Official Newspaper of Eddy County since 1883
Official Newspaper of Eddy County since 1883
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“Liberty, justice and civilization depend on the rule of law” Presidential elections have consequences, as they say, and national airwaves are filled with voices engaging in speculation and prediction about the legislation, policies and actions that President-Elect Donald Trump will promote in his second term. Whatever Trump chooses to do, this much should be said about his presidency, as it should be said about any presidency. The nation’s chief executive has, by virtue of his Oath of Office, an obligation to preserve, protect and defend the C...
James Madison, writing in August of 1823 from his home in Montpelier, Va. – to which he repaired in what turned out be a futile effort to retire from public life – continued to assess the defects of the Constitution, including the way America elects its president. Madison, who preferred direct election of the president, addressed what he regarded as a foundational weakness in our electoral system. In the case of a tie in the Electoral College, the Twelfth Amendment requires the U.S. House of Representatives to choose the next president. Mad...
The presidential election of 1788, the first under the newly minted Constitution, was unusual and even unique in ways that 21st century Americans can scarcely imagine. For one, there was no campaigning. In the 18th century, it was an unwritten rule that any display of ambition would be unseemly. For another, George Washington, widely viewed as Father of His Country, was for all practical purposes anointed by his fellow citizens. As it happened, he was elected unanimously by the Electoral College, a feat that he would achieve, again, in the...
Our ongoing review of the origins and rationales that undergird the Electoral College reveals a central point that cannot be ignored. The disturbing vice of the Electoral College, as we have seen, is that it undermines our political system by providing presidential candidates with an incentive to visit competitive states, particularly large competitive states, at the expense of small states. In a system providing for the direct election of the president, which would more effectively represent...
One of the chief justifications for the Electoral College, advanced by its advocates, is that small, lightly populated states require protection for interests that would be overwhelmed by large states under a system based on the direct election of the president. Readers may be surprised to learn that in the Constitutional Convention, James Madison told fellow delegates that small states don’t need protection from large states. His own state, Virginia, like Massachusetts and Pennsylvania, he said, were divided by various interests, including e...
Civic engagement, what the nation’s founders hoped would be a distinguishing feature of the young and energetic republic, can be manifested in various ways including voting, participation in political parties and campaigns, displaying lawn signs, running for office and writing letters to the editor. Newspaper readers who comment on public affairs and pose questions to columnists are part of a great tradition in the intellectual and public life of America. Recent columns on the Electoral College have generated much-appreciated questions about it...
Two previous columns on the origins of the Electoral College have sparked questions from discerning readers across the state who wonder why the United States continues to utilize this peculiar method of electing the president when the rationales and justifications for its creation have long since vanished. The Framers’ reasons for rejecting direct election of the president – lack of communication, transportation and adequate knowledge of the qualifications and credentials of candidates – are no longer relevant. As many have observed, we somet...
The Framers of the Constitution seriously considered adoption of a direct popular vote for the election of the president until objections exposed the likelihood that lack of communication, transportation and adequate knowledge of candidates would hobble the ability of Americans to make a reasoned and informed choice. Some feared that voters would not be familiar with national leaders and would reflexively support candidates from their own states. Voter parochialism would undermine the prospects for national union. Although James Madison was an...
With less than 50 days remaining in the 2024 presidential election, citizens are turning their attention to the “Electoral College Map,” fully aware that the next president will be the candidate who captures 270 electoral votes, rather than the winner of the popular vote, although most Americans continue to prefer a direct, nationwide election, one they view as more consistent with democratic principles, and wonder why the Framers of the Constitution chose such a peculiar method for electing the nation’s highest official. What concerns and c...
Advocates of term limits for Supreme Court justices, mindful of the overgrown, transformative power of the Court and the ethical lapses of some of its members, have recommended staggered, 18-year terms and regularized presidential appointments for justices as a means of reducing the heated and divisive partisanship that has raised the confirmation process to a fever pitch and undercut public confidence in the judiciary, what Alexander Hamilton called, “the least dangerous branch.” Integral to these proposals is the guarantee that each pre...
Plummeting public approval of the U.S. Supreme Court, now at record lows, reflects in part deep-seated concerns about recent rulings that have overturned precedents that protected fundamental rights, as well as an unprecedented ruling – the creation of presidential immunity from criminal prosecution – without foundation in our constitutional architecture. It is also true that the diminished confidence of the citizenry in the nation’s highest bench is a function of the ethical lapses of some current justices. These factors, among others, have ac...
The doctrine of checks and balances, central to the success of American Constitutionalism, is designed to curb abuse of power and promote governmental accountability. But the Constitution is not a machine that will run without good men and women at the helm. When those in positions of authority and responsibility are reluctant to turn the wheels of checks and balances to constrain the judiciary, for example, there is little to deter misbehavior. Justice James Iredell, a member of the first Supreme Court and one of the most penetrating thinkers...
Is the threat of impeachment sufficient to deter Supreme Court justices from abusing power or engaging in other acts of misbehavior that would warrant their removal from the nation’s High Bench? The Framers of the Constitution thought so, as Alexander Hamilton explained, but many Americans across our nation doubt the premise. Consequently, they have become advocates for Supreme Court reform. Some lobby for an enforceable ethics code, some seek term limits for the justices, and some argue for an expansion of the size of the Court, primarily t...
