tag:blogger.com,1999:blog-7591780306779780442024-03-17T20:02:51.810-07:00Anglican CurmudgeonCurmudgeonly comments documenting <a href="http://accurmudgeon.blogspot.com/2015/06/bishops-bless-blasphemy-curmudgeons-cup.html">an unsuccessful attempt</a> to remain in the Episcopal Church (USA) and the Anglican Communion at the same time---with some leavening for good measure.A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger1234125tag:blogger.com,1999:blog-759178030677978044.post-46896094781996979692022-08-09T20:57:00.013-07:002022-12-03T19:44:07.074-08:00Behind the "Trump Raid" Headlines [UPDATED]<p>I interrupt my blog silence due only to the looming crisis sparked by the Department of Justice's <a href="https://www.courtlistener.com/docket/64872441/united-states-v-sealed-search-warrant/" rel="nofollow" target="_blank">August 5 decision to obtain a search warrant</a> for Mar-a-Lago, the Florida home of ex-President Donald J. Trump. After some hours of research on the Internet, I have found what I believe is the most likely explanation for this unprecedented move -- by a current administration against a person who is not only its immediate predecessor, but who is also its most likely opponent in the next presidential election. The explanation requires the reader to piece together certain details from a number of isolated stories. Let's begin:</p><p>1. We know that days before his term ended, President Donald Trump had <a href="https://www.politico.com/news/2021/01/19/trump-doj-declassify-russia-probe-documents-460511" rel="nofollow" target="_blank">decided to declassify and release</a> all of the documents <a href="https://www.dailywire.com/news/richard-grenell-on-declassifying-russia-investigation-documents-transparency-is-never-political" rel="nofollow" target="_blank">his security assistants</a> had uncovered and assembled that documented the infamous "Russia election interference hoax" which had hounded Trump's campaign and first term in office.</p><p>2. We know also that there was a last-minute plea from the FBI objecting to the declassification of the documents, and that Trump <a href="https://www.politico.com/news/2021/01/19/trump-doj-declassify-russia-probe-documents-460511" rel="nofollow" target="_blank">acceded to the FBI's demand to make last-minute redactions</a> to some of them:</p><p></p><blockquote>“I have determined to accept the redactions proposed for continued classification by the FBI in that January 17 submission,” Trump said in his memo. “I hereby declassify the remaining materials in the binder. This is my final determination under the declassification review and I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.”</blockquote><p>3. But we know further that the FBI and the DOJ had <a href="https://thefederalistpapers.org/opinion/fbi-doj-plan-redact-documents-president-trump-ordered-declassified" rel="nofollow" target="_blank">long planned to delay redacting the documents</a> until after Trump left office on January 20, so that they would not be released beforehand.</p><p>4. Moreover, we learned later that Trump's own White House counsel's office had not completed marking down the documents Trump had ordered declassified before January 20, so that when Trump took the helicopter just after noon on that day, the documents <a href="https://www.breitbart.com/politics/2022/05/05/documents-mar-a-lago-marked-classified-were-already-declassified-kash-patel-says/" rel="nofollow" target="_blank">were still with his counsel's office, and still had the "Classified" markings on them</a>.</p><p>5. Nevertheless, by February 2022, at least fifteen boxes of documents from the White House had made it to Mar-a-Lago, and after some reasonably calm discussions, Trump agreed to let the National Archives and Record Administration take them for its permanent records, <a href="https://www.bizpacreview.com/2022/02/09/mar-a-lago-was-not-raided-trump-hands-over-15-boxes-of-presidential-records-to-national-archives-1199075/" rel="nofollow" target="_blank">according to this story at the time</a>.</p><p>6. Even though the boxes contained what were described as mostly "mementos, gifts, letters from world leaders and other correspondence," officials at the National Archives complained later that they also contained documents marked "<a href="https://www.archives.gov/files/foia/ferriero-response-to-02.09.2022-maloney-letter.02.18.2022.pdf" rel="nofollow" target="_blank">classified national security information</a>", and so they referred what they regarded as the <a href="https://www.msn.com/en-us/news/politics/boxes-of-records-taken-from-donald-trump-included-classified-national-security-documents/ar-AAU2CgC" rel="nofollow" target="_blank">unlawful possession of classified materials to the DOJ for further investigation</a>.</p><p>7. <a href="https://www.foxnews.com/politics/trump-vs-national-archives-timeline-leading-mar-a-lago-raid" rel="nofollow" target="_blank">According to this timeline</a>, "senior DOJ officials" met at Mar-a-Lago with Trump's attorneys in May and in June 2022 to discuss Trump's alleged possession of, and possible further withholding of, classified materials "unlawfully" removed from the White House. Trump stopped by at one point to say hello, and the officials were <a href="https://nypost.com/2022/08/09/fbi-even-searched-melanias-wardrobe-in-trump-raid/" rel="nofollow" target="_blank">allowed to look through boxes containing the documents</a>, but apparently no further documents were returned to the National Archives as a result of the discussions.</p><p>8. After negotiations apparently broke down, the DOJ / FBI <a href="https://www.courtlistener.com/docket/64872441/united-states-v-sealed-search-warrant/" rel="nofollow" target="_blank">applied for a search warrant on August 5</a>, as stated above. Even though this matter involved a former President and possible future candidate, the DOJ did not make its application to a sitting federal judge in Florida, but went to a lowly U.S. Magistrate on duty (such officials are not appointed by the President with the consent of the Senate under Article III of the Constitution, but are creatures of Congress under Article I, appointed by the Article III judges who are above them). And that Magistrate, in this instance, happened to be <a href="https://pjmedia.com/news-and-politics/matt-margolis/2022/08/09/judge-who-approved-mar-a-lago-raid-was-obama-donor-linked-to-jeffrey-epstein-n1619563" rel="nofollow" target="_blank">a former attorney for two accomplices of Jeffrey Epstein, as well as an Obama donor,</a> who had received his appointment in 2018.</p><p>Can we now put all of this together, and perhaps draw some tentative hypotheses?</p><p>It looks to this blogger as though the documents which started all these troubles were some of those which Trump had ordered declassified before his term ended (when he had full authority to declassify any document he wished), but which his counsel's office had not yet gotten around to marking as "declassified", as described in #4 above. (Or they may even have been redacted documents from the FBI/DOJ which likewise had never been marked as declassified, as described in ##2 and 3 above.)</p><p>Nevertheless, to the National Archives officials, who were unaware of any of this backstory, it looked as though Trump was trying to make off with classified documents that still had that marking on them, so they made a referral of possible criminal activity to the DOJ.</p><p>The DOJ, who should have known better (since they had deliberately delayed in redacting the documents Trump wanted declassified), saw only an opportunity to press new and potentially damaging criminal charges against the former President. They met in May and again in June with Trump's attorneys in order to try to resolve the matter (#7 above), but neither Trump nor his attorneys were prepared to concede he had done anything wrong -- which they would have been doing had they agreed to release <a href="https://pjmedia.com/news-and-politics/matt-margolis/2022/08/09/classified-docs-fbi-sought-in-trump-raid-were-already-declassified-n1619585" rel="nofollow" target="_blank">any documents he had already ordered declassified while in office</a>, and which he consequently lawfully possessed.</p><p>Someone in the DOJ must be convinced, however, that they have the makings of a new criminal case against Donald Trump, and so they sought and obtained authorization from FBI Director Wray and Attorney General Garland to make the raid this week. This decision was made notwithstanding that the FBI never sought to raid or recover indisputably classified materials from Hunter Biden's infamous laptop, or <a href="https://pjmedia.com/news-and-politics/athena-thorne/2022/08/09/hillary-clinton-flaunts-her-democrat-privilege-peddles-but-her-emails-swag-the-day-after-mar-a-lago-raid-n1619691" rel="nofollow" target="_blank">from Hillary Clinton's basement server</a> -- let alone prosecute those miscreants. Trump, however, is fair game (along with his wife!) <a href="https://nypost.com/2022/08/09/fbi-even-searched-melanias-wardrobe-in-trump-raid/" rel="nofollow" target="_blank">in their twisted reckoning</a>. And so we have the latest manufactured crisis to try to bring down Donald Trump.</p><p>It's a theory, at least, that fits a lot of known facts. Time will hopefully tell us whether it is real.</p><p>[<b>UPDATE 08/10/2022</b>: Another blogger has snapped into place the final piece of the puzzle. By asking simply the question: "<i>Which particular documents</i> did Trump declassify so that they could be released?", <a href="https://theconservativetreehouse.com/blog/2022/08/10/during-trump-raid-feds-refused-to-provide-warrant-demanded-security-cameras-be-turned-off-trump-security-team-refused-the-documents-are-likely-related-to-ratcliffe-declassification/?utm_source=feedly&utm_medium=rss&utm_campaign=during-trump-raid-feds-refused-to-provide-warrant-demanded-security-cameras-be-turned-off-trump-security-team-refused-the-documents-are-likely-related-to-ratcliffe-declassification" rel="nofollow" target="_blank">The Last Refuge bloggers</a> have brought into the light the sinister motives behind the DOJ/FBI's raid. The documents that Trump wanted to release, of course, were those that the Justice Department fought to keep classified: namely, the documents that show how particular members of the DOJ and FBI had <i>targeted Trump from the outset of his campaign and continuing throughout the four years of his presidency, without success. </i>Apparently <a href="https://redstate.com/bonchie/2022/08/10/report-fbi-informant-behind-trump-raid-was-someone-in-his-orbit-n610165" rel="nofollow" target="_blank">someone has tipped them off</a> that Trump kept some of those documents as "insurance" for later release in the eventuality that the DOJ continued to stonewall his efforts. (As it has done, using the flimsy excuse of the "ongoing" Durham investigation.) So some of those on high, and who might be most affected by any release of the incriminating documents, gave the pass to conduct a raid on Mar-a-Lago.</p><p>There is very likely a showdown coming between such forces as Trump may be able to marshal and the arrogant minions of the Deep State. Stay tuned for updates.]</p><p>[<b>UPDATE #2 08/10/2022</b>: <a href="https://www.newsweek.com/exclusive-informer-told-fbi-what-docs-trump-was-hiding-where-1732283" rel="nofollow" target="_blank">This "exclusive" report from <i>Newsweek</i></a> (a favorite of DC leakers) confirms that there was a source inside the Trump circle at Mar-a-Lago who apparently knew all about the newly installed safe in Trump's office (which is why the raid team brought along a professional safecracker). But the safe proved to be empty of anything that could hurt Trump, so now the recriminations commence. Things are beginning to fall apart; the wagons are circling. Or, as far better expressed by William Butler Yeats, many years ago:</p><blockquote><p>Turning and turning in the widening gyre </p><p>The falcon cannot hear the falconer; </p><p>Things fall apart; the centre cannot hold; </p><p>Mere anarchy is loosed upon the world, </p><p>The blood-dimmed tide is loosed, and everywhere </p><p>The ceremony of innocence is drowned; </p><p>The best lack all conviction, while the worst </p><p>Are full of passionate intensity.
</p></blockquote><p></p><p></p><p> Therefore: stay calm and dispassionate as this unfolds, for unfold it surely will. But never give in or give up. Have the courage of conviction that all the hard evidence to date furnishes.]</p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com3tag:blogger.com,1999:blog-759178030677978044.post-61755982982936559702022-04-21T14:05:00.003-07:002022-04-21T14:09:24.261-07:00South Carolina Supreme Court Divides the Baby<p>The <a href="https://www.sccourts.org/opinions/HTMLFiles/SC/28095.pdf" rel="nofollow" target="_blank">unanimous decision announced on April 20, 2022 by the South Carolina Supreme Court</a> fulfilled (by its unanimity) at least one of the predictions made in <a href="https://accurmudgeon.blogspot.com/2021/12/where-will-supreme-court-of-south.html" target="_blank">the previous post on this blog</a> after the oral arguments last December. Unanimity, however, in this instance served not to resolve thorny issues of South Carolina law, but rather sent a strong signal that the collective Justices were circling their wagons around their own, in a somewhat transparent attempt to recover the Court's dignity lost in the <a href="https://www.sccourts.org/opinions/HTMLFiles/SC/27731.pdf" target="_blank">fiasco created by its disgraceful disunity in 2017</a>.</p><p>The result (reached by implicit design) can, alas, bring peace to neither of the litigating factions. Applying extremely arbitrary criteria of its own devising, the Court decided that of the twenty-nine individual parishes before it, fourteen (by the documents they adopted) allowed the <a href="https://accurmudgeon.blogspot.com/2008/08/dennis-canon.html" target="_blank">nationwide trust specified in the Dennis Canon</a> to be applied to their properties, while fifteen did not. The hair-splitting on display here is best illustrated by the following passage from footnote 12 of the main opinion by Justice Few: </p><p></p><blockquote>The analysis of whether Holy Cross, Stateburg satisfied the second element discussed above—intent to create a trust—is the same as our analysis for St. Paul's, Bennettsville, but the outcome of the case for the two Parishes is different. This is because Holy Cross, Stateburg took affirmative present action in its 2011 Bylaws to "accede[] to the . . . Canons of the [National Church]," but St. Paul's, Bennettsville merely stated it was "organized under" and "subject to" the Canons.</blockquote><p>This strained construction transforms the English word "accede" ("join in, agree and consent to") into a poison pill that forever dooms the property of the parish using it to belong to the national Church rather than to the parish itself and its members -- the latter are entitled to make use of their own property only for as long as they agree to remain with the sinking ecclesiastical shipwreck that is the current Episcopal Church in the United States of America.