PACKING THE COURT

    To continue with the theme of my most recent post, the 2020 election has highlighted several of the 'glaring faults' of the Constitution. In particular, the current threat of a Biden/Harris / Harris/Biden administration together with the Democrat Party retaking the Senate of adding extra Justices to the Supreme Court is sufficiently likely that they won't even discuss the possibility. Such an action would render the Court an even less useful body than currently exists.

    The Constitution leaves the numerical makeup of the Supreme Court up to Congress. This in itself is not necessarily bad, but safeguards should have been in place to prevent modifications (packing the Court) from being a political tool. It would seem that at the very least, restricting any changes from taking place should be deferred until every seated member of Congress has been subjected to an election and possible replacement. That, together with allowing for such proposed changes to be rescinded in the interim 4 to 6 years would go a long way to frustrating the kind of mischief currently contemplated by the Democrats.

    The phrase in Article III granting Justices tenure during 'good behavior' seems a little lax in that a lifetime appointment too often in modern times means possibly extending into infirmity. Since most Justices are confirmed during middle age, a cap on maximum duration of a couple of decades would seem to be better than waiting for the grim reaper to trigger replacement. Some nonagenarians maintain their wits in spite of their longevity, but all too often some degree of senility sets in. Subjecting the integrity of the Supreme Court to the risk of such possibilities seems unwise.

    The fact is that any system design, subjected to the rigors of implementation and use, inevitably shows signs of faults and omissions that a second attempt might try to correct. However, referring again to Fred Brooks' 1975 book The Mythical Man Month, the risk of such attempts becoming bloated and worse than the original (The Second System Effect) is somewhat evident in the fact that the Constitutional Amendments too often sully the elegance and simplicity of the original document. The author's opinion is that we're running about 50-50 which is probably not bad for almost 250 years.

THE 2020 ELECTION AND THE CONSTITUTION

With all the hoopla surrounding the coming elections (2020), it is interesting to look at what the Constitution had to say about the subject - both the original document (including Amendments 1 to 10), and the remaining Amendments.

It is fairly obvious that the Founders were against creating a Democracy, and in the original document gave the people only a direct vote on their Representatives in the Congressional House. Even then, they kicked the can down the road on the subject of qualification to vote, essentially leaving it up to the States to decide individually. This is just one of several glaring faults in the Constitution. The requirements for qualifying to vote should have been spelled out explicitly and should have been uniform across the country for the Federal election.

The 17th Amendment (one of two in 1913 that set the stage for the downfall of the U.S.) added the Senators to those directly elected by the populace, effectively creating two Houses of Representatives, but with different rules. Again, instead of rectifying the omission in the original with respect to qualifications, they kicked the can down the road once more.

However, with respect to the choosing of the President, the people were not only deprived of direct election by the Electoral College mechanism, but were even denied direct election of the Electoral College Electors. The original document specifies that "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". Nothing in the remainder of the original document nor in any of the Amendments changes the right of the State Legislatures to appoint the Electors for the Electoral College, although if a State chooses to use a popular election to decide who to appoint, several Amendments have a lot to say as to who may or may not vote in such an election.

Since the Constitution states that "Each State SHALL appoint..." their electors, convene them for their votes, and forward the results to the Senate, one might reasonably assume that such action should be taken in a timely manner. Nothing in the original document or the Amendments suggests that such required actions might be justifiably delayed by an optional popular election at the State level. Thus it is hard to justify the concern that the actual determination of the winner of the Electoral College might not occur at the normal time.

At the same time, there seems to be no real deterrence to any State Legislature appointing their Electors based on any whim they might take, regardless of the results or lack thereof of any popular election, or for that matter, any overreaching dictum from any court. Thus schemes to eliminate the Electoral College and choose the President by the national popular vote are unnecessary - the same result can be achieved within the current Constitution by getting sufficient State Legislatures to agree to appoint their Electors based on that criteria.

This, of course, is just another of the several glaring faults in the Constitution as mentioned above. The Founders apparently hoped that such faults might be corrected by the Amendment procedure provided for, but most Amendments have tended to create more faults rather than correct the original ones (author's opinion). The result seems to lack the 'conceptual integrity' described by Fred Brooks in his classic 'The Mythical Man Month'.