Publius-Huldah's Blog

Understanding the Constitution

Mail-in voting? A “political question” which only State Legislatures and Congress may decide

By Publius Huldah

It has become obvious that one of the purposes of the COVID-19 scam is to bring about unrestricted mail-in voting in the toss-up and Red States so that the upcoming presidential election can be stolen by the Left for the senile Joe Biden and his constitutionally ineligible running mate, Kamala Harris.

On September 9, 2020, the Left achieved their goal for the Red State of Tennessee – unless the Tennessee State government enforces the US Constitution and rejects the federal judge’s unconstitutional order.

1. The absurd Order from the US District Court, Middle District of Tennessee

The Tennessee Code permits mail-in voting for certain categories of people [Tenn. Code § 2-6-201]; but requires those who register by mail to appear in person at the official place of voting and bring proof of identity when they vote for the first time [Tenn. Code § 2-2-115 (b) (7)].

Our elections are already tainted by the “ghost voters” described in Deroy Murdock’s article (published 2017) [here]. Murdock showed that throughout the United States, over 3.5 million persons who didn’t exist were registered to vote. But that number wasn’t sufficient to elect Hillary Clinton; so the Left needs more ghost voters. With mail-in voter registration, dead people can be registered to vote; and with unrestricted mail-in voting, those dead people can vote forever.

The Plaintiffs in this action claim to be distressed about the statutory requirement that first-time voters (who registered by mail) appear in person to vote because it forces them to choose between their “health” [they might catch COVID-19 if they go to the polls] and their right to vote. 1

On September 9, 2020, federal judge Eli Richardson issued a preliminary injunction which has the effect of setting aside, for the upcoming presidential election, the statutory requirement – established by the Tennessee Legislature – that persons who registered by mail, show up in person the first time they vote.

Here is Richardson’s 29 page Order.

So let’s cut 29 pages of bunk down to its essence: Richardson ruled that the Tennessee Legislature’s requirement that the first-time voters (who registered by mail) physically appear at the polls, imposes a “moderate burden” on voting rights; and the State failed to show the Court that Tennessee has a “legitimate state interest” to justify that burden. 2

Even worse: Throughout his Order, Richardson writes repeatedly [some 20 times] of Plaintiffs’ “First Amendment right to vote”; and says at the end of para 31 of his Order,

“…it is likely that Plaintiffs will prevail on their claim that the first-time voter requirement violates the First Amendment right to vote…”

But the First Amendment makes no mention of a “right to vote”. 3 Furthermore, in footnote 22 of his Order, the Judge says:

“In a prior order, the Court declined to address any suggestion that there is no First Amendment right to vote, for any purposes at all, by mail in particular… The Court was well aware that McDonald supports such a suggestion, but the Court simply did not need to opine on that matter. The Court likewise does not need to do so here…”

What? The Judge declined to address whether or not a First Amendment right to vote actually exists even though he has already determined that Plaintiffs are likely to prevail on their claim that the requirement that first-time voters (who registered by mail) show up in person to vote “violates the First Amendment right to vote”!

2. Why do Plaintiffs and the Judge repeatedly speak of a “First Amendment right to vote”, when the Judge isn’t prepared to say that such a right even exists?

They may be aware that the federal court has no jurisdiction over this case; but are attempting to fake it by claiming that the case “arises under the Constitution” via the First Amendment.4

The judicial power of the federal courts is limited to those few categories of cases enumerated at Article III, §2, clause 1, US Constitution. Not one of the categories invests the federal court with jurisdiction over this case. This case can’t be said to “arise under the Constitution” because there is no “right to vote” in the US Constitution; and the remaining categories listed in Article III, §2 are clearly inapplicable.

So it appears that Plaintiffs have fabricated a mythical “First Amendment right to vote” in order to provide a pretext for the federal court to exercise jurisdiction in this case – and that the federal judge let them get away with it.

3. Article I, §2, clause 1, US Constitution, negates the absurd claim that there exists a federal constitutional right to vote.

At Article I, §2, cl. 1, the States expressly retained their pre-existing power to determine the qualifications of voters:

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” [italics added]

Accordingly, those who are eligible to vote for Representatives to their State Legislature are the ones eligible to vote for Members of the federal House of Representatives. 5

With four later Amendments, the States agreed that they would not deny eligibility to vote to Citizens on account of race (15th Amendment), sex (19th Amendment), failure to pay a tax (24th Amendment), and for those 18 years of age or older on account of age (26th Amendment). It is important to note that these four amendments do not grant the “right” to vote to the persons described in the Amendments – merely that the suffrage will not be denied to those persons on account of their race, sex, etc.

