Design Flaws: The Road from Delegation to Tyranny

The old constitutional framework has passed its expiration date. The alternatives range from a constitutional convention to radical devolution.

By Greg Guma

The US Constitution contained many brilliant ideas. But it outlined the new nation’s structure and system of laws almost 250 years ago, just eight after the Articles of Confederation — the first Constitution — were adopted. It’s time to ask serious questions about whether it still works.

The Articles were called a voluntary “league of friendship.” But the basic framework — largely independent states and a limited central government — was vulnerable to commercial schemes and corruption, conflicts between small and large states, and difficulties regulating new territories. State legislatures and communities often refused to support actions proposed by the Council of State, which managed general affairs. The national government couldn’t tax the states or exert authority over individuals. 

America soon faced a serious fiscal crisis. As George Washington put it, what the country needed was “a power that will pervade the whole nation.” At first, he and others claimed that the Articles simply could be amended. But that was just a pretext for what became a Constitutional Convention. And instead of adopting amendments, they abandoned the Articles, started from scratch, and ended up replacing state and local control with federal supremacy. 

Now we know that they failed to resolve many of the underlying problems.

The group of men who developed the plan principly gave Congress power over the new government. That was no surprise, since the Articles had created weak legislative and executive branches. The tyranny of the British Crown remained a vivid memory. So the framers searched for a middle way, something new between an ineffectual central government and a voracious dictatorship.

To that end, Article I of the new US Constitution stated clearly that law-making was in the hands of Congress, a power that couldn’t be abdicated or transferred to another branch of government. But nothing prohibited the delegation of power. Instead, the authority of Congress rested on three principles — separation of powers between three branches of government, the idea that delegated powers cannot themselves be delegated, and due process of law. The third of these implied that the regulatory powers of Congress couldn’t be given to private individuals. If that happened, people would be denied due process — exactly what is happening with Donald Trump and Elon Musk in charge.

In 2020, near the end of his first term, Trump made his view crystal clear: “When somebody’s president of the United States, the authority is total.”

For a long time after the constitutional system was created, the Supreme Court interpreted delegation liberally. For example, in an 1825 case, Wayman v. Southard, it said that Congress could delegate power to federal courts, but basically for the purpose of “filling in the details” of laws. Even in an 1892 case, Field v. Clark, which authorized the President to suspend a tariff, the chief executive wasn’t granted authority to make laws. In this and other Court cases, it reiterated the rule that Congress couldn’t delegate its basic functions. 

But as the nation became more complex and industrial, Congress was forced to turn over more power to administrators. Today they’re called bureaucrats, and sometimes the “deep state.” Members of Congress weren’t elected because of their technical skills, and couldn’t keep up with all the changes. Neither could the Courts, which could only act in response to a specific case or controversy. Over time, more functions were performed by presidents and an ever-expanding number of executive agencies. 

By the time Franklin Roosevelt’s “new deal” administration began, Congress was delegating power whenever it felt necessary — with little concern about Court disapproval. Of course, “unfettered” power (whatever that means) would be unconstitutional. But until 1935, the Supreme Court didn’t rule that any specific delegation was too much. 

Then, in Panama Refining v. Ryan, concerning the National Industrial Recovery Act, passed to end the Depression and restore prosperity, the Court ruled that Congressional delegation of power to the President was unconstitutional. Related cases reinforced restrictions on the executive branch.

After that, though, the Court upheld every delegation of power that came its way. 

Why the opposition to “New Deal” delegations? Some say that some Roosevelt era laws were sloppily or hastily written. More likely, several Justices were conservatives who used the Court to kill laws that were inconsistent with their minimal government beliefs. When the cases involved international matters, they almost always refused to restrict legislative delegation of power. 

The President’s power today couldn’t have been imagined by the authors of the Constitution. In fact, they weren’t very clear about what the executive branch should look like. They did fear executive tyranny and have faith in legislative bodies. But they had experienced a weak central government. Thus, Article II was supposed to give the President enough authority to deal effectively with national problems — without overwhelming the other two branches.

Unfortunately, the Article II language was vague. It said that the President should “faithfully execute” laws. But it made the executive commander-in chief of the military, and empowered the President to appoint numerous officials, grant pardons and reprieves, make treaties, and perform many duties connected with Congressional functions. What it did not do was define clear limits, which opened the door to a vast expansion of presidential power. It all depended on the character of the person who won the job. Whoever that was, however, the assumption was that they would share power with the other two branches. 

  Yet here we are, with a neutered Congress, hoping that courts can still impose some limits. The problem is that the Supreme Court has done more to expand than limit presidential power. In fact, it has granted powers to the President that aren’t conferred by laws or even mentioned in the Constitution. In a few cases, it has restrained executive power. But mostly it has rationalized presidential pretensions — especially during “emergencies.” At such times, the Court has been reluctant to interfere, except in cases of extreme abuse of authority. Many legal scholars say that is happening, but the Supreme Court recently ruled that the President is immune from prosecution for any official acts.

