The Constitution, the Supreme Court, and Elections

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We are in a terrible mess. Our nation has been, at least temporarily, conquered by a hostile entity consisting of the Republican Party in cooperation with the Russian government.

I’m not going to spell out the evidence. It’s out there. You can’t miss it. What I am interested in is, What now?

I still use the Constitution as my baseline or rule book. The obvious rule for getting rid of a crooked President is the part about impeachment, where in Article I Sec 2 par. 5 it says,

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

(With, of course, more detail elsewhere.) But that’s no fix for our current problem, where the Congressional leadership itself is complicit in the crime and where the entire administration is corrupt. The Succession problem is obvious: Crook -> Vice Crook -> Speaker of the Crooks… It won’t work.

The same succession problem applies to the 25th Amendment, but that doesn’t matter. His Cabinet is the body which removes him under the 25th Amendment. Have you noticed his Cabinet? OK, so that’s out.

At this point allow me to remind the reader that I do not do predictions. I cannot see one second into the future. I do make guesses, but please remain aware of the difference and distinction. I do not know what is going to happen. However:

There is Constitutional power, and 21st Century precedent, for the Supreme Court to step in.

First, the Constitution. Reading here in Article III, the Article which creates the Judiciary Branch of government.

ARTICLE III

SECTION 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office

.SECTION 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

(The part above regarding States, citizens, and the Court has been altered by Amendment but the remainder of the original text stands.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

SECTION 3

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

If you will bear with me, I’m going to pull some clauses out of there and consider them. First,

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

So by this statement we have a supreme (notice the lower-case “s”) Court but we don’t know anything about it. But continuing,

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

The Judiciary has power over every legal and financial topic, (“Law and Equity”) without exception. All cases.

In particular and specifically, that authority is over the following:

to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;

Allow me to pull that very last phrase out and discuss it:

to Controversies to which the United States shall be a Party;

OK, so the United States, The Donald Trump Administration and both houses of Congress, are parties to this Controversy. Therefore the supreme Court specifically has authority.

In cases like these the supreme Court is the first court. This doesn’t start in your District Court.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

The President, Vice President, and all members of Congress are, in fact, “public Ministers,” so the supreme Court has original jurisdiction.

So the authority is clear. What about precedent?

In the year 2000 there was a controversy involving the United States, specifically with regard to a Presidential Election.

The Supreme Court decided Bush v. Gore in favor of Bush. The American people said, OK, them’s the rules, and went along with it. There was some grumbling, but we went along with it. George W, Bush was President for 8 years and the Republic survived.

So we have the Constitutional Authority and the precedent. What are we waiting for?

Well, Courts can’t just jump into issues and cases. Somebody has to file a suit or action before the Court can get involved. Who can do that?

The supreme Court is one co-equal branch of your government, and according to the First Amendment,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Extracting for your convenience,

to petition the Government for a redress of grievances.

I maintain that “Russia stole my election and the Republicans helped,” is a grievance that each of us has a Constitutional right to… you know.

Although 40 states’ Bills of Rights have a specified right to access to a court as a remedy for injury, our Federal Bill of Rights does not. I maintain that, by the clear language used, our right to petition the government for redress of grievances specifically includes the Judicial Branch. I have not researched court decisions on the topic; right now I cling to First Principles as our last hope.

The trick with the Supreme Court is, they hear the cases they choose to hear. That is a specific part of their Judicial power. So yes, we can ask them to hear our case, but we’d better ask pretty darn well, because they don’t have to say anything but, Nah. They don’t have to hear it.

But there are some well lettered persons on our side, doing some careful research. Let’s say, for instance, that Robert Mueller III or Hillary Clinton brings suit, and the Court decides to hear it. Then what?

Well, we have established that the Court has the right and power to decide who won an election. They did that in 2000.

We have established that their verdict is sufficient to put a candidate into the White House and be accepted, albeit grudgingly, as our President. By Democrats, Independents, third party voters and non-voters.

What about Court personnel? Dying by 5 to 4 decision?

