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Winning the Direct Attack on Democracy & Obama (Sup Ct Bush v Gore Pt. II decision due Friday 12-5) [View All]

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Land Shark Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Dec-04-08 02:59 AM
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Winning the Direct Attack on Democracy & Obama (Sup Ct Bush v Gore Pt. II decision due Friday 12-5)
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Edited on Thu Dec-04-08 03:14 AM by Land Shark
Democracy is very popular. Thus, those unhappy with the results of democracy have nearly always been forced to undermine it INdirectly --because a direct attack (say, in favor of dictatorship) could not credibly be mounted.

Nevertheless, today there's an unprecedented direct attack on democracy, seeking to overrule the election of Obama by the people of the United States -- either in the Courts, or in Congress at the Electoral College.

These attacks presently take the form of three petitions circulating in the US Supreme Court right now, at least two of which are set to be decided in a secret conference of the full court on Friday December 5. Importantly, because these are applications for stay (requires 5 Justices), they also require that the Justices believe the petitioner is likely to prevail on the merits. As a result, on the off chance that a motion is granted, the case IS OVER BEFORE THE PUBLIC EVEN HEARS ABOUT IT. This is precisely what happened with the stay order in Bush v. Gore that terminated the recount in Florida -- the rest was reported by lawyers involved as really feeling like it was just going through the motions.

Because these cases presently at the level of the US Supreme Court seek to overrule the will of the American people they are entirely unlike recounts or election contests. Real recounts or election contests at bottom challenge the election only by saying (in more words than this) "I don't think the certified result is the true will of the people." That's not what these suits do.

These three suits, with more states circulating up the appellate ladder, could care less about the will of the American people: they are direct attacks on democracy and the will of the people, seeking to stop the election they know they lost, based on an issue raised in the primary and in the general that got little or no traction outside rightwing blogs.

THE FACT THAT THE ISSUE FLOATED AROUND FOR AT LEAST A YEAR IS VERY IMPORTANT. IT MEANS IT WAS CONSIDERED AND REJECTED BY THE AMERICAN PEOPLE.

THE FACT THAT THE ISSUE WAS NOT EXTREMELY HIGH PROFILE LIKE ACORN IS IRRELEVANT TO THE ABOVE. IF THIS WERE NOT TRUE THEN EVERY EXTREMELY MINOR OR FRIVOLOUS CAMPAIGN ISSUE COULD BE RAISED POST-ELECTION AS A CHALLENGE. BUT THE USUAL RULE OF ELECTION LAW IS THAT IT IS A SERIOUS EVIL TO BE PROTECTED AGAINST TO ALLOW ANYBODY TO SIT ON A CLAIM, SEE WHAT THE ELECTION RESULTS ARE, AND THEN SUE. BUT THAT'S WHAT HAPPENED HERE.


We need to focus on THE FUNDAMENTAL QUESTION: UNDER WHAT CIRCUMSTANCES CAN ANYBODY IN THIS WORLD OVERRULE THE UNCONTESTED WILL OF THE AMERICAN PEOPLE?

The answer to this question exposes those who hate or don't trust democracy.



The right wing sees these suits as no-lose propositions. Even if they win nothing, their full page ad in yesterday's Chicago tribune and related publicity at minimum seeks to undermine and split the Obama supermajority, peeling away 1% or more by painting Obama as a liar, a foreigner, etc.

The Donofrio petition for stay claims that Obama, McCain and the Socialist Candidate for president are all unqualified under the "natural born" clause. The Socialist candidate was born in Nicaragua, and was allowed on some ballots and not allowed on others. This will seem to the Supreme Court to represent an Equal Protection issue of differential enforcement/investigation.

IN truth, I'm more concerned about these cases LOSING, believe it or not. A likely ruling by the Supreme Court, if one is made, would defer to the Congressional electoral college process under the Political Question doctrine -- which many law reviews have since opined should have resulted in Bush v. Gore never having been heard by the US Supreme Court at all. The Court could punt the issue to the Congress, who would then, yes, in effect hold ANOTHER ELECTION and some kind of hearing about the issue, since no voter has been deemed to have standing in several pre-election cases. SURELY somebody must have standing to enforce the constitution, --- and we will "discover" that the Congress "does" at the level of the Electoral college. But if through delays, or stays, or Supreme Court ruling the Congress for any reason is allowed to second-guess the election, then we have a new election in yet another guise.