</p><p>The construction has acquired its severity by a questionable legerdemain performed by Justice Few and his colleagues. For they maintain that the Court's 2017 decision, while not "final" with regard to actual ownership of the parishes' properties, was nevertheless final as to the point that any trust established in South Carolina prior to 2006 was presumed irrevocable -- because three of the five justices sitting in 2017 separately opined that it was so. Nevermind that the point was merely hypothetical at the time -- because only <i>two</i> of the five believed, contrary to the <a href="https://accurmudgeon.blogspot.com/2009/09/dennis-canon-loses-in-south-carolina.html" target="_blank">Court's 2009 decision in <i>All Saints Waccamaw,</i></a> that the Dennis Canon had already established trusts on the properties all by itself; the third (Chief Justice Beatty) simply "assumed" that a trust was created <i>if</i> the individual parishes had consented ("acceded") to its imposition.</p><p>(Note that the present opinion does not even <i>mention or cite</i> the <i>Waccamaw</i> decision, which unanimously held that the Dennis Canon of its own force could <b>not</b> create a legally enforceable trust in South Carolina. There was no majority in favor of overruling <i>Waccamaw</i> on this point in 2017, yet in 2022 the Court treats the two minority Justices' pronouncements contrary to that case as something the Court must now "adhere" to -- go figure.)</p><p>Neither of those two Justices (Pleicones and Hearn) in 2017 remained on the case in 2022. Pleicones had retired and was replaced on the panel by the chief justice of South Carolina's appellate court; Hearn recused herself from the case right after she rendered an <a href="https://accurmudgeon.blogspot.com/2017/08/massive-conflict-of-interest-taints.html" target="_blank">extreme and very biased opinion</a> (which was not surprising, given that as an Episcopalian in South Carolina she had been active in opposing any attempts by individual parishes to leave the Church). But the current court treated their dicta (the word attorneys use to describe court pronouncements that are not essential to its actual decision) as firmly established law for purposes of deciding the case in 2022. Justice Few goes out of his way to say that the Court's holding on revocability applies only to the churches in the case (opinion, section III.E):</p><p></p><blockquote>We adhere today to the votes those Justices cast in 2017. This holding is limited to the trusts created by express accession to the Dennis Canon in this case. We decline to comment on the revocability—or on any theory of revocability—of trusts created by other churches or parishes.</blockquote><p>Never mind that in <i>his</i> 2017 opinion, Justice Kittredge had explained that "irrevocability" was only a presumption in South Carolina law, which could be overcome by contrary evidence. Never mind that Justice Hearn had conceded the bias in her own view by recusing herself; "adhere" to her disqualified vote anyway. Never mind that the 2022 Court decided to go only by the accidental words used by the attorneys creating the parish documents, and to draw an arbitrary bright line once the word "accede" was used. This disregards the extensive factual evidence, considered by the court below, about the differing circumstances that applied to the individual parishes when they each adopted their respective documents. </p><p>If anything was presently binding on the Supreme Court, it should have been the factual findings by Judge Dickson below, because they were supported by substantial evidence. The opinion indeed acknowledges this point, at the start of its section III.C. But it goes on to hold, without citing any authority whatsoever, that "the question of whether an action known to have been taken by a Parish created a trust in favor of the National Church and its diocese under South Carolina trust law is a question of law." Stated that way, the conclusion allows the Court to bypass Judge Dickson's findings as to each individual parish and proceed with its arbitrary verbal analysis involving whether the parishes used the word "accede" or not. </p><p>The Court, in short, was interested only in two things: (a) dispose of the case quickly in a fashion that gives something to each side, so neither can claim "victory"; and (b) restore its dignity by making the decision this time unanimous. And that is a recipe for bad law, which can please no one, and which should be nothing to make a judge proud. (An unspoken aim may have been to let any blame for the unsatisfying result fall on those no longer involved in the case, by treating their dicta as settled law which was "binding" on the current Justices.)</p><p>Once again, alas, we return to the recurring theme of this blog: the <a href="https://accurmudgeon.blogspot.com/2008/12/on-hypocrisy-of-tithing-to-finance.html" target="_blank">perils that St. Paul warned Christians about in taking their disputes to secular courts.</a> This is not to judge anyone involved in the South Carolina (or other diocesan) litigation, who were faced with an intransigent national Church determined to have its way with every single dissident parish in the land. But it is to say that Christians cannot expect anything better when they place their disputes in the hands of ill-prepared courts to resolve.</p><p>There will be one final chapter to this desultory story once the federal courts dispose of the name and trademark claims, probably in ECUSA's favor. I shall not return here to comment; I am done with everything that involves the Episcopal Church. Let it reap what it has so assiduously sown.</p><p><br /></p><p> </p><p></p><p></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com18tag:blogger.com,1999:blog-759178030677978044.post-62947185456082210142021-12-08T11:22:00.011-08:002021-12-08T18:31:00.781-08:00Where Will the Supreme Court of South Carolina Go From Here?<p>This morning, your Curmudgeon arose very early (5:30 a.m. PST) to be able to watch the oral argument in the South Carolina Episcopal Church case as it was streamed <a href="https://media.sccourts.org/videos/2020-000986.mp4" target="_blank">live from the courtroom of the South Carolina Supreme Court</a>. The argument was both fascinating and confusing, and it will not be an easy task to sort it all out for the interested lay reader.</p><p>Perhaps the best way to go about this is first to state a number of propositions upon which all appeared to agree, and then go from there.</p><p>First, the appellate counsel on both sides did a great job of holding up under fire. All five justices peppered the attorneys with questions that were not easy to answer, but they did a very good job of responding as well as they could while not losing track of their arguments. </p><p>Second, the two justices (Chief Justice Beatty and Associate Justice Kittredge) who remained from the original arguments and fractured decision in 2017 frankly acknowledged that the Court had failed to be sufficiently specific as to just what had been decided by an actual majority (3-2) vote, and why it had been necessary for Judge Dickson to conduct further hearings below on the issues that remained unresolved. Chief Justice Beatty, in particular, stressed strongly that Circuit Judge Dickson had done just the job that he expected him to do, and would not brook any criticism of the process he followed.</p><p>Third, the three new Justices on the panel (Associate Justices Few and James, plus Chief Judge Lockemy from the South Carolina Court of Appeals sitting in place of Associate Justice Hearn, who had recused herself from further proceedings in the case) did their sporting best to enter fully into the proceedings and try to understand what had gone on before, without glossing over the lack of clarity resulting from five separate opinions (only one of which was joined in by one of the other justices then sitting).<span><span><span><span><span><span></span></span></span></span></span></span></p><p>I will not here rehearse the multiple problems created by those five earlier opinions, which I did <a href="https://accurmudgeon.blogspot.com/2017/09/faults-in-south-carolina-decision-laid.html" target="_blank">in this previous post</a>, and <a href="https://accurmudgeon.blogspot.com/2017/09/faults-in-south-carolina-decision-laid_3.html" target="_blank">in this one</a>. Suffice it to say that the current Court recognized that those opinions had purported to decide issues as to which there was no evidence in the record before that Supreme Court, and had failed to be clear about just which of its "rulings" applied to which of the individual parishes, and which to the property in the name of the Diocese (consisting mainly of Camp Christopher).</p><p>Thus counsel for the Episcopal Church (USA) parties, Bert G. Utsey III, was hit right between the eyes at the outset by Chief Justice Beatty, who asked him to point to the specific passages in the earlier opinions that "finally decided" which parishes retained their individual properties, and which went to ECUSA. He attempted to cite Chief Justice Beatty's own words to him, only to have that worthy point out that what he wrote began with the words: "<i>Assuming that</i> [there were parishes who acceded in writing to <a href="https://accurmudgeon.blogspot.com/2008/08/dennis-canon.html" target="_blank">the Dennis Canon's imposition of a trust on their property</a>], . . ." the properties of those churches would now belong to the national Church. </p><p>When Mr. Utsey attempted to claim there had been "evidence in the record" before the Court to support that assumption, Chief Judge Lockemy shut him down with the observation that the "evidence" he was citing was only an unsupported assertion made by ECUSA's attorneys in their brief, which in turn was based on documents not in the (then) record before the Court -- and that was why the Chief had used the word "assuming" in his opinion: he was taking counsel's words at face value, but had not seen the actual evidence of any agreement by any parish to impose a trust on its property.</p><p>And the argument devolved from there, because that really <i>was</i> the problem with "deciding" just what the 2017 opinions had decided. "Two justices [of this Court] were ready just to hand over all the properties to ECUSA on the strength of its passing the Dennis Canon alone," Justice Kittredge said later. That was a reference to the opinions by Justices Pleicones and Hearn, who wanted to change the "neutral principles" rule laid down in <i><a href="https://accurmudgeon.blogspot.com/2009/09/dennis-canon-loses-in-south-carolina.html" target="_blank">All Saints Waccamaw</a></i> to a "complete deference to the national church" rule of <i><a href="https://accurmudgeon.blogspot.com/2009/06/o-tempora-law-of-church-property-i.html" target="_blank">Watson v. Jones</a> </i>-- but they had only two votes for such a reversal, so <i>Waccamaw</i> stood as the applicable law.</p><p>In conclusion on this line of argument, I did not perceive a single member of the current panel who was ready to adopt ECUSA's reading of Chief Justice Beatty's 2017 opinion and simply hand over the properties to the national church -- <i>including Chief Justice Beatty himself.</i> So I believe it a correct statement to predict that whatever the current Court decides, all twenty-nine plus seven (or all twenty-eight plus eight, which comes to the same thing) parishes in the South Carolina case will keep their own properties. Any other result would require the Court to overrule <i>Waccamaw,</i> and that is not going to happen.</p><p>Unfortunately, as a number of Justices pointed out to Alan Runyan, who ably argued the case for the Anglican Diocese and its parishes, that does not mean that the subsequent course of the case is all clear sailing. "You have," Justice Kittredge pointed out, a "big problem" as to "the law of the case."</p><p>That is technical jargon to say that once a point of law is decided by an appellate court, it may not revisit that question in subsequent proceedings and change it to produce a different outcome from before. So even if this Court wanted to say that two justices plus a third (<i>i.e., </i>Pleicones and Hearn, plus the Chief) did not actually decide to hand over the properties to the national Church, it could not if it had actually done so in its 2017 opinions.</p><p>Mr. Runyan, however, had a very good response to this point: first of all, the Chief's opinion cannot fairly be read at the same time to be upholding and overruling <i>All Saints Waccamaw, </i>when the only fair conclusion is to acknowledge that it states that he adheres to and follows <i>Waccamaw</i>. Next, Mr. Runyan pointed out that the law of the case doctrine is <i>discretionary</i> with court, and does not have to be rigidly applied. If it would make no sense in the present context, then the Court does not have to follow it.</p><p>The Chief Justice likewise wanted to know if the Court was not legally bound by its remittitur which it had entered after its failure to garner three votes in favor of granting the Anglican parties' petition for a rehearing. (He was drawing a legal distinction between a <i>remittitur,</i> which simply sends a case back to a lower court for it to <i>enter a judgment</i> in accordance with the appellate court's opinion, and a <i>remand,</i> which sends the case back to the lower court <i>for further proceedings</i> on issues remaining.)</p><p>Mr. Runyan's response was again straight and succinct. He pointed out that their petition for a rehearing had requested the Court specifically to rule on the evidence (which had been earlier culled from the record on appeal at the Court's request, in an effort to pare down the sheer amount of data in the trial record) showing that no parish had consented in writing to the imposition of a trust on its property, but that request had in effect been denied when the vote to hold a rehearing was just 2-2 (with Justice Hearn now recusing herself). As a consequence, he said, there never was a 3-2 vote that was <i>grounded on the actual documentary evidence,</i> as opposed to just being lifted from a biased summary prepared by opposing counsel. "Due process of law" required that there be such an evidentiary hearing before a party could be deprived of its property under the Constitution.</p><p>(As an aside, one might well wonder why Chief Justice Beatty refused to provide the third vote in favor of the rehearing, particularly since he was now being so adamant that he had never addressed the factual issue in his 2017 opinion.)</p><p>Mr. Utsey then returned to the podium, and the question quickly devolved to this: where can the Court go now from where it is today? It can affirm Judge Dickson's resolution of the case only if it actually reviews (as he did) the evidence previously culled from the record. But how can it fairly remand the case to Judge Dickson to allow the ECUSA parties another opportunity to put on additional factual evidence as to the parishes' respective accessions to the Dennis Canon -- when they had that very opportunity already offered to them by Judge Dickson, and they chose to stand on what was already in the record? </p><p>True, they had taken that stance because they wanted to preserve their position that the Supreme Court's decision that ECUSA take the properties was already clear, and needed no further inquiry or elaboration. (But again -- "clear" in what sense? As to 28 parishes, 29, or all 36?)</p><p>The status of Camp Christopher also seems to be in doubt. On the strength again of the opinions by Justices Pleicones and Hearn, as joined in (so ECUSA claims) by Chief Justice Beatty, three justices seem to have ruled that its trustees hold the property in trust for the national church -- but again, based upon what specific factual evidence? The trustees did not go anywhere; they are still the same individuals, and remain members of the same body they belonged to before, which now calls itself the Anglican Diocese. And how, or why, under South Carolina law should a simple corporate change of name mean that the entity so acting thereby somehow loses its status as the beneficiary of the trust property?