Well, what about that? It’s a risk. In my opinion it’s worth taking. We can be pretty sure that Gorsuch would vote to keep his job. Personally I am confident that Clarence Thomas is a viper, as is, in my opinion, Samuel Alito. That leaves 6, any of whom might, when the chips are down, rather live in a republic than a dictatorship. So I’m not at all sure it’s a lost case. I’d be willing to risk it.

So going all the way out on this limb and saying, Somebody (Sec. Clinton,  Special Prosecutor… I don’t know. There are some looking.) Somebody files a suit and the Court hears it. And they decide that the Russians did in fact steal our election for Republicans, in the Congress and the White House.

Say, again just making this up out of whole cloth, that the Supreme Court declares a new election in, say, 90 days, and puts Hillary Clinton in the White House as caretaker President until then. (No, this is not a prediction. It’s scenario.)

Will the armed 25% who elected Donald Trump and Mitch McConnell take it? And if they don’t, which side will the armed forces of the United States, from military to National Guard to civilian law enforcement, take?

Because it could really come down to that. Even if we get a positive Court ruling, who do the guns support?

I’d still go with the Supreme Court. I don’t see any other Constitutional option.

lightly edited 7/11/2017, changed names of possible filers

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Work and Mortality

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I am at an age where almost every day some famous person in my general age range dies. Since I partake of a fair amount of news, I see and hear about it.

So of course, I think some about dying. About the ethical and technical aspects of it. What I’m leaving behind for other people to clean up.

Some factors suggest I will live a long time. Some factors say I won’t. I’ll never know until time. However, every day realistically might be my last. (As is the case with all of life.) Or I might have thousands more days to go. How should I proceed from here, knowing these things?

I like to work. I like to make things, fix things, invent things, try things out. I make things out of wood, steel, aluminum, and plastic. And brass. I shape dirt and rock.

There is a lot to fix on a smallholding. Mowers and trucks, buildings and fences, trailers and tractors. More mowers. Plus some other, different mowers. Another tractor. Another building. There is always something to fix.

There is also always something which I think I can make a little better if I just make this or that, or reshape or change this or that. I can’t lift as much weight as I once could, and when I come close to it I hurt for days, so to whatever extent I can let leverage, planning, and minor mechanical inventions take the place of lifting and carrying, I’m going to do that.

One could make a case that the human urge to invent is based in laziness and hedonism: We invent stuff so we can be more comfortable and not have to work so hard.

Plus I have meadows to mow, a creek to tend, land to keep and cherish.

So I work.

Which is good. Work is what I do. Work, read, write, teach, and Tweet. And sleep. No TV. I wouldn’t have time for it. I work, and I rest.

And in the course of all this work, I tend to leave stuff out of place. Buy twenty bolts, use 11, leaving the other 9 in a plastic bag somewhere where it will be in my way for ten or fifteen years until I decide where it belongs instead and put it there. Odds and ends. Not tools, tools get put away, but – detritus. “I might use this someday” parts. Broken tools that I might fix. I’m in too much of a hurry to fix one thing to fix the other thing, or to put away the last few parts from that other project. Times 30 years. Times 12 years in this place, but I still own the other mess too.

So if I died tomorrow, which would be more important to those left to pick up the pieces: The projects that I did get done, or the crap I left out of place in piles for them to sort through and put away before they can auction it off?

My question is harder than it might seem. Say it was something my wife asked me to fix. OK, what something? If it’s “The faucet won’t shut off,” I’d bet she’d rather have me fix it now even if that meant she had to put away the pipe wrench should I happen to not live long enough. Making it so her tractor will start rates up there as a pretty high priority, but it’s not like the faucet. Maybe I should clean up all the loose ends from the previous project before tackling whatever is wrong with the Big John.

Working faster than you can quite keep up with does have something to recommend it, but it’s not all good.

“The evil that men do lives after them; the good is oft interred with their bones.” – William Shakespeare

Tired of my messes, I have spent considerable time the last couple of days cleaning up one small mess among many, my welding cart. I’m not done. And “cleaning up” in this and many other cases is synonymous with “Putting away the stuff that covers it 12 years deep.”

