Category Archives: Constitution

How to Fix the Nomination Process

Constitution, Democrats, Election '16, Election Law, Elections, History, Politics, Republicans, Theory and Ideas

Whether you are a Trump supporter, Cruz supporter, Kasich supporter, Sanders supporter, Hillary supporter, or a disinterested observer fed up with the whole thing like myself, we can all agree that the nomination process is a complete disaster. Not that any of this is new to this particular election; the 2016 campaign has only exposed the flaws in the process that have existed since the earliest days of the leading political parties.

No, neither Trump nor Sanders are having the nomination ‘stolen’ from them, at least not in a sense where actual ‘cheating’ is happening (best I can tell from afar anyway). The fact that Trump doesn’t understand how the process works does not mean Cruz is doing something wrong. And the irony of ironies where some of Sanders’s delegates are being redistributed…well, Hillary Clinton would never cheat right?

If the argument is that the game is rigged at worst or just a little screwy at best then I can certainly agree with that. The rules and process as was set up long before the 2016 campaign is really what is causing confusion leaving many primary voters angry and disillusioned. While it may be too late to cure what ails the nomination process for 2016, I believe I have a few ideas that would vastly improve the process and I would encourage any political party to at least give this a try.

A National Primary Day

This incredibly long drawn out byzantine primary system has outlived its usefulness. There is no reason to have a few states vote early while other vote later. If it’s good enough to have the general election on one day than the primary should be no different. My proposal is to have every state and territory vote on the same day, say 40-60 days before the party’s convention. If the states want to follow roughly the same calendar as the traditional primaries holding town halls, debates, or even non-binding straw polls then by all means, do so. The days of a handful of states determining who emerges should be done away with forever.

Allocation of Delegates

In the 2016 South Carolina Primary Donald Trump “won” the election with a whopping 32.5% of the vote. To put this another way, 67.5% of South Carolina voters voted for someone other than Donald Trump *but* because South Carolina is winner take all, Trump will be awarded all 50 of the state’s delegates! While I’m not one of these people who think that “majority rule” is a good thing in and of itself (actually it’s often terrible), it seems that in a primary or caucus which purports to reflect the “will of the people” should at a minimum, require that the winning candidate actually earned the majority of the vote.

If the goal of the nomination process is to nominate an individual who represents the “will of the people” in the party then the parties are not doing a very good job in achieving that goal. My proposal to improve this aspect of the process is as follows:

Each state/territory is to have one delegate for each congressional district and two at large delegates. Each would-be delegate is bound to a particular candidate and can only become a delegate if his/her candidate wins 50%+1 of the vote in the congressional district or, in the case of the at large would-be delegates, 50%+1 of the entire state, commonwealth, or territory. The candidates would keep every delegate s/he won (i.e. no winner take all states). The 50%+1 threshold would be easily achieved by implementing instant runoff voting (this is key). This way every vote actually would matter and the “spoiler effect” would be minimized if not eliminated.

Rather than explain how instant runoff voting (a.k.a. alternative voting) works for those who are not familiar, here’s a short video:

The Nominating Convention

The convention would operate more or less like it does now. The delegates would then go about choosing the nominee by either multiple rounds of voting or using the instant runoff method as described above. Because all the delegates would be bound to their candidate (at least to start with) in the former method s/he must vote for the candidate in the first round, in the latter s/he must rank the bound candidate #1 and the candidate of his or her choice for #2, #3, and so on. Whichever way the convention decided to go, the important thing is no winner would be selected without a majority recorded vote (i.e. no voice votes where the Chairperson decides which way the vote went based on his/her opinion).

Oh yeah, one other thing: no other candidates could be nominated who was not running on National Primary Day.

Would this process be perfect? Of course not. There is no system I can think of which will prevent a truly terrible person from being nominated or even elected. If there’s a better way, I would certainly would love to hear it. That being said, I believe this process is much superior than the one either party is using now.

All this makes me wonder though: if the parties are having this much trouble determining the will of the majority of their party members (assuming that’s really what they are trying to do), how can they be trusted to solve the more complex problems they want us to believe they can solve?
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One Point of Clarification

If you read carefully, you will notice that everything I wrote is just a suggestion about how any political party can improve its nomination process. None of this in any way is meant to advocate that the law should be changed to comply with my opinion. Its free advice and the parties can take it or leave it (and they probably will leave it…who am I to advise them right?).