In Mississippi v. Johnson, a case emerging during a post-Civil War struggle between President Johnson and Congress about reconstruction, the Court clearly stated that the judiciary could not control the acts of the President. Johnson favored moderation while Radical Republicans wanted strict military control of rebel states. The Court’s decision was a compromise, sidestepping a potential constitutional crisis. 

Article II gave the President enormous influence over domestic affairs through the power to appoint public officials. But questions about removal were left unanswered. In 1926, the Supreme Court did weigh in, apparently giving the President unlimited power to remove government personnel — except for federal judges. Still, it provided no definition of who is a purely executive official, which allowed the Court to decide about removal on a case-by-case basis. 

The case, Myers v. United States, was controversial. Despite the main thrust, it indicated that executive power — even in an emergency — could still be subject to judicial control. Unless, of course, the President decided to defy the third branch of government. Recent statements by the President, Vice President, and various officials raise that prospect. 

For example, a US district court judge recently issued an injunction stopping Elon Musk’s “department of government efficiency” (Doge) from accessing the Treasury Department’s central payment system in search of alleged corruption and waste. In response, Vice President J.D. Vance, a Yale Law School grad, said that judges who issue rulings that attempt to block some of Donald Trump’s executive orders “aren’t allowed” to control the president’s “legitimate power.” A showdown in the Supreme Court is likely.

In foreign affairs, primarily the responsibility of the President and Department of State, some power is nevertheless supposed to be shared with Congress. Treaty ratification requires approval by two-thirds of the Senate. A simple majority is enough for appointment of diplomats. But the growth of presidential authority over war and foreign relations was inevitable. 

In connection with the Korean and Vietnam wars, Congress delegated much of its power, despite doubts that this was constitutional. And Presidents have used executive agreements rather than treaties to make international deals. These don’t require Senate approval, and the Supreme Court has said that they have the same legal effect.

Two centuries after the US constitutional system was created, it has gradually unraveled under the explosive force of the imperial presidency. The framers, though they could not predict the global dominance of the US, were certainly aware of the danger — a drift toward monarchy. Unfortunately, their 18th century solution no longer makes sense.

A different approach is needed again. Even if Trump’s monarchical power grab fails, Presidents will continue to seek more power until clear limits are imposed and public pressure reverses the long-term trend. In the end, the US may need another Constitutional Convention. Given the way things are going, any risks may turn out to be preferable to the inexorable drift toward tyranny.

But a Convention may not be practical at the moment. On the other hand, states did empower the federal government and ratify the current constitutional system. It’s time now for them and regional pacts to act, asserting their sovereignty by challenging or nullifying illegitimate presidential actions. What America needs is a radical devolution, a grassroots movement that restores the balance between federal, state and local power. 

As Thomas Jefferson explained in reaction to the repressive Sedition Act, federal power isn’t unlimited. When it goes too far, he argued, it need not be obeyed. States have the right to decide how to handle federal overreach. In fact, they are obligated, as Jefferson wrote, to stop the “progress of evil” and maintain their “authorities, rights and liberties.” 

Let the devolution begin.

Thinking Inaugurally: Wisdom, Weather and Warnings

Preview from Witness to the Fall, Part Three

Center for Global Research, January 2017

Most of the pageantry involved in the inauguration of a US president has nothing to do with the Constitution. All it actually says is that president is supposed to take the oath of office. Even the idea of swearing on a bible is just a custom, and the oath doesn’t include “so help me, God.” 
      George Washington decided to invoke God at the last minute. One president, Franklin Pierce, actually refused to swear on the “Good Book.” 
      So, technically Donald Trump could be sworn in on The Art of the Deal.
     

