Publius-Huldah's Blog

Understanding the Constitution

Trashing the 12th Amendment with the National Popular Vote

By Publius Huldah

The compact for a National Popular Vote (NPV) is a destructive scheme. Yet it’s been approved by several States; and is pending in others. Since the text of the compact no longer seems to be set forth on the NPV website, we’ll look at the NPV bill now pending in Tennessee.

In a nutshell, the compact seeks to evade the 12th Amendment to our Constitution (where the States elect the President); and substitutes a national popular vote where inhabitants of major metropolitan areas elect the President.

The Constitution our Framers gave us

The federal government created by our Constitution is a Federation of Sovereign States united under a federal government for those limited purposes itemized in the Constitution; with all other powers reserved by the States or the People.

So that The States – The Members of the Federation – could maintain their independence and sovereignty, our Framers wrote these provisions into our Constitution:

  • State Legislatures were to choose the U.S. Senators for their State (Art. I, §3, cl. 1); and,
  • The States, as separate political entities, were to elect the President (Art. II, §1, cls. 2 & 3).

The People were to elect only their Representatives to the House (Art. I, § 2, cl.1).

James Madison explains in Federalist No. 45 (7th para), why this ensured that The States would maintain control over the federal government:

“The State governments may be regarded as constituent and essential parts of the federal government …Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. …Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments …” [boldface mine]

The result of State Legislatures choosing the U.S. Senators and controlling the election of the President [via the selection of Electors], was that the States would be able to control the federal government.

The 17th Amendment

But we threw away one of these safeguards when we foolishly ratified the 17th Amendment with the popular election of U.S. Senators. This is how The States – The Members of the Federation – lost their representation in Congress and their control of the Senate.

Art. II, §1, cl. 2 and the 12th Amendment

We abandoned the other safeguard when we foolishly ignored the procedures in the 12th Amendment where small bodies of specially chosen wise and prudent men (Electors) made the selections of President and Vice President for their State. We allowed Electors to become rubber stamps for the popular vote in their State.

Our Framers didn’t want popular election of the President because they recognized that People are easily manipulated by those who take advantage of their “hopes and fears”, to steer them towards candidates favored by powerful groups (Federalist No. 64 (3rd & 4th paras; Federalist No. 68, etc.)

Furthermore, under the 12th Amendment, the electoral votes of each State are split according to how the Electors vote. If Tennessee obeyed the 12th Amendment, it would work like this when selecting President: 5 Electors vote for Candidate X; 4 vote for Candidate Y; and 2 vote for Candidate Z. Those would be the vote totals for President which would be sent to Congress. The same procedures are to be followed in a separate vote for Vice-President. 1 The “winner takes all” practice followed in most States is unconstitutional!

How The National Popular Vote Scheme Will Work

Under the scheme incorporated in the NPV bill pending in Tennessee, all of Tennessee’s electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 States and the District of Columbia.

The wording of the compact is deliberately obscure. In plain English, this is what it does:

Art. II

Each Member State will conduct a statewide popular election for President and Vice President.

Art. III

(a) & (b) The State Election official in each Member State will add up the votes cast in all the States and the D.C. to get the total number of votes cast nationally for each presidential ticket. The State official will then designate the presidential ticket with the largest number of votes nationally as the “national popular vote winner”.

(c) & (g) Electors will then be appointed in each Member State who are to cast all their votes for the national popular vote winner.

So! If the popular vote in Tennessee is for James Madison, but the total national popular vote favors Adolf Hitler, then all of Tennessee’s 11 Electoral Votes are awarded to Adolf Hitler.

Indeed, the winner of the national popular vote will end up with all the electoral votes for every State.  And do not think that the winner will fail to claim a “Mandate” for whatever he wants to do.

 The States Can’t Lawfully Enter Into A Compact Which Violates The U.S. Constitution!

Every aspect of the NPV violates the 12th Amendment.  It sets up a method of electing the President and vice-President which is altogether repugnant to our Constitution.

