Breach of the Social Compact by the Judiciary

Alexander Hamilton acknowledged that while the Judiciary branch of our government was the weakest in its ability to attack either of the other two branches, the Supreme Court was in fact superior to the other branches of our government. The highest court in the land he observed was given the power to strike down laws and actions of the other two branches and thus, any branch able to void the action of the other branches was superior to them. Given these facts, observing the behavior and actions of the court is of paramount importance as the court is the final say to which all agree. And any deficiency found should be construed doubly dangerous to that of any defect of the other two branches.

Stari Decisis , the primary principal upon which the court makes decisions based upon precedents of other decisions, can be used properly or improperly by the court. Once the court establishes a precedent, future cases can then be heard in light of a prior resolved case that may in fact expand or clarify law. But the mere fact of accuracy in any one decision is not what is important by these statements, it’s the establishment of precedent that is of concern to the American citizen, especially of a particular case in which the court decided to hear and set precedent for future cases that is to be noted with great importance. The case in question set precedent for the Supreme Court to hear future cases regarding the election of the executive branch. And at the heart of this case is the question of validity by the Supreme Court in its ability to hear this case and make a judgment and whether or not the Supreme Court violated the social compact of our Constitution.

The Constitution being the highest law in the land was written to give powers to our government and to establish the first precedent of law. Since it is the highest law in the land, the Supreme Court’s function is to interpret the Constitution’s meaning when competing principals or vagueness occur that would require interpretation. Hamilton, in Federalist paper # 78, stated the following concerning competing principals in the constitution when Justices interpret the constitution: “They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former”, meaning the written Constitution or items actually written in the Constitution are to be held in greater esteem than those items not specifically written in the constitution or statutes at a lower state level that might contravene the constitution. Again, Hamilton confirms this by stating, “If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

The two competing laws in question in the election of 2000 are the State of Florida’s right to select its electors for president of the United States versus the rights of the candidates in said election to have equal protection under the law and whether or not the Supreme Court is justified in actually hearing and deciding this case under the Constitution. The following questions need to be examined when considering this case. (1)Which of these competing laws is superior to the other and which is inferior, or are they equal in consideration? (2) Can an individual receive equal protection under the law at the state level or is this only possible at the federal level? (3) And was this case a valid case to be heard by the Supreme Court?

When looking at which competing law is superior, two ways can be identified. One way would be by saying laws that are expressly written are superior to laws that are only implied like equal protection under the law. The State’s right to choose its electors in a presidential election is only too well documented in the Constitution and no where do you find any writing in the Constitution regarding equal rights under the law. But fairness, even not stated, is a fundamental belief in all societies implied or otherwise. The other way to look at superiority is on the equity basis by comparing the equity of two groups of citizens upon which each law affects. To state simply, group A consists of 2 persons trying to obtain the highest office in the government. Group B consists of 6 million registered voters who wish to express their right to choose a person to occupy the office of the presidency. Which is more superior and fair? Is it fairer to upset one individual from group A or is it more unfair to upset nearly 3 million persons from group B? Thus, one can conclude that the State’s right to select its own electors in a presidential election is superior to the equal protection under the law principal in this case.

Persons can receive equal protection under the law at the state level. Even in this case where it was found that the State Supreme court was in error, the Federal Supreme court could have ordered them to reconsider. And it cannot be assumed that persons sitting on the bench at the state level are somehow less capable of judging fairness and providing for equal protection even though they may need guidance from an appellate court.

But in the case of Bush versus Gore, the Federal Supreme Court’s reasoning was this, ‘there is not enough time to meet the safe harbor provision date’. This ended the Florida recount. Thus, the Supreme Court was saying that the inferior statute of the safe harbor provision was more important than the expression of state’s rights in the Constitution and the will of the American public to select its president. Furthermore, the Constitution clearly outlines how to resolve such disputes. The Florida legislature could have sent two sets of electors and have the House of Representatives vote on president. And historically, this would not have been the first such instance. And most constitutional scholars regard the presidential election process as a political question, not a judicial question.

Tyranny lusts for order and the Supreme Court has suppressed the expressions, desires, and rights of the American citizen in their right to choose a president to satisfy an orderly transition of one administration to the next. But in the Court’s efforts, the Court has furthered its interference in our elections by establishing more precedent where none should exist. For this one case alone and these reasons, a constitutional amendment is warranted at a minimum to correct further suppression of American voting rights.



