As the 2020 election approaches there is a fear that Donald Trump will carry through with his threat not to recognize the “rigged” election results. The question is will the intent of the Founders of the American Constitution which envisaged a smooth transition of power be realized. Having created a Constitution which sought to avoid a Donald Trump, then how to contain and eliminate one if somehow a Donald Trump was elected, the Founders’ efforts have thus far been thwarted. It remains to be seen whether those interpreting the document will carry though on its imperative that America’s President should not become an absolute monarch.
IN THE BEGINNING
America was founded on aspirational hope as articulated in the Declaration of Independence, (July 4, 1776), which was written and signed during the American Revolutionary decade’s long war. The Founders had a number of assumptions which they hammered into the Constitution, signed into Law on September 17, 1787. The latter was formulated with the Declaration of Independence as their guide. Jefferson’s defiant document had announced to the world that, “All men were created equal” and that would be the basis of the new democratic Republic.
However central to the creation of the American Federation was the fear that had been the central cause of the War of Independence. The latter had been fought against the absolute power of the British Monarch to tax without representation and his failure to allow the citizens of the colonies any say in government. The objective was thus to create a government “representative” and accountable to its citizenry. Central to the endless deliberations was who should be the President and how could it be ensured that the country’s leader would not be in the mould of King George III.
The Federalist papers written by Founders James Madison, James Hamilton and John Jay were produced mainly for the purpose of gaining overall support for the new Constitution. However they provided much insight as to the thinking of the Founding Fathers. The ultimate product the American Constitution, with the obsessive separation of powers with checks and balances gave little doubt as to the overall intent of the Founding Fathers. Besides being an instrument of “We the People” they desired a leader of the highest integrity. Ultimately the Constitution was designed in an attempt to ensure that “ambition” could be kept in check by another’s “ambition” and that unscrupulous individuals would not be able to subvert the intent of the American democracy. To this end there would be three co equal branches of government the bicameral Legislature, the Presidency and the Judiciary
In their deliberations Jay H. Ell had to believe that in going to the lengths they did that had to have had in their minds the arrival of Donald J. Trump who believes that the Constitution is the legal document that enshrines his unchecked power. It remains to be seen whether or not that the Constitution ultimately achieves its objective, namely to prevent a monarchy from being installed.
One of the Federalist papers is currently being misinterpreted to support Trump’s arguments that,“He alone can fix it” and that he is entitled to shoot someone on Fifth Avenue New York. However the end product, the Constitution makes it quite clear that the President cannot have absolute power and hence the concept of impeachment was introduced. In addition the whole system of checks and balances with three co equal branches of Government with the President answerable to the Legislative branch is clear evidence that he is not above the law.
FEDERALIST PAPER 70 USED TO SUPPORT TRUMP’S CLAIM TO ABSOLUTE POWER
The nearly ninety Federalist papers contain the central arguments for creating a representative and accountable democracy. However to support different political and constitutional positions one or other paper is alluded to as if it rather than the ultimate Constitutional product represents the consensus of the Convention. Of late the main focus of attention is on the power that the President should have. It is Federalist Paper 70, authored by Hamilton, that those who believe the President’s power is absolute rely on. Trump if he had heard of the Federalist Papers, let alone Alexander Hamilton, let alone Paper 70 would have maintained as some have, that, that is the basis of his unfettered right to shoot someone on Fifth Avenue New York. While Hamilton is misinterpreted as being supportive of this position, he wished like Plato one assumes, to be able to appoint an incorruptible philosopher king. His fear was that if the incumbent was chosen from the body politic a riff raff like Trump could be elected President. He believed that such an outcome would be a disaster. Hamilton even looked to existing nobility - someone who had an inherent sense of values.
FEDERALIST PAPER 51 MORE REFLECTIVE OF THE INTENT OF THE CONSTITUTION.
Federalist Paper 51 provides a key explanation around the concept of checks and balances in limiting the President’s power and was authored by future President James Madison. Here the famous term “Ambition must be made to counteract Ambition” is found. It is also in this explanatory document that Madison outlines the rationale for the elaborate convoluted set up of checks and balances that wouldn’t be necessary “If men were angels”. Madison argued that the biggest burden to the country would be if one branch grew too powerful. However there had to be some branches more important than others. There he designated the Legislative branch which was directly answerable to the people besides having the power to remove a President from office.