So the States retained their original authority to set whatever qualifications for voting they deem appropriate, subject to their agreement that they would not deny suffrage on account of a Citizen’s being in one of those four categories.

So there is no “right to vote” set forth in the US Constitution. To the contrary, voting is a privilege granted or denied on the basis of whether applicants meet the qualifications for voting set forth within their State Constitution. 6

4. What does our Constitution say about how the President and Vice President are to be elected?

Article II, §1, cl. 2 and the 12th Amendment set forth the procedures for electing President and Vice President. Those procedures are described here under the subheadings, “Electors appointed by States were to choose the President” and “The 12th Amendment establishes procedures for voting by Electors”.

Our current procedures bear no resemblance to the Constitutional requirements. 7 It’s too late to obey the Constitution for the upcoming presidential election; so let’s see what our Constitution says about the federal elections to Congress.

5. US Constitution: the “times, places and manner” clause

Pursuant to Article I, §4, clause 1, State Legislatures have the power to prescribe the Times, Places and Manner of holding Elections for US Representatives 8 and US Senators.9

This clause also provides that Congress may make laws which override such State laws.

So the power to determine the time, place and manner of holding such federal elections is delegated exclusively to the Legislative Branches of the State and federal governments.

It is up to the State Legislatures to decide which “burdens” are appropriate with respect to the place of voting – with Congress having power to override what a State Legislature decides. The Judicial Branches of the state and federal governments may not substitute their views as to which “burdens” are appropriate and which are not. These are “political questions” granted to the Legislative Branches to decide; and the Judicial Branches – state and federal – may not lawfully interfere. 10

It is clear that “manner of voting” includes such matters as a requirement of personal presence at the place of voting. This is what our Framers contemplated, as shown by their words quoted in footnote 8 below. When a State legislature decides that personal presence is required – that decision can be overturned only by Congress.

So Judge Richardson’s view that the Tennessee Legislature doesn’t have a good reason for requiring first time voters (who registered by mail) to vote in person and present ID is irrelevant, and his Order is ultra vires.

6. What is the State’s remedy against the unlawful Court order?

So! You have seen that determining the “place and manner of voting” is a political power delegated exclusively to the State and federal Legislatures. It is thus a “political question”; and the federal [and state] Judicial Branches may not substitute their views for those of the Legislative Branches.

And since there is no “right to vote” contained in the US Constitution, the Federal District Court has no jurisdiction over this case. This case doesn’t “arise under the Constitution” or fit within any of the other categories of cases enumerated at Article III, §2, cl.1, US Constitution.

So the pretended Order of September 9, 2020, is ultra vires and lawless, and the State of Tennessee has no obligation to obey it.

The duty of the elected and appointed State and local officials is to obey the US Constitution. When the dictates of a federal [or State] judge contradict the Constitution, State officials must side with the Constitution and against the judge. 11

And what will happen if the State of Tennessee refuses to comply with the Judge’s order? The Judge can’t enforce his Order. He has to depend on the Executive Branch of the federal government to enforce it. 12 Do you believe that President Trump will send in federal troops to force the State of Tennessee to comply with Judge Richardson’s ultra vires Order?

Note:  In addition to the Offices of President & Vice-President, many other offices will also be on the Ballot:  the entire US House of Representatives is up for grabs.  So is the House in the State Legislatures all over the Country.  1/3 of the US Senate will be on the ballot; and a proportional number of Senate Seats on State Legislatures throughout the Country will be on the ballot.

EVERY REPUBLICAN LEGISLATOR NEEDS TO UNDERSTAND:  Your Seat is likely to be stolen in this upcoming election.

So you better wake up and get your State Legislature to smack down the federal & state judges who are assisting the Left in stealing your Seat.  And if Congress doesn’t act, they will lose control of the Senate and most likely every seat in the House.

Why should the Left stop with stealing only the Presidential election when they can also steal YOUR seat?

Endnotes:

1 How do they get their groceries?

2 Order at paras 29 – 31.

3 The First Amendment says,

“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.”

The First Amendment is a limitation on Congress’ powers to make laws – it doesn’t grant a “right” to vote!

4 In Federalist No. 80 (2nd para), Hamilton states that cases “arising under the Constitution” concern

“…the execution of the provisions expressly contained in the articles of Union [the US Constitution]…” [boldface added].