</p><p>If anything remained clear at the conclusion, it was this: the current Justices will have to do the homework of <i>looking carefully at all the documentary evidence in the record</i> in order to feel comfortable with any final ruling they make. There has been too much legal bias and posturing in the past -- like the claim that <i>All Saints Waccamaw</i> was no longer the law in South Carolina, when it clearly was; or like the claim that the Court was required to "defer" to the unilateral decisions by ECUSA in matters of property law (as opposed to religious doctrine). </p><p>The reason for much of that bias and posturing, it has to be said, should be laid at the feet of the now recused, but in 2017 highly partisan, Justice Kaye Hearn -- aided and abetted by retired Justice Pleicones. Together, their unified front against (former) Chief Justice Toal seems to have deprived her of the command of the law and the authority she wielded to great effect in achieving the unanimous decision eight years before, in the <i><a href="https://accurmudgeon.blogspot.com/2009/09/dennis-canon-loses-in-south-carolina.html" target="_blank">All Saints Waccamaw</a></i> case. They appear to have determined that she not be allowed to treat ECUSA in the same fashion again, and alas, if that was their goal, they succeeded. Fortunately, that success may not be lasting, if the current justices prove up to the evidentiary task before them. </p><p>Trying to make the Court's work less burdensome, by having the parties pare down the record, Chief Justice Beatty admitted at the end, had been a mistake. The complex cannot be made simple in that way. There will be no easy out for this Court, and I predict we will have to wait a good many months for a consensus to emerge. Given the facts as we all know them from the history of the last twenty-odd years, there is no reason, in my humble opinion, why there should not be another 5-0 decision in this case.</p><p><br /></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com5tag:blogger.com,1999:blog-759178030677978044.post-51302286533926582152021-12-01T23:56:00.001-08:002021-12-01T23:56:39.749-08:00The Most Cockamamie View of COVID Yet<p> I interrupt my blog silence (waiting for the outcome of the South Carolina Supreme Court <a href="https://www.sccourts.org/calendar/dspSupEvents.cfm?Day=2021-12-08" rel="nofollow" target="_blank">hearing next week</a>) to bring you this report, from a reliable source, of the most cockamamie view I have yet to see anywhere in the world of the perils faced by the Obstinate Unvaccinated. After you absorb what appears below, please respond to this straightforward question: Does the Verein Sterbehilfe (the German Euthanasia Association) really think that its personnel can be safe <i>only</i> if they are killing those who have been first vaccinated against COVID-19? </p><p>Or is it in fact saying: "If you want to kill yourself, that's fine with us. But don't expect us to help you if you don't care that we might die along with you. Unlike you, <i>we</i> are not yet ready to cash in our chips."</p><p>Here is <a href="https://www.spectator.co.uk/article/german-euthanasia-clinics-refusing-unvaccinated-customers" rel="nofollow" target="_blank">the link to the article</a> that announces the position of the (sogenannter) Verein Sterbehilfe.</p><p><br /></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com2tag:blogger.com,1999:blog-759178030677978044.post-3656369104469339322021-05-23T12:14:00.000-07:002021-05-23T12:14:49.256-07:00Turnings (III)<p>This will be close to my last post as the "Anglican Curmudgeon". While I maintain my curmudgeonly skepticism toward today's idols (religious and otherwise), I can no longer claim the moniker "Anglican". <b>I do not presume to speak for others, but only for myself.</b> And the objective truth is that I am no longer a member (or adherent) of the Anglican Communion, whatever grouping of denominations may lay claim to that name. </p><p>Your Curmudgeon has followed the example of G.K. Chesterton, who came in time to realize that the grand Protestant experiment, without a magisterium, could do nothing but splinter into further denominational fragments, regardless of their claimed heritage. Like my model G. K., I have been received into the Roman Catholic Church. (See <a href="https://accurmudgeon.blogspot.com/2017/04/turnings-series-i.html" target="_blank">the first post in this series</a> for more background.) </p><p>It was one thing to criticize from the inside looking out, but it is not the same from the outside looking in. Removing myself from ECUSA made me indifferent to its fate. Whether the Anglican Communion is on a different downward path may still be an open question, but the ECUSA-led schism in its ranks no longer attracts my attention -- so I am ceasing to write on that subject, as well. <i>Quod scripsi</i><i>, scripsi -- </i>I will leave this blog up for the time being, so that <a href="https://accurmudgeon.blogspot.com/2009/03/guide-to-this-site.html" target="_blank">the Guide </a>can serve as a quick locator for specific topics.</p><p>The blog will therefore become a sculpture in amber of ECUSA's inexorable decline, chiefly the consequence of its flouting of its own and this country's laws for its leaders' short-term purposes.</p><p>The desultory <a href="https://accurmudgeon.blogspot.com/2008/08/litigation-and-episcopal-church-usa.html" target="_blank">legal contests ECUSA engaged in</a> are now, thankfully, entirely resolved, with the exception of the final battle in the Supreme Court of South Carolina. For the sake of completeness, I will reserve my final post(s) on this blog to comment on how that battle turns out. Until then, the reader can choose from among its more than 1,300 posts to date, indexed topically by <a href="https://accurmudgeon.blogspot.com/2009/03/guide-to-this-site.html" target="_blank">the Guide.</a> (There is, alas, no index to the almost 7,000 comments, but if you know the commenter's name, you can use the blog's search engine to find whatever that commenter wrote.)</p><p>I have no regrets either on leaving the Anglican Communion, which also (along with its parent, the Church of England) now shows signs of the further splintering envisioned in <a href="https://accurmudgeon.blogspot.com/2008/08/anglican-communion-current-issues.html" target="_blank">the links indexed in this post</a>, and <a href="https://accurmudgeon.blogspot.com/2008/08/lambeth-pages.html" target="_blank">in this one</a>. The "Communion" of its title is now honored more in the breach than in the observance, and I remain pessimistic about the capability of its current leadership to welcome back into the fold those it has effectively spurned by embracing the Zeitgeist in derogation of its scriptural heritage. </p><p>In short, what previously made me an Anglican -- the belief that while rejecting the authority of the Magisterium we as Anglicans could yet remain true to Christ's teachings as <a href="https://accurmudgeon.blogspot.com/2008/06/on-faith-once-delivered-to-saints.html" target="_blank">handed down to us from the saints</a> -- has become impossible to sustain, thanks to the vacillation and inconstancy of our overseers (Greek: <i>episkopoi</i>). Nothing "episcopal" remains of the Episcopal Church (USA), because its bishops have deserted their posts, while in the process expelling from their ranks all who rejected their <i>ad hoc</i> interpretations of Holy Scripture. </p><p>This site was never limited just to Anglican / Episcopalian topics -- there was a lot of leavening thrown in, as its motto says, "for good measure." For leavening to be of any use, there has to be dough, and I have not decided yet how best to keep baking content. Fortunately (or unfortunately), the political scene in these so-called United States is so dispiriting that I have no desire to add to the general cacophony. The trend may self-correct before long, but if not, the priority should be protecting one's family from the disintegration taking place before our eyes. </p><p>As Margaret Thatcher once observed: "The trouble with socialism is that you eventually run out of other people's money" -- and although closer to that point than ever before, we are not there yet. </p><p><br /></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com24tag:blogger.com,1999:blog-759178030677978044.post-85183117108739415312021-02-22T12:53:00.001-08:002021-02-23T07:44:39.613-08:00Dennis Canon Dead in Texas<p> With its <a href="https://www.scotusblog.com/2021/02/justices-add-new-cases-turn-down-pennsylvania-election-disputes/" rel="nofollow" target="_blank">denial of certiorari (review) this morning</a> to two of the Episcopal Church in the USA's ("ECUSA's") groups in Fort Worth, Texas, the United States Supreme Court has put to rest the multiple adverse claims made for the last twelve years against <a href="https://mcusercontent.com/1fb9f2edeac2579af848e190a/files/2361a147-536d-4fb4-b0d0-c071a9250de4/Release_CERTdenied.pdf" target="_blank">the Episcopal Diocese of Fort Worth</a>. All of those various claims, and the stages of their ups and downs, <a href="https://accurmudgeon.blogspot.com/2008/08/litigation-diocese-of-ft-worth.html" target="_blank">have been chronicled on this blog</a>, which began just before the legal disputes emerged. It is gratifying, therefore, to report that this blog has managed to outlive, along with (retired) Bishop Jack Iker and his faithful flock, the <a href="https://accurmudgeon.blogspot.com/2009/02/machiavelli-ritornato.html" target="_blank">Machiavellian intrigues of the schemers at 815 Second Avenue</a> to hound and intimidate them into surrender of their properties.</p><p>Denial of review of the May 2020 decision by the Texas Supreme Court puts finally to rest ECUSA's dogged attempts to enforce its <a href="https://accurmudgeon.blogspot.com/2008/08/dennis-canon.html" target="_blank">notorious and one-sided Dennis Canon</a> in Texas. The brazenness of that Canon, which attempted unilaterally to impose (after the fact) an enforceable, perpetual trust everywhere on all the parish properties of its members in ECUSA's favor, ran directly into long-standing Texas trust law, which requires the consent of a property's <i>owner</i> to place it into a trust, and which also requires <i>express language</i> to make a trust irrevocable. The Dennis Canon failed the test on both of those grounds.</p><p>Nor could ECUSA succeed by giving its successor group the same name as Bishop Iker's Diocese, and then pretending to assume its identity. The Texas Supreme Court saw through those machinations, and held that the majority controlling the Diocesan corporation, and not ECUSA's minority faction, were the true successors under Texas corporate law to the group that founded the original Diocese in 1983. In that respect, the Texas courts were far more perspicacious than the feckless courts in California, New York, Pennsylvania and elsewhere who simply allowed ECUSA's attorneys to pull the wool over their eyes, and pretend that the newest kid on the block was actually the oldest, who (they claimed) had been there the whole time.</p><p>Those on the losing side reacted <a href="https://episcopaldiocesefortworth.org/us-supreme-court-declines-to-hear-case/" rel="nofollow" target="_blank">with predictable assurances that life will go on as before</a>. <br /></p><p>I am not certain about this, but the Supreme Court's denial of review may now make it finally possible for Bishop Ryan Reed (Bishop Iker's successor) and his Diocese to have a Texas court call a halt to the ECUSA group's impersonation of that Diocese's identity, by using the same words to describe itself (see the previous link).<br /></p><p>The success in Texas leaves just one long-standing ECUSA dispute still festering: its pursuit of Bishop Mark Lawrence and his Diocese of South Carolina. For the reasons articulated <a href="https://accurmudgeon.blogspot.com/2020/06/sc-court-on-remand-vindicates-bishop.html" target="_blank">in this post</a>, your Curmudgeon has hopes that that litigation, too, will finally resolve itself before too much longer in favor of Bishop Lawrence and his withdrawing Diocese, notwithstanding ECUSA's machinations to the contrary (and that <a href="https://accurmudgeon.blogspot.com/2018/06/o-what-tangled-web-we-weave.html" target="_blank">almost carried the day</a>).<br /></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com9tag:blogger.com,1999:blog-759178030677978044.post-38520890961522027012021-02-03T23:43:00.001-08:002021-02-05T13:26:21.569-08:00What You Aren't Hearing about Election Fraud [UPDATED: Now They Are Openly Bragging]<p>What would you say is the prevailing opinion in the media about fraud in the 2020 presidential election? </p><p>Is it that many lawsuits were brought, in all the disputed States, and <a href="https://www.usatoday.com/story/opinion/2020/11/13/trump-voter-fraud-claims-investigated-2020-election/6259980002/" rel="nofollow" target="_blank">none showed any evidence of fraud</a>?</p><p>Or is it that while fraud may have occurred, <a href="https://www.nationalreview.com/the-morning-jolt/a-careful-voter-fraud-review/" rel="nofollow" target="_blank">it was on a local and very small scale</a>?</p><p>Or is it just that <a href="https://www.forbes.com/sites/jemimamcevoy/2020/11/05/here-are-the-debunked-voter-fraud-claims-trump-and-his-supporters-are-spreading/?sh=2175e6271fca" rel="nofollow" target="_blank">all claims of election fraud have been debunked</a>?</p><p>That is what the mainstream media have <i>wanted</i> you to believe -- because they will never aid in circulating any news to the contrary. But now, three months after the election, a different picture is emerging -- just not in the major media.</p><p>Here is <a href="https://redstate.com/stu-in-sd/2021/02/03/2020-presidential-election-lawsuits-the-facts-n320913" rel="nofollow" target="_blank">a well-sourced and very detailed summary</a> of the abundant evidence of result-changing fraud in all the various key States that showed anomalous results. In turn, it links to other compilations, such as <a href="http://wiseenergy.org/Energy/Election/2020_Election_Cases.htm" rel="nofollow" target="_blank">this definitive list</a> of the outcome of all 79 cases to have been brought in the various courts challenging local and State tallies as reported. The article links to <a href="https://redstate.com/stu-in-sd/2021/01/28/the-continuing-democrat-media-narrative-that-there-was-no-election-fraud-is-a-bald-faced-lie-n317564" rel="nofollow" target="_blank">another at the same Website</a>, which has still more links to mathematical evidence of widespread fraud, as well as to <a href="https://www.frontpagemag.com/fpm/2020/12/yes-it-was-stolen-election-john-perazzo/" rel="nofollow" target="_blank">this comprehensive survey of the evidence</a>.</p><p>As the compilation shows, only 19 of the 79 cases brought to date were decided on their merits, <i>i.e., </i>based on a review of the actual evidence offered. Another 37 cases were disposed of on technical grounds that allowed the courts to avoid reviewing any evidence -- such as deciding that challenges brought <i>before</i> Election Day were "premature", so that the plaintiffs "lacked standing" because "no injury had yet occurred." </p><p>Or, for those suits brought <i>after </i>Election Day, the evading courts found that the complaints were "too late", and the plaintiffs were guilty of "laches" (prejudicial delay) by waiting too long to challenge the rules by which the election was conducted. Thus did many courts play "Catch-22" with the various challengers.