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!
By Publius Huldah.
Our Constitution is under constant attack.1 One of the most pernicious attacks is being waged by those who seek to override the constitutional provisions under which The States, as political entities, elect the President; and to replace it with a national popular vote (NPV) under which inhabitants of major metropolitan areas will choose the President.
What Form of Government Did We Create In Our Constitution?
Before you can see why it is so important that The States elect the President, and why the NPV is so execrable, you must understand how our “federal” government was structured and intended to operate. “Federal” actually referred to the form of the national government created in our Constitution, and to the division of powers between the national government and The States.
The “Federation” created by our Constitution is an alliance of independent and sovereign States associated together in a “confederation” with a national government to which is delegated authority over the States in specifically defined areas ONLY(national defense, international commerce & relations; and domestically, the creation of an uniform commercial system: weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery). Those enumerated powers are the only areas wherein the national government has lawful (constitutional) authority over The States. In all other matters, the States retained supremacy, independence, and sovereignty. 2
So that The States – The Members of the Federation – could maintain their independence and sovereignty, 3 our Framers wrote these provisions into our Constitution:
- State Legislatures were to choose the two U.S. Senators for their State (Art. I, Sec. 3, cl. 1); and,
- The States, as separate political entities, were to elect the President (Art. II, Sec. 1, cls. 2 & 3).
The People were to elect only their Representatives to the House (Art. I, Sec. 2, cl.1).
James Madison, Father of Our Constitution, explains in Federalist No. 45 (7th para), why this ensured that The States would maintain control over the national 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, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them…[boldface mine] 4
State Legislatures Were To Choose The U.S. Senators!
So! The appointment of Senators by State Legislatures was to “secure the authority” of the State governments in the federal government, and to preserve “the sovereignty remaining in the individual States” (Federalist No. 62, 3rd & 5th paras). 5
Federalist No. 62 goes on to show that another advantage of State Legislatures appointing U.S. Senators is
…the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States … (6th para) [boldface mine]
Do you see? Since Representatives to the House were chosen by popular vote of the People, and U.S. Senators were to be chosen by the State Legislatures, no law could get passed by Congress unless it was approved by the People (via their Representatives) and by The States (via the State appointed U.S. Senators).
This is what our Framers gave us to protect us from a usurpatious Congress.
“Electors” Appointed by States Were To Choose The President!
Article II, Sec. 1, cl. 2 provides that each State is to appoint, in such Manner as the State Legislature may direct, a Number of Electors equal to the total number of Senators and Representatives for that State. These Electors were supposed to be the ones who actually voted for President and Vice President!
Our Framers never intended for the President to be elected by popular vote. While they recognize in Our Declaration of Independence (2nd para) that The People are the source of political authority, 6 they knew that all history demonstrates that The People lack the knowledge, wisdom and judgment to make wise choices when voting for politicians.
In Federalist No. 64 (3rd & 4th paras), 7 John Jay recognizes that People are ignorant and easily manipulated by small groups who take advantage of their “hopes and fears”, to steer them towards candidates favored by the small groups.
Accordingly, the Electors would be “select assemblies” “composed of the most enlightened and respectable citizens” who would vote for those men who were “the most distinguished by their abilities and virtue”. Furthermore, Electors would not likely “be deceived by those brilliant appearances of genius and patriotism” which “sometimes mislead as well as dazzle”.
In all of Federalist No. 68, Hamilton explains the wisdom of having specially selected Electors who were “most likely to possess…information and discernment” elect the President. He also warns of
… the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? … (5th para)
and shows why specially selected Electors in each State could best protect us from such scheming foreign powers. 8
Now that we see why Our Framers provided that Electors from the Member States were to choose the President of The Federation, let us see how the voting was – and is – to be conducted.
The 12th Amendment Establishes Procedures For Voting By Electors.
The long ignored 12th Amendment (ratified 1804) sets forth binding procedures for taking and counting Electors’ votes. This is what it requires:
The Electors in each State are to meet and cast their votes for President; and then vote separately for Vice President. Say a State has 13 Electors, and the voting goes like this:
Mr. Falconer – 6 votes
Mr. Lossie – 5 votes
Mr. Bell – 2 votes
For Vice President:
Mr. Cross – 5 votes
Mr. Duncan – 5 votes
Mr. Nichols – 3 votes.
The Electors sign and certify this list and send it to the President of the Senate. On the appointed day, and in front of a joint session of Congress, the President of the Senate counts the Electors’ votes from The Member States. The person with the greatest number of votes for President becomes the President (if he has a majority). The person with the greatest number of votes for Vice President becomes the Vice President (if he has a majority). If one or both don’t have a majority – well, here’s a novel idea: read the Amendment to find out what happens.
THIS is how Our Constitution – which all those in the political process took SWORN OATHS to obey – requires the elections of President and Vice President to be conducted.
So! THE STATES, as political entities and as THE MEMBERS of the Federation, are the ones who were to choose the President. This is what our Framers gave us to protect us from a usurpatious President. It also gave the smaller States a voice in the selection of President.
The Purpose Of Our Framers’ Two Gifts.
So! Do you see? The result of The State Legislatures choosing the U.S. Senators and controlling the election of the President would be that The States would be able to control the national government and keep it in line.
The 17th Amendment.
But we threw one of Our Framers’ Gifts away when, in 1913, we foolishly ratified the 17th Amendment and 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 over that body.
And the Legislative Branch of the national government became a body for sale to campaign donors. U.S. Senators now answer to their campaign donors, not to their States.
Ignoring The 12th Amendment.