INTERPRETATION OF THE CONSTITUTION AND EXPLANATORY FEDERALIST PAPERS RE TRUMP
The fact, that in this day and age there are constitutionalists including Attorney General Barr, of course the President who is a "very stable genius", and even a few Judges of the Supreme Court that believe that Article 11 of the Constitution which broadly lays down the job definition of the President, gives him unfettered license to do as he wishes, is incomprehensible. Barr has taken this lunacy one step further arguing that litigation involving an alleged rape by Trump should be against the State and not Trump personally. As mind-blowing is the fact that the Republican National Committee are supporters as well. This year’s Republican Convention Platform Policy document laid down no policies other than to support President Trump. Hail to the King!
While there were differing models on how to reach the goal of what type of character the President should be, the overwhelming consensus was that the President be a man of integrity and character as was George Washington. Needless to say the Hamiltonian method of selection was not adopted although what was ultimately decided upon had his motivation in mind. A mechanism was created whereby if somehow or another a Trump slipped through the cracks he could be contained and even removed as the power of impeachment allows. An elaborate system of checks and balances were put in place so as not to allow the Executive President Absolute Power by the creation of three co - equal braces of Government. The Executive Head which would be elected by the States, (now directly by the voters in the States), a Legislature which would have two chambers so as to afford some veto power for the smaller states and the Judiciary who would interpret the Constitution and the Amendments.
The fact that the President constitutionally needs to report to the Legislature and that he could be impeached by that body contradicts the argument that his power is absolute. The most amazing sadness of the whole attempt at a coup d’etat is that those empowered constitutionally and morally to put a halt on the pretender Trump, have shirked their duty
As history has shown you cannot create a Constitution to prevent the behavior of the “bad angels”. So if the President commits High Crimes and Misdemeanors and is supported and not impeached by the body appointed to maintain the Executive’s integrity, then there is nothing even Hamilton could have done to prevent it. If the checks and balance institutions collude with the Executive Head, who for example backs a foreign adversary against his own institutions, what further could the Founding Fathers have done? Presumably they relied on the Judiciary.
THE JUDICIARY
There was one further brake to authoritarianism - the Judiciary, ultimately the Supreme Court which was given the authority to adjudicate every dispute or transgression that might arise in the Republic. One might have thought the third branch of Government, the Judiciary, when asked to adjudicate when the Executive Branch had refused point blank to cooperate with the Legislative Branch would have acted decisively. In falling to do so it has allowed four years to pass without the Legislature being able to investigate what motives, financial or otherwise, the Executive head may have had in cooperating with a foreign adversarial power. Further the Legislature were unable to get to the bottom as to why he allowed the foreign power to place a bounty on this country’s militia. To add to the gravitas of the Supreme Court's failure is that it has emboldened the Executive Head who according to a WhistleBlower account is that he has instructed Intelligence not to provide reports on Russian interference in the 2020 election and on the white supremacists groups that support him. This state of affairs was bad enough for the former Head of Intelligence Dan Coates to comment, "....that Putin had to have had something on Trump".
While the Judiciary have agreed that the Constitution did not allow the President to be above the Law they have acted so sluggishly that again the legal institutions investigating him will be unable to do so before the 2020 election. This could have the practical effect of the President never being subject to the law of the land.
In short the Founders, who had fought a war for almost a decade to create the Constitution that claimed that “All men were created equal”, then deliberated for eons to formulate a government which was answerable to “We the People”, could not have envisioned that if their worst fear materialized - an Executive head turning out to be a mendacious self serving traitorous narcissist, that he would be allowed to continue unchecked. How shocked they would have been to see that those who were in charge of their elaborate checks and balances, who swore the same oath to uphold the selfsame Constitution, would not halt the Executive Head’s unconstitutional actions. The Judiciary in the form of the Supreme Court have more than their share of the blame.
THE PRESIDENT HIS ENABLERS AND THE 2020 ELECTION.
The last line of defense in this sorry mess is the electorate. The good news is that the Executive Head is consistently behind in the polls. The bad news is that the Executive Head has made it quite clear that he is going to “win” one way or another.