</p><p>But of the 19 cases that went to trial on the merits, the compilation linked above shows that the Trump team (or his allies, as plaintiffs) has won <b>twelve</b> of them, <i>i.e., </i>almost <b>two thirds</b> of the cases brought resulted in findings of improper procedures or illegality in voting.</p><p>And there are still are another <b>23</b> active cases yet to be decided. </p><p>So how do those documented facts tally with the memes circulated in the media? Answer: <i>Hardly at all.</i></p><p>According to the media's talking points, Trump (or his supporters) lost <i>all</i> of his challenges, and failed to prove <i>any</i> of his claims of election fraud<i>. </i>But twelve cases already decided prove that claim wrong, and another twenty-three cases await a final decision. </p><p>Your Curmudgeon holds that many out there are like him in suspecting that all was not right with the tallies in the 2020 presidential election. The din of the media panning that idea has to date drowned out the dissenting voices.</p><p>But perhaps that will not be the case for much longer. May the truth emerge -- as eventually it can do no other.</p><p>[<b>UPDATED 02/05/2021:</b> Truer words than my last paragraph above were never written. Now we have it from the horse's mouth: the Left is openly bragging about how <a href="https://time.com/5936036/secret-2020-election-campaign/" rel="nofollow" target="_blank">they carried off the biggest election fraud of all time</a>. No doubt the Department of Justice, under their new leadership, will postpone all prior recreations in pursuing the Capitol rioters on RICO charges to launch new RICO proceedings against those who have brazenly admitted participation in this unparalleled theft and scandal against democracy.]<br /></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com10tag:blogger.com,1999:blog-759178030677978044.post-74702208420607348412021-01-25T22:08:00.001-08:002021-01-25T22:43:52.209-08:00A Review of the Precedents for "Impeachment" Ex Post Facto <p> The sycophant media have <a href="https://youtu.be/oaTXKzc0_Fc" rel="nofollow" target="_blank">rushed to report</a> that Speaker Nancy Pelosi has at last sent her single, desultory "<a href="https://www.congress.gov/117/bills/hres24/BILLS-117hres24eh.pdf" rel="nofollow" target="_blank">Article of Impeachment</a>" to the Senate for a trial.</p><p><i>Sic transit gloria mundi</i> -- or, more specifically, "how low can the sun sink after already having sunk on the American republic?"</p><p>The deluded and foolhardy majority in the House of Representatives, in other words, wants to exercise its Constitutional power of impeachment (to call for the removal of a federal official from office) <i>after the fact --- </i>against a <b>private citizen</b> who no longer holds any federal office. </p><p>Is there any precedent at all for this sort of thing? Let us travel back in time to see . . .</p><p>Set the time machine dial back 1,124 years, shall we, to <b>January 897</b>? Look what happened then to the hapless former Pope Formosus, in the notorious "<a href="https://www.ancient-origins.net/history-important-events/cadaver-synod-exhumed-corpse-pope-formosus-was-put-trial-007104" rel="nofollow" target="_blank">Cadaver Synod</a>":</p><div class="separator" style="clear: both; text-align: center;" wfd-id="29"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEir-9yfsFFc9C3FH0abRb2i9yYhYYan6hrNKLHQFS4umAu_35SYgHSzL-o0H0RtiFxsW6AnafUOfRWjyZIrroeXIrycAy-R0HDSWvyxKcvZP3adZHR3Nb09WIOMAzuG4hWfrAgmKNBeyvA/s947/Cadaver-Synod.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="630" data-original-width="947" height="266" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEir-9yfsFFc9C3FH0abRb2i9yYhYYan6hrNKLHQFS4umAu_35SYgHSzL-o0H0RtiFxsW6AnafUOfRWjyZIrroeXIrycAy-R0HDSWvyxKcvZP3adZHR3Nb09WIOMAzuG4hWfrAgmKNBeyvA/w400-h266/Cadaver-Synod.jpg" width="400" /></a></div><br /><p><br /></p><blockquote><p>. . . Nine months after Formosus died, his body was exhumed and made to sit on a throne so that he could face the charges levied against him by the then Pope Stephen VI. Dressed in all the fineries of papal vestments, Formosus faced accusations of perjury, coveting the papacy as a layman, and violating church canons while he was pope. Defended by a mere deacon and obviously incapable of defending himself, the dead Pope was found guilty on all counts.</p></blockquote><p> <span> <span> <span> </span></span></span>. . . </p><blockquote>Formosus was found guilty. He was literally stripped of his robes and deprived his title as pope. Then they cut off the three fingers he used to bless people and reburied the naked corpse in a commoner’s grave. </blockquote><div wfd-id="28">And just how did the public take to his treatment at the hands of Pope Stephen VI? Read on:</div><div wfd-id="27"><blockquote>This was all too much for the people, already sick of the intrigues of the Church. They demanded Stephen VI be removed and a proper pope be instated. Stephen VI was thrown in jail and later strangled in August 897.</blockquote></div><div wfd-id="26">That was then -- and so we move forward in time, to the infamous "Lollard" precedent, of John Wycliffe:</div><blockquote><div wfd-id="25">John Wycliffe was the most famous priest of his day. His learning was immense. He had been a leading scholar at Oxford and a chaplain to the King of England. More to the point, he spoke out boldly against the errors of the popes, the organizational hierarchy of the Roman Church, and the corruption of the clergy in his day. . . .</div><div wfd-id="24"><br /></div><div wfd-id="23">If the people in England were to know the truth, Wycliffe reasoned that they must have the Word of God in their own language. Under his direction, the Bible was translated into English for the first time, although the job was not completed by his associates until 1395, eleven years after his death. . . .</div><div wfd-id="22"><br />John Wycliffe died of his stroke on the last day of the year [1384]. The religious authorities had never excommunicated him because they feared public opinion--the people loved John and his fame was international. So he was buried in consecrated soil. But about thirty years later, the Council of Constance revenged itself on his criticism by condemning his teachings and ordering his bones to be dug up and burned. </div></blockquote><div class="separator" style="clear: both; text-align: center;" wfd-id="21"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEguVdyMLE96qyF_zc6Eq17YatvmZY62XsyOqgfy8AvxUW-sq7blKwW2g4SXZrAKR4KK7LA7jYCxqWzgohrtaIbN7neynRzZ4SY8z8rnZbiPPTnaTjVtfOgVyMUjdwH_WdQXkvGU3V7EHhA/s450/Wycliffe.jpeg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="450" data-original-width="450" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEguVdyMLE96qyF_zc6Eq17YatvmZY62XsyOqgfy8AvxUW-sq7blKwW2g4SXZrAKR4KK7LA7jYCxqWzgohrtaIbN7neynRzZ4SY8z8rnZbiPPTnaTjVtfOgVyMUjdwH_WdQXkvGU3V7EHhA/w400-h400/Wycliffe.jpeg" width="400" /></a></div><div wfd-id="20"><blockquote>But the burning of such a man's bones could not end his influence. As John Foxe said in his book of martyrs, "though they dug up his body, burnt his bones, and drowned his ashes, yet the Word of God and the truth of his doctrine, with the fruit and success thereof, they could not burn; which yet to this day...doth remain."</blockquote></div><div wfd-id="19">So, once again, we do not have a favorable precedent. Fast forward to the case of <a href="https://www.amusingplanet.com/2018/08/posthumous-execution.html" rel="nofollow" target="_blank">Oliver Cromwell</a>, in 1661:</div><blockquote>Following [King Charles I]'s execution in 1649, the Commonwealth of England was introduced to replace the monarchy, and [Oliver] Cromwell became Lord Protector, a role in which he remained until his death five years later. Cromwell was succeeded by his son as Lord Protector, but he did not last long, and was overthrown by the army a year later. <div wfd-id="18"><br /></div><div wfd-id="17">The monarchy was restored [in 1660] and Charles II became the new king.
Immediately after gaining power, King Charles II ordered the arrest and trial of all who played part in the overthrowing of the monarchy. Of the 59 who signed the death warrant, several were hanged while others were imprisoned for life. Even those who had died were not spared. Several had their body exhumed and reburied in communal burial pits, but Oliver Cromwell and three others—John Bradshaw, the judge who was president of the court, Henry Ireton, a general in the Parliamentary army and Cromwell's son-in-law, and Robert Blake, a military commander—were awarded death sentences.</div></blockquote><p>Cromwell's body was <a href="https://www.historyandheadlines.com/january-30-1661-cromwell-executed-two-years-death/" rel="nofollow" target="_blank">to have a special fate</a>, illustrated in part below: </p><p><br /></p><div wfd-id="0"><div class="separator" style="clear: both; text-align: center;" wfd-id="16"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhBHsmST5O1Rbu7-MZU_QDacH0yTSvdbzO0XRwWDpFzB977r4b1gATGCV9PECRK1TiXWGNPjDIvWY2pr7JhcnA9lzmCiI7lLVXL5N0bfA0NWN98XDoarKviHjSUxUG51gQWCU7UYeR1nUo/s1000/execution-of-cromwell-13.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="806" data-original-width="1000" height="323" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhBHsmST5O1Rbu7-MZU_QDacH0yTSvdbzO0XRwWDpFzB977r4b1gATGCV9PECRK1TiXWGNPjDIvWY2pr7JhcnA9lzmCiI7lLVXL5N0bfA0NWN98XDoarKviHjSUxUG51gQWCU7UYeR1nUo/w400-h323/execution-of-cromwell-13.jpg" width="400" /></a></div><br /><div wfd-id="15"><br /></div><blockquote>On the [twelfth] anniversary of King Charles I’s death, Cromwell's body was exhumed from Westminster Abbey, and his disinterred body was hanged in chains at Tyburn. In the afternoon, the body was taken down and beheaded. Cromwell’s head was then placed on a 20-foot-tall wooden spike and raised above Westminster Hall where it remained for nearly twenty five years. For the next two centuries, the dismembered head rolled through the possession of many until it was given a dignified burial in a secret place at Sidney Sussex College, Cambridge, in 1960.</blockquote><div wfd-id="14">The posthumous punishment of Oliver Cromwell thus extended for almost three hundred years. </div><div wfd-id="13"><br /></div><div wfd-id="12">Surely the House Democrats, and the members of the Senate, ought to have these (and other -- see the case of Gilles van Ledenberg at <a href="https://www.amusingplanet.com/2018/08/posthumous-execution.html" rel="nofollow" target="_blank">the previous link</a>) precedents well in mind as they deliberate the solitary <i>ex post facto</i> bill brought against former President Trump. For there was, and is, no single example that your exacting Curmudgeon could exhume (pardon the expression) from the dustheap of history that resulted in a positive public regard for <i>any </i>judges (or executioners) who presumed to proceed in their cases after the fact.</div><div wfd-id="11"><br /></div><div wfd-id="10">Now, granted -- Donald John Trump is still very much among the living, and nothing the current Congress may do can alter that, despite the extraordinary powers to which it may try to lay claim. But its very attempt to assert such powers <i>ex post facto </i>brings discredit upon those who are so basely motivated. </div><div wfd-id="9"><br /></div><div wfd-id="8">Ours is a government of laws, not men, despite how glum the present may appear to some. There is not one on the scene thus far, thank God, who proposes to rewrite, or replace, the Constitution. Its prohibition against <i>ex post facto</i> laws and bills of attainder, both as to Congress and the several States, remains intact.</div><div wfd-id="7"><br /></div><div wfd-id="6">That said, nothing ever stopped politicians from making fools of themselves in public: just witness the examples I have adduced above. </div><div wfd-id="5"><br /></div><div wfd-id="4">May history record their folly in full. And may the rest of us resist to the fullest their contempt for the very words of our Constitution. </div><div wfd-id="3"><br /></div><div wfd-id="2"><br /></div><div wfd-id="1"><br /></div></div>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com7tag:blogger.com,1999:blog-759178030677978044.post-41258980641314606152021-01-12T23:20:00.005-08:002021-01-13T22:58:49.633-08:00Sense and Nonsense about Impeachment [UPDATED]<p>The Internet is all a-burbling with talk of impeachment. Much of what I have read is ill-informed, or indeed uninformed, nonsense. Your Curmudgeon approaches the subject as one trained in constitutional law, who learned the subject from the likes of Paul A. Freund and Archibald Cox. That was more than fifty years ago, and since then my passion for the subject has but grown, with each successive year. In this post, I will try my best to sort out sense from nonsense.</p><p>As any good legal scholar knows, questions about the Constitution always start with its text. Let me quote the last clause of <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Article I, Section 4</a> of that foundational document:</p><p></p><blockquote>Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.</blockquote><p></p><p>Notice the conjunction of the two operative phrases: "removal from Office, <b>and</b> disqualification . . .". The word "or" is absent, meaning the two phrases <b>go together</b>. This is basic English, and basic logic.</p><p>That logic does not stop the ill-informed, including many professors of law, from claiming that Congress may still, even after the term of the impeached officeholder has expired, enter a judgment of impeachment that encompasses disqualification <b>without </b>removal from office (because -- duh -- the officeholder is no longer capable of being removed). See, for example, <a href="https://reason.com/volokh/2021/01/12/the-senate-may-hold-an-impeachment-trial-after-president-trump-leaves-office/" rel="nofollow" target="_blank">this post</a>, <a href="https://www.washingtonpost.com/outlook/2021/01/11/trump-impeachment-senate-trial/" rel="nofollow" target="_blank">this article</a>, and <a href="https://www.justsecurity.org/74107/the-constitutions-option-for-impeachment-after-a-president-leaves-office/" rel="nofollow" target="_blank">this article</a>. And this professor even claims that the whole deed could be <a href="https://thebulwark.com/the-constitutional-and-moral-imperative-of-immediate-impeachment/" rel="nofollow" target="_blank">accomplished in a single day</a>. </p><p>Never mind that it never has been done that way, and never mind that there is <i>another</i> provision that forbids the government from depriving anyone of property, including the right to hold an elected office, without due process of law -- which means by a regular trial that includes all of the customary protections such as the right to call witnesses in defense, and to confront the witnesses testifying against you, among other rights. If "due process" is duly observed, there is no way that citation for impeachment, trial and conviction could all take place in just one day. But that realization does not deter the biased pundits from pontificating, or discourage the even more biased media from publicizing the pundits' ill-informed views.