I’ve come across some individuals who are upset about how some state parties have gone about choosing delegates (which I can sympathize with; I hate how the Colorado Republican Party chooses delegates). What everyone needs to understand though is that regardless of what they think they know about how the system works, the U.S. is not a democracy. It never was and never was intended to be. Some misguided individuals believe that the shenanigans (as they see it anyway) taking place in some of these state conventions is tantamount to treason against the U.S. Constitution.

For those who think this way, I’m about to drop a giant atomic truth bomb so here it goes…

There is no constitutional right for the average citizen to vote in a presidential election (neither in the party primaries nor in the general election). No, really there’s not.

For those who don’t believe me, the part of the U.S. Constitution that addresses how the POTUS is to be elected is located in Article II, Section 1, Paragraphs 2 through 4. I’ll share the most relevant part (paragraph 2):

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

As stated from the excerpt above, each state determines how Electors are picked to vote for POTUS. This means that if the state legislature wants to choose Electors by drawing names out of a hat or by roshambo, the state legislature may do so. As it happens, every state legislature has decided that the people have a right to vote for the Electors provided they are eligible to vote (as determined by that state’s laws).

Did you notice something else? What about all the explaining about the nomination process of delegates of a particular political party?

Read the excerpt again, no actually read Article II in its entirety because I know some people reading this think that I cherry picked one small part from the U.S. Constitution to make my point.

Did you notice that there wasn’t a single word about political parties, much less how they go about choosing a nominee for president?

Themoreyouknow

Stephen Littau
http://fpffressminds.blogspot.com/
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Libertarians Debate on Stossel (Part 2 of 2)

Drugs, Election '16, Individual Rights, Libertarians, Media, Multimedia, Politics, The War on Drugs

Watch-Part-One-Of-The-Libertarian-Party-Debate-On-Stossel-702x336This isn’t by any means an exhaustive analysis of the second part of the Stossel LP presidential debate but I wanted to share the video now before too much time passes and this becomes irrelevant.

In this second part, Fox News hosts Bill O’Reilly and Geraldo Rivera each posed a video question regarding drugs. O’Reilly said he had a question for “the libertarian geniuses” which it seemed that he thought he really had a question that would stump them. As it turned out, O’Reilly’s question made him look like a fool. What he thought was a fast ball was actually a hanging curveball that any libertarian worth his or her salt would have hit out of the park (It’s clear that either he doesn’t watch Stossel’s show because he crushes these kinds of questions on a regular basis). All three candidates indeed did hit it out of the park (bonus points for Petersen for calling O’Reilly a pin head).

Geraldo’s question was a bit more nuanced: Should government have programs to help drug addicts? Among the three candidates, I thought McAfee had the best answer. Treatment cannot be forced on those who don’t want it.

From there, Stossel addressed more of the issues in which libertarians are outside the mainstream.

Combining the two parts of the debate together, my opinion hasn’t changed much. I feel like Austin Petersen “won,” I liked much of what John McAfee had to say (he has a great voice too; he should get into broadcasting), and if anyone “lost” it was Gary Johnson.

All of that being said, any one of these individuals is lightyears better than what the blue and red teams are offering.

Stephen Littau
http://fpffressminds.blogspot.com/
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Libertarians Debate on Stossel (Part 1 of 2)

Abortion, Civil Liberties, Constitution, Crime and Punishment, Criminal Justice Reform, Death Penalty, Election '16, Freedom of Association, Individual Rights, Legal, Libertarians, Liberty, Marijuana, Media, Military, Multimedia, Non-Intervention, Politics, Religious Liberty, Reproductive Rights, Security, Strategies For Advancing Liberty, The War on Drugs, Theory and Ideas

Watch-Part-One-Of-The-Libertarian-Party-Debate-On-Stossel-702x336In case you missed it, the first half of the Libertarian Party Presidential Debate aired on Stossel on April 1st (the second half will air on Friday, April 8, 2016). The three participants were 2012 Libertarian Party presidential nominee and former New Mexico Governor Gary Johnson, software developer John McAfee, and the founder of the blog The Libertarian Republic Austin Petersen.

After watching some of the GOP debates and the first Democrat debate, watching the Libertarians debate was refreshing. No name calling or commenting on the appearance of the other candidates. No scolding the debate moderator for asking questions the candidates didn’t like. To the extent that one candidate challenged or disagreed with another they were on the substance of the issue at hand (more on that in a moment). There seemed to be more areas of agreement than disagreement (and even a kiss on the cheek) among them. This debate was more about presenting to a national cable audience the case for Libertartian policy alternatives to those of the Republicrats.

