Phony Federalism: A Constitutional Crisis in the Courts

Supreme Court

A paramount part of the legal challenges brought challenging the election are accusations that Pennsylvania, Georgia, Wisconsin, and Michigan violated the Constitution by improperly altering election laws. A plain reading of Article II, Section I, Clause 2, coupled with what these states did, leads to the conclusion these states and the years-long legal assaults by Democrats violated our constitution. People in the media can say a dog has five legs by counting its tail; this would not change reality for the dog. 

Our Constitution may be old, but it is not arcane. It is liberal lawyers, judges, and justices since the dawn of Article III who have attempted to twist and perplex the Constitution’s words and meanings. The fact that laws are to be clear, concise, and commonly understood is a cornerstone in the justice system. 

Texas, et. al., brought these constitutional violation arguments to the Supreme Court. As we all know, it was shot down for “lack of standing.” The real reason seems more to be a lack of spine on the part of Chief Justice Roberts. Because if Sovereign States lack standing to sue other Sovereign States regarding constitutional violations in the one court (SCOTUS) designated to hear them; no one has the standing to sue the States for such violations. This cannot be true or else we do not have a Republic—and the Constitution is meaningless. 

Texas and other states have the standing to sue any state in the Union for allegations of violating the Constitution. Each state, like each citizen, should be granted its day in court to present arguments and evidence. Any argument otherwise is nonsensical. And ignorant of history. New Jersey v. New YorkKansas v. Colorado; Missouri v. Illinois; Arkansas v. Texas; Texas v. Florida; California v. Texas. The fact that the current allegations are regarding a presidential election and violations of the document which binds the country together like glue, makes it all the more pertinent the constitutional allegations be fully addressed. If not now, then when?

States having standing to sue solely on the basis of constitutional violations is not some crazy conspiracy theory regarding constitutional interpretation—there are no penumbras and emanations here—it is basic contract law. 

Federalism in its simplest form is one country, two governments. A general—or federal—government. And regional—or state—governments. Each sovereign state agreed together to create a federal administrative government. The states agreed to submit to a federal government which was to administer certain express and enumerated powers. 

The sovereign states came before the federal government. Each state agreed to abide by the constitution. Each state had a choice. Each state agreed to follow the terms and conditions of the contract. 

That’s what the Constitution is, after all. A contract between the states outlining what the general administration of government shall be, with powers shared by each state in the House and Senate. It is a contract between the states individually as parties liable to each other, and between each individual state and the federal government. A Republican form of government. What a wild, wonderful experiment.

What happens, in the ordinary course of business, when a contractor breaches or fails to abide by the terms and conditions laid out and previously agreed upon in a contract?

A contract is breached. Defendants get sued. Plaintiffs have standing because of the contractual relationship mutually agreed upon and previously assumed by the parties. 

So… why are the states being treated differently?

Mackenzie Bettle is a third-year law student at Seton Hall University specializing in commercial law and litigation.