     The inaugural speech is also just a custom. It started when Washington thought it might be a wise idea to say a few words. He wasn’t speaking to “the people,” by the way, he was talking to Congress. But giving a speech stuck as an idea, and eventually the show was taken outside – where for the next century most of the audience couldn’t hear a word the president was saying.
     At least the world will get to hear and read Trump's address. If only everyone had been allowed to vote.
     One president died as a result of giving an address. It was 1841, and William Henry Harrison, who was 68, wanted to prove he was fit and gave his speech on a bitterly cold day without wearing an overcoat. The speech took more than two hours – the longest on record – and Harrison caught a cold. A month later he died of pneumonia.
     Aside from Lincoln, Kennedy, and Garfield, most inaugural speeches haven’t been very memorable. At times they’ve been downers. In 1857, for example, James Buchanan attacked abolitionists for making a big deal about slavery. Ulysses Grant complained about being slandered. Warren Harding and others were simply boring.
     There have been some memorable lines. “The only thing we have to fear is fear itself,” said Franklin Roosevelt. Kennedy, with an assist from several others, came up with “Let us never negotiate out of fear, but let us never fear to negotiate.”
     And let's not forget George H.W. Bush, who compared freedom to a kite. Not a very high bar.
     According to scholars who have analyzed the speeches, the form has evolved. In the old days, presidents talked quite a lot about the Constitution. Now we have more “rhetorical” presidencies, meaning that the chief executive bypasses the constitution – and congress – and appeals directly to the people. The problem, which was recognized by the founding fathers, is that this can lead to demagoguery – appeals to passion rather than reason. And since Nixon we’ve had several inaugurations with leaders who offer mainly platitudes, emotional appeals, partisan and anti-intellectual attacks and human interest stories rather than evidence, facts and rational arguments.
     Since Nixon we’ve also had professional speechwriters, and an emphasis on getting as much applause as possible. Meanwhile, the reading level has dropped. The early speeches were written at the college level. Now they require only eighth grade comprehension. 
     We don’t hear much about the presidency of James Garfield, who was elected in 1880. One of the reasons was that he was shot after only four months in office, and died about two months later. But before he was inaugurated, he read over all the previous addresses to decide what to say. He found Lincoln’s speech to be the best. Who could beat this closing:
      “We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the union, when again touched, as surely they will be, by the better angels of our nature.”
    Partway through his own research, Garfield considered not giving a speech at all. But he pressed on, and boiled down the task to the following: first a brief introduction, followed by a summary of topics recently settled, then a section on what ought to be the focus of public attention, and finally, an appeal to stand by him in the independent and vigorous execution of the law. The speeches haven’t really changed much since then. Normally, they serve to reunite people after the election, express some shared values, present some new policies, and promise that the president will stick to the job description. 
     To put it mildly, Trump is expected to break with that formula.
     In the end, Garfield’s speech didn’t match Lincoln’s. But it was eloquent and remains relevant today. He started with history, noting that before the US was formed the world didn’t believe “that the supreme authority of government could be safely entrusted to the guardianship of the people themselves.” Moving through the first century of US history, he concluded that after the Civil War people had finally “determined to leave behind them all those bitter controversies concerning things which have been irrevocably settled, and the further discussion of which can only stir up strife and delay the onward march.” 
     It was a case of wishful thinking. “The elevation of the negro race from slavery to the full rights of citizenship," he continued, "is the most important political change we have known since the adoption of the constitution.” But the Black vote was still be suppressed, especially in the south. So he warned, “To violate the freedom and sanctity of the suffrage is more than an evil. It is a crime which, if persisted in, will destroy the government itself.”
     A prescient warning as it turns out. With the installation of President Trump, the US faces serious threats to the freedom and sanctity of the right to vote, and other dangers that could ultimately destroy this system of government – secrecy, abuse of power, impunity, abandonment of the rule of law.
     Garfield also made another point worth repeating: No religious organization, he noted, can be “permitted to usurp in the smallest degree the functions and powers of the National Government.”  He was talking about the Mormon Church, which was exerting considerable influence out west at the time. But there are contemporary implications.

     Apparently not yet.

     “Enterprises of the highest importance to our moral and material well-being unite us and offer ample employment of our best powers," Garfield hoped. "Let all our people leaving behind them the battlefields of dead issues, move forward, and in their strength of liberty and the restored Union, win the grander victories of peace.”

      His concluding words about the end of slavery perhaps still resonate best:

        “We do not now differ in our judgment concerning the controversies of the past generations, and fifty years hence our children will not be divided on their opinions concerning our controversies,” he predicted. “We may hasten or we may retard, but we can not prevent, the final reconciliation. Is it not possible for us now to make a truce with time by anticipating and accepting its inevitable verdict?”

                                                   

                                                      Witness to the Fall

                            Maverick Chronicles from Watergate to Autocracy

A progressive journalist shares stories from his youth, and explores forces that have produced a cultural counterrevolution and the rise of autocracy over the last 15 years 

After working for an exclusive college during a student revolt, Greg Guma began a journey in the 1970s that took him from government service to progressive politics, and from Watergate and the Trilateral Commission to travels across Germany and Nicaragua during the Cold War and to Fiji after a Coup. 

He edited, managed and wrote for newspapers, magazines, syndicates, radio, TV and websites for more than 50 years. Witness to the Fall contains a small selection of his work, with a focus on national and global issues. After sharing anecdotes from his 20s and 30s, Greg explores forces that have produced a cultural counterrevolution over the last 15 years — Immigration fears, disinformation campaigns, persistent racism, conspiracy theories, militarism, narcissism, religion, and social media. Along the way, he examines events that propelled Richard Nixon, Jimmy Carter, Ronald Reagan, Barack Obama, Donald Trump and Bernie Sanders, changes in mass media, historical whitewashing, world citizenship, the threat of cyberwar, and geopolitical misadventures from Congo to the Ukraine.

