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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, September 27, 2011 ::
    NC Governor calls for suspending the Constitution -- you know, just a little bit

    -- or --

    Perdue se trouve perdue

    Her words, as reported on the blog of the Raleigh News-Observer:
    You have to have more ability from Congress, I think, to work together and to get over the partisan bickering and focus on fixing things. I think we ought to suspend, perhaps, elections for Congress for two years and just tell them we won't hold it against them, whatever decisions they make, to just let them help this country recover. I really hope that someone can agree with me on that. The one good thing about Raleigh is that for so many years we worked across party lines. It's a little bit more contentious now but it's not impossible to try to do what's right in this state. You want people who don't worry about the next election.
    Her office's explanation? Literally (from spokesman Chris Mackey, "in a statement," so presumably not off the cuff):
    Come on, Gov. Perdue was obviously using hyperbole to highlight what we can all agree is a serious problem: Washington politicians who focus on their own election instead of what’s best for the people they serve.
    Hmm. "I really hope that someone can agree with me on that." Doesn't look like hyperbole on the screen, Chris. Had to be there, maybe.

    If Gov. Perdue were a Republican, everyone's Facebook and Twitter feeds would be filling up about now with news of the constitutional crisis we are now in. CNN and MSNBC would be on the lookout for tanks on the move. As it is, the News-Observer sure enough wants us to know that "Republicans sure are taking it seriously as they look to score political points."

    Pretty piss-poorly, too. As the linked post has it, "GOP spokesman" Rob Lockwood critiques Perdue's remarks solely in terms of "accountability" and the "right to vote." Well yes, elections provide accountability -- but those decisions were made during the drafting and ratifying of the Constitution. The question of annual versus biennial Houses was particularly discussed. Apart from a constitutional amendment (not presently before us), it's really not up to us now to debate, pro or con, except of course in a purely academic fashion, whether we have the correct amount of election-driven accountability, or too little, or too much. Our guarantee of accountabilty comes from adhering to what the Constitution says (unless we're trying to amend it).

    As for the right to vote, you'd be amazed how small a role it plays in the Constitution. The 15th Amendment provides that it shall be administered on a race-neutral basis; the 19th does the same re sex, and the 26th does the same re age. But those are rules limiting government's right to limit the right to vote; all other elements of the "right to vote" have been invented by the Supreme Court, reading them into the 14th Am -- and leading to, among other results, Bush v. Gore.

    The real way the Constitution guarantees accountability in Congress is not so much by the "right to vote" per se, but by specifying that, whatever exactly the suffrage rules may be, the House shall be subject to election every two years. Art. I. Sec. 2. clause 1. (And the Senate every six, Art. I Sec. 3 clause 1, though of course the voting constituency for the Senate was radically changed by the 17th Am.)

    The fact of biennial House elections seems to be (even) more important than who votes in them. And Gov. Perdue's remarks are a threat, not so much to any individual's right to vote (b/c surely she'd be glad for everyone to vote whenever she decided to allow an election), as to the polity's right as a whole to biennial House elections. And that right is textually guaranteed by the Constitution.

    Next up is Republican House challenger Paul Coble, who says Perdue is only saying that because she fears her party is going to lose seats. That may be true, but, if it were Coble's party that was likely to lose seats, would that make setting aside the constitutional requirement of biennial House elections any better?

    There's a right answer to that, and it's No.

    What's shocking about what Gov. Perdue said is not that she's seeking partisan advantage for her party (why shouldn't she?); nor that her proposal would interfere with accountability or the right to vote, though of course it would do both. What's shocking about it is that it directly and clearly proposes ignoring the Constitution.

    One may grant, sadly, that there are parts of the Constitution that give rise to difficult interpretive issues, such that it is debatable whether one is ignoring them or not -- but the requirement that the House shall be "chosen every second year" (Art. I Sec. 2 clause 1) is not one of those hard-to-interpret passages. Gov. Perdue's remarks were lawless.

    :: David M. Wagner 5:53 PM [+] ::

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