In the 3rd & 13th paras, Hamilton illustrates what “arising under the Constitution” means: He points to the restrictions on the power of the States listed at Art. I, §10 and shows that if a State exercises any of those powers, and the fed. gov’t sues the State, the federal courts have authority to hear the case.

5 The 17th Amendment [ratified 1913] provides that those who are eligible to vote for Representatives to the US House are eligible to vote for US Senators.

6 With the National Voter Registration Act of 1993, Congress usurped the retained power of the States to set and enforce eligibility standards for voting. In a series of 3 papers, the last of which is here, I show how the assertions about The Federalist Papers made by the 9th US Circuit Court of Appeals and the Supreme Court, in their attempts to justify their unconstitutional judgments, are false.

7 Our disregard of these constitutional provisions doubtless contributed to the creation of the current chaos.

8 Our Framers told us what “times”, “places” and “manner” mean:

In Federalist No. 61 (4th & 5th paras), Alexander Hamilton shows that “Time” refers to when elections are held. He explains that under the Articles of Confederation [our 1st Constitution], States had been conducting elections from March to November; and that uniformity in the time of elections is necessary “for conveniently assembling the [federal] legislature at a stated period in each year”.

“Place”: Hamilton also points out that the suffrages of citizens living in certain parts of the States could be defeated by restricting the place of election for Representatives in the House to “an INCONVENIENT DISTANCE from the elector” (2nd para). [caps are Hamilton’s].

“Manner” of holding Elections refers to such things as paper ballots or show of hands, the place of voting, and whether the States will be divided into congressional districts for purposes of electing Representatives. James Madison discusses the “Manner” of holding Elections in The Records of the Federal Convention of 1787, vol. 2, August 9, 1787:

“Mr. Madison: … the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures and might materially affect the appointments …. what danger could there be in giving a controuling power to the Natl. Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures … 2. of Representatives elected by the same people who elect the State Legislatures…” [emphasis added]

Rufus King in the Massachusetts Convention said in The Records of the Federal Convention of 1787, vol. 3, January 21, 1788:

“Hon. Mr. King rose … It was to be observed, he said, that in the Constitution of Massachusetts, and other States, the manner and place of elections were provided for; the manner was by ballot, and the places towns; for, said he, we happened to settle originally in townships…” [emphasis added]

9 When Art. I, §4, cl. 1 was drafted, the State Legislatures were to choose the State’s Senators to the US Congress – so the “place” of choosing the US Senators would be wherever the Legislature met. With ratification of the 17th Amendment, Congress gained oversight over State laws addressing the “place” of election of US Senators.

10 In Marbury v. Madison [link], decided 1803, the Supreme Court explained the concept of “political powers” and that the manner in which political powers are exercised is beyond the reach of the courts:

“By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. …whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive … [and] can never be examinable by the Courts.”

Marbury addresses the political powers exercised by the President. That same deference to the exercise of political powers has long been extended to the acts of the other political branch, Congress. Where the Constitution grants a political power to Congress, the manner in which Congress exercises the discretion is also beyond the reach of the Courts. So, for example, if Congress were to exercise the power granted to it by Article I, § 4, clause 1, to make a law banning mail-in voting; its action can never be examined by the Courts – the Courts may not substitute their views for those of Congress.

11 Marbury v. Madison also stands for the Great Principle that when an Act of one branch of government violates the Constitution, the other Branches must obey the Constitution and not the unlawful Act.

12 Alexander Hamilton made this same point over 200 years ago – see Federalist No. 78 (6th para). If law schools had made The Federalist Papers required reading, our Country wouldn’t now be in such a mess.

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September 20, 2020 Posted by | 12th Amendment, 1st Amendment, Article I Sec. 4, COVID-19 scam, dead voters, Elections Clause, Eli Richardson, ghost voters, Joe Biden, Kamala Harris, mail-in voter registration, Mail-in voting, Nullification, political questions, Red States, Times Places and Manner clause, Toss-up states, US District Court Middle District of Tennessee, voter registration | , , , , , , , , , , , , , , , , , , , , | 31 Comments

Our Constitution provides two separate & independent methods for the federal government to “call forth the Militia” to suppress Insurrections

By Publius Huldah

Because of its excellence and relevance to the insurrections being fomented in our cities by the Marxist organization “Black Lives Matter”, Antifa, and other revolutionary organizations; I sent the recent paper by Edwin Vieira, JD., Ph.D., titled, “The President’s Authority To Suppress Insurrections” [link], to my lists.