OK, so maybe you think "OBAMA WINS" in the Democratic congress. This is beside the point. While winning is not guaranteed, what will have happened at this point is that in your/our relief at Obama dodging a Supreme Court bullet, we accept what is, long term, a worse situation where the Congress can second guess the people's election, and pick their own president, and there's no likely appeal because of the POLITICAL QUESTION doctrine. This would be a defeat for democracy even if it ended up as a win for Obama or at least some other Democrat, in the worst case scenario.

So again I urge, the question is: Under what circumstances can any court or Congress overrule the clear will of the American people?

None.

This country is owned by We the People. We created the Constitution to limit and shape the powers of government. We can, in point of fact, knowingly elect a felon to the House or Senate and prior US Supreme Court precedents like Powell v. McCormack uphold the inability of the House or Senate to remove the people's choice for any reason other than the qualifications clauses in the Constitution, which are minimal.

In turn, at least six US Senators and Representatives have served full terms even though elected when they were TOO young under the constitution. Henry Clay is one example. Here again, this is not flouting the Constitution, this is a recognition of the power of the people to hire whoever they please.

As the "boss" of this country, if our qualifications in our Constitution require a "Ph.D." so to speak, we can damn well hire a Master's if we please.

Can we "hire" a politician who makes huge campaign promises about war and peace that turn out to be lies?

Unfortunately, Yes We Can. Did we? No we didn't.

Can we elect a felon and ratify that/assume the risks of that?

Yes We Can.

Do We the People, the sovereign power of this country, have the power to resolve conflicting claims on a birth certificate where one side claims Kenyan birth and ratify that or assume the risks of that?

Puh-leeze. Of course We Can. And yeah, we can ignore discriminatory claims about kenyan birth that, even if true, just don't matter.

Can the Courts or Congress, on a basis completely independent of the will of the people, second-guess the election, tell us to "try again", or veto our choices?

No They Can't.



As I've written before, the American people would never lose a struggle for democracy on their own country -- IF they understood it as such. So, of course, this direct attack (seeking to re-decide or overrule the election of Obama) is styled as "upholding the Constitution." In effect, our own national hunger for the restoration of justice, the rule of law and the Constitution is being harnessed -- in a twisted way -- so that the Constitution can start being enforced FIRST against Barack Obama. That's why it's important to see these suits for what they are -- and go on offense against those who dislike democracy.

WE SHOULDN'T EVEN GO TO THE "MERITS" ON THESE CASES BECAUSE NOTHING IN THE NATURE OF WHAT THEY SPEAK OF JUSTIFIES A JUDICIAL OR CONGRESSIONAL OVERRIDE (OR RATIFICATION) OF THE PEOPLE'S DECISION. We don't need their "help."

But if you must know what "natural born" means, here you go:

The 'natural born' clause in the Constitution sets forth two, and only two, classes of people, as does citizenship law: There are (a) "natural born" citizens, and there are (b) "natural-ized" citizens, what you might call "adoptive" citizens. All citizens who are not naturalized (and therefore choose our country freely) are natural born, or citizens from birth. There are no other classes.

But the rightwingers want to create a third class of people like Obama and Mccain who fall between the cracks somehow and are "mere statutory citizens." They speak of needing to be born on "american soil" and argue in effect that accidents of birth, such as parents vacationing in Europe, Africa, or Canada, are enough to disqualify an american citizen from ever being president. The notion that "soil" controls citizenship and allegiance is a core concept of feudalism. We are a nation of rights, Constitutions and laws, (in that order) and not a nation of men and not of "soil" either.

Even more fundamentally, our nation is the first nation in the world founded upon just IDEAS, not territory, not race, not class and not culture.

YES, We Can.

No They Can't. (overrule our elections or re-decide them in Congress or Courts)



That's all you really need to KNOW. But you must KNOW it. That way you don't get dragged into debating false frames that presume that if the rightwingers find another forged African document, this time from Kenya instead of Niger, that they've got themselves a "gotcha" that matters.

Instead, we should tell them that if American history of elections means anything at all, it means that We are NOT going to lawyer, subdivide or debate who "We" is in "We the People" like they did in the past to exclude blacks, women, etc. We the citizens means everybody. And the parts of the Constitution that accepted slavery but tried to sunset the slave trade, or that didn't accept women, like the 16 references to the President as "he" in the Constitution, have all been amended out of existence.

We may need to teach a little history as we win one for democracy.
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