We threw away Our Framer’s second Gift when we foolishly accepted a new system where national political parties handle the elections of President and Vice President. Thus, instead of being the small bodies of specially chosen wise and prudent men who actually made the selections; Electors became rubber stamps for the popular vote in their States. Instead of the Electors choosing the Vice President, party bosses – then party nominees – chose the “running mates”. Instead of the Electors’ votes being transmitted to the President of the Senate with the total votes listed for each person receiving votes, States began awarding all their “electoral votes” to the person who won the popular vote in their State.
This is how The States – The Members of the Federation – lost their control over the President.
The President became a person for sale to campaign donors. Presidents now answer to their donors, not to The Member States. And the small groups and “foreign powers” who got the President elected call the shots.
How The National Popular Vote Will Work.
Here is the nefarious 888-word interstate compact. It is written in the bureaucratic style favored by those who seek to confuse, confound and conceal. Their Explanation of National Popular Vote Bill expressly discloses, however, that
Under the National Popular Vote bill, all of the state’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.
In other words, if the popular vote in Virginia is for James Madison, but the total national popular vote favors Adolf Hitler, then all of Virginia’s 13 Electoral Votes are given to Adolf Hitler.
Indeed, the winner of the national popular vote will end up with all the electoral votes for every State. Do you see? 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!
1. Every aspect of the NPV violates Art. II, Sec. 1, cl. 2 and the 12th Amendment. So it’s altogether unconstitutional. Compare the detailed procedures set forth in Our Constitution with the proposed NPV! It sets up a method of electing the President and vice-President which is altogether repugnant to what Our Constitution requires.
2. Article V sets forth the exclusive methods of amending the Constitution. “Compact among the States” is not one of the authorized methods of amending the Constitution. So the NPV Compact also violates Article V.
3. Furthermore, Article I, Sec. 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, Sec. 10, last clause, depends on whether Congress consents to it. But Congress may not lawfully consent to unconstitutional compacts of the States!
Under The National Popular Vote 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 major metropolitan areas would decide the elections for President!
Please look at this 3D map showing how these major metropolitan areas actually voted in the last presidential election: http://www.washingtonpost.com/wp-srv/politics/interactives/campaign08/election/uscounties.html
They all voted for Obama.
The NPV is not about “making every vote count”. The NPV is about guaranteeing that every future presidential election is won by a Democrat.
Who Is Behind This Plot To Impose The National Popular Vote?
The organizations who have endorsed the NPV include four organizations (Common Cause, NAACP, Defenders of Wildlife Action Fund, and Public Citizen) which, according to this website, have received funding from George Soros and his Open Society Institute.
Our public school educated People are so woefully ignorant that they are incapable of making wise decisions in presidential (or senatorial) elections. Google ignorant stupid americans – you will get 65,000,000 hits.
This review of Historian Rick Shenkman’s book, “Just How Stupid Are We?”, points out that
…Only 2 of 5 voters can name the three branches of the federal government. And 49 percent of Americans think the president has the authority to suspend the Constitution ….
These are the ones who are manipulated to vote the Will of the few, and of the “foreign powers” Hamilton warned us about, who fund and control the hard left.
Oh, State Legislators! Awake! The progressive leftists behind the NPV want a national popular vote for the same two reasons that our Framers opposed having Presidents elected by popular vote.
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 Congress.
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 are the ignorant masses which fill our major cities.
No State primaries. No national conventions. No expensive advertising which enriches liberal progressive TV networks, and excludes the man who is not wealthy. No tampered with voting machines. No cartoon characters or dead people voting. No Black Panthers intimidating white voters with impunity. No unconstitutional federal laws (e.g. McCain-Feingold) which unlawfully restrict political speech. No promises of future favors made by candidates to donors for campaign contributions. In short, the corruption which permeates our present system would be gone.
But in the meantime, even in its present perverted form, the “Electoral College” serves two important purposes. (1) It balances the influence of the heavily populated urban areas (which vote Democrat) with the more sparsely populated rural areas (which vote Republican). (2) And it gives the smaller States a voice in the election of President. PH
2 In Federalist No. 45 (9th para), Madison says,
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [boldface added]
Yet anarchists who have infiltrated libertarian groups maliciously assert that Our Constitution is a “statist document”!
3 Alexander Hamilton warned that we must not permit the States to be merged into one national government. In Federalist No. 32 (2nd para), he writes,
An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention [the Constitution] aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States…. [caps are Hamilton’s; boldface mine]
See also Federalist No. 39, 6th para (Madison).
And from Thomas Jefferson’s letter of Feb. 2, 1816 to Joseph C. Cabell (1st para)
…the way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the national government be entrusted with the defence of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and power into one body… [boldface mine]
… on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed…is recommended by … giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. (3rd para at II) [boldface mine]
…the equal vote allowed to each State is …a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty… [in order to guard] … against an improper consolidation of the States into one simple republic. (5th para) [boldface mine]
6 As opposed to the State itself being the source of political authority, as with the Western European “divine right of kings” model (which is based on a perversion of Scripture), and the German statists, such as Hegel and his progeny.
7 Federalist No. 64 (4th para):
As the select assemblies [Electors] for choosing the President … will … be composed of the most enlightened and respectable citizens, there is reason to presume that their … votes will be directed to those men … who have become the most distinguished by their abilities and virtue. … the electors … will not be liable to be deceived by those brilliant appearances of genius and patriotism, which … sometimes mislead as well as dazzle. … it is fair to argue, that as an assembly of select electors possess …the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment…
8 Federalist No. 68: If the appointment of the President depended on any preexisting body of men, they “might be tampered with beforehand to prostitute their votes” in favor of the foreign powers. Accordingly,
… the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government…(7th para) PH
February 9, 2012
Postscript Feb. 14, 2012: In this article, Phyllis Schlafly of the National Eagle Forum takes a different approach in showing why the NPV is a BAD idea and basically dishonest.