Vox Vocis res Publica

The Framer’s Insight for the need for a Constitutional Convention

When the American citizen contemplates structural change to its government, prudence is warranted and insight is gained by reviewing the arguments and discussions of this topic from the Framers of the Constitution. And where better to gain insight to this topic by review of the Federalist Papers published in 1787-1788 by the fellowship known as Publius, who in all construct were, James Madison, John Jay, and Alexander Hamilton. And the answer to be sought in such a review commence with the following question; Did the Framers envision the reasons for need of a constitutional convention in the future, under what circumstances should occur that gives rise to a convention, and who’s responsibility to hold the convention and correct the government should such action be warranted?

In Federalist paper number forty-nine, Madison addresses complaints from the opposition to the new form of government and the opposition recommends the following, “His proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose." While article five of the constitution gives the right of constitutional convention to both the congress and by the people, this control does indeed indicate that if problems are found in the government that there is mechanism for correction but the timing and action for it was left open to be interpreted by Congress or the people.

And upon further investigation, Madison states that none of the three branches is capable of enforcing either the other two into their respective boundaries and that the American citizen must act, a problem that has been shown in previous essays. Madison states, “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers”. Thus he concludes the following must be the case in the previous statement, “and how are the encroachments of the stronger to be prevented or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance”.

The final conclusion by Madison is that if and when a constitutional convention is needed for reform that the source must be the citizens and not the government as it is the citizen that is the source of all power and commission to the government’s charter. Madison confirms this in the following statement; “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”

And as it has been shown in previous essays that two of the three branches of our government have in fact breached their constitutional authority, and so initiation of a constitutional convention should commence to reason out the problems and put in place corrections. And as it is discussed and debated what form of modification should take place, Madison offers one last portion of advice concerning the nature of establishing written rules in the Constitution to restrict any branch of the government in an effort to enforce compliance to their respective boundaries. He states, “that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights”. So what is meant by this is that amending the constitution to force the branches into their boundaries may not be possible, and thus one can conclude that basic structural reconsideration of the branches is the more likely outcome in repairing the encroachments or deficiencies within the federal government.

Vox Vocis res Publica

With Regards to Selecting Governing Officials

When considering a constitutional convention or amendment, various reforms and changes to the selection process of elected officials could be reconsidered in an attempt to rectify problems that have occurred in the American political process. The first and foremost problems to be addressed could be the sometimes unexpected issues that arise from having an electoral college. Another important consideration would be the affect that money, campaigns, and special interest groups play in the selection process.

During the history of the Electoral College, there have been three instances after the civil war where the presidential election was decided by the candidate who received the minority of the popular vote and had enough electors to claim the presidency as was the case in the election of George Bush in 2000. In the case of George W. Bush, there is another entirely unique constitutional issue that will be addressed by another essay when considering the actions of the Judiciary. Suffice to say, the will of the people by simple majority has not been reflected in several elections in the history of the Electoral College, and that having a constitutional convention is an opportunity to change or modify the selection process to avoid these problems.

The Framers intentionally selected this process and weighted it toward smaller states by comprising all representation within the congress. Each state receives one elector for each representative in the House of Representatives and one elector for each senator. Today, that amounts to 538. If the number of electors was modified to have one elector for each representative in the House and only one elector for each state, instead of two as is now, this would have resulted in resolving two of the three instances and given the person who had the most popular votes also the most electoral votes. The exception to this was the election of 1888, where Grover Cleveland failed to carry his own state of New York that had thirty-six electoral votes that would have given him the presidency instead of Harrison. Of course there are several other ways of selecting a president and each one should be explored to give the best balance to the needs of each state as well as the general population.

One method of curtailing special interest monies in the election process is to possibly remove the election process altogether from one of the two houses of Congress. If we change one of the two houses to be more like a selection process rather than an election process with requirements attached, this would eliminate one round of elections and thus limit special interest.

For instance, let’s say we are going to use a lottery process to select our senators or representatives instead of candidates running for office, much like jury duty. This would be a more direct democracy where senators or representatives are directly chosen from the people to hold the office instead of an election to the office. And as we do with our president, we could set an age limit or some other requirement such as education to ensure a standard to be held for the seat. And the pool of candidates could be on a voluntary basis so Joe-the-plumber who has no interest in holding the office can be left out of the pool of candidates.

Another variation of this method would be to select from the pool a slate of candidates and have people vote on those persons selected. There could be a series of 1-3 publicly sponsored televised local debates for candidates to make statements with little or no time for a huge campaign.

Changing how we put people into offices in our bicameral legislative branch would greatly curtail the minority special interest voices that plague our lifetime federal employees. By having more of a selection process instead of an election process in just one of the two houses, the big money campaigns for senators or congressmen could be limited but not silenced as each new term most likely would bring a new legislator to the government and have no need to be influenced by re-election.

Vox Vocis res Publica