The rule of law
Throughout history there have been many individuals who have believed that the rule of law is essential to the orderly and even fair operation of a country or state. Yet, also throughout history, it has been recognized that there are laws which need to be changed. Sometime the only way to effect that change is to deliberately act in opposition to them. This was the case with Jim Crow laws in the United States. Organized groups very deliberately sat in at lunch counters which were reserved solely for white people. Laws discriminating against women, criminalizing homosexual behavior, and others designed passed and enforced in accord with a particular set of religious beliefs or other vested interests have only been changed when enough people were willing to refuse to obey them. At times, the high court of a country will rule that the original law was unconstitutional. At other times, the court will recognize that common sense needs to prevail.
During the recent election for president and other offices in the United States courts and not state legislatures decided that, in light of the pandemic and the resultant increase in mail, it was patently unfair to expect the postal service to deliver all mail in ballots by the end of election day. In North Carolina and Pennsylvania, the state courts ruled in favor of extending the deadline for those mailed no later than Election Day. These decisions were upheld by the U. S. Supreme court for this election only. The supreme court, as I understand it, reserved the right to revisit the constitutional question at a later date.
The constitution of the United States clearly gives the state legislatures the authority to make election rules. The state courts do not have that authority. It seems clear to me that the decision by the courts of Pennsylvania and North Carolina technically may well have violated the constitution as it is worded, Did the rulings by the state courts violate the intent of the writers of the constitution? Did the writers of the constitution envision a pandemic which would overwhelm a postal system which was also hampered by previous Congressional rules regarding the amount of money they has to be put into the pension fund and the appointment of a postmaster appointed by a president who seemed intent on limiting the ability of the post office to do its job of dealing with all the increased mail order business and the number of people whose safety demanded they vote by mail? I sincerely doubt that the creators of the constitution could have envisioned the intersection of these three major factors and the resultant potential result of not being able to count all legitimate votes. Several questions need to be asked:
· Was it common sense to extend the deadline for mail in ballots?
· Was their malice aforethought in extending the deadlines?
· Could and should have state legislators been called into session to enact the change?
· Could anyone have predicted the pandemic and its effect on the election process?
· Was their malice aforethought on the part of the President to alter the election results?
· If there was malice aforethought should the president and the postmaster general be charged with criminal conduct?
· Do we want a country where the rule of law is the only consideration for deciding our behavior or do we want a country where the intent of the framers of the Constitution is the primary consideration?
· Did the framers of the constitution want to ensure all people authorized to vote could do so? Of course, we know that “all people” were originally white, male landowners.
We have increasingly recognized that some laws are either unjust, ineffective or unable to allow for special circumstances. Not giving a speeding ticket to someone rushing someone to the hospital is a small example of being justified in breaking the law although a police escort works much better and is much safer. Committing a crime because of the disease of addiction is not the same as committing a crime by one who is of sound mind and really does not care (is not able to care) about the rights of others. Laws whose result is the unequal treatment of people of different races, religions, sexual orientations, genders and ages need to be changed.
The American bar association states “The rule of law is fundamental to international peace and security and political stability; to achieve economic and social progress and development; and to protect people’s rights and fundamental freedoms...”. Certainly, most of us do not want anarchy such as we witnessed this week as mobs of people stormed, entered and assaulted the United States Capital. At the same time, I believe we need to be grateful for the roles of the three branches of government. The Supreme Courts considers a number of factors in deciding cases including the intent and the wording of the Constitution and its amendments. There is often passionate arguments between strict constitutionalists and those who believe we need to consider the intent of the framers of the constitutions in light of what “the people” now believe. This is one of the reasons why a court and a congress composed of so-called liberals and conservatives is so vitally important. Our understanding of who are “the people” has changed dramatically. Our infrastructure is also constantly changing. Situations which affect the total system, such as pandemics also visit. The “law” has to be applied in consideration of the purpose and not always the letter.
Written January 8,2021
Jimmy F Pickett
coachpickett.org
.