</p><p>The same pundits manage to <a href="https://reason.com/volokh/2021/01/12/house-judiciary-committee-releases-report-on-impeachment/" rel="nofollow" target="_blank">pat themselves on the back</a> by celebrating (even if somewhat modestly) how the recently released House report on impeachment quotes and cites them in support of its admittedly partisan conclusion.</p><p>And, as a sort of <i>pièce de resistance, </i>one professor cites <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=286277" rel="nofollow" target="_blank">this law review article</a> as "probably the closest thing we have to an authoritative academic analysis of the issue." Let me save you the effort: I have downloaded the entire 68-page article at that link, and have read it all the way through. Its entire treatment of disqualification as a consequence of "impeachment after the expiration of office" appears just before the end, at pages 63-64. </p><p>It is only as an introduction to that section that the article candidly confesses:</p><p></p><blockquote>The foregoing has all been directed at the question of whether late impeachment is allowed. It is time to confront a more difficult question for proponents of late impeachment: What is the point?</blockquote><p></p><p>And only <i>then</i> does the article go on to discuss the subject of disqualification, apart from the removal from office. Yet it still can cite <i>no precedent whatsoever</i> for a judgment of disqualification that came after an officeholder's term had expired of its own accord, <i>i.e., </i>in the absence of a preceding vote to remove that official from office. (And even then, it can cite just two cases -- both sitting federal judges -- in which the Senate voted both for impeachment <b>and </b>disqualification -- see fn. 524, on p. 63.) In other words, the very thing that the elites and their media cohorts are trumpeting should now happen <i>has never before happened in our nation's history -- and certainly not in the case of a former President.</i></p><p>Of course, most of my readers will know that not a single sitting President has ever before been charged in articles passed by the House <i>and</i> convicted (impeached) by the Senate, let alone disqualified from future office. Does the reader begin to grasp why the clamoring mob (including the bandwagon in Congress and their ready-to-testify legal experts) are so out of bounds on this most consequential subject? Has their visceral reaction to Donald Trump indeed driven almost all the published pundits to abandon all logic, and the actual language of our Constitution?</p><p>I draw no conclusion, but I certainly have my doubts about the degree to which the rest of us should take such people at face value. And so, I should add, does <a href="https://www.thenewneo.com/2021/01/12/can-congress-impeach-and-convict-a-president-after-the-person-has-left-office/" rel="nofollow" target="_blank">this lay commenter</a>.</p><p>What is more, I consider myself on even firmer ground when I bring up a consideration that, as far as I have been able to discover among all the posts on this touchy subject, has not yet been taken into account. For (lest we forget, due to the dimness of our ancient Anglican history) the Constitution also contains <i>this</i> succinct restriction upon the powers of Congress, in <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Art. I, Section 9, clause 3</a>:</p><p></p><blockquote>No Bill of Attainder or ex post facto Law shall be passed.</blockquote><p></p><p>The same restriction was applied to the individual States in <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Art. I, Section 10, clause 1</a>, so the Founders must have considered this restriction as essential to our republican form of government. So what exactly <i>is </i>a "Bill of Attainder"?</p><p>We have to go back to <a href="https://en.wikipedia.org/wiki/Bill_of_attainder" rel="nofollow" target="_blank">English law</a> (and <a href="http://files.libertyfund.org/files/2140/Blackstone_1387-01_EBk_v6.0.pdf" rel="nofollow" target="_blank">Blackstone's Commentaries</a>) to understand the history of this term, and the abominable practice it embodied. Parliament claimed the power to pass a bill that simply sentenced a subject of the Crown to death, with or without any kind of trial or evidentiary proceedings having taken place -- that was the traditional "Bill of Attainder", taken from the fact that the person so condemned was regarded as "attainted" by an extraordinary crime committed against the Crown.</p><p>Over time, the abuses of this power became abhorrent to those brought up in the tradition of the Magna Carta, and our Founders were no exception: hence the restrictions upon such Bills in our Constitution.</p><p>And over the years since the adoption of our Constitution, the courts have had occasion to apply and interpret its language forbidding such acts by the national or State legislatures. The best and simplest online explication of what our courts have held in this regard may well be <a href="https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder" rel="nofollow" target="_blank">this one</a>, which quotes the language of actual cases (I have omitted the footnote references, but you may see them at the link):</p><p></p><blockquote>“Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.” The phrase “bill of attainder,” as used in this clause and in clause 1 of § 10, applies to bills of pains and penalties as well as to the traditional bills of attainder. </blockquote><p></p><p>So while not exactly condemning President Trump to execution (though there have been voices clamoring to that effect), any judgment of disqualification entered by Congress after his term had expired according to law would, I submit, be just such a forbidden Bill of Attainder (or, more technically, a "Bill of Pains and Penalties"). Its object admittedly would not be to remove him from the office he had already left when his term expired by law, but simply to punish him <b>after the fact</b> by depriving him permanently of the right of any qualified American citizen to be elected to an office under the United States. </p><p>It would be directed, as all such Bills are, against a single individual, and would be passed in the absence of proceedings conducted according to the laws applicable to trials in the courts of the United States. The Constitution gives the Senate the sole power to try cases of impeachment, and prescribes no rules for doing so --- other than that the Senators must be "on oath", and that the Chief Justice of the United States must "preside" when a sitting President is being tried. Please note the specific language once more: the <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Constitution says</a> when "the <b>President of the United States </b>is tried" -- not "the former President," or "ex-President".</p><p>I do not present this as a definitive argument, but only as a check on the rush to judgment which appears to be ubiquitous in our national media, as well as among those whom the media selectively choose to quote.</p><p>In sum: there is no logic or language in the Constitution that authorizes a former President to be tried for impeachment, let alone convicted and judged, with or without an accompanying sentence of disqualification.</p><p>If we indeed are to remain a government of laws, and not descend to rule by the passions of the moment, we have to adhere to the plain text of our <i>entire</i> Constitution. To argue by taking snippets from it out of context, in order to say (in effect) that the end justifies the means, is to unmoor ourselves from the rule of law --- which in the first instance comes from the sense of the Constitution itself.</p><p>[<b>UPDATE 01/13/2021</b>: In light of the House's resolution of today, I need to register a <b>strong protest</b> against the misuse of the word "impeachment". The headlines, for example, are all screaming that "Trump is the first President to have been impeached twice". To which I reply: "No, he has not -- he has not even been impeached <i>once.</i>" </p><p>To be "impeached", in the legal sense of the term, is to be <i>convicted</i> by the Senate, after a trial, upon <i>articles of impeachment</i> lodged with the Senate by the House of Representatives. The analogy is to an indictment by a grand jury: that grand jury can indict an official, but he is not <i>convicted</i> on the grand jury's charges until there has been a full trial, with a verdict of "guilty as charged." If that official were found "not guilty" of the charges, why would there ever be any note of triumph in claiming that the official had been "indicted"? The outcome is that he was found <i>not guilty</i> of the charges in the indictment, and that is what counts in the end.</p><p>So all that the House has accomplished today is <i>not</i> a "second impeachment" of President Trump, but only the bringing of a second charge to the Senate that hypothetically could, but which in reality will not (because Trump has only a week left in office), result in his trial and impeachment --- <i>sc. </i>removal --- from the office of President. Instead, he will be long gone from office before the House can even transmit its charges to a Senate that is actually in session (starting January 19 -- one day before the expiration of President Trump's term).</p><p>So -- don't fall victim to the media's manipulation of our language. "Impeachment" means the same as "removal from office after a trial by the Senate upon articles brought and prosecuted by the House, resulting in a <i>judgment of impeachment</i>." The House alone, in short, has <i>no</i> power to "impeach" the President (or any other official) by itself. All it can do is <i>prefer charges</i> against an official, which -- if true as found after a full trial with the whole Senate sitting as a jury -- would justify his or her removal from office, as having committed "Treason, Bribery, or other high Crimes and Misdemeanors" as required by <a href="ahttps://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Art. II, Section 4 of the Constitution.</a> </p><p>In sum, President Trump has <b>not</b> been "impeached" twice. In fact, he has not even been impeached once.]</p><p><br /></p><p><br /></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com21tag:blogger.com,1999:blog-759178030677978044.post-84785053167450135592021-01-09T23:02:00.000-08:002021-01-09T23:02:00.400-08:00The Democrats' Dilemma<p>In this post, I want to draw out some logical consequences of the Democrats having prevailed in the face of the multiple challenges to their majority in the Electoral College. I proceed in a series of logical steps:</p>
1. The US Constitution does not address what happens if a President elect, as selected by the Electoral College, resigns or becomes incapacitated before his term of office, under the 20th Amendment, begins at noon on January 20 of the year following a presidential election. In either event, the President elect would not take the oath of office, and so would never become the President. That office would remain vacant until filled by some other procedure — but what law instructs us as to how that is to be done? <div><br /></div><div>2. Section 3 of the 20th Amendment provides for the replacement of the President-Elect by the Vice President-Elect, but only in the event the President-Elect <b>dies</b> before assuming office: </div><div><blockquote>If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. </blockquote></div><div>3. That same Section goes on to specify: </div><div><blockquote>If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. </blockquote></div><div>4. Those provisions, however, would not appear to address the situation where a duly elected President elect, having been chosen before his term was to start, resigns or becomes mentally incapacitated before January 20. In either of those events, it is not a case of the President elect’s having failed to qualify for office before the start of his term, although perhaps such an argument could be made. The better interpretation of the verb “qualify”, however, would be as referring to a temporary inability, as of January 20, to meet the express qualifications for the office of President (<i>e.g., </i>not having attained the age of 35 before January 20, as opposed to not being a native-born citizen, which would be a <i>permanent </i>disqualification) —- some such inability that can, and perhaps soon will be, cured in due time. But in the case of resignation, instead, the elected candidate declines to assume the office, as is his right in a free country; and in the case of becoming mentally unfit, he becomes <i>incapable of performing</i> the office. </div><div><br /></div><div>5. Neither does the 25th Amendment address the hypothesis of the resignation or incapacitation of a candidate-elect before actually assuming office. It speaks only to those who already occupy the offices of President or Vice President (<i>i.e.,</i> who have taken the prescribed oaths), not to those who have yet to assume those offices and who have yet (or who are unable) to take the oaths. </div><div><br /></div><div>6. Finally, 3 USC Section 19 would also appear to fail to address the situation of any candidate-elect resigning or becoming incapacitated before assuming office. It begins as follows: </div><div><blockquote>If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President. </blockquote></div><div>That statute is on the books by virtue of the authority granted to Congress by Section 3 of the 20th Amendment, quoted above. But by the terms of that Amendment, it applies only to cases where a “president shall not have been <i>chosen</i>” (emphasis added), which would not be the case under the assumptions made here, or it applies to cases where “the President elect shall have <i>failed to qualify</i>” (emphasis added), which just takes us back to the discussion in ¶ 4 above. There does not appear to be any predicate for that provision to kick in where a President elect is incapacitated or otherwise unable to be sworn in. </div><div><br /></div><div>7. The only language that could arguably be read to apply to the situation of a President elect’s resignation or permanent incapacity between the confirmation of his election and January 20 would appear to be the following original language in Article II, Section 1, clause 7 of the Constitution, which dates back to 1789: </div><div><blockquote>In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President . . . </blockquote></div><div>Let us see how such a scenario would work out. Assume the following: </div><div><br /></div><div>8. As happened on December 14, the electors met in the various state capitals, and a majority (more than 270) cast their votes to elect Joe Biden as President, and Kamala Harris as Vice President. And on January 6, Congress confirmed those results, making Joe Biden the official “President elect”. </div><div><br /></div><div>9. Between January 6 and January 20, 2021, however, Joe Biden either voluntarily resigns as President elect, or becomes permanently incapacitated (i.e., has a totally disabling stroke, or goes into a coma from an accident, or becomes senile, or unable to speak, or suffers some similar serious disability). What happens then? Who is inaugurated as President on January 20, 2021? </div><div></div><blockquote><div>a. Does Kamala Harris automatically become President? By which constitutional provision, or federal statute? See above — there is no amended constitutional provision or statute that covers that precise situation. </div><div><br /></div><div>b. Nevertheless, let us assume that Kamala Harris steps up and demands that she be inaugurated as President on January 20, 2021, since (as she argues) the Vice President replaces the President in cases covered by Art. II, Section 1, Clause 7 of the Constitution, which remains in effect except only to the extent it was amended by the 25th Amendment quoted earlier. She argues — cogently, I would contend, that the “Resignation, or Inability to discharge the Powers and Duties of the . . . Office,” of <i>either</i> the President or of the President elect amounts to the same thing, because there is no one otherwise authorized to act in such a case except for the Vice President, who will have by then assumed office without challenge or disability. (There is no ability to provide for the appointment of a replacement VP elect, since any actual Vice President has to await appointment as specified in Am. 25, Section 2 -- see below.) She also would cite to Section 1 of the 25th Amendment, which is roughly to the same effect. (“In case of the removal of the President from office or of his death or resignation, the Vice President shall become President” -- but see the even more comprehensive provision in Art. II, Section 1, clause 7 of the original Constitution, quoted above.) </div></blockquote><div></div><div>10. So what are the consequences of Vice President elect Harris becoming President as of January 20, 2021 — or at any later time before the next presidential election? </div><div></div><blockquote><div>a. The first consequence is that she no longer will <i>preside over the Senate. </i></div><div><br /></div><div>b. A second consequence will be that there will be no such presiding officer (apart from an agreed president <i>pro tempore,</i> chosen by seniority among the existing Senators) until a replacement Vice President is nominated by (now) President Harris and approved by a majority of both Houses of Congress (Am. 25, Section 2): </div><div><blockquote>Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. </blockquote></div><div>c. But if Harris assumes the office of President as of January 20, 2021 or later, who will control the voting in the Senate, without her authority under the Constitution to break tie votes? Consider:
