_Article II._ The provisions of the Constitution dealing with the election and office of the President are significant in this brief review because of the indispensable function that is assigned to the States as States, even in the choice of a President. As a matter of law, the popular vote that is cast for presidential candidates in the Republic as a whole is meaningless. What counts, plainly, is the vote within each State, for this choice by the people within their State by custom governs the action of presidential electors who are appointed in each State “in such manner as the legislature thereof may direct.” And should the presidential electors fail to give any one candidate a majority of their votes, the election goes immediately to the House of Representatives where the votes shall be taken “by States, the representation from each State having one vote.”
The federal nature of our Union also is made apparent in the provisions of Section 2, which leave to the States the command of their own militia except “when called into the actual service of the United States,” and vest in the Senate a powerful control upon the executive power of the President. It is only with the advice and consent of the Senate that the President may make treaties, appoint ambassadors, and name judges of the Supreme Court and other officers. And the consent of Senators, to repeat, in a very real sense is the consent of the States as such.
_Article III._ The Constitution vests the judicial power of the United States (with such exceptions, and under such regulations as the Congress shall make) in one Supreme Court and in the inferior tribunals established by law. The chief point the advocate of States’ rights might emphasize here is that the high court’s power is entirely _judicial_ in nature; its jurisdiction extends to cases in law and equity arising under the Constitution, under Federal law, and under treaties made under the authority of the United States, and to “controversies” in which a State as such, or diversity of citizenship on the part of litigants, may play a part.
Section 2 makes clear that the States must be considered separate entities in the trial of crimes, just as they are considered separate entities in the election of Congressmen: Crimes are to be tried “in the State where the said crimes shall have been committed.”