I won’t give you the details, but it’s harder than it looks. Decisions. Figuring out what something is. Stuff that you didn’t put away because it didn’t have an “away” and you have to think one up in a cluttered old farm shop, Figuring out how to keep “putting it away” from being “go through this again later.”

What has all this got to do with mortality?

Every day I decide, consciously or unconsciously, whether to put stuff away or do some new project. Every day I decide between doing for the moment, leaving my messes for those who come after me, or thinking of those people, the Next Ones, as active participants in the decision.

Why is the work I do important? Because I think it’s important. You could say the same thing for most of the work humans have ever done: at the moment somebody thought it was important. Build a fire in the cave. Put a man on the moon. Fix my broken mower, or maybe mow with it. People do what they think is worth doing.

I’m just doing whatever comes to mind. How critical is it that I get all this crap done, and leave piles of “I wonder what this is,” for those who come behind me, as compared to leaving things in reasonable usable order?

Perhaps the best thing I can possibly do for those who follow me on this earth is to leave as small a mess as possible.

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The Machinery of Government

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I have concluded, based on numerous recent conversations I have observed and participated in on Twitter, that a significant number of good hearted, well intentioned Americans do not understand certain details of the machinery of our government.

This is unfortunate, because what we do on election days is elect people to operate that machinery on our behalf.

This is not meant as an insult. As I often say, I was born ignorant and naked, and so far I’ve gotten dressed. Anything you never learned you don’t know. We’re all born ignorant. We know how to find a tit and suck. Everything else comes later.

So I offer a few words on the machinery of government.

The machinery of government is the most important thing to understand on election day. The machinery of government is more important than your candidate’s stand on literally any specific issue except party affiliation. Because the way the machinery is configured either the Republicans or the Democrats are going to have absolute control over the government you live under. Absolute control.

The first, and most important, fact about the machinery of American Government is that the President, chief executive though he or she may be, does not control the country. That distinction goes to Congress. More on that some other day.

There are a few forms of government in which a committee or legislature calls the shots. The best known and best respected of those is the republic, but China, far from a republic, is also governed by a committee. To the extent that the United States adheres to our Constitution, we are a republic. In a republic the supreme power lies with the voters, but they only get to exercise that power on election days. On a day-to-day basis the legislature they elect runs the country.

All legislatures operate on some specific set of rules, often similar to Robert’s Rules of Order, the widely accepted rule book for enabling groups of people to resolve differences and make decisions. Robert’s Rules, in turn, were based on the procedures of the United States Congress. The United States House has their own particular rules, The Procedures of the United States House of Representatives.

One fundamental characteristic of all sets of parliamentary rules is that they give final control to the majority, loosely defined as that group of people who are able to agree to elect a Speaker, who is the presiding officer.

Control of the United States government goes to that group or party  whose voters are able to elect 50% + 1 of each house of Congress. Some rules define a larger majority, such as the dying Senate Filibuster rule, but in the House of Representatives a majority is exactly 50% + 1.

It was not intended that majorities would exercise dictatorial, absolute power. During the same era as our nation’s founding, political philosophers discussed the potential evil of the Tyranny of the Majority. Various characteristics of our government and Constitution show the influence of these discussions.

The above-mentioned Robert’s Rules of Order was written based on the procedures of the US Congress. The rules have been described as follows:

“Rules in the book are based on the rights of the majority, of the minority (especially a strong minority that is greater than one third), of individual members, of absentees, and of all these together.”

(The above copied and pasted from Wikipedia)

Obviously the United States Congress today has chosen to totally disregard the rights of the minority, especially a strong minority. That “stronger than one third” reference comes directly from the once respected rights of the Senate minority. At this time, minorities in Congress have essentially very few to no rights.

And unfortunately, the rules that give the majority absolute power are clearly spelled out, and the rights of the minority are more of an ideal embedded in the procedures than any specific written rules. The so-called Filibuster was a specific written right in the Senate rules, but both parties have whittled it away until now it is very limited. I am not confident that any remnant of the Filibuster will survive the current Senate,

If you get fanatics without honor like Mitch McConnell and Paul Ryan, Fifty Percent Plus One have absolute control over every bill that goes to the floor. As an example, any member of Congress can submit a bill, but before that bill can be voted on by either House it is referred to a committee. The committee can, in turn, send it to the particular chamber for a vote, or not. After it comes to the floor, the Speaker or Majority Leader still controls whether the bill is brought to a vote. So the supposed power of any member of Congress to submit a bill is meaningless: the majority decides which bills will be brought to a vote.