A lively synthesis of history, commentary and memoir, Witness to the Fall (formerly Maverick Chronicles) finishes with a startling investigation into an MK-ULTRA mind control program — a case study with a real victim and his CIA-funded doctor, plus a touching final essay about fatherhood.

Forthcoming

If you’d like to read and review the book prior to publication,

please email Mavmediavt@gmail.com for a PDF copy

(Content subject to change) 

Juking the Vote: How to Steal a Presidency

Samuel Tilden won the popular vote for president in 1876. But Republicans were unwilling to accept the results and disputed the returns in Florida, South Carolina, and Louisiana. It was the start of a struggle that ended post-Civil War Reconstruction and demonstrated big business domination of the national power structure.

In 2024, the response if Trump loses is likely to be a variation, possibly preventing enough states from certifying the results of close races that no one gets enough electoral votes to win.

By Greg Guma 

Overturning the “will” of the voters, especially in a presidential election, is routinely described as anti-democratic and unprecedented. Unfortunately, that’s only half-right. A race for president has already been stolen in the US, and it could happen again. 

The precedent was set in 1876. Ulysses Grant had been persuaded not to seek a third term. That was possible until a Republican Congress passed the 22nd amendment in 1947, less than two years after Democrat Franklin Roosevelt — elected four times — died in office.

After Grant stepped down, Sen. Roscoe Conkling of New York was so confident he would be the next Republican nominee that he prematurely picked Ohio Governor Rutherford B. Hayes as his running mate. The party chose Hayes instead, while the Democrats nominated another New Yorker, Samuel Tilden, governor and persistent reformer.

Tilden won the popular vote, but Republicans were unwilling to accept the results and disputed the returns in Florida, South Carolina, and Louisiana. It was the start of a struggle that ended post-Civil War Reconstruction and demonstrated big business domination of the national power structure.

Samuel Tilden                                      Rutherford Hayes
         won the vote.                                        became the president.

The similarities between those deceptive 1876 maneuvers — athletes and cops call it “juking” —  and what Trump attempted are clear. But the Electoral Count Act didn’t exist until 1887. One of its goals was to minimize the role of Congress, placing most responsibility on the states. As long as enough states resolved disputes, certified results, and forwarded them to Congress in time, the results were supposed to be final.

But what if that doesn’t happen? In 2020, Trump’s Republican accomplices in seven swing states created and submitted fraudulent certificates, claiming that Trump rather than Biden won the electoral votes. In 2024, the response if he loses is likely to be a variation, possibly preventing enough states from certifying the results of close races that no one gets enough electoral votes to win. An effective third candidate makes it more likely. In fact, it’s what the “no labels” movement hopes to do.

If that happens, it becomes a “contingent election,” the fallback created by the 12th Amendment. The House of Representatives picks the president; the Senate chooses the vice president. But there’s a twist: House delegations from each state have a single vote, so the presidency goes to the candidate whose party controls 26 or more states.

If no decision is reached by Inauguration Day, the vice president becomes acting president. If the senate can’t choose a VP, the job goes to the House Speaker, next in the line of succession. Who gets that job depends on which party holds a House majority after the 2024 elections.

As Gore Vidal described the aftermath of the Tilden-Hayes election in his novel, 1876, “The United States is now on the verge of civil war.” Tilden had 184 electoral votes and Hayes was sure of 166. but 19 remained “in doubt.” News reports “excite the people dangerously,” he wrote. “There is talk of a march on Washington. The south is reported to be arming.” 

Although Republican, Conkling declared Tilden the victor, but warned “that desperate Republicans may yet steal what is not theirs.”  

On Dec. 6, the electors met. As expected, Republicans in four states (Oregon had joined the revolt) sent two sets of returns, one fraudulently favoring Hayes. Six weeks later, Congress worked out a compromise: a 15-member electoral commission that included five members of the Supreme Court. Although Congressmen would be on the commission, Vidal described it as a “novelty” that would “exist outside the Congress, as well as outside the Constitution.”

According to William Doyle, Vermont historian and a former state senator, the legislation that set up the commission was sponsored by a Vermonter, US Sen. George Edmunds. Republicans were so pleased with his work that they honored him with symbolic nominations for president in 1880 and 1884. 

Not everyone was favorably impressed. Charles Francis Adams, brother of Henry Adams, a railroad reformer, called Edmunds an “ill-mannered bully” and “the most covertly and dangerously corrupt man” he had seen in public life. Edmunds was apparently angry that the Union Pacific railroad had refused to put him on the payroll,” Adams claimed, so he blocked every effort to reach an agreement over the railroad’s government debt.

Railroad interests orchestrated the outcome of the electoral dispute, according to historian Michael Hiltzik. In his railroad history, Iron Empires, he explains that Tom Scott, head of the Pennsylvania Railroad, “greased the path to compromise” in order to draw the south back into national politics to fulfill his dream of a transcontinental line.” At the time his railroad’s huge profits made it the most powerful US corporation. Scott monitored the process, got Pennsylvania’s delegation to support the compromise, and provided the private train car that brought Hayes to Washington for his inauguration. 

