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For Relief from the Election, the Constitution and Recovery from Turmoil, Read a Book
For Relief from the Election, the Constitution and Recovery from Turmoil,
Read a Book
by JANyCE C. KAtZ
One month to the day after the inauguration of the 46th president of the United States, Joe Biden, Suffolk University/USA Today released the results of a poll indicating that 73 percent of Republicans who voted for a second term for the 45th President still believe Donald Trump actually won the election.i
The survey of 1,000 Trump voters, identified from 2020 polls, was taken by landline and cellphone Monday through Friday the week before. About half of those polled said that they supported Trump over the Republican Party, and considered it important that Republicans be more loyal to the former President. Many of them also believe that Antifa, not Trump supporters, stormed the Capital on January 6.
One day later, SCOTUS refused to hear a case brought by Republicans (petitions for writs of certiorari denied and case moot) and even the minority dissent, written by Justice Thomas and another by Justice Alito, joined by Justice Gorsuch, agreed that there were not sufficient votes in contention to change the election results.ii The three justices did argue that the question of the State’s Supreme Court having the ability to extend the date ballots could come in but needed to be decided before the next election.
This case joins the other cases, over 60 of them, that were filed and decided during the after-election period. No evidence of the alleged massive fraud emerged in any of the cases. But, still, people believe the stories and lies. Many of those arrested for their actions on January 6 said that they were trying to defend the country and the presidential election results they thought were accurate. Still others, like some of the Republican party leaders when condemning those who voted for impeachment of Trump, argue the attack on the Hill was a hoax of some sort. Either Antifa in MAGA costumes were there, or it was all a created illusion; in either interpretation, they saw it as an attempt
to discredit Trump. So, given the vast difference in understanding as to what happened during the election and thereafter, we still have a challenge to our democracy and the U.S. Constitution.
However, rest assured, this is not the first challenge our country or the U.S. Constitution has faced, although it is and has been a major one. For example, perhaps as many as a million people died during the 18611865 Civil War, but the Constitution survived.iii And, our democracy grew stronger because of the 13th, 14th, and 15th Amendments, which freed the slaves, ensured Black people were U.S. citizens and mandated that the right to vote was not to be denied because of the race, color or past servitude of a man.
Watergate was another test of our democratic system. The late Sen. Sam Ervin (D-N.C.), chairman of the
Senate Select Committee to Investigate Campaign Practices, saw the Watergate scandal as the biggest threat to the U.S. Constitution, far more than the Civil War.iv
THE COURT AND THE CONSTITUTION
Archibald Cox
The late Archibald Cox, a former Solicitor General known for many accomplishments during his lifetime, but remembered as the Special Prosecutor chosen by then Attorney General Bill Richardson during the Watergate Scandal wrote “The Court and the Constitution” after Nixon left DC.v, vi His goal was to help all of us understand:
“[t]he genius of American constitutionalism, which supports the rule of law, lies, first, in the Constitution, which provides the opportunity for both change and continuity; second, in the method of judicial interpretation; and third, in the skill with which the generations of justices, despite a few bad mistakes, have steered between the horns of their dilemma.”vii
By July of 1973, considerable evidence had shown that the Nixon Administration had engaged in planning a “cover up” to hide the responsibility for “encouraging” individuals to break into the Watergate headquarters of the Democratic party. All of President Nixon’s words were on tapes. Cox won the right to subpoena them with a ruling that no president is above the law.viii However, Nixon didn’t want to release the tapes, except in a very limited manner. When Cox insisted all tapes had to go to Congress, Nixon wanted him fired immediately. On Saturday, Oct. 20, 1973, Richardson and Deputy Attorney General William Ruckelshaus resigned rather than fire Cox. The then-Solicitor General Robert Bork became head of the Justice Department and promptly fired Cox. Cox’s statement on his termination indicated the danger the country was in at that time: “Whether we shall continue to be a Government of laws and not of men is now for Congress and ultimately the American people.”
Point of information: When Cox first wrote his book and was in Cincinnati (for reasons related to the book and to something else), I was a reporter/producer/sometimes anchor on WGUC in Cincinnati. Before interviewing the former Solicitor General/Special Prosecutor/Harvard Law professor, I bought and read his book. Thorough research makes for better questions not only in legal cases. After watching the attack on the Hill on January 6, I went to my library searching for something that might give me hope for the future of the country and its democracy. I found and reread Cox’s book.