In the Constitutional Convention of 1787, delegates debated the merits and virtues of vesting in federal courts the awesome power of judicial review – the authority to strike down laws of Congress that they find to be unconstitutional. In the end, the Framers agreed to grant the reviewing power to the courts, but not without some careful soul-searching, for it was at that juncture in world history unique in the realms of law and political science. Alexander Hamilton wrote in Federalist No. 78 that the courts were designed to keep the legislatur...
President Joe Biden’s proposed constitutional amendment – “The No One is Above the Law Amendment” – seeks to restore the cornerstone principle of American Constitutionalism by effectively overturning the U.S. Supreme Court’s recent ruling in Trump v. United States, which held that the president possesses absolute immunity from criminal prosecution for acts involving the exercise of “core powers.” The decision, criticized by scholars and judges of various political stripes, including the conservative heavyweight and revered retired Fourth...
Biden’s calls for constitutional restraints on the presidency and Supreme Court steeped in irony President Joe Biden’s sweeping proposals to reform the U.S. Supreme Court and the American presidency are steeped in irony. It is not lost on the citizenry that the Court’s own acts have inspired Biden’s proposals to rein in presidential power and curb the excesses of the nation’s High Bench. The Court’s creation in Trump v. United States of absolute executive immunity from criminal prosecution for a president’s official acts stunned the nation, b...
The possibilities of the Office of the Presidency, the Framers of the Constitution knew, would depend in large measure on the character of its occupant. The Presidency was constrained by the terms of the Constitution and the doctrine of checks and balances, designed to temper the vaulting ambition of future chief executives who might imitate those in European countries that aggrandized power for their own interests. But the presidency was also empowered to perform the responsibilities of the Office, which possessed the bandwidth to inspire the...
The use of force, including assassination and other forms of lethal political violence, as a means of altering governmental regimes and political systems – tyrannicide, regicide and revolution – was part of the warp and woof of ancient politics and a central concern to the Framers of the Constitution. America, after all, was founded on revolution. Delegates to the Constitutional Convention, therefore, sought to create a republic sufficiently responsive to the will of the people to facilitate peaceful political reforms, which would eliminate the...
President Joe Biden, seeking a second term, is running against the U.S. Supreme Court. Keenly aware of the Court’s declining approval ratings, the growing storm of concerns surrounding the ethics of some of its members, and the national outrage stemming from decisions that overturned precedents protecting voting rights and reproductive rights, Biden believes he has found an issue that resonates with American voters. Throw in the Court’s recent ruling that presidents possess breathtaking immunity from criminal prosecution, a declaration, as Jus...
The Supreme Court defies its platform in service of an Imperial Presidency For years to come, constitutional scholars and historians will long note the irony of the Supreme Court’s defiance of its own intellectual platform in rendering a decision in Trump v. United States, on the eve of the anniversary of the Declaration of Independence, that creates out of whole cloth the dangerous doctrine of executive immunity in service of an Imperial Presidency. The very concept of clothing the American Presidency with protection that placed the English Ki...
The Declaration of Independence, which Abraham Lincoln referred to as the “sheet anchor of the Republic,” set forth the proposition, as he said in the Gettysburg Address, that “the United States was conceived in liberty and dedicated to the proposition that all men are created equal.” The principle of equality, Lincoln admitted, was “aspirational.” Its implementation would await the arrival of America’s maturity, that moment when the societal, cultural and political forces would accept the legalization of racial equality. There was no invisi...
The 80th anniversary of D-Day, justly commemorated as history’s greatest military invasion, reminds us of the fact that World War II was waged to defeat the forces of authoritarianism abroad so our constitutional democracy and all that comes with it – freedom, justice and the rule of law – could be preserved at home. When American soldiers stormed the beaches at Normandy on June 6, 1944, they fought for the cherished principles embodied in the Constitution and those trumpeted by the Bill of Rights: limited governmental powers confined by the C...
Rising concerns about the U.S. Supreme Court’s lack of impartiality amid increasing calls for judicial recusals, reforms and transparency, form a historical backdrop of anxiety as Americans are, once more, bracing themselves for a landmark ruling that will have a direct bearing on the future of our constitutional democracy, the Bill of Rights and the rule of law. In this case, Trump v. United States, the question is whether the president enjoys absolute immunity from criminal prosecution. The Court will render a decision that may determine, a...
On May 17, 1954 – 70 years ago this week – the U.S. Supreme Court delivered a landmark ruling in Brown v. Bd. of Education, that marked its historic first full step toward securing the nation’s commitment to equal protection of the law for all Americans. As Justice Stanley Reed, a southerner from Kentucky who made the courageous decision to reject his region’s sentiments on race to form the Court’s unanimous 9-0 ruling, told one of his law clerks, “if it was not the most important decision in the history of the Court, it was very close.” In...
Abe Fortas had always wanted to be a Supreme Court justice and, for as long as he had known him, his friend and benefactor had wanted to appoint him to the nation’s High Bench. It came as no surprise to anyone when, in July 1965, President Lyndon Johnson nominated his old friend, counselor and attorney to the Supreme Court. There were no questions about Abe Fortas’ qualifications and credentials. Fortas was a lawyer’s lawyer, possessed a wealth of government experience and enjoyed the admiration of the Supreme Court, which had appointed him to...
