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Reply #65: Easy to take those apart [View All]

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Land Shark Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Dec-04-08 09:07 PM
Response to Reply #50
65. Easy to take those apart
Article 1, Section 5: has to do with legislative not executive branch. I litigated a congressional election contest directly on point with this clause with the Congress claiming it gets to choose it's own members, thus it swore in a member with 68,500 uncounted votes on the FIRST count in a close race, the Congressman claiming the House had exclusive jurisdiction and "final authority". That phrase you use, "final authority" if given the expansive construction of the bigger power mongers in the house, would mean elections are entirely useless, in that the House and Senate have "final authority" (which they don't for various constitutional and structural reasons which I won't get into because this section is inapplicable.)

Article 2, Section 1. States "senators and representatives" shall not be electors. also states the job of the Congress is to TALLY the electoral votes, which merely is ministerial meaning to add them up as received. Also states that the power of decision in the electoral college devolves to the House only when no candidate gets a majority, and even then, the Senators and Representatives in that special case do not get to individually vote, but they vote by one state/one vote. (50 votes total). STill no "final authority" and self-perpetuating legislative majority "authority" here.

Amendment 12; The use of the word "devolve" implies an absence of causation or active pushing, this is the key word in terms of if and whether any selection duties for the "chief magistrate" accrue to the legislative branch, which is and has been disfavored (there cannot be the necessary separation of powers and independence of the branches if the executive is ordinarily or in any but extraordinary cases actually elected by the legislative branch. SEE STATEMENT OF SENATOR TRACY ON RATIFICATION OF THE 12th AMENDMENT, below.

Amendment 20, Section 3 (specifically, the second sentence). Special legislation or retroactive (self-serving) legislation is impermissible. I presume you are reading something into this language that implies a broad power of selection or review that isn't there? The word "qualify" is mentioned, but no power is given to the Congress to make that determination whatsoever, no is "qualify" defined as anything other than getting a majority of the votes in the electoral college, or as a reference to state-based proceedings. Recall that state legislatures have "plenary power" to fix the method of selection for electors under Article II jurisprudence, a construction that allows the House to pass on issues other than the special cases provided for in article II of non-majority and of amendment 20 (death) would render that plenary power of the state legislatures a complete joke, to be unwould at will by the federal house/senate.

So you've pointed to the sections, I fail to see any point to them. I can address the statute, which cannot modify or enlarge the constitution, in a next post.

The sense of "manly" below had a sense of civic involvement in it that was strong in the late 1700s...
" with manly firmness invasions on the rights of the people." Thomas Jefferson, Virginia Constitution, 1776. (*) Papers 1:338

"The Constitution is the origin and measure of legislative authority. It says to legislators, thus far ye shall go and no farther. Not a particle of it should be shaken; not a pebble of it should be removed ..." Justice William Patterson

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests. Patrick Henry

Governments are more or less republican, as they have more or less of the element of popular election and control in their composition; and believing, as I do, that the mass of the citizens is the safest depository of their own rights, and especially, that the evils flowing from the duperies of the people, are less injurious than those from the egoism of their agents. I am a friend to that constitution of government which has in it the most of their ingredient. Thomas Jefferson, 1816

The great check imposed upon Executive power was a popular mode of election; and the true object of jealousy, which ought to attract the attention of the people of every State, is any circumstance tending to diminish or destroy that check. It was also a primary intention of the Constitution to keep Executive power independent of Legislative; and although a provision was made for its election by the House of Representatives in a possible case, that possible case never was intended to be converted into the active rule, so as to destroy in a degree the line of separation and independency between the Executive and Legislative power. <>--Senator Tracy, debate concerning ratification of Amendment XII to the United States Constitution

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