A LITTLE UNCONSTITUTIONAL AND A LITTLE PREGNANT COMPARED

 

WOW!!   Face Book has come alive with the joyous news.  One says:

“SCOTUS has REJECTED the Texas lawsuit. Thank you for doing the right thing.”

And, from a half-wit who has probably never read the Constitution: “It’s about damned time the courts started holding up the Constitution.”

The short answer is, “Not this time, it didn’t. It may have reached a pragmatic resolution, but it sort of kicked the Constitution in the knee, too.”  When, oh when, are we going to bring a required Civics course back to America’s schools?

Still, I am at sixes and sevens on this one.

First:  The Court did the practical thing, and I am glad they did…except for the part of me that loves the Constitution.  Of course, the very same people who are appalled by the President’s challenges are the same ones who urged Al Gore to “unconcede” in 2000 and to challenge the results of the election in favor of President George W. Bush.  Apparently, it is only immoral, evil, and fattening to challenge an election if you are a Republican.  But I digress.

Another Face Booker excoriated the Court for its per curiam decision.  Why didn’t the Court write a 9-0 opinion stating that “…enough is enough and that this kind of …abuse of the legal system will not be tolerated?”

There is a simple answer to this one.  If you don’t need to do so, don’t do it.

There is no way the Court was going to come to that proposed conclusion.  The best that they could do is to acknowledge sub silentio that they blew it with the Pennsylvania decision before the election and that, the news media having convinced the rest of the world that its decision regarding who won is the only one to be trusted, it is too late to do anything about it. 

It reminds me of a story Stan Musial once told.  Augie Donatelli, a great umpire, once called Musial out at second base after the shortstop missed the tag.  “Augie?” Musial asked.

Donatelli said “Look, Stanley, you know you were safe.  I know you were safe.  He (pointing at the shortstop) knows you were safe.  But those folks in the stands saw me call you out, so you’re out.”

Millions of votes that should never have been counted were, unconstitutionally, counted and Joe Biden will be our—yours, mine, every American’s—President come 20 January 2021.  Just as was Donald Trump on 20 January 2017.  I’ve read the Constitution, and we only get one President at a time, something the “He’s not my President” morons in both parties just don’t get. 

Now, let’s talk about why and how President Trump could have been robbed of the election and why he should, nonetheless, at this juncture, keep doing the job he was elected to do until high noon on 21 January next, and then go home and do what every President since George Washington—except for Barack Obama—has done.  Butt out and let the new guy do it his way.

There is a woman, one of those New England elitist types, who scorn average Americans in the flyover States.  She has ended up, uninvited, on my Face Book page for the past year or so. Her name is Heather Cox Richardson, and the nonsense she spouts is usually laughable.  But she is one hell of a writer, so her drivel can be convincing if you admire excellent writing and know nothing about the Constitution or American History.  She is one of Lenin’s perfect “useful idiots.”

Take this from her 10 December article:  Democrat Biden won the election by more than 7 million votes [irrelevant] and 306 to 232 electoral votes [as Snopes, et al, would say, “partly true”].  She, an obviously educated woman, must surely know that if 7 million more Americans voted for Joe Biden than for Donald Trump, but all 7 million came only from California, New York City, and Chicago, and if the President carried enough States to prevail in the Electoral College, he is President.  The Democrat protest, using Little League rules, that it was Hillary Clinton’s “turn” and only the Constitution got in her way in 2016 is silly.

And it is misleading drivel of the sort that makes Americans in 2020 distrust each other.

So, you may legitimately say, how come you don’t just roll over and take it and acknowledge that Joe Biden is the lawfully elected President?  Well, because it is not an either-or game.  I’ll say it again:  I think Joe Biden received a sufficient number of votes in a sufficient number of States and Commonwealths to become our next President.  But I think his party played dangerously fast and loose with the Constitution to ensure it got the outcome it wanted. 

Time for some history.

