝒆𝒍𝒆𝒄𝒕𝒊𝒐𝒏𝒔 𝒐𝒓 𝒃𝒚 𝒄𝒓𝒆𝒂𝒕𝒊𝒏𝒈 𝒓𝒆𝒈𝒖𝒍𝒂𝒕𝒊𝒐𝒏𝒔 𝒅𝒆𝒔𝒊𝒈𝒏𝒆𝒅 𝒕𝒐 𝒔𝒂𝒃𝒐𝒕𝒂𝒈𝒆 𝒕𝒉𝒆𝒎. 𝑨𝒔 𝒂 𝒑𝒓𝒆𝒄𝒆𝒅𝒆𝒏𝒕, 𝒕𝒉𝒆 𝑭𝒆𝒅𝒆𝒓𝒂𝒍𝒊𝒔𝒕𝒔 𝒂𝒍𝒍𝒆𝒈𝒆𝒅 𝒕𝒉𝒂𝒕 𝑹𝒉𝒐𝒅𝒆 𝑰𝒔𝒍𝒂𝒏𝒅 𝒉𝒂𝒅 𝒅𝒂𝒎𝒂𝒈𝒆𝒅 𝒕𝒉𝒆 𝒐𝒑𝒆𝒓𝒂𝒕𝒊𝒐𝒏𝒔 𝒐𝒇 𝒕𝒉𝒆 𝑪𝒐𝒏𝒇𝒆𝒅𝒆𝒓𝒂𝒕𝒊𝒐𝒏 𝑪𝒐𝒏𝒈𝒓𝒆𝒔𝒔 𝒃𝒚 𝒓𝒆𝒇𝒖𝒔𝒊𝒏𝒈 𝒕𝒐 𝒔𝒆𝒏𝒅 𝒅𝒆𝒍𝒆𝒈𝒂𝒕𝒆𝒔 𝒕𝒐 𝒕𝒉𝒂𝒕 𝒃𝒐𝒅𝒚. 𝑻𝒉𝒆 𝑭𝒆𝒅𝒆𝒓𝒂𝒍𝒊𝒔𝒕𝒔 𝒎𝒂𝒅𝒆 𝒕𝒉𝒊𝒔 𝒂𝒓𝒈𝒖𝒎𝒆𝒏𝒕 𝒐𝒗𝒆𝒓 𝒂𝒏𝒅 𝒐𝒗𝒆𝒓, 𝒖𝒔𝒊𝒏𝒈 𝒊𝒕 𝒕𝒐 𝒔𝒘𝒂𝒚 𝒗𝒐𝒕𝒆𝒔 𝒊𝒏 𝒄𝒓𝒖𝒄𝒊𝒂𝒍 𝒔𝒕𝒂𝒕𝒆𝒔.”

Moreover:

