Constitutional crises in the United States are somewhat rare, but they are inevitable. Just getting the Constitution ratified by the thirteen states amounted to a series of crises. They culminated in the First Congress proposing the twelve amendments that produced the ten ratified as the Bill of Rights. Each crisis is distinctive, but they are enabled by two facts of the US Constitution:
- The document is abstract, so details are intentionally not specified.
- The system creates tension between the limits it imposes on people in power who want more power than it allows.
The US Constitution was designed to diffuse power between the national government and the states, and among their various branches. The purpose was to limit the power of individuals and organizations within the governments of the United States. Madison discusses this in Federalist #51:
The different governments will control each other, at the same time that each will be controlled by itself.
Power is to be diffused vertically via federalism. If the tenth amendment is interpreted properly—before the Supremacy Clause—the states and the people retain all powers not enumerated in Article I Section 8 and not forbidden by Article I Section 10. This puts the power as close to the people as possible.
The national power is diffused horizontally via separation of powers among the legislative, executive, and judicial branches. The legislative power is supposed to be bound by Article I Section 8. (The necessary and proper clause has always been contentious). Article II frames the executive, and Article III the judicial branch. In addition, Article IV Section 4 guarantees the states a republican form of government.
The Constitution is the rule book for balancing power, but who is the referee? Jefferson and Madison wrote quite a bit about the “ultimate arbiter.” In short, they were talking about the people, not the Supreme Court. They believed the people would have the power to remove offenders from office by the power of elections. This works if elections are honest and for issues that can be settled; however, some issues take on a life of their own. The slavery issue was one such issue. In our own time, abortion is.
In the twentieth century, the American public has come to accept the Supreme Court as the ultimate arbiter of constitutionality. Although this has avoided another civil war over certain issues, it has created other problems. First, it has disrupted the intended balance among the three branches of the national government. In reality, the branch that the framers considered the weakest and least dangerous is now arguably more powerful than the other two. The judicial branch was only to have the power to review and render an opinion. That is no longer the case—largely due to public opinion.
But there is an even worse byproduct of judicial supremacy than disrupting the balance among the three branches of government. Given that the Supreme Court is a branch within the national government, it is loath to reduce the power of the national government with its opinions/edicts. This has actually created a con game where national power has increased unchecked over time. So, the result has been an erosion of federalism, and the power has shifted further from the people.
The selection of Supreme Court justices has always been contentious, but having their opinion be the final word has given it an even larger emphasis. Confirming appointments has become blood sport and media spectacle.
Packing the Court
It is well-known that FDR tried to pack the Supreme Court after he tired of his unconstitutional programs being legitimately declared so. He made the mistake of campaigning against a high-powered Kentucky Democrat senator, and it came back to haunt his scheme.
How did we get to nine justices on the Supreme Court? The answer is that each justice once covered a circuit court that was loosely defined by geography. The Constitution gave Congress the power to structure the judicial branch, and the initial structure called for a six-circuit court. There was one Supreme Court justice for each, and that justice had to preside over the circuit court twice a year. The practice was called “riding the circuit.” As the nation grew, the number of circuit courts and corresponding justices grew. The tie between circuit courts and Supreme Court justices was severed by the Judiciary Act of 1891.
The unprecedented appointment of three justices during Donald Trump’s presidency has awakened new calls from Democrats to “pack” the Supreme Court. Congress has the constitutional power to do this. With one-party control of both houses of Congress and the presidency, there is nothing to stop them.
But are nine justices on the Supreme Court insufficient? That’s been its size since 1869, so it’s hard to argue that the number is insufficient. And the reason for lifetime appointments of justices is to relieve them from political ties, but that appears to be where the rub is. Because Supreme Court decisions are now viewed as the final word, those decisions have become very political.
What if both major parties adopted the tactic of adding justices each time they had the upper hand? The Court would grow without bound, and opinions would change like the wind. This path would lead to a Court that is ineffective and a series of constitutional crises. There is no way the Court could survive with its current power. That is perhaps a good thing.
Election Laws
So, if the people are actually the “ultimate arbiter,” and they exercise that power via elections, what of election law? Its most basic design is to declare who may vote legally. Illegal or stolen votes defraud the election. Regardless how an illegal vote is cast, it cancels the will of a legal voter.
It’s safe to say two things about elections:
- The losing side will always scream bloody murder.
- There never has been an election devoid of fraud in the history of mankind.
Like a chain, the election system is no stronger than the weakest link. There are both common links and links that are unique down to the precinct level. Given that no target on earth is more desirable than a United States election, that chain needs to be exceedingly strong and as short as possible to minimize the attack surface. Unfortunately, the links are many and weak.