In response, some objected that the riots in the cities are local issues to be handled (or not) by the State and local governments – that they are not “federal” issues over which the federal government has jurisdiction. Some also asserted that Article IV, §4, US Constitution prohibits the President from sending the National Guard into a State to quell such disturbances, unless & until the Legislature or the Governor of the State requests it.

Those objections are not well-founded.

First: What’s going on in our cities is not something which can be prudently brushed aside. It is a classic manifestation of a Marxist revolution – see, e.g., this article from “Workers’ World”. Furthermore, as shown below, the President of the United States has constitutional and statutory authority to exercise his own judgment as to whether he should send in the “Militia” to suppress the uprisings.

Second: Our Constitution provides two separate and independent methods for the federal government to suppress such uprisings.

Dr. Vieira’s paper sets forth the other method of “calling forth the Militia” – the method provided for at Article I, §8, clauses 15 & 16, US Constitution. That provides for the intervention of the Militia within a State at the initiative of the federal government, regardless of whether the State requests it. 1

When highly knowledgeable and experienced persons, such as Dr. Vieira, speak in their area of expertise, and their words contradict our existing beliefs; we ought to re-examine our beliefs, instead of dismissing what such persons say. 2

So let’s review Article I, §8, clauses 15 & 16, and some of the early Acts of Congress implementing them.

1. The American Militia is 400 years old

Throughout our colonial period, able-bodied free males were expected to be armed and trained and ready on short notice to defend their home, family, neighborhood and Colony. They were the “Militia”. In Mel Gibson’s movie, Patriot, Gibson’s character commanded a South Carolina Militia Company. The Militia was not “regular Army” – it was comprised of farmers, pastors, shopkeepers, etc., trained in the use of arms and prepared to fight for defense of Family and Community.

In our Constitution of 1787, our Framers provided for a regular Army and Navy at Article I, §8, clauses 12, 13 & 14. Pursuant to Article II, §2, clause 1, the President is Commander in Chief (CINC) of the Army and Navy. 3

Our Constitution also recognized the continued existence of the Militia, and assigned to it three specific federal functions: Article I, §8, clause 15 empowers Congress:

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. 4

Clause 16 authorizes Congress:

“To provide for the organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”.

In 1792, Congress passed the Militia Act which “provided for” the arming of the Militia by requiring every able-bodied male Citizen of the ages 18-45 (with a few exceptions) 5 to acquire a rifle, bayonet, ammo pouch, ammo, 6 and report to his local unit for training. HERE is the Militia Act of 1792.

When the Militia of a State isn’t in the service of the United States for one of the three purposes listed in Clause 15, its function is to help in its own State – however the need arises. And in Federalist No. 46, James Madison says the Militia is to defend the State from the federal government in the event it becomes tyrannical. 7

2. Who has the authority to call forth the Militia into service of the United States?

Article I, §8, clause 15 authorizes Congress to “provide for” calling forth the Militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions”. How does Congress “provide for” calling forth the Militia into the service of the United States?

In Martin v. Mott, 25 US 19 (1827), the Supreme Court considered the Militia Act of 1795 [link] which authorized the President to call forth the militia when he judged it necessary to repel an invasion or enforce the laws of the United States. The Court pointed out that the power had been entrusted by Congress to the President, and said that,

“We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.”

So! In the Militia Act of 1795, Congress “provided for” calling forth the Militia by delegating to the President the power to determine when it was advisable to call the Militia into national service to repel an invasion or to execute the laws of the Union. 8

3. Transformation of the Militia into the federally controlled National Guard

During the early 1900s, Americans elected Progressives [Fabian socialists] to office. And these “Progressives” commenced the conquest of our Country. They had to eliminate the threat the Militia posed to the totalitarian federal government they intended to create. So with the “Efficiency in Militia Act of 1903” (the “Dick Act”) [link], Congress federalized the Militia. And this is how the Militia of the several States, which is the primary defense of a Free People and the States against a tyrannical federal government [2nd Amendment], was put under federal control. And the States went along with it because their People were ignorant, short sighted, and bought off with federal appropriations for the new federalized “National Guard”.

So we don’t have an organized & trained Militia – now, we have federal troops – some on active duty in the Regular Military; others as weekend warriors in the Reserves or National Guard.