In what was called the Compromise of 1877, “Democrats agreed to throw their support behind the man ever after known as Rutherfraud B. Hayes,” writes Jill Lepore in These Truths, her US history. Hayes became president “in exchange for a promise from Republicans to end the military occupation of the south. For a minor and petty political win over the Democratic Party, Republicans first committed electoral fraud and then, in brokering a compromise, abandoned a century-long fight for civil rights.” 

The Electoral Commission meets

In the end, it came down to one vote — Joseph P. Bradley, appointed to the Supreme Court by Grant “after a long and somewhat shady career as a railroad attorney,” as Vidal put it. At first it looked like he would break for Tilden. But when the commission met, he went the other way.

The media was divided. While The Times praised Bradley, Vidal wrote, The Sun hinted at “money changing hands” and reminded readers that “when he was a West Texas circuit judge, he was bought by the railroad interests.” The Texas Pacific had awarded the presidency to Hayes, The Sun concluded.

Hayes steals a ride.

Abraham Hewitt, New York Congressman and Tilden ally, claimed that Bradley was visited before the vote by a Republican member of the commission. “Whatever the strict legal equities,” he allegedly argued, “it would be a national disaster if the government fell into Democratic hands.”

After the decision, Hewitt called the commission a fraud. But he had to admit that a prolonged crisis was disrupting American business and the economy. In other words, Vidal concluded, Hewitt and others felt “four years of Hayes is better than four years of civil war.”

How about the next four? In less than 14 months, Congress and the country may face a similar choice.

Courting Disaster : How the Supreme Court lost its way

From Bush v. Gore to Roe v. Wade… In the midst of legal battles over a different presidential election — and originally written for UPI in November, 2004 — this commentary looks at how interference by the United States Supreme Court squandered public trust.

By Greg Guma

In 2000, five justices of the United States Supreme Court stopped the recount in Florida after a mere 36 days and made George W. Bush president. Next time, it won't be so quick, easy or peaceful, and the Court won’t be trusted enough to help.

The national divide is much deeper now and the lawsuits will start before a single vote is cast. Take Florida, for instance. And I’m not talking about 2000. Things were just as bad four years later…

When Florida Secretary of State Glenda Hood told elections supervisors on Oct. 7, 2004 that they should reject incomplete voter registration forms, Democrats went to court. Hood's office had to fend off more than a half-dozen legal challenges, before and after the vote. The issues ranged from ballot initiatives and how to handle recounts on electronic machines to the counting of provisional ballots. Legal fights also loomed over early-voting sites and voter registration rules.

When Hood's office tried to exempt electronic machines from manual recount rules, a judge overruled her. The NAACP sued Florida's Volusia County elections supervisor, arguing that having only one early voting site in an area where minorities live disenfranchises blacks.

Meanwhile in Oregon, a criminal investigation looked into charges that voter registration forms were destroyed or discarded by a political consulting firm working for the Republican National Committee. The allegations involved a voter registration drive conducted by Sproul & Associates, a Phoenix-based consulting group hired by the Republican Party and headed by Nathan Sproul, former executive director of the Arizona Republican Committee.

Allegations that a Sproul associate destroyed or dumped Democratic registration forms were surfacing in several states.

Eric Russell, one of some 300 part-time Sproul group employees in Nevada, said he saw Democratic Party registrations destroyed. Retrieving shredded paperwork that included voter registration forms signed by Democrats, he took them to local election officials and confirmed that they had not been filed with the county, as required by law. In August, 2004 a Sproul employee in Charleston, W.Va., said she quit her job after being told to register only people who confirmed that they were supporting President Bush. 

Fortunately, you might say, Kerry conceded — instead of letting the legal challenges and growing public discontent devolve into a full-blown constitutional crisis.

Cut to 2008 and 2012: Those races weren’t close enough to credibly contest, or we certainly would have heard something by now. But most people agree that 2016 and 2020 were both tainted by some kind of interference, real and/or imagined. Culprits vary, of course, depending on your politics.

Next time, some voters who think they are safely registered could be in for a surprise on Election Day. The future culprits could be Russian and Iranian hackers, or a guy sitting on a lounge at a private club in Florida who weighs close to 300 pounds. “People are saying…”

One thing is sure: courts will take center stage again, leading to endless arguments about "activist judges," "equal protection," following "precedents," forensic audits, and "judicial restraint." Yet, the Supreme Court may hesitate to step in next time. One reason is that its legitimacy has been under a cloud since Bush v. Gore, and only got worse when it moved to overturn Roe v. Wade.