In 2016, the Democrats screamed that Russia had meddled in our presidential election to get Donald Trump elected. There was no doubt fraud in 2016, but mathematical evidence of significant fraud was not forthcoming. Ignoring the absurdity of the accusation that the Russians would want to deal with a tougher President, we were subjected to a four-year temper tantrum that seriously injured the office of the presidency. But it had other consequences that would become apparent in 2020.
In 2020, it became the Republicans’ turn to scream bloody murder. Unlike 2016, mathematicians have produced evidence that fraud sufficient to change the outcome occurred. As a mathematician, I have been asked to review their findings, and all of their methods are valid. The only question is how sound each mathematician’s particular data is. The data all come from either the New York Times Edison feeds, the Census Bureau, or state Secretaries of State sites. So, these accusations should be taken very seriously. If true, we have an incredible constitutional crisis on our hands—one that will not end unless the election system is fixed. This should be a nonpartisan concern because it is a national security issue.
It seems that the cries of election fraud have only heightened as the country has focused on ease of voting. Perhaps the emphasis should be more on accuracy and security than convenience.
Electronic Voting Machines (EVM)
Rather than covering the same ground a number of competent mathematicians were pursuing, I decided to use my experience as a computer scientist to assess the election system engineering. Since I’m quite familiar with the Internet stack and security issues, I was appalled by how lax the engineering requirements were and published a report on my blog. If matters weren’t bad enough, there was clear evidence that systems were being certified that violated some of the most basic fundamentals of cyber security and the certification requirements in the Voluntary Voting System Guidelines (VVSG).
You don’t have to take my word for it, you can check out what Stephen Spoonamore had to say on YouTube (https://www.youtube.com/watch?v=BRW3Bh8HQic) BUSTING the Man-in-the-Middle of Ohio Vote Rigging. Spoonamore actually caught fraud in the 2004 Ohio election and testified in King-Lincoln v. Blackwell. Early on in the video he states how poor the engineering is. At the 38:30 mark, he points out the “fundamental trap” in network systems is that you can either have security or anonymity. The only reason credit cards are secure is because they have fraud departments that can associate you with your credit card.
It appears that there were two motivations for EVMs in the first place:
- Cost
- Efficiency and speed
County clerks were keen to go to EVMs because of cost reductions. The need for polling stations and the number of workers to count votes would be significantly reduced. The results would be much faster. At least, that was the promise. So, how long did it take for the 2020 elections to be resolved?
The bottom line is that electronic voting machines (EVMs) cannot be secured, and that is why countries like Canada, Finland, The Netherlands, and France have abandoned electronic voting. It invites fraud on an unbounded scale. They are a weak link in the chain of election integrity. There is no faster way to perpetrate more fraud than with the assistance of computers.
Vote by Mail (VBM)
But if EVMs are the engine of fraud, where do they get their fuel? One answer to that is pretty straight forward – vote by mail (VBM). Absentee ballots have been around a long time to ensure overseas service personnel are not deprived of the civil right for which they serve. But mailing out ballots to everyone invites a plethora of shenanigans. As mobile as American society is, voter rolls turn over at staggering pace. Combined with unaccounted deaths, voter roll inaccuracies can easily dwarf the margin of victory in any given election.
The only way to ensure that a voter is legal is to first lawfully register, then check ID when he/she shows up to vote in person. Verification of service personnel can be done easily to support absentee voting. Likewise, special accommodation for the disabled can be done as an exception.
HR1
HR1 is an invitation for voting fraud on a massive scale. It institutionalizes the two worst ideas in voting ever – EVM and VBM. It throws the concern for accuracy to the wind.
Article I Section 4 Clause 1 gives the power to choose time, place, and manner of congressional elections to the state legislatures. Congress is permitted to alter these regulations, except for the place of choosing senators. (This exception is for the same reason that Article V prohibits depriving a state of its representation in the Senate. It prohibits Congress from making a law that could legislate a state out of existence.) But Article I specifically only addresses the national Congress.
It is important to realize that Article I Section 4 only applies to congressional elections. It does NOT allow Congress to meddle in either the electoral college or intrastate elections. The framers were in universal agreement that the “general government” was not to interfere with a state’s “internal policy” or “internal police.”[i] The term “police” did not mean what we think of today. There was no concept of a police department. The term meant “administer” or “govern.” So, the framers meant for internal elections to be strictly run as each state saw fit. The method of choosing electors was likewise left to the states. This was codified by the Tenth Amendment.