Did any candidate “win” Part 1 of the debate or help/hurt his chances with the LP faithful or viewers who are open to supporting a third party candidate?

I can only answer for myself. I enthusiastically supported Gary Johnson in 2012 all the way back from when he was running for the GOP nomination to election day as the LP’s nominee. Of the three, he’s the only one I was all that familiar with. I took the Isidewith.com survey on the issues (mentioned in the debate) several weeks ago and found that I sided with Austin Petersen 97%, Gary Johnson 92%, and Ted Cruz 77%. I’m not sure why John McAfee wasn’t among those I sided with because I found myself in agreement with much of what he said in the debate. Due to these results, though Gov. Johnson is sort of my default favorite I watched with an open mind.

To my surprise, indeed I did find myself agreeing more with the thirty-five year old Austin Petersen than the other two. For libertarians looking for “purity” of libertarian principles, Petersen is your guy it seems (based solely on one half of one debate). When asked about whether a cake decorator should be forced to make a cake for someone based on personal or religious reasons, Johnson (to my profound disappointment) said they should while Petersen said the market should decide making the freedom of association argument (an argument every good libertarian should have down pat).

The second strike against Johnson and for Petersen was the question of the so-called gender pay gap. Johnson sounded like a progressive echoing the “equal pay for equal” work line but said he would be hesitant to sign any equal pay legislation because “the devil is in the details.” Petersen on the other hand skillfully explained why the gender pay gap is a progressive myth. McAfee, for his part argued that if a person doesn’t like how much they are being paid they are free to look elsewhere.

There’s certainly more in the debate that I didn’t get into here. My conclusion as far as my opinion goes: Petersen helped himself, Johnson hurt himself, and McAfee is intriguing. In a world where Hillary Clinton and Donald Trump are looking to be their party’s nominee any of the three would be hands down a better choice.

Stephen Littau
http://fpffressminds.blogspot.com/
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A Lesser of Evils: Why Ted Cruz Cannot Be My Anti-Trump

Constitution, Election '16, Freedom, Individual Rights, Supreme Court

I’ve never been a lesser-of-evils sort of voter. It’s too cynical and depressing an approach to life. Anyway I rarely think one of the major party candidates is “better” in some meaningful sense than the other.

This election is different. I cannot shake a nagging unease that one candidate must be avoided, perhaps with a vote for any marginally lesser evil capable of stopping him, however distasteful.

That candidate is Ted Cruz.

I’m not joking. There’s no punch line coming. I don’t think Ted Cruz believes in fundamental, unenumerated rights, constitutionally protected from political majorities at the state and local levels.

Probably many or even most of the other candidates share this shortcoming. What sets Cruz apart is his more sophisticated ability to appoint Supreme Court justices who share his views, as he has vowed to do.

Under that specter, liberty-leaning voters should ask for clarity and reassurance from the Cruz campaign on the following issues before casting a vote in his support.

Does Ted Cruz Want to Limit the Power of Judicial Review? In 1803, the Supreme Court decided Marbury v. Madison. Since that time, the Court has exercised three powers:

  1. It can refuse to enforce acts of the other branches if five or more of its nine justices believe such act was in excess of constitutional powers.
  2. It can enforce acts of the other branches of government, if five or more of the justices believe such act was constitutional.
  3. It can require otherwise constitutional acts of the other branches to be exercised in accordance with the Equal Protection Clause.

That’s it. Under the first, the Court delineates areas of individual liberty into which no political majority may intrude. Under the second and third, it enforces the acts of other branches of government. Under none of the three does the Court “make law.”

Liberty voters should therefore ask what Ted Cruz is gunning for when he says things like:

I don’t think we should entrust governing our society to 5 unelected lawyers in Washington. Why would ya possibly hand over the rights of 320 million Americans to 5 lawyers in Washington to say, “We’re gonna decide the rules that govern ya?” If ya wanna win an issue, go to the ballot box and win at the ballot box. That’s the way the Constitution was designed.

I think we can rule out number two; he’s not complaining about acts of the political branches. His rhetoric, to the contrary, suggests that he wants political majorities unfettered by such inconveniences as meddling Supreme Court justices.

He could be taking aim at number three, in which case it is not the laws he dislikes, but the doctrine of Equal Protection. Either way, the Court is not responsible for having enacted the laws that are subject to that doctrine. The political branches are.

It sure sounds like it is the first option Cruz is targeting. He does not like the Court delineating areas of individual liberty beyond the reach of political majorities.