Furthermore, Art. I, §10, last clause, prohibits States from “enter[ing] into any Agreement or Compact with another State” “without the Consent of Congress”.  So, whether the NPV Compact also violates Art. I, §10, last clause, depends on whether Congress consents to it. But Congress may not lawfully consent to unconstitutional compacts of the States!

Under The NPV Scheme, Votes From Major Metropolitan Areas Will Decide Presidential Elections.

Most of the Population of these United States is located in a few major metropolitan areas. Under the NPV scheme, these areas would decide the elections for President!

See this 3D map (scroll down) showing how the major metropolitan areas voted in a recent presidential election.

The NPV is not about “making every vote count”. The NPV is about guaranteeing that every future presidential election is decided by inhabitants of major metropolitan areas. And it further diminishes State sovereignty.

What Should We Do?

Repeal the 17th Amendment. We must henceforth elect to Congress only those who are committed to repealing the 17th Amendment. This is the only way The States can regain control of the Senate.

Return to the 12th Amendment. We must dismantle the present unconstitutional and corrupt system and return to the method of electing the President and Vice President established in our Constitution. State Legislators could restore to their States right now the power to control the President! All States have to do is obey the 12th Amendment! Also, specially chosen Electors are far more likely to choose good Presidents than the ignorant masses which fill our major cities.

Even in its present perverted form, the “Electoral College” serves two important purposes: (1) It balances the influence of the heavily populated urban areas with the more sparsely populated rural areas; and (2) gives the smaller States a voice in the election of President.

As a People, we need to STOP being so eager to amend a Constitution we have never read and don’t understand.

Endnote:

1 For an illustration of how voting under the 12th Amendment is to be conducted, see THIS under the subheading, The 12th Amendment Establishes Procedures For Voting By Electors.”

 

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February 19, 2016 Posted by | 12th Amendment, 17th Amendment, Election of President, Electoral College, Electors, National Popular Vote | , , , , , , , , , , , | 30 Comments

Natural Born Citizen and Naturalized Citizen Explained

Here are the links to the Exhibits:

Vattel, Law of Nations, Book I, Ch. XIX, at §§ 212-217

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February 11, 2016 Posted by | 14th Amendment citizens, Marco Rubio, natural born citizen, Naturalized citizens, Ted Cruz, Vattel | , , , , , , , , , , | 61 Comments

Who Makes the Ruling that Someone is not Qualified for the Office of President of the United States?

By Publius Huldah

According to the original intent of our Constitution, Ted Cruz & Marco Rubio are not eligible to be President because their fathers weren’t US citizens at the times they were born. So they are not “natural born citizens”.

So! How is this handled? Who calls it?  Who makes the ruling? Do we “file a lawsuit” and let federal judges decide? “Slap your hands!”, our Framers would say. They would say, “READ THE CONSTITUTION AND SEE WHAT IS SUPPOSED TO HAPPEN!”

[Our lives would be so much simpler – and our Country so much better off – if we read & supported our Constitution.]

Read the 12th Amendment. That sets forth the procedures for election of President and VP. Note that ELECTORS are supposed to be the ones making the selection – not The People. [There is a reason for that.]  For an illustration of how this works, go HERE and read the subheadings,  “Electors” Appointed by States Were To Choose The President!  and The 12th Amendment Establishes Procedures For Voting By Electors.

So! Assume we followed the Constitution on this issue and we get to the part where Congress is counting the votes as provided by 12th Amendment. And Lo! Congress discovers that the person who got the most votes for President is NOT QUALIFIED by reason of age, or not being a natural born citizen, or not having been for at least 14 years a Resident within the United States.

Obviously, it’s Congress’ job to make the ruling – to make the call – on whether the President and VP – selected by the ELECTORS – are qualified under Art. II, Sec. 1, clause 5.

So what happens if Congress finds that the person with the most votes for President is not qualified? We look to Sec. 3 of the 20th Amendment. It tells us what happens. If the President elect has failed to qualify, then the VP elect shall act as President… Now, read the rest of that Section. We would also need to see whether Congress has made any of the authorized laws providing for such contingencies.

So, under the Constitution as written, it is Congress’ job to make the call as to whether the President elect and the VP elect are qualified.