4. Current Acts of Congress providing for calling forth the “Militia” (federal armed forces)

Today, the provisions of the US Code which address calling forth the “Militia” 9 into national service are: 10 USC §251, 10 USC §252, 10 USC §253, and 10 USC §254. Note that the President still has statutory authority to use his own Judgment respecting whether to send the “Militia” into any State:

♦ to enforce the Laws of the United States [10 USC § 252];

♦ to suppress uprisings which deprive the people of the rights, privileges and immunities, and protections recognized in the Constitution and secured by Law, and the State government isn’t protecting those rights [10 USC §253]; and

♦ to suppress uprisings which oppose or obstruct the execution of the laws of the United States or impede the course of justice under those laws [10 USC § 253].

5. Conclusion

Our Constitution is an elegant piece of work. Its parts are interconnected and fit together. So we must read each clause in the light shed by the other clauses and by the Principles of our Founding as set forth in our Declaration of Independence. We must never insert our own biases – no matter what they are.

One of the most valuable characteristics of our federal system is the ability of the state and federal governments to be “checks” on each other. In Federalist No. 28 (7th para), Alexander Hamilton says,

“… in a confederacy [10] the people … may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general [national or federal] government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. …”

We would be wise to celebrate the President’s constitutional and statutory authority to protect us from the death and destruction being brought about – with the connivance of State & local officials – by the Marxist revolutionaries. When State and local governments refuse to protect their people from such death and destruction, the President has a clear power to intervene.

Now, we must start electing Presidents who know and obey our Constitution. 11

Endnotes:

1 Our Framers thought of everything – including rogue State governments. See, e.g, Federalist No. 28.

2 One of the themes of Proverbs is that a wise man listens and increases his understanding. Be wise.

3 To be CINC means that the President has the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy (Federalist No. 69).

4 Let that clause sink in! Our Framers did not want a standing Army [go here and search for “standing armies”] – that’s why appropriations for the regular Army were limited to two years (Art. I, § 8, cl. 12). National defense, enforcement of federal laws, & suppressing Insurrections were to be the responsibility of the Militia. When the federal gov’t needs to enforce its laws, it is to call forth the Militia – the armed and trained Citizens – to do the enforcing! During the Washington Administration, the federal gov’t called forth the Militia to enforce the federal excise tax on whiskey. Federal law enforcement is thus the province of the Citizens – the Militia! It is most manifestly NOT the province of armed thugs in the employ of the Executive Branch of the federal gov’t.

5 Pursuant to §2 of the Militia Act of 1792, federal officers & employees were exempted from service in the Militia. Can you figure out why they were exempted?

6 The arms, ammunition and accoutrements so acquired by the Militia Man were his personal property and were held free from claims of all creditors. They could not be seized and sold in payment for any judgments, debts or taxes. See last sentence of §1 of the Militia Act of 1792.

7 This is why Article II, §2, clause 1 provides that the President is CINC of the Militia only when it is called into national service. This is also why §2 of the Militia Act of 1792 exempts all federal officers and employees from service in the Militia.

8 The Militia Act of 1795 also provided that in cases of insurrection against a State government, the President could send in the Militia upon request of the State Legislature or Governor.

9 Even though we no longer have a “militia” within the meaning of Article I, §8, clauses 15 & 16; the current US Code uses the term in order to connect the activities of the federal armed forces with Art. I, §8, clause 15.

10 Our Constitution created a “federation” (“confederation”) of sovereign states which were united together for the sole purposes enumerated in the US Constitution.

11 I may have been wrong to fault President Trump for not sending the National Guard into the States to suppress the Insurrections.  In The Coming Coup? [link], Michael Anton writes:

“…It started with the military brass quietly indicating that the troops should not follow a presidential order. They were bolstered by many former generals—including President Trump’s own first Secretary of Defense—who stated openly what the brass would only hint at. Then, as nationwide riots really got rolling in early June, the sitting Secretary of Defense himself all but publicly told the president not to invoke the Insurrection Act. His implicit message was: “Mr. President, don’t tell us to do that, because we won’t, and you know what happens after that.”

If that is true, then the President ought to fire Defense Secretary Mark Esper, and should “purg[e] the [military] officer corps of anyone not down with the program and promoting only those who are.”

September 6, 2020 Posted by | Antifa, Black Lives Matter, Commander in Chief, Insurrections clause, Marxist revolution, Militia, President's powers | , , , , , , , , , | 30 Comments

   

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