Cox’s well-written book is easy to read and is a pleasant way to brush up on U.S. Constitutional law and history. When it discusses a case, it gives not only the ruling, but the impact on the Constitution, the government and the history leading up to the case. For example, when Cox writes about the McCulloch v. Maryland argument, the conflict between Maryland’s policy of levying a stamp tax on the notes of any bank without authority to have a branch in Maryland, he describes the actual argument upholding the bank’s constitutionality and statement that the government is “acknowledged by all to be one of enumerated powers.”ix He also points out that Ohio officials continued to levy tax on the bank’s notes and money in the form of coins; then he reminds us that the bank did not survive President Jackson.x Finally, Cox explains the significance of the case: it preserved the federal government; allowed for intergovernmental immunities freeing the agents of the State and federal governments from taxation or regulation of the other; and because of it, we expressly adopted the “implied powers” theory.
In the book, Cox noted the contradictions in the words of the Declaration of Independence with the inequality of the slave, people of color, women, those without property, etc. And, he discussed the various attempts during the 19th and 20th centuries to eliminate the disparity, and the resulting issues raised when trying to rectify the original inequality of some Americans.
You ask, “why review and suggest people read this older book now?” Why, because it provides hope. The Watergate constitutional crises had abated by the time Cox wrote this book. His view of our constitutional history is of a slow progression into a better society. (Alert: Cox was not a founding fathers/textualist believer.) Perhaps, after the January 6 attack on the constitutionally required Congressional certification of the Electoral College fades a bit from memory, people will become more positive about our government and its institutions and another, very hopeful, book about our government and Constitution will emerge. Until then, do enjoy Cox’s work.
PRESIDENTIAL ELECTIONS AND MAJORITY RULE:
Edward B. Foley
But, confusion continues now, and until that is somehow calmed down and cleared up, our democracy is threatened. For example, Justice Thomas’ dissent to the dismissal of the case brought by the Pennsylvania Republican Party challenges our elections and their accuracy, thereby reflecting the continuing confusion in that great numbers of people have about the presidential election’s outcome.
We failed to provide clear guidance, wrote Justice Thomas. And, with that, he confirmed the doubt that exists about this election in 2020, but also, implicitly and possibly without thinking to do so, Thomas argues that there was valid uncertainty about the Trump election victory in 2016 as well as other, earlier presidential elections.
The Electoral College has created such issues multiple times since its origination in the U.S. Constitution. After problems with election results, the procedure for electing the president was constitutionally altered in 1803 to allow for an allegedly smoother process. However, as Edward B. Foley wrote in his recently published book, “Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College”, the Jeffersonian idea was that use of the Electoral College could create a majority of a majority.xi This means that the vote results would, in actuality, be representative of the desire of the majority of US voters.
But, as we saw in 2000 with hanging chads and a bit of manipulation to get SCOTUS to decide the case, SCOTUS stopped the vote count and gave the Republicans Florida and the White House.xii George W. Bush won Florida by only 537 votes out of the almost six million cast. With Florida’s 26 electoral college votes, Bush led Gore in electoral votes nationally 271-266. Even though Gore won the popular vote nationally, he was out of legal options. With concern for the integrity of the country and Constitution, Gore conceded. As Foley and others have pointed out, 10 candidates ran for president on the Florida ticket. Ralph Nader, Green Party, received 97,488 votes or 1.6 percent; Patrick Buchanan, Reform, received 17,484 votes or .29 percent and the lowest vote count, 562 votes or .01 percent that James Harris received, was just a bit more than the number by which Bush won 26 electors. So, if all the votes for candidates other than Bush are added up, it is clear that the majority of people in Florida did not want to elect him. The same could be very true for the 2016 election, where Donald Trump won the electoral votes, but Hillary Clinton had a 3 million plus vote. The minority parties took votes that may or may not have gone to Clinton or to Trump, and the result was not a majority of a majority as the Jeffersonian constitutional changes were meant to have produced.
Foley suggests that since the 1803 changes to the way the Electoral College votes were counted, 16 presidents have won based upon a state giving a candidate with a plurality, rather than with a majority, the state’s electoral vote.xiii Changing the Constitution is not an option, he argues, especially given the hyper-divisiveness of the political world these days. He believes if all states comply with a majority rule requirement, we would be more likely to elect presidents who reflect the wishes of the majority. Foley discusses the strong and weak points of some of the attempts to change the problems of the Electoral College without an amendment to the Constitution, like the National Popular Vote Multistate Compact Plan. But, even with the extra expense of holding a second election, Foley seems to favor a run-off of the top two candidates in every state over rewarding the win to the person who receives the highest count of votes out of 10, or even three, candidates.