This is NOT an issue for the federal courts to decide. That is because this is a “political question” – not a “legal question”. The power to make the ruling as to whether the president elect or the VP elect are qualified has been delegated to CONGRESS. Traditionally, federal courts have “abstained” from deciding “political questions”.

We study this in our first year constitutional law class, when we study judicial “abstention” from certain kinds of cases including cases which involve “political questions” or the exercise of powers delegated to the Legislative or Executive branches. When a power is delegated to one of the “political branches” (Legislative or Executive), the federal courts (the “legal branch”) have traditionally declined to interfere and substitute their judgment for that of the “political branch” to which the Power was delegated.

And what if Congress gives an ineligible person a pass – as they did with obama? WELL THEN, SHAME ON US – BECAUSE WE ARE THE ONES WHO ELECTED THOSE IGNORANT COWARDS TO OFFICE!

 

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February 4, 2016 Posted by | 12th Amendment, 20th amendment, Election of President, Electoral College, Electors, Judicial abstension, natural born citizen, political questions, Presidential Electors | , , , , , , | 57 Comments

How a Balanced Budget Amendment Would Give the Federal Government Lawful Power Over Whatever They Want

By Publius Huldah

Does our existing Constitution permit the federal government to spend money on whatever they want?

No! It contains precise limits on federal spending.

Federal spending is limited by the enumerated powers delegated to the federal government. If you go through the Constitution and highlight all the powers delegated to Congress and the President, you will get a complete list of the objects on which Congress is permitted to spend money. Here’s the list:

♦ The Census (Art. I, §2, cl. 3)

♦ Publishing the Journals of the House and Senate (Art. I, §5, cl. 3)

♦ Salaries of Senators and Representatives (Art. I, § 6, cl. 1)

♦ Salaries of civil officers of the United States (Art. I, §6, cl. 2 & Art. II, §1, cl. 7)

♦ Pay the Debts (Art. I, §8, cl. 1 & Art. VI, cl.1)

♦ Pay tax collectors (Art. I, §8, cl.1)

♦ Regulate commerce with foreign Nations, among the several States, and with Indian Tribes (Art. I, §8, cl.3)

♦ Immigration office (Art. I, §8, cl.4)

♦ The mint (Art. I, §8, cl. 5)

♦ Attorney General to handle the small amount of authorized federal litigation involving the national government (e.g., Art. I, §8, cls. 6 & 10)

♦ Post offices & post roads (Art. I, §8, cl. 7)

♦ Patent & copyright office (Art. I, §8, cl. 8)

♦ Federal courts (Art. I, §8, cl. 9 & Art. III, §1)

♦ Military and Militia (Art. I, §8, cls. 11-16)

♦ Since Congress has general legislative authority over the federal enclaves listed in Art. I, §8, next to last clause, Congress has broad spending authority over the tiny geographical areas listed in this clause.

♦ The President’s entertainment expenses for foreign dignitaries (Art. II, §3); and

♦ Since Congress had general legislative authority over the Western Territory before it was broken up into States, Congress could appropriate funds for the US Marshals, federal judges, and the like for that Territory (Art. IV, §3, cl. 2).

That’s what Congress is authorized by our Constitution to spend money on. Did I leave anything out? Take a few minutes and, armed with a highlighter, read carefully through the Constitution and see for yourself.

Congress is to appropriate funds to carry out this handful of delegated powers; and it is to pay the bills with receipts from taxes. 1

Pursuant to Article I, §9, clause 7, the federal government is to periodically publish a Statement and Account of Receipts and Expenditures. Citizens could use this Statement and Account – which would be so short that everyone would have time to read it – to monitor the spending of their public servants.

So that’s how our existing Constitution limits federal spending:

♦ If it’s on the list of enumerated powers, Congress may lawfully spend money on it.

♦ But if it’s not on the list, Congress usurps powers not delegated when it appropriates money for it.

It was unconstitutional spending and unconstitutional promises (Social Security, Medicare, etc., etc., etc.) which got us a national debt of $19 trillion, plus a hundred trillion or so in unfunded liabilities.

Since the Constitution delegates to Congress only limited and narrowly defined authority to spend money; the Constitution doesn’t provide for a budget.