“𝑰𝒏 𝑴𝒂𝒓𝒚𝒍𝒂𝒏𝒅, 𝒄𝒐𝒏𝒗𝒆𝒏𝒕𝒊𝒐𝒏 𝒅𝒆𝒍𝒆𝒈𝒂𝒕𝒆 𝑱𝒂𝒎𝒆𝒔 𝑴𝒄𝑯𝒆𝒏𝒓𝒚 𝒂𝒅𝒅𝒆𝒅 𝒕𝒉𝒂𝒕 … 𝒂𝒏 𝒊𝒏𝒔𝒖𝒓𝒓𝒆𝒄𝒕𝒊𝒐𝒏 𝒐𝒓 𝒓𝒆𝒃𝒆𝒍𝒍𝒊𝒐𝒏 𝒎𝒊𝒈𝒉𝒕 𝒑𝒓𝒆𝒗𝒆𝒏𝒕 𝒂 𝒔𝒕𝒂𝒕𝒆 𝒍𝒆𝒈𝒊𝒔𝒍𝒂𝒕𝒖𝒓𝒆 𝒇𝒓𝒐𝒎 𝒂𝒅𝒎𝒊𝒏𝒊𝒔𝒕𝒆𝒓𝒊𝒏𝒈 𝒂𝒏 𝒆𝒍𝒆𝒄𝒕𝒊𝒐𝒏. 𝑨𝒔 𝑱𝒂𝒎𝒆𝒔 𝑰𝒓𝒆𝒅𝒆𝒍𝒍 𝒕𝒐𝒍𝒅 𝒕𝒉𝒆 𝑵𝒐𝒓𝒕𝒉 𝑪𝒂𝒓𝒐𝒍𝒊𝒏𝒂 𝒓𝒂𝒕𝒊𝒇𝒚𝒊𝒏𝒈 𝒄𝒐𝒏𝒗𝒆𝒏𝒕𝒊𝒐𝒏, ‘[𝒂]𝒏 𝒐𝒄𝒄𝒂𝒔𝒊𝒐𝒏 𝒎𝒂𝒚 𝒂𝒓𝒊𝒔𝒆 𝒘𝒉𝒆𝒏 𝒕𝒉𝒆 𝒆𝒙𝒆𝒓𝒄𝒊𝒔𝒆 𝒐𝒇 𝒕𝒉𝒊𝒔 𝒖𝒍𝒕𝒊𝒎𝒂𝒕𝒆 𝒑𝒐𝒘𝒆𝒓 𝒊𝒏 𝑪𝒐𝒏𝒈𝒓𝒆𝒔𝒔 𝒎𝒂𝒚 𝒃𝒆 𝒏𝒆𝒄𝒆𝒔𝒔𝒂𝒓𝒚 … 𝒊𝒇 𝒂 𝒔𝒕𝒂𝒕𝒆 𝒔𝒉𝒐𝒖𝒍𝒅 𝒃𝒆 𝒊𝒏𝒗𝒐𝒍𝒗𝒆𝒅 𝒊𝒏 𝒘𝒂𝒓, 𝒂𝒏𝒅 𝒊𝒕𝒔 𝒍𝒆𝒈𝒊𝒔𝒍𝒂𝒕𝒖𝒓𝒆 𝒄𝒐𝒖𝒍𝒅 𝒏𝒐𝒕 𝒂𝒔𝒔𝒆𝒎𝒃𝒍𝒆, (𝒂𝒔 𝒘𝒂𝒔 𝒕𝒉𝒆 𝒄𝒂𝒔𝒆 𝒐𝒇 𝑺𝒐𝒖𝒕𝒉 𝑪𝒂𝒓𝒐𝒍𝒊𝒏𝒂, 𝒂𝒏𝒅 𝒐𝒄𝒄𝒂𝒔𝒊𝒐𝒏𝒂𝒍𝒍𝒚 𝒐𝒇 𝒔𝒐𝒎𝒆 𝒐𝒕𝒉𝒆𝒓 𝒔𝒕𝒂𝒕𝒆𝒔, 𝒅𝒖𝒓𝒊𝒏𝒈 𝒕𝒉𝒆 𝒍𝒂𝒕𝒆 𝒘𝒂𝒓).’”

Maryland’s famous jurist, Alexander Contee Hanson, added that Congress would exercise its “times, places, and manner” authority only in cases of invasion, legislative neglect, or obstinate refusal to pass election laws, or if a state crafted its election laws with a “sinister purpose” or to injure the general government. “It was never meant,” he wrote, “that congress should at any time interfere, unless on the failure of a state legislature, or to alter such regulations as may be obviously improper.”

Based on these assurances, the public accepted the proviso and ratified the Constitution.

Of course, the Constitution doesn’t actually say the proviso is limited to emergencies. But courts routinely consider the history behind a document’s words when deciding how broadly to interpret them. I explained above that the text tells us to construe the proviso narrowly. History backs this up.

Here’s an illustration of how the courts should apply Congress’s Election Clause authority. Suppose the question arises of whether “the manner of holding Elections” extends only to mechanics such as the form of the ballot, or also includes regulating campaigns. Narrow construction would give force to the Founding-Era evidence that “manner of holding” does not include campaigns.

Bottom line: The drafters of H.R. 1 were wrong to proclaim unlimited power to regulate federal elections and campaigns. On the contrary, the Elections Clause grants Congress only limited authority. A runaway Congress should never be permitted to seize more power than the Constitution gives it.

Robert G. Natelson, a former constitutional law professor, is a leading originalist scholar and senior fellow in constitutional jurisprudence at the Independence Institute in Denver. The Texas attorney general twice relied on his 2010 study of the Elections Clause in Supreme Court litigation earlier this year, and Chief Justice John Roberts used it in a 2015 Supreme Court case.

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🔗𝗙𝗼𝗹𝗹𝗼𝘄, 𝗦𝘂𝗯𝘀𝗰𝗿𝗶𝗯𝗲👇👇 𝗮𝗻𝗱 𝘂𝗻𝗶𝘁𝗲:
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The Epoch Times

The Founders Warned Us About Abuses Like H.R. 1

Commentary H.R. 1, the bill that would seize control of federal elections from the states, comes with an ...

222 viewsDeanne Santini, edited 14:06