Playing with the contents of the ballot box is a real threat to American “democracy.”  In 1960, the Chicago Democrat machine and the Texas Democrat Committee made sure that Kennedy-Johnson won the 24 Texas and 27 Illinois electoral votes. Kennedy won, 302-219.  If Illinois and Texas had gone the other way, Nixon would have won 270 to 252.

I remember that election, the first one that I do actually remember.  Cook County did not release its vote count until after the results from every other county in Illinois had been reported.  Kennedy won by just shy of 9,000 votes, many of whom were almost assuredly long dead and buried before election day.  Why am I so sure?  Well, as the proud son of a pair of proudly “yellow dog Democrats” in one of the few strongly Democrat counties in the State, I heard even them wonder about “Chicago.”  (Most non-Illinoisans will never know the intensity of distrust between Chicago and “down-State.”)

Nixon was urged to contest the election but conceded.  I recall hearing that he said something along the lines that the unstable world we live in needs to be immediately confident that America has a President right now.  The sad thing is that the theft of the 1960 election and his honorable response to that theft probably planted the seeds for Watergate, a whole series of steps President Nixon took to make sure he wasn’t robbed again.

As an aside, one Saturday morning some 25 or so years ago, I sat in a conference room with Sam Dash of the Ervin Committee fame.  As we waited for a new draft of some pleading or another to come from the “word processing center,” I told him that I had been stationed at Marine Corps Base, Quantico at that time and read the Post, where the political reporting in Section Two—the Local section—far surpassed most political reporting on the front pages of the major newspapers in America.

“You know, Professor, I think that if I had been advising the President, I would have told him to go out to the briefing room ‘right now.  Here’s some notes  

 You know folks, being President has some amazing perks.  Washington can be at a standstill                 under a three inch blizzard, and the President may say to himself, “You know, a glass of fresh                  squeezed Florida orange juice would really hit the spot right about now.  Fresh squeezed, right             off the tree.  Yeah, that would be tasty.”  And in an hour or two, someone who had heard that                muttered statement would bring in a glass of orange juice from an orange, pulled from a tree in              Florida, and flown to DC within those past two hours. 

  A few weeks ago, some of my closest advisors and I were talking about the upcoming election.  I          looked out the window and mused, “You know, Senator McGovern has got the Democrat                      nomination pretty well locked up.  I’d kinda like to be a fly on the wall over in Larry O’Brien’s              office over in the Watergate to see how they are going to screw McGovern out of the                              nomination and give it to Teddy Kennedy.” 

  Now, you all have heard that there was a break-in in the DNC office, and it appears that it was               organized by some people I have trusted and admired, thinking that ‘Well, we can sure find that             out.’

  That is, of course, against the law.  I have regretfully accepted the resignations of some of my                  most senior advisors for failing to promptly tell me what had happened, and we will trust the                   legal system to take appropriate action against anyone who might have broken the law.

            

   In the meantime, I need to get on with the Country’s business.  [PAUSE HERE SIR.]

   BUT ....... You know, I would like to know what O’Brien and the DNC are going to do to Senator           McGovern.  Might be a story in that, don’t you think?  Well, thanks everybody.’

 

Professor Dash looked at me, laughed, and said, “You’re right.  That would have been the story and I would have just been another Professor at Penn Law.  I’m glad they never asked for your advice!”  That’s one of those conversations you never forget.

Now, where was I?

That is why I wish the President could have brought himself to concede—and then run in 2024 to fix what is about to happen to a country in which the primary and only universal qualifications for service in the government appear to be race and gender.

But he did not and I can accept that, too.  You see, what the Democrat Party did is just another example of their disdain for the Constitution of our Republic.  They were afraid they could not win within the bounds of the Constitution, so, applying the Emanuelian Principle beloved in their Party since the 1990s, they chose to make sure that adherence to the structure created in Philadelphia in 1787 did not get in their way and then made sure that the disaster of the 2020 pandemic did not go to waste.