We never had a federal budget until Congress passed the Budget and Accounting Act of 1921. By this time, the Progressives controlled both political parties and the federal government.

The Progressives wanted a federal budget because they wanted to spend money on objects which were not on the list of delegated powers.

A balanced budget amendment (BBA) would substitute a budget for the enumerated powers, and thus would legalize the current practice where Congress spends money on whatever they or the President put in the budget.

The result of a BBA is to change the constitutional standard for spending from whether the object is on the list of enumerated powers to a limit on the total amount of spending.

♦And to add insult to injury, the limits on spending are fictitious because they can be waived whenever Congress 2 votes to waive them.

And because a BBA would permit Congress to lawfully spend money on whatever is put in the budget, the powers of the federal government would be lawfully increased to include whatever THEY decide to put in the budget.

So a BBA would fundamentally transform our Constitution from one of enumerated powers only to one of general and unlimited powers – because the federal government would then be authorized by the Constitution to exercise power over ANY object they decide to put into the budget!

You must read proposed amendments and understand how they change our Constitution before you support them.

All federal and State officials take an oath to support the federal Constitution (Art. VI, clause 3). When people in Congress appropriate funds for objects not listed in the Constitution; and when State officials accept federal funds for objects not listed, they violate their oath to support the Constitution. According to the PEW Report, federal funds provided an average of 30% of the States’ revenue for FY 2013. Look up your State HERE. Were those federal funds used to implement unconstitutional federal programs in your State?

Power over education, medical care, agriculture, state and local law enforcement, environment, etc., is not delegated to the federal government: those powers are reserved by the States or the People. Congress spends on objects for which it has no constitutional authority; and bribes States with federal funds to induce them to implement unconstitutional federal programs. It was the unconstitutional spending which gave us this crushing $19 Trillion debt.

How do we go about downsizing the federal government to its constitutional limits?

We stop the unconstitutional and frivolous spending one can read about all over the internet.

We begin the shutdown of unconstitutional federal departments and agencies by selecting for immediate closure those which serve no useful purpose or cause actual harm such as the Departments of Energy, Education, Homeland Security, and the Environmental Protection Agency. 3

Other unconstitutional federal departments and agencies must be dismantled and their functions returned to the States or The People.

An orderly phase-out is required of those unconstitutional federal programs in which Citizens were forced to participate – such as social security and Medicare – so that the rug is not pulled out from American Citizens who became dependent.

The federal government is obligated (Art. I, §8, cl. 11-16) to provide for service related injuries suffered by our Veterans.

The Constitution delegates to Congress the power to appropriate funds for “post Roads” (Art. I, §8, cl. 7). While there may be room for argument as to what is included within the term, “post Road”; clearly, some federal involvement in road building is authorized by our Constitution. State dependence on federal highway funds might be reduced by eliminating or reducing federal fuel taxes, and the substitution of fuel taxes collected by individual States. And there is nothing immoral about toll roads.

Since our Constitution was written to delegate to the federal government only the few and defined powers enumerated in the Constitution, we don’t have to change the Constitution to rein in federal spending. The Constitution isn’t the problem – ignoring it is the problem. Let us begin to enforce the Constitution we have.

Endnotes:

1 Our original Constitution authorized only excise taxes & tariffs on imports (Art. I, §8, clause 1), with any shortfall being made up by an apportioned assessment on the States based on population (Art. I, §2, clause 3).

2 Compact for America’s (CFA) version of a BBA permits spending limits to be waived whenever Congress and 26 States agree. CFA’s version also authorizes Congress to impose a national sales tax and a national value added tax in addition to keeping the income tax! See THIS Paper.

3 George Washington’s Cabinet had four members: Secretary of State, Secretary of War, Secretary of Treasury, and Attorney General.

Feb 2, 2016

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February 2, 2016 Posted by | Balanced Budget Amendment | , , , | 17 Comments

PH’s natural born citizen & Art. V convention event in Fairfield Glade, TN

Fairfield Glade

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February 1, 2016 Posted by | Uncategorized | 3 Comments

   

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