If the Republicans, as now appears likely, lose both of the Georgia Senate elections, then the Democrats will have a 50-50 balance in the Senate, and (in a Biden administration) they could count on Vice President Harris to act as tie-breaker in the event of any stalemate or tie. </div><div><br /></div><div>d. But if (in the scenario assumed above) VP Harris becomes President Harris on January 20 (or later), then she will no longer be able as of that date to resolve 50-50 ties in the Senate; nor will the Democrats in the Senate be able to resolve such disputes, since they will have to await the appointment of a new VP to decide tie votes. The Senate would likely agree upon a presiding officer <i>pro tempore,</i> but that person could not resolve any 50-50 ties, because he or she will necessarily be one of the 50 votes on whichever side is his or her party. </div><div><br /></div><div>e. The Senate could thus be deadlocked indefinitely over the approval of a person appointed by Harris as her Vice President, so long as none of the 50 Republicans (e.g., Collins, Murkowski or Romney) defects, and so long as all 50 Democrats adhere to their party’s line. </div></blockquote><div></div><div>11. Now you can begin to appreciate the pressure the Democrats will be under to keep Biden functioning as President for as long as he is physically up to the job (and perhaps even if he becomes incapacitated: remember how Edith Wilson kept the truth about her stricken husband from the public for seventeen months, until his second term ended in March 1921). </div><div><br /></div><div>12. But the Democrats will still be in a “Catch-22”: they cannot arrange for Kamala Harris to assume the presidency without losing, possibly until the end of Biden’s term, the ability to designate a Vice President who will be able to resolve any tie votes in the Senate.</div><div><br /></div><div><br /></div>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com11tag:blogger.com,1999:blog-759178030677978044.post-87350495782740015042021-01-05T01:46:00.001-08:002021-01-05T19:42:46.840-08:00The Coming Donnybrook of January 6 (Part III)<p> The news keeps changing as the tallying of Electoral College votes in the Capitol on January 6 approaches. It is difficult at this point to project with any confidence how matters will turn out.</p><p>As explained in <a href="https://accurmudgeon.blogspot.com/2020/12/the-coming-donnybrook-of-january-6-part.html" target="_blank">Part I</a> and <a href="https://accurmudgeon.blogspot.com/2021/01/the-coming-donnybrook-of-january-6-part.html" target="_blank">Part II</a> of this series, the presidential election of 2020 boils down to what happens when the two Houses of Congress meet in an unusual (albeit quadrennial) prescribed joint session on this Wednesday, January 6. The first question that arises is: what law applies to that joint session?</p><p>The first answer is that it is the <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Twelfth Amendment to the Constitution</a>, adopted in 1804, that requires the two Houses so to meet. The joint session is the necessary vehicle by which the outcome of the previous year's presidential election is officially determined and announced to the world.</p><p>But the next thing it is necessary to note is that the Twelfth Amendment is silent as to a number of matters that could arise (and have indeed arisen) with regard to the tally of electoral votes in the presence of the two Houses of Congress.</p><p>For example, what happens in the event that there are <i>two</i> competing slates of electors from a given State? Who decides which slate's votes are entitled to be included in the final tally?</p><p>And that is just the situation we have in January 2021: dual slates of electors have sent in their votes to the seat of the government from (at least) the <a href="https://theconservativetreehouse.com/2020/12/14/republican-legislatures-choose-alternate-electors-in-nv-wi-ga-pa-to-preserve-election-challenge-options/" target="_blank">States of Arizona, Georgia, Nevada, Pennsylvania, and Wisconsin</a>. When the separate votes of those dual slates are opened by Vice President Pence and handed over for tallying, how will the two tellers from each House know how to proceed?</p><p>In the past, Congress drafted (and President Harrison signed into law) the Electoral Count Act of 1887, which purported (in the wake of the Tilden-Hayes electoral debacle of 1876-77) to specify how future joint sessions of Congress would resolve disputed and duplicate votes from a given State. But the reality is that the Electoral Count Act has never been deemed fully applicable to <i>any</i> election dispute from 1888 to the present. </p><p>Moreover, many constitutional scholars have doubted whether Congress possessed the authority to enact it under the Constitution -- because it purports to bind future Houses of Congress <i>separately </i>as to how they must deal with future Electoral College votes, regardless of the Twelfth Amendment. The principle is simple: by what law (or Constitutional provision) may one Congress irrevocably bind a future Congress to act (or not to act)? </p><p>Under our federal system, it is only a provision in our Constitution that can so bind any current and future Congress. And the Electoral Count Act was not adopted as an amendment to our Constitution: therefore, it cannot be binding upon any Congress that does not voluntarily choose to adopt its provisions.</p><p>So it is instructive to learn that the 117th Congress, which was sworn in on January 3, has chosen to adopt, in the matter of counting the votes of the Electoral College, <i>not</i> the ECA <i>holus bolus, </i>but instead <a href="https://www.congress.gov/bill/117th-congress/senate-concurrent-resolution/1/text" rel="nofollow" target="_blank">a joint resolution much reduced in scope</a>:
</p><blockquote> Resolved by the Senate (the House of Representatives concurring), That the two Houses of Congress shall meet in the Hall of the House of Representatives on Wednesday, the 6th day of January 2021, at 1 o'clock post meridian, pursuant to the requirements of the Constitution and laws relating to the election of President and Vice President of the United States, and the President of the Senate shall be their Presiding Officer; that two tellers shall be previously appointed by the President of the Senate on the part of the Senate and two by the Speaker on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter ``A''; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from said certificates; and the votes having been ascertained and counted in the manner and according to the rules by law provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and together with a list of the votes, be entered on the Journals of the two Houses.</blockquote>
This resolution is more noteworthy for what it <i>doesn't</i> say than for what it says. Its opening provisions track exactly the first three sentences of the ECA, as codified in <a href="https://uscode.house.gov/browse/prelim@title3/chapter1&edition=prelim" target="_blank">3 USC § 15</a> -- but the resolution leaves off entirely the remainder of Section 15, which admittedly is a notorious conundrum (I quote it here just for the sake of completeness; don't expect to understand what it says):<p></p><div wfd-id="0"><blockquote>Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.</blockquote><p>Did you follow that? At the very least, you can see that the joint resolution adopted by the 117th Congress did not include the requirement of the statute that objections to any given slate of electors be made in writing, nor did it include the time limitations on debate over any given objection. And if you understood the remainder of the statute, you qualify for an advanced degree in statutory construction. But if you didn't, join the innumerable ranks of legal scholars who have disagreed over the meaning and application of these provisions. Take, for example, this convoluted language:</p><p></p><blockquote>. . . and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. </blockquote><p></p><p> The phrase "if there shall have been no such determination of the question in the State aforesaid" refers to the language of 3 USC §§ 5 and 6, as quoted <a href="https://accurmudgeon.blogspot.com/2021/01/the-coming-donnybrook-of-january-6-part.html" target="_blank">in my previous post</a>. And as I demonstrated there, no such "final determination" will have occurred in <a href="https://ballotpedia.org/Ballotpedia%27s_2020_Election_Help_Desk:_Tracking_election_disputes,_lawsuits,_and_recounts" rel="nofollow" target="_blank">any disputed swing State by January 6</a> -- so that there could not have been submitted to the national Archives the required "certificate of final ascertainment" as called for by 3 USC § 6, in order for a slate of electors to be regarded as having been duly "certified by the [State's] executive" for purposes of the ECA.</p><p>Even under the (non-binding) provisions of the ECA, therefore, there is no means by which the two Houses of Congress may separately decide which of the competing electoral returns from any given State is to be counted in the final tally, <i>unless</i> they both agree that a given slate's votes from that State should be counted in preference to any votes from any other slate from that State. And to emphasize my conclusion: the ECA provides <i>no rule of resolution </i>when there are competing electoral slates from a State, <i>none</i> of which has been duly certified by the State's executive because there has not yet been any "final ascertainment" of any such slate <a href="https://ballotpedia.org/Ballotpedia%27s_2020_Election_Help_Desk:_Tracking_election_disputes,_lawsuits,_and_recounts" rel="nofollow" target="_blank">as of the date that the two Houses of Congress meet on January 6 in Washington</a>.</p><p>Thus even if the 117th Congress had elected to follow all the provisions of the ECA, there would be no mechanism in place beforehand by which its two Houses may resolve the issue of <i>which</i> of two competing slates of (uncertified) electors should be counted -- <i>unless</i> and <i>only</i> if <i>both Houses agree </i>upon the same slate of electors from a given State.</p><p>And will that happen? The question may be simple in the House of Representatives, which has no equivalent to the Senate's filibuster. Its representatives, by a simple majority vote (with the Democrats in the majority for now), may determine that it will count the votes of the Democrat electors from a swing State, and not those of the Republican electors. </p><p>But the Senate is a different matter, because it still is governed by the filibuster rule, which requires the vote of 60 Senators to cut off debate on any given question. Thus if enough Senators (41 or more) decline to approve any given slate of electors from a swing State, there will not be two concurring votes for that slate in the two Houses of Congress.</p><p>There has been some reporting that the debate following objections to a given slate shall last in each House for a maximum of two hours -- but that assertion relies upon the language (see above) in 3 USC § 15 that was expressly <i>not</i> incorporated into the joint resolution which the 117th Congress passed, as also quoted above. Thus there will be no time limit on the debate about any particular electoral slate unless the particular House <i>approves</i> such a time limit, which approval would require (again) sixty votes in the Senate to cut off debate.</p><p>The same reporting has declared, without any authority, that in a case of an impasse between the two Houses over two competing slates, the slate which has been "certified" by that State's governor must take precedence. But again, that position relies upon the following language of the ECA (3 USC § 15), which (I repeat) has <i>not</i> been adopted by joint resolution of the 117th Congress:</p><p></p><blockquote>. . . But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.</blockquote><p></p><p>Moreover, as analyzed above, this provision of the ECA, even if the current Congress <i>had</i> adopted it, could not possibly resolve the dispute between competing slates when the authenticity of <i>neither </i>slate has been "finally ascertained" under the procedures of that State by the time (January 6) that both Houses of Congress meet to count the electoral votes from each State. </p><p>Accordingly, we are left with this essential question: how will the joint session of both Houses of Congress decide which of the votes from the two competing slates of electors shall be counted in the final tally on January 6? The first State to present that question (in the required alphabetical order) will be Arizona, which will come up quite early in the count. And according to news reports, we may expect Republicans in both the House and Senate to object to the counting of the slate of Democratic electors from Arizona, on the ground that they were not "regularly chosen", but were chosen by fraudulent manipulation of the ballot results.</p><p>If the respective Houses then withdraw to consider the objections to each slate separately, we may expect (if there are enough Democrats physically present to vote) that the House of Representatives will vote to reject the slate of Republican electors, and to accept the votes of the Democrat slate. But what about the Senate, which is ostensibly controlled by Republicans?