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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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  -Winning the Direct Attack on Democracy & Obama (Sup Ct Bush v Gore Pt. II decision due Friday 12-5) Land Shark  Dec-04-08 02:59 AM   #0 
  - K&R for democracy! nt  2 Much Tribulation   Dec-04-08 03:16 AM   #1 
  - Stop fear-mongering. Every filing submitted to the Supreme Court is considered.  zlt234   Dec-04-08 03:27 AM   #2 
  - This is not "fear mongering" this says "go on offense" and it also says...  Land Shark   Dec-04-08 03:33 AM   #3 
  - Someone uninformed about legal issues might look at your article and reasonably worry  zlt234   Dec-04-08 03:18 PM   #30 
     - Your missing the parts about what happens when Obama runs the table perfectly  Land Shark   Dec-04-08 04:16 PM   #35 
        - You've convinced me - you're not a lawyer.  jberryhill   Dec-05-08 12:52 AM   #101 
  - If someone fires a bullet at your head, you know it missed by a mile, so talking about it is "fear"?  Land Shark   Dec-04-08 03:40 AM   #4 
     - it seems obvious that they are not seen that way...  tomp   Dec-04-08 06:30 AM   #5 
        - anticipated that. There you go again, telling yourself "not to worry"  Land Shark   Dec-04-08 06:45 AM   #6 
        - actually this fits with my theory that obama is in office (soon)...  tomp   Dec-04-08 09:52 AM   #15 
        - Did you consider the risk that an uprising is precisely what they want?  Land Shark   Dec-04-08 09:42 AM   #13 
        - It "got to the supreme court" by being laughed out of every other court along the way  jberryhill   Dec-04-08 07:46 PM   #63 
  - Legal establishment taking these cases seriously, not laughing it off. see  Land Shark   Dec-04-08 08:00 AM   #7 
  - The right wing  H2O Man   Dec-04-08 09:04 AM   #9 
  - Article argues lawsuits would lack standing under Article III, not the political question doctrine.  Renegade08   Dec-04-08 09:23 PM   #79 
     - True, that's just one example of a wider body of scholarship referencing PQ  Land Shark   Dec-04-08 09:42 PM   #81 
        - Here's the deal - the Supreme Court DID hear Bush v. Gore.  Renegade08   Dec-04-08 09:52 PM   #83 
           - it gets worse, it may NEVER be able to be overturned, because they  Land Shark   Dec-04-08 09:57 PM   #85 
           - Okay, but, the point is, the political question doctrine is not the slam dunk  Renegade08   Dec-04-08 10:01 PM   #88 
              - It's an option, PQ doctrine is. An unappealable option for SCOTUS.  Land Shark   Dec-04-08 10:05 PM   #89 
           - a shitstain on the law  Nuisance Man   Dec-04-08 11:22 PM   #94 
           - Minor Note  jberryhill   Dec-05-08 12:59 AM   #102 
              - consideration is always limited to 'cases and controversies"  Land Shark   Dec-05-08 01:27 PM   #113 
                 - You have finally convinced me - you are not a lawyer  jberryhill   Dec-06-08 10:44 PM   #119 
  - Chicago Tribune coverage of political ad and Supreme Court Friday docket here  Land Shark   Dec-04-08 08:58 AM   #8 
  - Dude, get a sense of humor. Tinfoilhat nuttery often will bring cases to the SCOTUS  IWantAnyDem   Dec-04-08 09:10 AM   #10 
  - Read the University of Michigan Law review link for analysis well beyond "9th grade civics"  Land Shark   Dec-04-08 09:30 AM   #11 
     - Saw no links in your post  IWantAnyDem   Dec-04-08 09:59 AM   #16 
        - The U of MI link is in the replies. You're making the case here for a new election, in the Congress  Land Shark   Dec-04-08 10:04 AM   #18 
        - Damn, you can't read, can you?  IWantAnyDem   Dec-04-08 10:06 AM   #19 
           - Um, reading is searching for information  Land Shark   Dec-04-08 01:16 PM   #23 
           - Then you reject the constitution  IWantAnyDem   Dec-04-08 04:13 PM   #34 
              - be specific, cite your power and your provision.  Land Shark   Dec-04-08 04:35 PM   #41 
                 - Sure thing  IWantAnyDem   Dec-04-08 07:08 PM   #50 
                    - Easy to take those apart  Land Shark   Dec-04-08 08:07 PM   #65 
           - Ah, but here's my possibly premature question, before reading the rest of the thread....  jberryhill   Dec-04-08 02:02 PM   #26 
              - Here is the answers  IWantAnyDem   Dec-04-08 04:12 PM   #32 
              - please cite the "final authority" on the PRESIDENCY language, not other offices. nt  Land Shark   Dec-04-08 04:43 PM   #44 
                 - Amendment 12, Section 3, specifically sentence 2. n/t  IWantAnyDem   Dec-04-08 07:18 PM   #53 