That is a deeply authoritarian approach to government. Unless and until Cruz repudiates it convincingly, he cannot be my “not-Trump.”

Does Ted Cruz Believe in Unenumerated Rights and Substantive Due Process? Under the view of many libertarians, the Constitution enumerates the powers of government, but not the rights of individuals. The former are few, narrow and circumscribed. The latter are many, broad and transcendent.

This is the view held by Rand Paul and other libertarian constitutionalists from organizations like Reason Magazine, the Cato Institute, the Foundation for Economic Education, and the Institute for Justice.

It is also my view.

One textual source for this approach is the Fourteenth Amendment to the Constitution, which prohibits political majorities at the state and local levels from depriving individuals of the privileges and immunities of citizenship, of equal protection of laws, or of liberty without due process.

The “liberty” thusly protected has been interpreted to include economic endeavors as well as other peaceful activities integral to enjoyment of life and the pursuit of happiness. The concept that such freedoms are Constitutionally protected, even though not expressly mentioned, is sometimes referred to as the doctrine of “substantive due process.”

There are competing schools of thought. One is that only individual rights expressly enumerated in the Constitution are beyond the reach of political majorities. Under this view, the Fourteenth Amendment was adopted to prohibit racial discrimination, not to proscribe state infringement of unenumerated rights.

That is the view expressed by Ted Cruz at a hearing he conducted before the Senate Judiciary Committee exploring ways to “rein in” the Supreme Court. Cruz’s comments at the hearing suggest, on deeply personal issues from marriage to economic rights, he prefers “the Supreme Court defer to state legislative decisions rather than uphold individual rights.”

This is as unlibertarian a position as a candidate could hold. Saving the GOP from a Trump loss to Hillary Clinton is not a reason to support a nominee committed to undermining individual liberty in favor of majority rule.

Is Cruz Committed to Individual Rights? Or States Rights? Ted Cruz’s passion is not the fundamental liberty of individuals, arguably enshrined in the Fourteenth Amendment. It is, rather, the power of state legislatures found in the Tenth.

He’s “a Tenth Amendment guy,” according to his wife. Indeed he once headed the Texas Public Policy Foundation’s Center for Tenth Amendment Studies. When Ted Cruz talks about limited government, he is talking about limiting federal government. His concern is federal versus state, not individual versus collective.

Then too, even on that more beloved Constitutional provision, Cruz is willing to stray if it means more power for the right kind of majorities. He was in favor of the federal government defining marriage before he was against it. He likes states’ rights when they ban same-sex marriage, but not as much when they decriminalize marijuana.

He might be a federalist, for those who don’t mind states’ rights served squishy. But he’s no libertarian.

How Far Will Ted Cruz Go to Bend the Judiciary to His Interpretation of the Constitution? Despite the “sour fruit” of John Roberts’ decisions in NFIB v. Sebelius and King v. Burwell, conservatives continue their misguided pursuit of a “deferential” judiciary. In their statist hearts, they would rather accept the big government of Obamacare than lose the power to regulate social order.

If NFIB v. Sebelius is the price of winning the next Obergefell v. Hodges, it is one they will pay.

This is not a trade-off liberty lovers should make.

Yet Ted Cruz wants to subject the Supreme Court to term limits and retention elections. As the Institute for Justice’s Evan Bernick wrote in the wake of Cruz’s SCOTUS hearing:

…[I]t is Cruz who strayed from the text and history of the Constitution, both in his histrionic criticism of Obergefell and his suggestion that the cure for America’s constitutional ills is an even more inert judiciary.

Cruz’s most fundamental error lay in the premise of the hearing itself: The most pressing threat to constitutionally limited government today is not “judicial activism” but reflexive judicial deference to the political branches.

…

We can have a judiciary that reflexively defers to the political branches or we can have constitutionally limited government — but we cannot have both.

Liberty voters must consider whether they want Supreme Court appointees to facilitate the powers of political majorities or to protect individual rights from the overreach of such exercise. Ted Cruz appears to be on the wrong side of that choice.

Until he convinces me otherwise, that puts him on the wrong side of mine.

Sarah Baker
Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.
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Sorry, Donald. Cruz and Rubio are BOTH Eligible for President

Constitution, Election '16, Politics, Republicans, Supreme Court

If I had a dollar for every time I heard someone say that Ted Cruz and Marco Rubio are ineligible to run for president because they are not “natural-born citizens,” I would have more money than the recent $1.5 Billion Powerball winners. Donald Trump is wrong. The Constitution and case law are clear. Both Ted Cruz and Marco Rubio are natural-born citizens, and therefore eligible to run for president.