In years gone by bills used to  get passed even though they did not have solid support by the majority. If enough members, of both parties in the aggregate, vote to pass a bill, that bill becomes law. In recent years, however, unless there are enough votes from the majority party alone to pass the bill, Speakers have refused to allow a vote. Yes, that means that bills supported by a majority of the Congress will never pass because they are not supported by a “majority of the Majority.” This is sometimes known as the Hastert Rule, in honor of former Republican Speaker (and convicted pedophile) Dennis Hastert, who made it his absolute policy.

The committees of Congress, as well, have the power to stop every law, without explanation, if the majority in the committee votes to block it. And once again, the leader elected by the majority party appoints the committee chairmen, and decides what number of members from which party will make up the committees.

There’s that 50% + 1 again. They have the votes in the committees, too. And two thirds of the staff.

These majorities are elected by the voters. Candidates identify with, usually in this country, one of two major parties. Some countries – Israel is a classic example – have candidates who identify with numerous different parties and a mechanism in their procedures which allows for parties to commit to work together as a group, therefore providing a means to manufacture a majority out of a group of more-or-less agreeing minorities. Neither house of the United States Congress has any equivalent rule. Instead, in our Congress even someone elected on any affiliation besides Republican or Democrat has to join with one of those two parties in order to so much as vote in the elections of leader, or to be considered for committee membership. By our legislature’s rules, we are a two party system, period.

The difference is moot. In any set of any quantity, be they legislators or grains of sand on the beach, there is only one majority. Even in Israel, the same small parties routinely join with the same big parties to make majorities. Calling themselves something else satisfies their voters, it appears, but their legislature still operates with one majority, with everybody else in the minority. Fifty percent plus one. All the rest can be defined as this or that subset, but one clear subset is “the minority,” which consists of all subsets except the majority.

In every legislature in the world, one majority is in charge. Everybody else is treated with more or less respect, depending on the country and level of civilization, but there are by definition two parties, the one that is running the show and the other one.

Under the rules of our Congress there is no mechanism to join parties into a majority. Under our rules if you want to be considered for a committee, which is where the real stuff happens, you have to sign up with the Democrats or the Republicans. These are the rules of the respective Houses of Congress. Our Constitution expressly gives Congress, each house, the right and power to make their own rules.

The rules, in turn are written by – are you ready for this? – the majority in each house.

So if you call yourself an Independent, and you vote for two Republicans and one Democrat or whatever, then whichever of those is in the majority party participates in government, and the other sits and watches, especially under our current brutal Congressional leadership. Was that what you wanted? Take your opportunity to be represented three places in government and say, “Nah. One or two is plenty.”

Because if you vote for people of different parties, the only certainty is that one of those parties will be in the minority.

What if you vote for the Green, the Libertarian, or whatever other fringe party candidate is out there? Well, in that case there are two possibilities. One is that your chosen candidate/party does not have enough supporters to get elected, and the other is that s/he does.

If your candidate doesn’t get elected and was never going to – say s/he got 2% of the vote in your district – then whatever you call it or however you think of it, you chose to not participate in self-government.

Because that is all voting is. It is all elections are. Voting is an opportunity to participate in governing yourself. It is optional. Given that as the rules are written either a Republican or a Democrat is going to be running this country, if you don’t choose one of them you are not participating in governing yourself. You are letting other people choose.

Say you voted Green, and live in a ultra-liberal district somewhere, and your green candidate wins the seat.

Wherever that seat is, your chosen Green will have two choices: ally with the Democrats, or ally with the Republicans.

Because either the group called The Democratic Party, or the group called The Republican Party, is going to elect the person who runs that body.

That’s the way the machinery works.

The way American citizens govern themselves is by electing majorities in the two houses of Congress. Those majorities run as, and govern as, political parties.

It’s not perfect, but it’s what we’ve got. If you want to participate in self government in America, this is how we do it.