</p><p>As I noted, individual Republican Senators could draw out the decision upon any slate by maintaining the floor with a filibuster, which would require sixty votes to terminate. The Senate will lack a full complement on January 6: the results of the election in Georgia will not yet be final, but Kelly Loeffler of Georgia will be entitled to take her seat as the current incumbent, pending the final results of the election.</p><p>The Republicans in the Senate will therefore be down by one member, to 51. The Democrats will have 48 seats, because Kamala Harris will not have to vacate her seat until she assumes the Vice Presidency on January 20 (if she and Biden are confirmed as winners of the votes of the Electoral College by then). It will therefore take 40 of the 51 Republican Senators -- providing more than 40% of the total of 99 votes -- to uphold any filibuster against the approval of any of the Democrat slates from swing States.</p><p>But if the Republicans can pull off a filibuster of the electoral count for any one State, the Senate could nevertheless agree to take up in joint session the next State in alphabetical order, and so proceed through the votes of the entire Electoral College. Let us assume that by the time the entire canvass of agreed electoral votes is complete between the two Houses of Congress, there remain uncounted the votes of the five swing States mentioned above (Arizona, Georgia, Nevada, Pennsylvania, and Wisconsin), plus Michigan, another contested State. </p><p>Those six States have a total of 79 electoral votes among them. Their failure to have countable votes (under the scenario assumed) would mean that the total number of electors recognized by Congress as duly appointed and voting would be (538 - 79 =) 459, so the required majority to be elected would be 230. But if Biden lost the votes from those States, his <a href="https://abcnews.go.com/Elections/2020-us-presidential-election-results-live-map" rel="nofollow" target="_blank">current total of 306</a> would be reduced by 79, to 227 --- three votes short of the required majority. We would then have a Twelfth Amendment situation, in which no candidate for President (or Vice President) received the requisite majority of electoral votes.</p><p>That amendment provides that in such a situation, the election of the President proceed "immediately" to the House of Representatives, and the election of the Vice President be decided by the Senate: </p><p></p><blockquote><p>. . . if no person have such majority [of the Electoral College], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. . . .</p><p>The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. </p></blockquote><p></p><p> The vote in the House, however, is specified in the Twelfth Amendment to be taken by counting each State's delegation in the House as a unit:</p><p></p><blockquote>But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.</blockquote><p>Since the composition of the House of Representatives as of January 3, 2021 has <a href="https://www.270towin.com/news/2020/11/12/117th-congress-partisan-composition-us-house-state_1129.html" rel="nofollow" target="_blank">twenty-six (or possibly twenty-seven) State delegations</a> with a majority of Republicans, and only twenty or so delegations in which the Democrats enjoy a majority (with the remaining delegations equally divided), any such election will favor the incumbent, President Trump. Likewise, the Republican majority in the Senate would be sufficient to re-elect Pence as his Vice President.</p><p>If the Republicans cannot muster at least 40 votes in the Senate to stave off the Senate's concurrence with the House on the electoral count, then the tally will proceed inexorably to the point where Vice President Pence will have to announce Joseph Biden as the winning candidate. The voting on Wednesday, accordingly, will tell you all you need to know about the course of the country over the next four to eight years.</p><p><br /></p><p><br /></p><p><br /></p><p> </p><p></p></div>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com8tag:blogger.com,1999:blog-759178030677978044.post-27453325655783253432021-01-01T15:06:00.002-08:002021-01-02T11:42:19.818-08:00The Coming Donnybrook of January 6 (Part II)<p> In my <a href="https://accurmudgeon.blogspot.com/2020/12/the-coming-donnybrook-of-january-6-part.html" target="_blank">first post in this series</a>, I laid out an overview of presidential elections as governed by Article II, Section 1 of the Constitution, as subsequently amended by the <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Twelfth, Twentieth and Twenty-fifth Amendments</a>. With that as background, it is time to turn to the specifics that will happen next Wednesday, January 6, in our Capitol.</p><p>Section 1 of Article II grants Congress the power to set the day for the election/appointment of electors in each State who will cast their votes for President and Vice President, and also the day on which they gather in their respective State capitals to cast and record their votes. The Twentieth Amendment fixes the day when the new Congress meets in Washington to start business, which is January 3 of each year. And as noted in the last post, that Amendment also specifies that the terms of the current President and Vice President end at noon on January 20 following each presidential election.</p><p>These constitutionally specified dates establish the framework of the following discussion. Pursuant to its authority under Section 1 of Article II, Congress has provided in 3 USC § 1 that electors shall be chosen on the first Tuesday after the first Monday in November of every fourth year, and 3 USC § 7 sets the first Monday after the second Wednesday in December as the date on which all the electors chosen are to vote. (You can reference any of these sections in this link to <a href="https://uscode.house.gov/browse/prelim@title3/chapter1&edition=prelim" rel="nofollow" target="_blank">Title 3 of the United States Code</a>.)</p><p>Thus far we are on solid constitutional ground. Next we move to the date on which the electoral votes from each State are opened and tallied. In my previous post, I quoted the controlling language from the Twelfth Amendment about how the President of the Senate is designated to open all the certificates from the various States in the presence of the assembled two Houses of Congress, after which the votes "shall be counted" -- but no date for this is specified.</p><p>Fortunately, the Constitution gives Congress the necessary power to fill in gaps like this, through what is called the Necessary and Proper Clause (<a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Article I, Sec. 8, cl. 18</a>). And Congress in this case has established January 6 of the year following a presidential election as the date when the two Houses shall assemble -- not as a single deliberative body, but maintaining their own separate identities, rules and powers. It has done so via the opening sentences of <a href="https://uscode.house.gov/browse/prelim@title3/chapter1&edition=prelim" rel="nofollow" target="_blank">3 USC § 15</a>:</p><p></p><blockquote>Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A . . . </blockquote><p></p><p>Section 15 of Title 3 was first enacted in 1887, as part of the Electoral Count Act ("ECA") designed to resolve questions that arose during the much-disputed 1876 presidential election (see my previous post for links). No scholar has any problems with these opening phrases of Section 15, and Congress has duly followed them in each year subsequent to a presidential election since 1889. So once again, we would appear to be on firm statutory ground in predicting that the above is just what will take place in the chambers of the House of Representatives starting at 1 p.m. Eastern Time on January 6, 2021.</p><p>But this time, there will be fresh problems under this statute, hinted at by its language "all the certificates and <i>papers purporting to be certificates </i> of the electoral votes . . ." (my emphasis added). For next January 6, Vice President Pence (acting as President of the Senate) will open the envelopes to find that there were <i>two</i> sets of votes cast in December in certain crucial ("swing") States by <a href="https://theconservativetreehouse.com/2020/12/14/republican-legislatures-choose-alternate-electors-in-nv-wi-ga-pa-to-preserve-election-challenge-options/" rel="nofollow" target="_blank"><i>two</i> sets of people claiming to be the authorized electors from those States</a> -- one set Republican, and the other Democrat, and both of those sets were duly signed and forwarded to him, pursuant to the following language of the Twelfth Amendment:</p><p></p><blockquote>[The electors] shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate . . .</blockquote><p>Notice that under the Constitution, the electors <i>self-certify</i> their own lists of votes; there is no provision for any involvement in the voting process by either the executive or the judicial branch of any State.</p><p>But many commentators and legal scholars are drawing a distinction between those certifications attested to by the States' respective governors (in all cases under discussion here, the certificates of the Democrat electors) and those which have no such attestation (or if they do have one, it is signed by a lesser State official). On just what law are they basing such a distinction?</p><p>They cite to this language, from Section 6 of Title 3 of the United States Code:</p><p></p><blockquote>It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by section 7 of this title to meet, six duplicate-originals of the same certificate under the seal of the State . . . </blockquote><p></p><p>That may well be, but the question has to be put: <i>under what authority granted to it by the Constitution</i> did Congress claim to be able to impose duties such as these upon the "executive" of each sovereign State?</p><p>It turns out that Congress passed the first law requiring such authentication by a State's executive in 1792, after the first, but before the second, presidential election. (Act of March 1, 1792, ch. 8, § 3, 1 Stat. 239, 239-40 -- see the discussion <a href="http://www.floridalawreview.com/wp-content/uploads/2010/01/Siegel-BOOK.pdf" rel="nofollow" target="_blank">in this article</a>, starting on page 608.) There were members of Congress who questioned Congress' ability to impose such a requirement at the time; apparently the majority felt they were empowered to do so by this language in Article IV, Section 1 of the Constitution:</p><p></p><blockquote>Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings [of a State] shall be proved, and the Effect thereof.</blockquote><p></p><p>That power to legislate is granted pursuant to the Full Faith and Credit Clause (Art. IV, Sec. 1), which is necessary in a federal republic to ensure that lawful acts done in one State may receive binding effect and recognition in every other State. Every student of constitutional law, however, learns that "full faith and credit" does not extend to <i>every</i> act of a sister State (for example, a law authorizing bigamy in that State), and that the devil is in the details. Which is why, no doubt, the Framers specified that Congress was to streamline interstate recognition of State acts and proceedings by enacting "<i>general</i> laws", <i>i.e.,</i> laws of general application to all States alike.</p><p>Is 3 USC § 6, which replaced the 1792 Act in 1887, such a "general law"? Since it applies only to an event that happens every four years, and which event was already self-authenticating under the original Constitution (as well as under its successor Twelfth Amendment, which was adopted twelve years <i>after</i> the 1792 Act, yet which left the provision for elector self-authentication unchanged), it could be argued that the statutory authentication requirement is <i>not</i> a proper exercise of Congress' powers under the Full Faith and Credit Clause, because it is not a "general" law, but a highly special one. </p><p>If that were so, then the certification by a State's executive carries no special constitutional significance, and is instead like <a href="https://www.dictionary.com/browse/paraph" rel="nofollow" target="_blank">a paraph following a signature</a>: it adds nothing to the authority of the document that carries it, but it does help prevent forgeries.</p><p>Let us, however, give 3 USC § 6 the benefit of the doubt, assume it is valid, and proceed with the analysis. In that case, we have to take account of what it <i>next </i>says:</p><p></p><blockquote>. . . and if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate under the seal oanswer is f the State to the Archivist of the United States a certificate of such determination in form and manner as the same shall have been made . . .</blockquote><p></p><p>What is this reference to a "final determination" in that State "of a controversy or contest concerning the appointment of all or any of [its] electors"? To understand the reference, we need to consult Section 5 of Title 3, which explains it in detail, and whose title is "Determination of controversy in the appointment of electors":</p><p></p><blockquote>If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.</blockquote><p></p><p>Is this 1887 statute (known as the "Safe Harbor" law, due to the deadline it establishes for a "final determination" to be deemed "conclusive") starting to have any repercussions with you today? What has been going on since November 3 (and even before that date) in the states of Arizona, Georgia, Nevada, Pennsylvania and Wisconsin (as well as others), if not multiple "controversies and contests" of the election results in those States? And is it the case, even as of this date (January 1), that there has been in each such State a "final determination" of those contests or controversies?</p><p>As best as I can tell from searching the Web, the answer is "No." The Trump campaign, for example, still has a petition to review the discrepancies in Pennsylvania <a href="https://www.scotusblog.com/election-litigation/pennsylvania-democratic-party-v-boockvar/" rel="nofollow" target="_blank">pending before the U.S. Supreme Court</a>. And he just <a href="https://www.theepochtimes.com/trump-campaign-asks-supreme-court-to-set-aside-wisconsins-election_3637166.html" rel="nofollow" target="_blank">filed a petition there involving the election in Wisconsin</a>. There are contest cases and election audits still pending in <a href="https://www.theepochtimes.com/arizona-attorney-general-says-legislature-has-authority-to-order-election-audit_3639128.html" rel="nofollow" target="_blank">Arizona</a> and <a href="https://www.theepochtimes.com/c-georgia" rel="nofollow" target="_blank">Georgia</a>, as well; the status of cases <a href="https://www.theepochtimes.com/c-nevada" rel="nofollow" target="_blank">originating in Nevada</a> is unclear. (There are more recent developments <a href="https://justthenews.com/politics-policy/elections/latest-election-challenges-pa-lawmakers-appeal-mcconnell-georgia-court" rel="nofollow" target="_blank">in Georgia at this link</a>.)