Article II, Section 1 of the Constitution makes it clear that only a natural-born citizen, who is at least 35 years old, is eligible to be president:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

So are Ted Cruz and Marco Rubio natural-born citizens under the Constitution? The answer is yes. While the Constitution does not define natural-born, statutes and the common law, dating back to pre-colonial English common law have addressed and settled this issue.

Ted Cruz is a Natural-Born U.S. Citizen

Ted Cruz was born December 22, 1970 in Calgary, Alberta, Canada. His father, Rafael Cruz, was born in Cuba and his mother, Eleanor Wilson, was born in Wilmington, Delaware. The family relocated to Texas in 1974.

Most legal scholars agree that a natural-born citizen is one who does not need to go through the naturalization process. The Naturalization Act of 1790 addresses the issue of children born outside our borders to American citizens:

[T]he children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:  Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:  Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

Many birthers, such as Ann Coulter, make the argument that at the time the Naturalization Act of 1790 was passed, citizenship only passed through the father, requiring that the father must be a U.S. Citizen. While this is true, they hold the false belief that the Constitution has not been amended to change this. At the time of the signing of the Act, women also could not own property without her husband. Since it is not mentioned or amended in the Constitution, I hope that Coulter is prepared to forfeit her property she owns on her own since that is her interpretation of the Constitution. But I digress. Furthermore, the definition of a natural-born citizen was later codified at 8 U.S.C. 1401(d). It reads in pertinent part:

The following shall be nationals and citizens of the United States at birth:

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

Since Ted Cruz’s mother is a natural-born citizen, Ted Cruz is also a natural born citizen. It does not matter that he was born in Canada. The Supreme Court has also answered this question. In Rogers v. Bellei, 401 U.S. 815 (1971), the Court held that the federal government may revoke the citizenship of a natural-born citizen if certain requirements were not met. In this case, Aldo Mario Bellei was born in Italy to an American mother and an Italian father. Mr. Bellei held both Italian and U.S. citizenship.

While the primary issue reviewed in Bellei was not on the definition of a natural-born citizen, the Court first had to determine that Mr. Bellei was a natural-born citizen. Upon determining that Mr. Bellei was a natural-born U.S. citizen, the Court held that the federal government may set a condition subsequent on citizenship for those born outside the United States. Specifically, the government may revoke the citizenship of natural-born citizens born outside the United States when citizens do not establish domicile within the United States by age 23 and remain for at least five (5) years. See Immigration and Naturalization Act of 1952 sec. 311.

In the case of Ted Cruz, he moved to the United States at the age of three (3) years old and has maintained domicile in the United States since then. Therefore, he is a natural-born citizen of the United States and eligible to run for and serve as President of the United States.

Marco Rubio is a Natural-Born U.S. Citizen

Presidential candidate, Donald Trump recently stated that he is unsure that Marco Rubio is eligible to run for president. The case for Rubio’s citizenship is more clear-cut than the case for Cruz. Marco Rubio was born on May 28, 1971 in Miami, FL. His parents came to the United States in 1956. At the time of Rubio’s birth, his parents were Permanent Residents of the United States. This means that his parents were here legally with their “green cards.” Federal law is clear that those born on U.S. soil and subject to the jurisdiction of the United States are natural-born citizens. 8 U.S.C. 1401(a) reads in pertinent part:

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof.
Of course, the 14th Amendment sec. 1 provides that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(emphasis added)
Since Marco Rubio was born on American soil (last time I checked, Miami is still American soil), and he is subject to the jurisdiction of the United States, he is clearly a natural-born citizen.
The Supreme Court has also ruled on this. In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the Court held that a child born on U.S. soil to permanent residents of the United States is a natural-born citizen by virtue of the 14th Amendment. Justice Horace Gray, citing to U.S. v. Rhodes (1866), stated in his majority opinion that:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . .
Wong Kim Ark, 169 U.S. at 662. (emphasis added)
Conclusion
The fact that Donald Trump and other birthers would raise questions as to the eligibility of either Ted Cruz or Marco Rubio to run for president is absolutely absurd. Any litigation of these issues is frivolous and a waste of taxpayer money. It is this lawyer’s belief that anyone who brings such a frivolous suit should be sanctioned and responsible for government attorney fees. Enough is enough. It is time to put the birther argument to rest.
Albert Northrup
Albert is a licensed attorney and holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son named Albert and a black lab puppy named Lincoln. In his spare time, he plays and coaches soccer.
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