BENDING THE ARC TOWARD JUSTICE
Col Owens
Being a bit tired of world affairs and politics over which I have no control, I picked up Col Owens’ book, “Bending the Arc Toward Justice” (Cincinnati Book Publishing, Cincinnati, Ohio 2020) and a glass of wine and read the life story of someone I should know or should have known. Suddenly, I felt as if I was sitting and listening to a good friend talk about his life, recalling all he did and the people he worked with. Col spent his life trying to make the world better. He dedicated his life to social justice. We have that in common.
What was really fun was reading about how he worked with some of the same people I used to be around when I was in Cincinnati and, later, with others in Columbus. He came to UC Law just as I was graduating from it. He was active in Covington, Kentucky’s government. I wanted to ask him about people I knew whom he didn’t mention. For example, my dear friend, the late Sandy Cohen, a Covington Commissioner who was brutally murdered in 1985 and whose body was discovered in a dump by a psychic.xiv Did he work with, or against, or even know Sandy? One day, maybe I will actually sit down with Col Owens and discuss this more thoroughly.
Be prepared: the book has quite a few “I did” sentences and reading it can seem a bit like listening to a monologue. But, it is interesting. It reminded me of a talkative person who has accomplished much in their life and just wants to tell someone about it, possibly over a glass of wine. And, it is good in this era of duplicity, fake history, conspiracy theories, etc. to “listen” to the story of a lawyer who dedicated himself to making the world just and helping others. Right now, we need more people like Cal Owens who are fighting in their own way to preserve and improve our democratic system.
i Exclusive: Defeated and impeached, Trump still commands the loyalty of the GOP’s voters, Susan Page and Sarah Elbeshbishi, USA TODAY: https://www.usatoday.com/ story/news/politics/2021/02/21/exclusive-trump-party-he-still-holds-loyalty-gopvoters/6765406002/ Released 12:01pm. 2/21/2021 and updated; Almost half of Republicans would join Trump party: poll, Dominick Mastrangelo THE HILL https://thehill.com/homenews/politics-101/539779-almost-half-of-republicanswould-join-trump-party-poll?rl=1 released 02/21/21 12:47 PM ET; QAnon and other groups continued to believe Trump would somehow be sworn in on March 4, the original inauguration day and the Capital security remained strong for that reason. Why QAnon Followers are Pinning Their Last Desperate Hopes on Trump Emerging as President on March 4, Joshua Zitser YAHOO NEWS! https://news.yahoo.com/why-qanon-pinninglast-desperate-110800228.html, released March4, 2021. ii Republican Party of Pennsylvania v. Veronica Degraffernreid, Acting Secretary of Pennsylvania, et.al,. Nos. 20–542 and 20–574. Decided February 22, 2021. iii https://en.wikipedia.org/wiki/List_of_wars_by_death_toll.iv President Refuses to Turn Over Tapes; Ervin Committee, Cox Issue Subpoenas: Action Sets Stage for Court Battle on Powers Issue, Carroll Kilpatrick, Washington Post July 24, 1973; Page A01 https://www.washingtonpost.com/wp-srv/national/longterm/ watergate/articles/072473-1.htm. v In July of 1973, considerable evidence had shown that the Nixon Administration had engaged in planning a “cover up” to hid the responsibility for “encouraging” individuals to break into the Watergate headquarters of the Democratic party. All of President Nixon’s words were on tapes. Cox won, but Nixon didn’t want to release the tapes. On Saturday, October 20, 1973, Richardson and Deputy Attorney General William Ruckelshaus resigned rather than fire Cox. The then Solicitor General Robert Bork became head of the Justice Department and promptly fired Cox. vi Houghton Mifflin Company, Boston 1987.vii Id. at p. 27.viii In re Grand Jury Supoena Duces Tecum to Nixon, 360 F. Supp. 1 (D.D.C. 1973); Nixon v. Sirica, 487 F.2d 700 (D.C. Circ. 1973) and U.S. v. Nixon, 418 U.S. 683. ix Id. at p. 77. x Id. 79. xi Oxford University Press 2020.xii Id. 162; Bush v. Gore, 531 US 98 (2000).xiii Id. 53-54. xiv A Gift: Psychic Knew at Once, Michael Collins, http://www.patriciam.com/OLD/ kentucky_post.htm, July 15, 1986. Sandy had befriended psychic just as he had befriended almost everyone he knew. She allegedly “saw” the spot where his body had been discarded. Teams searched areas near the Ohio River to see if they could find him, as the police had not at that point figured out what happened to him. A late friend of mine was on the team that followed this psychic’s instructions and found Sandy under a discarded couch in a dump near a river.
Janyce C. Katz, Esq.
General Innovations and Goods, Inc. janyce.c.katz@gmail.com