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Republic

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A republic is a nation in which supreme power lies with the voters. Specifically, per Merriam-Webster, “a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law.” (Full definition here.)

Not with the people. Never with the people. Supreme power lies with the voters.

When our particular republic was codified, voters were white males who owned land or were otherwise prosperous and educated. Today a significantly broader cross-section of America is entitled to vote. Some of them do. Voters are people over 18 who show up to vote.

I hope I don’t sound really stupid in this essay. The point I want to make is so basic, so simple, as to be hard to express without sounding like an 8th grade civics class. I’m writing it out today because I don’t think the Democratic Party as I understand it to be thinks about it. And it really matters. All the voters spread over all the country run the country.

The country we are living in today is the country that a (geographically weighted) majority of all the voters have chosen, on purpose, over all of the elections since about 1980.

The voters of America intentionally made the America we live in today. It’s pretty much the country they were promised. Their Representatives in their respective statehouses and in Congress are, in fact, representing their wishes. Now what?

Our republic has 51 separate main governments, each of them chosen by voters. 50 state governments and one federal government. The voters have chosen the Republican Party to run the vast majority of all those governments, including the big one.

Americans who don’t vote have zero power. They have no influence whatsoever over the nature of the governments they live under. Americans who don’t vote have exactly as much direct input in shaping their government as George Washington’s slaves did.

The country we are living in right now today was chosen by a majority of the voters over a majority of the nation. Not a majority of the people. Not a majority of qualified voters, or a majority of registered voters. A majority of the people who have voted.

Before we continue, allow me to address some specifics about the structure of our particular Republic. They are embedded in the Constitution and are the rules we have lived under since the day we became a nation. Some of them upset some people, but they are the structure we have. In the short term, at least, we are stuck with them. Voters exercise their power within these rules.

First, not all votes carry the same weight in Congress or in Presidential elections. This was done on purpose, giving more sparsely populated states power in the federal government closer to that of densely populated states and therefore out of proportion to their populations. That is why we have a Senate, to balance the voices of sparsely populated states more nearly equal to those of densely populated states. That is also what the Electoral College does. It’s not about slavery; it’s about geography. I understand that many of you who live in densely populated states object. Those of us who live in sparsely populated states see it differently.

Second, at each level of government, what voters actually do is choose people to represent them. Groups of voters who mostly agree about  what government should do find a person who mostly agrees with them, and they elect that person to go speak for them. They elect Representatives. Voters don’t all go to the Capitol Building in their state and hash out the highway budget, nor to the Capitol Building in Washington to decide whether to bomb another country. Instead, voters in smaller geographical subdivisions – districts – pick one of themselves to speak for them in government. Almost 140 million people’s voices (as of 2016) are consolidated down into 435 voices in our nationwide government, 435 Representatives in Congress. The wishes of those same 140 million voters, this time aggregated on a per-state basis in each of the 50 separate states, are spoken by 100 Senators, two per state. (Over 231 million people could have had their voices in there. Some 90 million of them chose to be not heard.)

So: votes are weighted geographically, and the way we exercise our power is by electing people to represent us in government. Voters elect representatives who will shape the society they – those voters – wish to live in.

It is not the point of this essay to recommend means. I do that in other work. The point of this essay is to advocate a strategic objective: Get more votes, everywhere, than the other guys.

The party which gets the most votes over most of the continent governs the country. If the Democratic party wishes to govern this country we must get the most votes over most of the country.

There is no other way to become the governing party. It really is that simple.

Aside from demanding reasonable truth and lawfulness in the effort I don’t care how we get there. I don’t care whether we choose to change current voters’ minds, whether we get the 40+ percent who are currently not exercising their power to come out and vote, or some combination of the two. Actually I do care, but that is not the point here. This is not about how we do it.

My point is one of focus. Get the most votes over most of the country. Or remain irrelevant. There is no third possibility.

Republics are governed by their voters’ representatives. Representatives are elected under a known set of rules. If you want to govern all you have to do is get the requisite number of votes under the rules.

Anything that Democrats are doing that is not focused on getting most of the votes over most of the country is not productive.

 

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