Throughout history there have been many individuals who have believed that the rule of law is essential to the orderly and even fair operation of a country or state. Yet, also throughout history, it has been recognized that there are laws which need to be changed. Sometime the only way to effect that change is to deliberately act in opposition to them. This was the case with Jim Crow laws in the United States. Organized groups very deliberately sat in at lunch counters which were reserved solely for white people. Laws discriminating against women, criminalizing homosexual behavior, and others designed passed and enforced in accord with a particular set of religious beliefs or other vested interests have only been changed when enough people were willing to refuse to obey them. At times, the high court of a country will rule that the original law was unconstitutional. At other times, the court will recognize that common sense needs to prevail.
During the recent election for president and other offices in the United States courts and not state legislatures decided that, in light of the pandemic and the resultant increase in mail, it was patently unfair to expect the postal service to deliver all mail in ballots by the end of election day. In North Carolina and Pennsylvania, the state courts ruled in favor of extending the deadline for those mailed no later than Election Day. These decisions were upheld by the U. S. Supreme court for this election only. The supreme court, as I understand it, reserved the right to revisit the constitutional question at a later date.
The constitution of the United States clearly gives the state legislatures the authority to make election rules. The state courts do not have that authority. It seems clear to me that the decision by the courts of Pennsylvania and North Carolina technically may well have violated the constitution as it is worded, Did the rulings by the state courts violate the intent of the writers of the constitution? Did the writers of the constitution envision a pandemic which would overwhelm a postal system which was also hampered by previous Congressional rules regarding the amount of money they has to be put into the pension fund and the appointment of a postmaster appointed by a president who seemed intent on limiting the ability of the post office to do its job of dealing with all the increased mail order business and the number of people whose safety demanded they vote by mail? I sincerely doubt that the creators of the constitution could have envisioned the intersection of these three major factors and the resultant potential result of not being able to count all legitimate votes. Several questions need to be asked:
· Was it common sense to extend the deadline for mail in ballots?
· Was their malice aforethought in extending the deadlines?
· Could and should have state legislators been called into session to enact the change?
· Could anyone have predicted the pandemic and its effect on the election process?
· Was their malice aforethought on the part of the President to alter the election results?
· If there was malice aforethought should the president and the postmaster general be charged with criminal conduct?
· Do we want a country where the rule of law is the only consideration for deciding our behavior or do we want a country where the intent of the framers of the Constitution is the primary consideration?
· Did the framers of the constitution want to ensure all people authorized to vote could do so? Of course, we know that “all people” were originally white, male landowners.
We have increasingly recognized that some laws are either unjust, ineffective or unable to allow for special circumstances. Not giving a speeding ticket to someone rushing someone to the hospital is a small example of being justified in breaking the law although a police escort works much better and is much safer. Committing a crime because of the disease of addiction is not the same as committing a crime by one who is of sound mind and really does not care (is not able to care) about the rights of others. Laws whose result is the unequal treatment of people of different races, religions, sexual orientations, genders and ages need to be changed.
The American bar association states “The rule of law is fundamental to international peace and security and political stability; to achieve economic and social progress and development; and to protect people’s rights and fundamental freedoms...”. Certainly, most of us do not want anarchy such as we witnessed this week as mobs of people stormed, entered and assaulted the United States Capital. At the same time, I believe we need to be grateful for the roles of the three branches of government. The Supreme Courts considers a number of factors in deciding cases including the intent and the wording of the Constitution and its amendments. There is often passionate arguments between strict constitutionalists and those who believe we need to consider the intent of the framers of the constitutions in light of what “the people” now believe. This is one of the reasons why a court and a congress composed of so-called liberals and conservatives is so vitally important. Our understanding of who are “the people” has changed dramatically. Our infrastructure is also constantly changing. Situations which affect the total system, such as pandemics also visit. The “law” has to be applied in consideration of the purpose and not always the letter.
Written January 8,2021
Jimmy F Pickett
coachpickett.org
.
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