                    - and where does it say "congress decides" and not states, state legislatures or the people's votes?  Land Shark   Dec-04-08 08:22 PM   #68 
                       - Congress decided the elections of 1800 and 1824  jberryhill   Dec-06-08 10:56 PM   #120 
              - You can't think of any principled distinction between slavery or segregation & electing youngsters  Land Shark   Dec-04-08 04:41 PM   #43 
                 - Where one makes a "principled distinction" depends upon one's principles  jberryhill   Dec-04-08 06:53 PM   #49 
                    - The Constitution binds and restrains the government, not the people, or even corporations  Land Shark   Dec-04-08 08:20 PM   #67 
                       - You should write labels for Dr. Bronner, you know  jberryhill   Dec-04-08 08:48 PM   #70 
                          - The move you perhaps are missing is that some laws are void if they  Land Shark   Dec-04-08 09:03 PM   #73 
                             - "never WARNED THEM"  jberryhill   Dec-04-08 09:59 PM   #87 
                                - You can fail to qualify in the states. And that happens sometimes.  Land Shark   Dec-04-08 10:14 PM   #90 
                                   - I'll take the final question....  jberryhill   Dec-05-08 12:14 AM   #95 
                                      - Boy, it is INCREDIBLY easier to stop candidate from office, than to kick out President w/ power  Land Shark   Dec-05-08 01:38 PM   #114 
                                         - Uh, no, it's just as easy either way  jberryhill   Dec-07-08 12:02 AM   #121 
        - The 20th Amendment does not give congress the power to determine eligibility.  Renegade08   Dec-04-08 09:28 PM   #80 
  - ". . .Bong hits for Jesus. . .!!!"  stellanoir   Dec-04-08 09:33 AM   #12 
  - The irony is that some of the same wingnuts or their followers are  treestar   Dec-04-08 09:42 AM   #14 
  - They want citizenship to be statutory and not a birthright, making it a political football  Land Shark   Dec-04-08 10:00 AM   #17 
     - Yes, it seems to be one of the extraordinary compendium of tricks they use, or  KCabotDullesMarxIII   Dec-04-08 04:13 PM   #33 
     - Next thing you know...  jberryhill   Dec-05-08 12:19 AM   #97 
  - A couple of questions... And unlike some, I actually read beyond the first paragraph.  jobycom   Dec-04-08 10:20 AM   #20 
  - Thanks for the questions, here are the answers  Land Shark   Dec-04-08 10:38 AM   #21 
  - You are forgetting the statutory high bar to disqualify a President Elect  IWantAnyDem   Dec-04-08 10:48 AM   #22 
  - Statutes can not invade the constitutional structure, they can EXPAND not contract peoples' rights  Land Shark   Dec-04-08 01:18 PM   #24 
     - yeah... tell that to the Bush v. Gore majority  jberryhill   Dec-04-08 02:07 PM   #28 
        - Yeah so do you worship the Bush v. Gore majority, or the higher principles they ignored?  Land Shark   Dec-04-08 04:34 PM   #39 
           - The answer to that question should be apparent in context here...  jberryhill   Dec-04-08 04:41 PM   #42 
              - Ok, I don't ever equate court "majorities" and popular majorities, but I can understand why you did.  Land Shark   Dec-04-08 08:09 PM   #66 
                 - WTF is that supposed to mean? /nt  jberryhill   Dec-04-08 08:51 PM   #72 
                    - You spoke of majorities on courts, i spoke of majorities of voters nt  Land Shark   Dec-04-08 09:09 PM   #76 
                       - No...  jberryhill   Dec-05-08 12:22 AM   #98 
                          - You are right on that point. But that's precisely why I'm pointing similar dynamic  Land Shark   Dec-05-08 12:57 PM   #111 
  - Point 4 sounds like advocacy of "mob rule"  jberryhill   Dec-04-08 02:05 PM   #27 
  - Actually, it sounds like Patrick Henry, Thomas Jefferson, and drafters of the 12th Am.  Land Shark   Dec-04-08 06:12 PM   #48 
  - You take away individual rights by giving too much power to a simple majority.  jobycom   Dec-05-08 01:45 AM   #106 
  - It's a mistake to look just to the constitution to define one's rights, or the american people's  Land Shark   Dec-04-08 01:37 PM   #25 
     - I never did.  jobycom   Dec-05-08 01:56 AM   #107 
  - To simplify  jberryhill   Dec-04-08 02:10 PM   #29 
  - IF the candidate openly proclaimed their real age during the election  IWantAnyDem   Dec-04-08 04:03 PM   #31 
  - The concept here is "issue preclusion" not "the truth of the matter"  Land Shark   Dec-04-08 04:20 PM   #36 
