Document Type

Article

Publication Date

2001

Abstract

In Cook v Gralike, the Court - unanimous as to result - struck down a Missouri initiative amending the state constitution to require that the failure of candidates for U.S. Congress to support a particular term-limits amendment to the United States Constitution be noted on the ballot. In an opinion joined by seven Justices, the Court held that the Missouri law exceeded the scope of states' powers to regulate the "time, place and manner" of holding congressional elections . . . The opinions are analyzed preliminarily in Part I. Part II below suggests that even if there were no Elections Clause, or no First Amendment, the basic structure of the Constitution of the government of the United States would require the same result as that which the Court reached under those provisions. Paying attention to the structures and relationships of structures under the Constitution, as Charles Black urged, one could say that a representative democracy - plainly contemplated by the Constitution's provisions for the federal legislature and federal elections - is dependent on the operation of elections unbiased by the existing government. Free choice in the selection of representatives is a foundational linchpin in representative democracies. Comparative constitutional experience in countries that lack obvious textual analogues to the First Amendment or the Elections Clause supports the result. Thus, even without those clauses, this case was, as Justice Kennedy suggested, not a close one for a constitutional court in a representative democracy. Part III explores some reasons why the Court may have chosen to rely on particular constitutional text and to have crafted a narrow holding. First, there is the familiar attraction of text and precedent as bases for decision. Second, the shadow of Bush v Gore may have made appeal to an explicit and discrete text more attractive. Third, anti-incumbency and ballot-labeling measures generally pose difficult normative questions about what kind of democracy the Constitution commits us to, as well as difficult questions of the permissible range of government speech. These substantial, lurking conceptual difficulties, and their relationship to the multiple functions of elections in checking, choosing, and legitimating representatives, may help account for the narrowness of the holding.

Comments

http://www.press.uchicago.edu/Complete/Series/SCR.html

Publication Citation

Sup. Ct. Rev. 299-345 (2001)

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