Just a few years ago the Court’s liberal wing was led by Ruth Bader Ginsberg and Stephen Breyer, both Bill Clinton appointees. In Bush v. Gore, they were joined in dissent by John Paul Stevens, a moderate appointed by Gerald Ford, and David H. Souter, appointed by Bush's father. Souter was also one third of the court's centrist troika, which included Reagan appointees Anthony Kennedy and Sandra Day O'Connor. 

Between 2008 and 2016 President Obama’s appointments of two women — Sonia Sotomayor and Elena Kagan — to replace  Souter and Stevens did not alter the basic ideological balance. But Trump’s appointment of three judges in four years (2017-2020) moved things radically right. Today John Roberts, the conservative Chief Justice, no longer controls his allies.

In 1992, the liberal majority revealed its power when upholding Roe v. Wade as a protected "liberty" under the Constitution. Admitting that political factors underlay their opinion, they made the argument that "changed circumstances may impose new obligations" and warned that overturning Roe would create tremendous political and social turmoil. 

On the other hand, Kennedy and O'Connor joined with the conservative triumvirate -- the combative Antonin Scalia, the equally partisan William Rehnquist, and their silent partner Clarence Thomas — in the fateful Dec. 12, 2000 ruling that made George W. Bush president. Twenty-two years later only Thomas remains. But the conservative replacements — Alito, picked by George W. Bush, and Trump’s troika — Gorsuch, Kavanaugh and Barrett —  are even more nakedly partisan.

In his dissent in Bush v. Gore, Stevens said the majority's choice played into the most cynical attitudes about judges, and would undermine public confidence. An understatement, it turns out. He also wrote, "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law.”

In 2024, we really may never know who actually won the presidential election. It could be due to cyber war, sour grapes or simple incompetence. But more "judicial activism" is the last thing people will want or accept when the next crisis comes. It’s a recipe for state’s rights and legal chaos.

Doubts about the independence and fairness of courts have been building for a while. The looming decision to essentially rescind the right to an abortion could be a fatal blow to the shaky legitimacy of this final institutional guardrail. Echoing Scalia's dissent when his colleagues declined to overturn Roe, interference — in his case, after the 2000 presidential election — "fanned into life an issue that has inflamed our national politics in general."

Presidential Turnout: 21 Hopefuls Sought Vermont Votes

In 2020, as of October, 1,216 candidates had filed papers with the Federal Election Commission to run for President. And due to Vermont’s open approach to ballot access, the state’s voters were able to choose from an impressive 21 of them. Those candidates hailed from 16 states and represented a mind-blowing array of parties and ideas.

Trump Platform: “We’ll see what happens.”

Everyone knows the winner by now — Democratic war horse Joe Biden (242,820 votes, or 65%, in Vermont), who represented Delaware in the US Senate for decades until becoming Obama’s Vice President, and the sore loser, Donald Trump (112,704, 30%), a developer and reality TV personality who irritated New Yorkers for decades until moving to Florida, running for President, and winning the right to offend everyone for four years. 

Those Post-Victory Blues: Commentary Link 

The national race was a nail-biter, but the Vermont outcome was hardly in doubt. Vermonters went for every Republican presidential candidate from 1860 to the 1980s. Even FDR couldn’t break through. Since 1988, however, the state’s electoral votes have gone to every Democratic candidate. That didn’t change in 2020. 

But the predictable state outcome provided an opportunity to win “conscience” votes for some other hopefuls — 16 men and three women — competing for Vermont’s presidential votes. Several chose to be listed as Independents, but most represented political parties, some old, some new, with wildly diverse histories and political agendas. 

Let’s see how they did. The most popular turned out to be South Carolina Libertarian Jo Jorgensen (3,608 votes, just shy of 1%), the Green Party’s Howie Hawkins (1,310), and Wyoming-based Independent Kanye West (1,269). The only other candidate receiving more than 1,000 votes was H. Brooke Paige, the Grumpy Old Patriot candidate from Vermont (1,164).

Nationally, Jorgensen — the only female candidate on the ballot in all 50 states — came out on top. Her estimated 1.6 million votes (1.2 %) is the second-highest total for the party in its half century history.

Here are the rest, with their home states and the Vermont votes they received: Christopher LaFontaine, Vermont, Independent (856 votes); Richard Duncan, Ohio, Independent (213); Brian Carroll, California, American Solidarity (209);  Don Blankenship, West Virginia, Constitution (208); Alyson Kennedy, Texas, Socialist Workers (195); Gloria Estela La Riva, California, Liberty Union (166);  Gary Swing, Colorado, Boiling Frog (141); Phil Collins, Wisconsin, Prohibition (137); Keith McCormic, Vermont, Bull Moose (126); Brock Pierce, Puerto Rico, Unaffiliated (100); Jerome Segal, Maryland, Bread and Roses (65); Blake Huber, Colorado, Approval Voting (54); Kyle Kenley Kopitke, Michigan, Independent (53); Rogue “Rocky” De La Fuente,  California, Alliance (48); and Zachary Scalf, Georgia, Independent (29). 