     - Your last sentence....  jberryhill   Dec-04-08 04:34 PM   #38 
     - Again, I disagree. The qualifications are very clear.  IWantAnyDem   Dec-04-08 07:16 PM   #51 
        - It would have been interesting....  jberryhill   Dec-04-08 07:28 PM   #58 
        - And then the Congress should be all removed for colossal fraud on the people: Fake Election  Land Shark   Dec-04-08 08:49 PM   #71 
           - No, it wouldn't -be- an issue before the election  jberryhill   Dec-05-08 12:28 AM   #99 
  - Do the research, it's happened already, 6 times or more with federal office  Land Shark   Dec-04-08 04:29 PM   #37 
     - The joy of asking folks who have done the research  jberryhill   Dec-04-08 04:35 PM   #40 
        - Did you read the OP? First name there is Henry Clay.  Land Shark   Dec-04-08 04:57 PM   #45 
           - Good for him - Have you ever heard of D.B. Cooper?  jberryhill   Dec-04-08 07:19 PM   #54 
           - Mind telling me where you're coming from? You're making fun of the American people  Land Shark   Dec-04-08 08:42 PM   #69 
              - Again with the personal insinuations....  jberryhill   Dec-05-08 12:39 AM   #100 
                 - I asked you to clarify how you feel about the outcomes you seem to be urging  Land Shark   Dec-05-08 01:16 PM   #112 
           - Good for him - Have you ever heard of D.B. Cooper?  jberryhill   Dec-04-08 07:20 PM   #55 
  - Ummm.....yeah. Two words:  BullGooseLoony   Dec-04-08 05:03 PM   #46 
  - Ummmm.... yeah, you don't want to be understood by anyone else?  Land Shark   Dec-04-08 06:05 PM   #47 
     - I understood his point clearly  jberryhill   Dec-04-08 07:44 PM   #62 
  - Clarence Thomas needs to be IMPEACHED - he's a DISGRACE to the Judicial System.  blm   Dec-04-08 07:16 PM   #52 
  - He's not enough of a judicial figure to qualify as a "disgrace"  jberryhill   Dec-04-08 07:22 PM   #56 
     - heheheh.....I will happily stand corrected....  blm   Dec-04-08 07:26 PM   #57 
        - always good to find major points of agreement. :) nt  Land Shark   Dec-04-08 09:11 PM   #77 
  - k/r  Fridays Child   Dec-04-08 07:31 PM   #59 
  - Brilliant post  malaise   Dec-04-08 07:38 PM   #60 
  - Thanks, and thanks for keeping me "brief"! :)  Land Shark   Dec-04-08 09:05 PM   #74 
  - I'm thinking the justices have relatives who will be looking for loans.  aquart   Dec-04-08 07:39 PM   #61 
  - You underestimate the seductiveness of love affairs with The Law /nt  jberryhill   Dec-04-08 07:53 PM   #64 
  - AS your sig says "Democracy is slow and annoying; every voice counts"  Land Shark   Dec-04-08 09:08 PM   # 
  - All of this presumes that Barack Obama was elected. Who can prove it?  Peace Patriot   Dec-04-08 09:08 PM   #75 
  - While you make some points, I think McCain stipulates he lost (or would do so) nt  Land Shark   Dec-04-08 09:53 PM   #84 
     - Well, so much for consistency  jberryhill   Dec-05-08 01:15 AM   #103 
  - Obama was born on American soil.  Renegade08   Dec-04-08 09:18 PM   #78 
  - I'm fine if you want to believe that. The RW has such a huge VOLUME of crap to throw  Land Shark   Dec-04-08 09:51 PM   #82 
     - Uh, how about insisting on Hawaii because Obama was born there?  Renegade08   Dec-04-08 09:59 PM   #86 
        - I've no personal knowledge of where I myself was born. Much less Obama.  Land Shark   Dec-04-08 10:27 PM   #92 
           - Oh please.....  jberryhill   Dec-05-08 01:31 AM   #104 
              - Well I think their case is more powerfully misleading by far than what you say  Land Shark   Dec-05-08 01:46 PM   #115 
                 - By "their case", I'm assuming you mean Donofrio's  jberryhill   Dec-06-08 10:30 PM   #118 
  - Well said. k&r n/t  Laelth   Dec-04-08 10:19 PM   #91 
  - Thanks for the nice mix with the thread's constructive criticism! ;) nt  Land Shark   Dec-04-08 10:56 PM   #93 
     - Not a problem.  Laelth   Dec-05-08 07:56 AM   #108 
  - Kicking and recommended to read tomorrow.  Stand and Fight   Dec-05-08 12:15 AM   #96 
  - Thanks, if I may presume a tad of credit, I'll share with JBerryHill on thoroughness of discussion  Land Shark   Dec-05-08 01:49 PM   #116 
  - too much to digest at the moment  amborin   Dec-05-08 01:43 AM   #105 
  - You're right, the case is complete horseshit  HughMoran   Dec-05-08 07:59 AM   #109 
  - In my experience, people have to go through an evolution of thought on this topic  Land Shark   Dec-05-08 12:52 PM   #110 
  - kick for interesting discussion. nt  2 Much Tribulation   Dec-05-08 04:00 PM   #117 
 

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