In short, HR1 is unconstitutional. But if it were to go to the Supreme Court and be ruled to the contrary, the states should remember that the Court is not specified to be the “ultimate arbiter” on constitutionality. This brings up the subject of nullification.
Checking National Power
There are three ways that the people and their agents, the states, can check national power:
- National elections
- Article V
- The Tenth Amendment
As mention above, the framers viewed that the people would have the last say on constitutionality by voting the bums out. This works as long as elections are honest and the new legislators take appropriate action to rescind the offenses. But the wheels turn slowly—if ever.
Likewise, the states can call for an Article V convention. If the results of elections are slow to propagate, an Article V convention has proven to be a unicorn. I am a proponent of Article V and have written extensively about it. The bottom line is that the mechanism for calling a convention is broken and needs to be fixed. Unfortunately, the only way that will ever happen is if such a convention is ever called—and the delegates see the need.
That leaves the exercise of the Tenth Amendment as the last constitutional remedy for timely resolution of a national power grab. Nullification is the term for when a state overrides the national government as an immediate reaction to what the state views as unconstitutional. The question first came up in 1798 when Madison and Jefferson drafted the principles of ’98 in response to the Alien and Sedition Act. They believed (knew) the Act was unconstitutional. Only Kentucky and Virginia adopted the principles. Madison and Jefferson ended up claiming that the draft was little more than a protest.
In the end, Madison and Jefferson realized there wasn’t sufficient support to object to the Act from the state level, but they probably also realized that if states independently decided to ignore national law, the nation could descend into chaos. It would be like having fifty-one referees today, as opposed to one. There currently is no constitutional provision to resolve such a situation. But, by the same token, the Tenth Amendment does legitimize such an action by a state if the national government exceeds the powers enumerated Article I Section 8. Where ambiguity sets in is with the hated “necessary and proper clause.”
The Supreme Court has consistently slapped down nullification, but what should we expect? The Court is a part of the national government, so it stands to reason that it will always side with national power over that of the states. Of course, that is exactly upside down from the intention of the Tenth Amendment.
I have never been a particular fan of nullification because of the potential for chaos. That is, without the immediate threat of tyranny, I am not a fan; however, the immediate threat of tyranny demands a reassessment of that position. Both HR1 and having the party in power pack a Court that is viewed as the ultimate arbiter impose an immediate threat of tyranny of one-party rule permanently. Whereas nullification has always been a threat to stability, it may now be the best last hope for stability.
Reevaluating the overall situation, we have one party that is creating multiple, interlocking constitutional crises. Packing the Supreme Court is constitutional, but it’s taking advantage of the assumed power of the Court to transfer power from the people to a political party. HR1 is purely unconstitutional and threatens to make the power grab permanent. On the other hand, exercising the Tenth Amendment is absolutely constitutional. The states can do little to reject packing the Supreme Court; however, they should flatly reject HR1 to prevent permanent tyranny.
Conclusion
For the first time, in the history of the nation, it is obvious that the national government is not on the side of the people at large. That is Aristotle’s definition of a democracy as opposed to a republic. Society is divided, and the national government has picked a side. We are very much in danger of becoming a single-party system. That guarantees tyranny.
Some believe the United States has descended from a republic into a democracy where the virtuous middle class is nowhere to be found. This accusation is not new. Elbridge Gerry stated this out of frustration as the second person to speak on the first day of debate in the Constitutional Convention. It wasn’t really true then, and it may or may not be true today. If the accusations of voting fraud are true, it will take a herculean effort on the part of a virtuous middle class to assert its will. There are powers within government that want to rush to institutionalize practices that invite massive voting fraud that will silence the will of the people. In fact, it may have already happened in a number of previous elections.
The Democrats are within their constitutional power to pack the Court, but such a tactic leads to a death spiral for the Supreme Court. However, the problem can be side-stepped by returning ultimate arbitration to the people through the Tenth Amendment.
HR1 is complete madness. THE foundational dynamic of a constitutional republic is the democratic process of voting. Whether previous elections were complete frauds or not, this proposed law would expose the United States to election manipulation by sophisticated domestic bad actors and nation-states the world over. It is impossible to build a secure electronic voting system as long as votes must be anonymous. In addition, EVMs have never lived up to their promise of efficiency. Vote by mail scales the potential for voting fraud beyond the typical margin of victory in any election. The two of these together guarantee a fraudulent election.
[i] Farrand, Max. The Records of the Federal Convention of 1787, Vol.1. The Online Library of LIberty; 1911. Pp. 129, 135, 140, 248, 337.
Farrand, Max. The Records of the Federal Convention of 1787 Vol. 2. The Online Library of LIberty; 1911. Pp. 21, 26, 290, 504.