The Party that the President is a member of has long recognized that the demographics of the population would ensure that their nominee would not be elected in the third millennium unless they were more inclusive of all America’s demographics. The answer has been to suppress the vote of those who would vote against them. There had been limits placed on that behavior but the current Supreme Court neutered them by three bizarre interpretations of the Constitution. In one instance they removed the protections that were put in place to prevent the blatant voter suppression tactics of certain states; in another they ruled that corporations could spend as much money as they liked in elections - the rationale being was that money was akin to free speech and corporations were people; and more recently they maintained that there were no limits to the gerrymandering a State Government could resort to to distort electoral constituencies to favor their Party.
The reports are that once again the Executive Head is being assisted by a foreign adversarial government in his campaign. This after it has been conclusively accepted that he participated and welcomed that country’s efforts in getting him elected in 2016.
The Executive Head rales against the States’ efforts to ensure fair voting in the 2020 election. He has weakened the postal process whereby this could be effected. He has gone to the extent of appointing a donor as head of the Post Office who is crippling its capacity to handle the massive amount of voting that will take place by mail this election. The President states that the election will be “rigged”. He exhorts voters to break the law setting up a scenario that election results could be challenged. He warns that there is going to be monitoring to avoid the non existent problem of electoral fraud in the hope to diminish the turnout of the voters that would vote against him. He claims that the result may not be known for weeks or months…
THE LAST CHANCE TO PREVENT AN UNDEMOCRATIC RESULT IN 2020
It seems apparent that one way or another that President Trump will not step down politely if beaten in the November Presidential elections. He will challenge, smear and claim that the election was rigged. He could even appeal to his “second amendment people” to support him. The belief is that he could create such a stalemate that would allow him to declare an Emergency and remain the de facto President. This not so unimaginable scenario is bolstered by the fact that much of the voting will be post and that the outcome may be delayed. Trump will challenge every turn of events.
However does the Constitution and the Law allow this to go on forever? It doesn’t. Federal Statute says a halt must be called to all these disputes and bickering by December 8. This was the reason that the Supreme Court called a halt, even before that date, in Bush v Gore. In so doing they over rode the authority of the Florida Supreme Court to hold a recount when Bush had ostensibly won the State by five hundred and nine votes and indications were that the Gore would triumph on a recount. That decision gave Bush the Presidency.
If the Supreme Court won’t decide this issue by December 8 and leaves it to the politicians then the chaos which the Rehnquist Court claimed they were preventing will ensue. There are an elaborate set of procedures and votes that will be taken by Congress to decide who will be President. However there could be fights as to who the electors are and so forth and so on. Ultimately the House is supposed to elect the President and the Senate the Vice President. As the newly elected legislators decide this should ensure Biden the Presidency and Harris the Vice Presidency. But the problem is that even though the House has an overwhelming Democratic majority each State has one vote and even in the biggest landslide ever the Republicans they will be in the majority as in many rural states there are only a few House Members.
Now if Jay H. Ell knows all this so does Chief Justice Roberts. He also has to be aware that as matters stand at the moment Trump will lose the popular vote by at least eight to ten million votes and the legislative Republicans re electing him under these circumstances would destabilize the country. The Bush vote was five to four and that is what the vote is going to be in the Biden vote. Roberts who has shown he is an adherent to precedent will follow the Rehnquist 2000 decision. Whoever is ahead before December 8 he will use his casting vote to declare the winner. He might reflect at the time of his and his Court's role in allowing America to get to this disastrous state of affairs, in the first place.
AT THE END OF THE DAY
Whichever way this is looked at it is going to be ugly.
Jay H. Ell could be totally wrong and Biden’s victory so apparent that even Fox News will call the result for him on the morning of November 4.
Who says Capitalism doesn’t work? The Trump campaign is running out of money.
If the Michael Cohen book shattered the rafters stick around for Bob Woodward’s next week.
Peter Stzrok's book Compromised makes a water tight case that Trump is a risk to National Security making the enablers of King Donald I even more culpable.
WOODWARD'S BOOK RAGE WILL ENRAGE AS IT OUTLINES TRUMP'S PERFIDY IN THE COVID CRISIS WHERE NEARLY 200,000 AMERICANS ARE ALREADY DEAD.
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