Better luck next time. Fortunately, there will be one. Meanwhile, who were these hopeless hopefuls? 

Five Party People

Jerome Segal of Maryland, represented the Bread and Roses Party (65 votes). Segal is an American philosopher and political activist from Silver Spring. A research scholar at the University of Maryland and president of the Jewish Peace Lobby, he was a candidate in Maryland’s Democratic primary for the US Senate in 2018. During that year, Segal also announced the creation of a new socialist political party, "Bread and Roses," after raising the 10,000 signatures required by the state’s Board of Elections. The party is named after a slogan used by striking workers during the 1912 Lawrence textile strike. To find out more: https://www.segalforpresident.org/

Howie Hawkins is an American trade unionist, environmental activist, and frequent candidate in New York. A co-founder of the Green Party of the United States, he was was also its 2020 presidential candidate (1,310 votes). The GPUS is a federation of state political parties that promotes green politics, specifically environmentalism; nonviolence; social justice; participatory, grassroots democracy; gender equality; LGBTQ rights; anti-war; anti-racism and eco socialism. It was formed in 2001 as the Association of State Green Parties (ASGP) after a split from the Greens/Green Party USA (G/GPUSA) in the late 1990s. After its founding, the GPUS became the primary national green organization in the country, eclipsing the G/GPUSA, which was formed in 1991 out of the Green Committees of Correspondence (CoC), a collection of local green groups active since 1984. For more information: https://howiehawkins.us/

Joanne Jorgensen, candidate of the Libertarian Party, (3,608 votes) is an academic and libertarian political activist from South Carolina. She was previously the Libertarian Party's nominee for vice president in the 1996 presidential election, as the running mate of Harry Browne. Libertarianism is often thought of as 'right-wing' doctrine. However, on social — rather than economic — issues, libertarianism often tends to be 'left-wing'. If any alternative party has an enduring base in Vermont, this is apparently it.

Libertarians share a skepticism of authority and state power, but diverge on the scope of their opposition to existing economic and political systems. The Libertarian Party promotes civil liberties, non-interventionism, laissez-faire capitalism, and limiting the size and scope of government. For more: https://jo20.com/

Don Blankenship, who ran as the Constitution Party candidate, is a West Virginia business executive (208 votes). A candidate for the US Senate in West Virginia in 2018, he was Chairman and CEO of the Massey Energy Company, the sixth-largest US coal company, from 2000 until his retirement in 2010. In December 2015, Blankenship was found guilty of one misdemeanor charge of conspiring to willfully violate mine safety and health standards in relation to the Upper Big Branch mine explosion and was sentenced to one year in prison. 

The Constitution Party, formerly the U.S. Taxpayers' Party until 1999, promotes a right to far-right view of the principles and interests of the US. Its platform is based on originalist interpretations of the Constitution and shaped by principles that it believes were set forth in the Declaration of Independence, Constitution, Bill of Rights, and the Bible. For more: https://www.donblankenship.com/

Phil Collins, the Prohibition Party candidate, currently lives in Wisconsin. Collins has also been active in local politics in Illinois and Nevada (137 votes).  In 2019, he ran in Las Vegas' mayoral election and came in second. On April 14, 2019, he was given the Prohibition Party's vice presidential nomination after initially losing the presidential nomination to Connie Gammon, the original 2020 vice presidential nominee after Bill Bayes withdrew from the presidential nomination. On August 24, 2019, he replaced Gammon as presidential candidate after she withdrew due to health problems. Afterward he announced that he would also run in the American Independent Party’s presidential primary in California. 

On March 3, 2020, Collins won that primary. However, the party elected to give its presidential nomination to Rocky De La Fuente and its vice presidential nod to Kanye West. Both are also candidates for president on the Vermont ballot. The Prohibition Party has nominated a candidate for president in every election since 1872, making it the longest-lived American political party after the Democrats and Republicans. For more: https://philcollins4president.weebly.com/

Three California Dreamers

Brian Carroll, the American Solidarity Party candidate (209 votes), taught junior high history and other subjects in Farmersville, California from 1977 to 1983. At the time, he also wrote for the Valley Voice newspaper, especially on the local need for public transportation. He taught nine years in Colombia, South America and one summer in China. In 2008, he returned to teaching in Farmersville. Carroll ran for California's 22nd congressional district in 2018 against Republican Devin Nunes and Democrat Andrew Janz, a contentious race due to Nunes' role in the Trump investigation. 

