What do you call Article I, §4, cl. 1?

June 17th, 2013

The majority in Arizona v. Inter Tribal Council of Ariz., Inc. refers to this clause as the “Elections Clause.”

The Elections Clause, Art. I, §4, cl. 1, provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.”

Justice Thomas disagrees, and calls it the “Time, Places and Manner Clause.”

The majority refers to Article I, §4, cl. 1, as the “Elections Clause.” See, e.g., ante, at 4. Since there are a number of Clauses in the Constitution dealing with elections, I refer to it using the more descriptive term, Times, Places and Manner Clause.

The last time I recall the Justices quibbled over what to call a clause in the Constitution was in McDonald v. Chicago when Justice Stevens referred to the Due Process Clause as the “liberty clause.”

Implicit in Justice Cardozo’’s test is a recognition that the postulates of liberty have a universal character. Liberty claims that are inseparable from the customs that prevail in a certain region, the idiosyncratic expectations of a certain group, or the personal preferences of their champions, may be valid claims in some sense; but they are not of constitutional stature. Whether conceptualized as a ““rational continuum”” of legal precepts, Poe, 367 U. S., at 543 (Harlan, J., dissenting), or a seamless web of moral commitments, the rights embraced by the liberty clause transcend the local and the particular.

Justice Scalia, in response, repeatedly put quotes around “liberty clause.”

Justice STEVENS insists that he would not make courts the sole interpreters of the “liberty clause”; he graciously invites “[a]ll Americans” to ponder what the Clause means to them today. Post, at 3099, n. 22. The problem is that in his approach the people’s ponderings do not matter, since whatever the people decide, courts have the last word.