Thursday, July 30, 2009

The Right Way to Amend the Constitution, part 6


This is part six of an ongoing series of articles containing proposals for amendments to the Constitution. For someone who claims so fervently to be a “Constitutionalist”, how is it that I can be so eager to change the Constitution? Well, there are several reasons. For one thing, I believe that after the Bill of Rights, much damage was done by some of the amendments that were added and the legitimacy of some of their ratifications are questionable. Secondly, the Constitution has been violated so much that the necessity of further amendments is needed to resolve the resulting problems. But this should be done extremely cautiously. These amendments are extremely unlikely to ever be introduced, much less ratified, but hey, I can dream, can’t I?

In lieu of writing a new proposal for a Constitutional amendment, I will further comment on the one I posted last week, The Audacity of Legitimacy Amendment. Click here to read it in its entirety.

I have a few comments on Section 4, which says, “The House of Representatives shall, within 48 hours of the ratification of this article, select a President in the manner described in Article II section 1 Clause 3 and elsewhere in this Constitution as if no Person had received a majority of votes in the last Electoral College in Dispute. The President so selected shall be elected to complete the remainder of the term held by the de facto President.”

The House could not just pick anybody to fill out the remainder of Barack Obama’s term. In fact, if this amendment were to be ratified in during Mr. Obama’s alleged first term, then I believe John McCain (unfortunately) would become the President. This is because he is the only one who received any legitimate electoral votes for President. In both Article II section 1 Clause 3 and the 12th Amendment, the House is limited to the “persons having the highest numbers [of electoral votes] not exceeding [five in Article II and three in the 12th Amendment] on the list of those voted for as President”. I would assume that “voted” refers to the Electoral College vote and that if someone did not get any Electoral College votes, then they are not “on the list”. I could always add additional conditions, but I would rather have as little interference with what the Constitution already says as possible.

If this Amendment were to pass while Mr. Obama illegally holds the office of the Presidency and after the next the Presidential election day, but before the Electoral College vote, and if he was reelected (in the Electoral College vote), then 20th Amendment would apply. In this case, Obama’s running mate would act as President beginning January 20th, 2013 and “until a President shall have qualified”. If the amendment passes in Obama’s second (usurped) term, then the conditions in the previous paragraph would prevail, with those receiving electoral votes in 2012 being voted on by the House. The 20th Amendment would also be applied in the case that John McCain died or if he became ineligible. In that case, Congress “may by law provide…declaring who shall then act as President, or the manner in which one who is to act shall be selected…”

The first portion of Section 5 is intended to cover the unlikely case in which the only eligible Presidential candidate is also the Vice President. That would mean, for example, Joe Biden would be removed from office and the vacancy would be filled by John McCain (at Obama’s choice). Since the election of Joe Biden is relatively legitimate, he should be left in office.

But that brings up an interesting point. Even though Joe Biden’s eligibility to become Vice President is not in question, the actual manner in which he was elected is somewhat questionable. In some states, a Vice Presidential candidate is not eligible to receive electors if the other member of ticket is not eligible. This makes some, but not all of Joe Biden’s electoral votes illegitimate. I’m not going to take the time to find out if he would still have had enough votes to beat Sarah Palin. (The Electoral College ballots for President and Vice President are distinct according to the 12th Amendment. If any of Biden’s votes are illegitimate, these votes would all presumably go to Palin.) But the current wording of my amendment overrides all of this, making Joe Biden’s election official (if he is in fact, the de facto Vice President at the time that the amendment is ratified or similarly if another running mate or Vice President was subsequently chosen by Mr. Obama).

Finally, I want to explore a little bit about what would happen if Mr. Obama were declared ineligible and my amendment did not pass. Ordinarily, if a law is passed by Congress and if the President does not sign it in so many days, then it becomes law just as if he did. But what if there is no President? Is Joe Biden our real President (by the 20th Amendment)? Even if this is so, there have been other actions taken by Mr. Obama (such as executive orders) which are illegal since he is not our President. These would have to be dealt with in some way.

Stay “tuned” for another proposed constitutional amendment next week.

1 comment:

Matt said...

I am withdrawing my proposal to amend the constitution to remove Barack Obama from office as this would be a Bill of Attainder. I still agree that he should be removed, but the method I had proposed is unacceptable. Article I section 9 forbids Bills of Attainder which I can now see should even include constitutional amendments. This must be done through the courts.