About the Constitution

Article I, section 4 of the Constitution, the “Elections clause,” provides that:

            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.

Congress has used that exception to enact laws or propose amendments to the several States several times.  It enacted a law, approved by the President, to set the first Tuesday after the first Monday in November as the date of all biennial elections for Representatives to Congress and, after the ratification of the XVII amendment, the election of one-third of the Senate.  Amendments XIX and XXVI granted the right of women and 18 year-olds to vote.  (It would be interesting to see what would happen if a State adopted a law stripping women of the right to vote in any elections other than for Representatives in Congress, Senators, and the President.  But we’ve already got enough on our plates, so, to quote many a Supreme Court decision, I’ll leave that for another day.)

I’m going to use Pennsylvania as my exemplar, but the same sort of things happened in a number of States and Commonwealths.

The current statutes in the Commonwealth of Pennsylvania, enacted by the General Assembly and properly signed into law by the Governor, have two provisions that got in the Democrats’ way.

First, to vote by absentee ballot, one must certify that he or she will not be present in his or her municipality on election day due to attendance at college in another locale, vacation or work in another locale, physical disability that prevents them from going to their polling place, service in the Armed Forces, or conflicts with celebration of a religious holiday.

Act 77 of 2019 was a bi-partisan statute and the first major overhaul of Pennsylvania election law in some 80 years.  It added the right to vote up to 50 days before the scheduled election, got rid of the need to give a reason for seeking to do so, and provided that mail-in and absentee ballots must be received by the appropriate official by 8:00 pm on election day.  The provision in law that forbade canvassing (opening and beginning to count absentee and mail-in ballots) could not begin until 7:00 am on election was not changed.

But then came 2020 and the pandemic.  Afraid that too many people would choose to vote by absentee ballot or mail-in ballot, the Governor, a Democrat and the minorities in the House and Senate of the General Assembly, sought to further amend the law to allow canvassing to begin 3 days before election day. That provision never made it to the Governor’s desk because he refused to compromise with respect to other provisions proposed by the majority.

Instead, the Secretary of the Commonwealth went to the Pennsylvania Supreme Court which approved her unilateral action establishing an emergency extension of the deadline for receipt of absentee and mail-in ballots to three days after election day. Why bother with the legislature just because the US Constitution says something we don't like.

The extension, which is effectively an amendment of the existing law, was made by judicial fiat.  The US Constitution clearly provides that it is the legislature of a State or Commonwealth that enacts such deadlines.  It does not say that “if the legislature declines to enact changes that the Governor, the Supreme Court of a State, a party committee, or the bar-tender down at Gilhooley’s prefer differently, then all bets are off.”

The US Supreme Court split 4-4 on whether that act of judicial fiat was appropriate. The Court has left open for another day the question of whether some agency other than a State legislature may simply ignore the Constitution.  In the 2018 North Carolina election, of a Representative to Congress, the Democrats were beside themselves when an individual collected ballots from absentee voters and delivered them to the appropriate official, expressing their fears that the ballots could have been tampered with.  They have had no such concerns in the 2020 presidential election.  The new election that they demanded and received in North Carolina is suddenly unnecessary in one they think they won.

And that’s OK.  Sooner than anyone may expect, the shoe may be on the other foot. Can anyone spell Harry Reid and filibuster?

In this case, I am certain that Mr Biden won and I think the US Supreme Court is, too.  So, in the immortal words of that great Constitutional scholar, Scarlett O’Hara, they will “think about that tomorrow.”

The problem I have is that even if the unconstitutional procedures employed in, e.g., Pennsylvania and other States, did not change the outcome, a “little unconstitutional,” like “a little pregnant,” is ultimately unconstitutional and pregnant.  And the next time, it may be twins!

In the meantime, Donald Trump may “know” he was re-elected, the Pennsylvania General Assembly may “know” he was re-elected, and even Joe Biden may “know” President Trump was re-elected, but the world saw the media declare Mr. Biden to be the next President, so he’s President.

Play Ball!