862
Thomas, J., dissenting
tution affirmatively grants this power,9 the power must be one that is "reserved" to the States. It necessarily follows that the majority's understanding of the Tenth Amendment is incorrect, for the position of Presidential elector surely " 'spring[s] out of the existence of the national government.' " See ante, at 802.
3
In a final effort to deny that the people of the States enjoy "reserved" powers over the selection of their representatives in Congress, the majority suggests that the Constitution expressly delegates to the States certain powers over congressional elections. See ante, at 805. Such delegations of power, the majority argues, would be superfluous if the people of the States enjoyed reserved powers in this area.
Only one constitutional provision—the Times, Places and Manner Clause of Article I, § 4—even arguably supports the majority's suggestion. It reads:
"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."
Contrary to the majority's assumption, however, this Clause does not delegate any authority to the States. Instead, it simply imposes a duty upon them. The majority gets it exactly right: By specifying that the state legislatures "shall" prescribe the details necessary to hold congressional elections, the Clause "expressly requires action by the States."
9 The only provision that might conceivably do so is Article II, § 1, which recognizes the authority of state legislatures to specify the "Manner" in which a State appoints its Presidential electors. But if a qualifications law is a "Manner" regulation for purposes of this Clause, then it is also a "Manner" regulation for purposes of Article I, § 4—which would mean that the Constitution specifically recognizes the power of both the States and the Congress to set qualifications for Senators and Representatives.
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