The American Solidarity Party (ASP) is a Christian democratic political party founded in 2011. It emphasizes "the importance of strong families, local communities, and voluntary associations."  Socially conservative, the party defends religious freedom, favors a social market economy, and seeks "widespread economic participation and ownership,” along with a safety net. Its platform calls for conservation and a transition toward more renewable sources of energy, while rejecting population control measures. For more: http://briancarroll.life/

Rogue “Rocky” De La Fuente was on Vermont’s presidential ballot representing the Alliance Party (48 votes). A businessman and perennial candidate, he was the presidential nominee of both the Reform Party and his self-created American Delta Party in 2016.  In 2018, De La Fuente was on the ballot in nine states' primaries for US Senate. He campaigned as a critic of President Trump’s immigration policies. This year, he entered Republican primaries, but secured the nominations of the Reform Party, the Alliance Party, and American Independent Party.  

The Alliance Party was formed on October 14, 2018. In December, the American Party of South Carolina successfully asked the state Election Commission to change its name to the Alliance Party. In May 2019, the Independence Party of Minnesota voted to affiliate with the Alliance party. The Independent Party of Connecticut also affiliated, and the Alliance Party became ballot qualified in Mississippi. For more: https://rocky101.com/en_us/en/

Gloria Estela La Riva, a presidential candidate on Vermont’s Liberty Union Party line (166 votes), is a California-based socialist activist with the Party for Socialism and Liberation (PSL) and the Peace and Freedom Party. This is her tenth consecutive candidacy as either a presidential or vice presidential candidate. This time she is running on the PSL, Peace and Freedom, and Liberty Union tickets. La Riva was previously a member of the Workers World Party. She ran as the PSL and Peace and Freedom Party presidential candidate in 2008 and 2016. The PSL is a US communist party established in 2004 after a split in the Workers World Party. For more: https://www.lariva2020.org/

Two Rocky Mountain Party Builders

Blake Huber, the Approval Voting presidential candidate (54 votes), hails from Colorado. He worked in the telecommunications industry until his retirement, and is a co-founder of the party, which focuses on advocating for a voting system that allows people to select multiple candidates. In 2018, the party ran Huber for Colorado Secretary of State. It was recognized as a minor party in Colorado in 2019. For more: http://www.approvalvotingparty.com/president-blake-huber/

Gary Swing, a 48-year-old cultural events promoter in Denver, was on Vermont’s presidential ballot as the Boiling Frog candidate for president (141 votes). Swing originally filed FEC paperwork to run for US Senate in Colorado as a member of that party. Boiling Frog is more of a ballot label for his independent U.S. Senate bid than a national political institution. That said, according to coverage of Swing’s candidacy in the Bennington Banner, Boiling Frogs are concerned about global warming and stovetop warming, amphibian rights, preservation of endangered species, water pollution, and conservation of wetlands and other natural habitats. It makes sense. For more: https://theswingvote.wixsite.com/unity

I could go on, but you get the idea; a candidate for almost every conscience.

Still, lest we forget, also on Vermont’s presidential ballot you would have found... from Texas, Alyson Kennedy, representing the Socialist Workers Party (195 votes; 40 years ago Bernie Sanders was one of its electors), and Keith McCormic, leading the Bull Moose Party (126 votes); from Vermont, H. Brooke Paige, representing the Grumpy Old Patriots (1,164 votes) and an Independent, Christopher LaFontaine (856 votes).

Speaking of Independents, Vermonters also had the option of voting for Wyoming’s Kanye West (1,269 votes, who led the field with some assistance from Jared Kushner), Ohio’s Richard Duncan (213 votes), Michigan’s Kyle Kenley Kopitke (53 votes), Georgia’s Zachary Scalf (29 votes), or Puerto Rico’s Brock Pierce (100 votes), a candidate so independent he was listed as Unaffiliated. All totals are the unofficial ballot results from the Vermont Secretary of State.

Vermont Results

Vermont Digs Doug: With 265,088, Vermont’s top vote-getter turned out to be State Auditor Doug Hoffer. He even topped the 248,205 votes cast for incumbent governor Phil Scott, a moderate Republican (no, they’re not extinct). Of course, it helps not to have a Republican opponent. (What’s up with that?) Doug is a straight shooter and a Vermont public servant for more than 30 years. 

The remainder of the Auditor votes (over 48,000, or 15%) went to Progressive candidate Cris Ericson, which will allow the Progressive Party to maintain major party status. Ironically, Ericson — who won five(!) Progressive primary races — ran as a supporter of Donald Trump, who won only 30% of the Vermont vote. 

The most disappointing outcome was David Zuckerman’s 99,066 votes (27.46%) in the governor’s race. Like Hoffer, Zuckerman is also a member of Vermont’s Progressive Party. It was a heavy lift, and Vermonters don’t usually reject a governor after just one or two (two-year) terms, especially during a crisis. (Scott has had two terms.) But it also suggests that Vermont’s Democratic coalition may not hold together for a candidate with mixed party loyalties. The last time we saw an outcome like this was 2004, when former Progressive Mayor Peter Clavelle got 38% running as a Democrat against incumbent Republican Jim Douglas.