</p><p>One thing, however, is certain from a review of all of those links: <i>not a single one of those five States</i> had "finally determined", by December 8, 2020 (the "Safe Harbor" deadline for the 2020 election), all of the pending controversies in that State. (Nevada is a possible exception, but the information there is incomplete.) </p><p>There are two consequences of this fact: (1) there were no results in any of those States which may be deemed "conclusive" for purposes of the ECA; and (2) it is still <i>not possible,</i> as of this writing, for any governor of any of those States (except possibly the governor of Nevada) to have sent in his statutorily required authentication of his State's electors following the "final determination" of all election controversies in that State. </p><p>Have you followed that? It turns out that, under a combined reading of 3 USC §§ 5 and 6, the governor of a State is supposed to <i>wait</i> to send in his certification of electors to the President of the Senate until <i>after</i> any and all election controversies in that State have been finally determined. Any certifications sent in before that time are <i>premature,</i> and should not receive any recognition as such. (See the further discussion of this point in the article by Stephen Siegel linked above, in note 420 on p. 610. He points out that in the contest between Bush and Gore in Florida in 2000, Governor Jeb Bush had to send in a <i>second</i> certification after the contest terminated in December 2020, since the first had been ineffective.)</p><p>I have yet to see a single commentator or law professor in any article on this complicated subject make the points above. Most are quick to dismiss the protest procedure with words such as "Oh, the statute gives the final authority to the governor, so these protests can go nowhere, because the governors all certified the Democratic party's electors. Biden has to win on the January 6 count."</p><p>As we will see in my next post, the ECA provides <i>different</i> rules when the elector slates have not been certified under 3 USC §§ 5 and 6. And those rules, if the Houses elect to follow them, could make the proceedings <i>very</i> interesting. </p><p><br /></p><p><br /></p><p> </p><p></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com1tag:blogger.com,1999:blog-759178030677978044.post-1760329009809940482020-12-26T23:52:00.006-08:002020-12-28T08:24:33.041-08:00The Coming Donnybrook of January 6 (Part I)<p> The results of the presidential election are now largely encapsulated in <a href="https://straightlinelogic.com/2020/12/23/the-gray-curtain-descends-part-1-by-robert-gore/" rel="nofollow" target="_blank">the cocoon created by our media</a>. Any attempt to say something contrary to the official line, or to question what happened in the swing States, is met with censure, calumny, condescension, contempt, or censorship. </p><p>We are, in short, on a predetermined one-way track to (un)Democratic dominance of our national life. If challenges to the fraudulent balloting (that by now is <a href="https://www.youtube.com/watch?v=rXtGItm1bvQ" rel="nofollow" target="_blank">unquestionable by reasonable observers</a>) are dismissed or swept under the rug, this country will never be unified again under a single system of government.</p><p>President-elect Biden (who famously proclaimed last summer "<a href="https://www.youtube.com/watch?v=v3mv6XOUBdM" rel="nofollow" target="_blank">I don't need you to get me elected</a>", and "We have put together . . . the <a href="https://thefederalist.com/2020/10/24/joe-biden-says-democrats-created-the-most-extensive-and-inclusive-voter-fraud-organization-in-american-history/" rel="nofollow" target="_blank">most extensive and inclusive voter fraud organization in the history of American politics</a>") campaigned as though he knew the election was already rigged in his favor. He stayed largely in his basement in Delaware, and no rally among those he occasionally staged attracted more than fifty people, at best. Yet Americans are being asked to believe that this cipher, this incoherent nonentity, managed to haul in more votes than any other American presidential candidate in its 231-year history.</p><p>No rational mind can buy this now "official" line, and your Curmudgeon will not entertain here any propaganda in support of it. But for those of us who react similarly to what we are being force-fed in the media, I want to spell out our options before the next inauguration on January 20, 2021. For that is the date written in stone in our Constitution, since the adoption of <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">the 20th Amendment</a>: the current terms of both President Trump and Vice President Trump end at noon on that day, regardless of what may take place beforehand. </p><p>Before there can be the start of a new presidential term of office on January 20, however, there must first be a validated election of a successor president under the Constitution. Those procedures are spelled out mostly in <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Article II, Section 1 of the Constitution, as supplemented by the Twelfth and Twenty-fifth Amendments</a>. Those provisions, however, provide only a bare minimum for the process, and leave many possibilities unaddressed, or open to interpretation.</p><p>Since the Constitution was first adopted in 1789, presidents and Vice Presidents have been elected through a mechanism known as "the Electoral College", defined in Article II, Section 1, as subsequently amended in 1804 by the Twelfth Amendment:</p><p></p><blockquote><p>[Article II, Section 1:] 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.</p><p>[Amendment XII:] The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.</p></blockquote><p></p><p>The language of the Twelfth Amendment was intended to prevent a repetition of the spectacle of 1800, when the more numerous ("Democratic-Republican") electors voted in equal numbers for Thomas Jefferson and for Aaron Burr as their candidates. The language of Article II, Section 1 at the time required a tie vote between the top two contenders to go to the House of Representatives for a final resolution of who would be president, a process that Jefferson narrowly survived. The ensuing adoption of Amendment XII required electors to vote <i>separately</i> for president and vice president, thereby preventing a repeat of the mistake of 1800, but it left open many questions that would arise out of the evolution of a country dominated by two primary factions, or "political parties".</p><p>For example, a key provision of the Twelfth Amendment reads: "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted . . .". Why the passive voice, all of a sudden? <i>Who</i> is specifically granted the authority to count the votes of the various electors? Is it the President of the Senate -- who by the Constitution is the current Vice President (and so will, in many cases, be a candidate)? Or is it the separate Houses of Congress, who will come together on January 6, in 2021 -- but <i>not</i> as a joint body -- solely for that purpose?</p><p>It turns out there is considerable history and debate on this point. In this series of posts (because it is an intricate subject), I want to go carefully through that history and determine whether it is possible to conclude upon a definitive path through the morass that has accumulated around it. For whatever else may be foreseen at this time, it seems obvious that gathering of the two Houses on January 6, 2021 to count the votes of the Electoral College will not be free from strife and dispute, however much the <a href="https://thehill.com/homenews/senate/531562-gop-seeks-to-avoid-messy-trump-fight-over-electoral-college" rel="nofollow" target="_blank">Washington establishment may wish that it be otherwise</a>. The blatant fraud that is being swept under the rug with each passing day <i>guarantees</i> that many Americans will not accept Congress' proceeding as though nothing had happened: its members who try to do so will put themselves at the peril of their seemingly secure seats in 2022 and afterwards.</p><p>For an excellent introduction to this knotty topic, I can do no better than refer the reader of this post to this amazingly prescient article (written in 2019) <a href="https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=2719&=&context=luclj&=&sei-redir=1&referer=https%253A%252F%252Fscholar.google.com%252Fscholar%253Fhl%253Den%2526as_sdt%253D0%25252C5%2526q%253DEdward%252BB.%252BFoley%2526btnG%253D#search=%22Edward%20B.%20Foley%22" rel="nofollow" target="_blank">by Prof. Edward B. Foley</a>, who teaches election law at the Ohio State University Moritz College of Law. Entitled "Preparing for a Disputed Presidential Election", the article (which does not shy away from detail) begins with this scenario:</p><p></p><blockquote><p>It is Election Night 2020. This time it is all eyes on Pennsylvania, as whoever wins the Keystone State will win an Electoral College majority. Trump is ahead in the state by 20,000 votes, and he is tweeting “The race is over. Another four years to keep Making America Great Again.”</p><p>The Associated Press (AP) and the networks have not yet declared Trump winner. Although 20,000 is a sizable lead, they have learned in recent years that numbers can shift before final, official certification of election results. They are afraid of “calling” the election for Trump, only to find themselves needing to retract the call—as they embarrassingly did twenty years earlier, in 2000. Trump’s Democratic opponent . . . is not conceding, claiming the race still too close to call. Both candidates end the night without going in front of the cameras.</p><p>In the morning, new numbers show Trump’s lead starting to slip, and by noon it is below 20,000. . . .</p></blockquote><p></p><p>From this very perspicacious beginning, Prof. Foley draws out a detailed analysis of just what could go wrong in the recent election, which covers all the potential events following the meeting of both Houses of Congress to count the votes of the Electoral College. Much of his analysis is spot on for today's purposes.</p><p>As he stresses in his article, however, there is much that is uncertain about how the post-election scenarios could play themselves out. A good deal depends upon how each House of Congress decides to follow (or interpret) the Electoral Count Act of 1887 ("ECA"), which was enacted after a lengthy debate that took up eleven years following the electoral crisis presented by the contested results of <a href="https://www.britannica.com/event/United-States-presidential-election-of-1876/The-disputed-election" rel="nofollow" target="_blank">the 1876 presidential election</a>. Those results offered competing slates of electors from the States of Florida, Louisiana, Oregon and South Carolina -- with no mechanism spelled out in the Constitution (or the Twelfth Amendment) for deciding which slate's votes should be counted by Congress. In the end, Congress punted the dispute to a fifteen-person "Electoral Commission", which resolved it (by one vote) in favor of the Republican candidate, Rutherford B. Hayes. </p><p>The Democrats then cut a deal with the nominee Hayes: they would not oppose his election as President if he agreed to withdraw all federal troops from southern States and thereby put an end to the (so-called) Reconstruction which those troops were enforcing. Hayes did just that, but the cloud over the back-room resolution of his election confined him to just one term in office, and earned him <a href="https://www.mentalfloss.com/article/635704/contested-presidential-election-1876" rel="nofollow" target="_blank">the dubious epithets of "Rutherfraud" and "His Fraudulency"</a>.</p><p>The ECA has not been applied in any election since, although the election of 2000 (terminated by the 5-4 edict issued by the Supreme Court) <a href="https://www.britannica.com/event/Bush-v-Gore" rel="nofollow" target="_blank">was a close call</a>. The circumstances of the current election, however, make it almost certain that the two Houses of Congress (the Senate controlled by Republicans, and the House by Democrats) will clash over the application of the ECA when they meet on January 6, presided over by Vice President Pence, in his constitutional role as President of the Senate. (Remember: although the new terms of members of Congress begin on January 3, 2021, the terms of the President and Vice President do not expire until noon on January 20.) For that reason, if not any other, it is imperative that each intelligent citizen should be informed about the issues at stake, given the massive disagreement among voters about the validity of the present election results.</p><p>My subsequent posts in this series are designed to provide readers with the tools they need to follow the developments in this story as they unfold -- stay tuned for more.</p><p><br /></p><p><br /></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com4tag:blogger.com,1999:blog-759178030677978044.post-34205959097744815152020-12-19T11:10:00.000-08:002020-12-19T11:10:11.543-08:00A December Sky Show with Jupiter (Again)<p> For those who have never observed a close conjunction of planets in the night sky, the upcoming winter solstice will offer a show whose parallel will not occur again until 2080: a grand conjunction between Jupiter and Saturn. <a href="https://solarsystem.nasa.gov/resources/2567/whats-up-december-2020-video/" rel="nofollow" target="_blank">Watch this video</a> to learn where to look and when, in your particular vicinity. (You can also learn something about the Geminid meteor shower, and receive a good explanation of what happens at the winter solstice.)</p><p>This blog has always been fascinated by connections between <a href="https://accurmudgeon.blogspot.com/2008/08/evidence-for-accuracy-of-bible.html" target="_blank">science and the Bible.</a> Since it is the season of the Nativity, it is perhaps time to remind readers of my Christmas post in 2009, which laid out what I believe is the best astronomical explanation for the phenomenon called the Star of Bethlehem. You can also delve, if you are so inclined, into the detailed mathematics behind the frequencies (and in some cases, the rarities) of planetary conjunctions. I have updated and checked all the links, and the Starry Night videos all appear to be working (give them time to load before trying to run them) -- <a href="https://accurmudgeon.blogspot.com/2009/10/star-of-bethlehem-and-nativity.html" target="_blank">so have at it</a>! A very merry Christmas to all!</p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com4tag:blogger.com,1999:blog-759178030677978044.post-81400735624371430892020-12-16T12:22:00.013-08:002020-12-16T13:32:10.526-08:00The Best Thing of All about 2020<p> If 2020 has been an <i>annus horribilis </i>thus far, then surely the best thing about it is now upon us: it marks the <b>250th anniversary</b> of the year of the birth of Ludwig van Beethoven (1770-1827). December 17, 1770 is when he was christened, according to local parish records in Bonn. His actual birthday could have been at most a day or two earlier (those staunch Protestants -- and Catholics -- did not waste a moment in getting their infants properly baptized in those days, due to the high rates of infant mortality). Traditionally, therefore, the day which Beethoven himself celebrated -- December 16 -- has been accepted as his birthday.<br /></p><p>This blog has always had a special interest in Beethoven, since his great <i>Eroica</i> Symphony (No. 3, op. 55, in E-Flat Major) was the subject of my honors thesis for the Music Department at Harvard, which in 2018 I greatly expanded and <a href="https://www.amazon.com/Beethoven-Unbound-Story-Eroica-Symphony/dp/1732701105" target="_blank">published as a book</a>:</p><p><br /></p><div class="separator" style="clear: both; text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhpi0scg0Ql8lK2PNfsQI6bcM1LOxtJ2dVMNSUIf6clPsw-WRTFpvqVhNZEx58tTB2tTfY4rFzbW_TXkLT3WxXwF6TAG1fGFtz7L5U3x1lf1WBB7sLwVstFGyzUr3RgT7woyhlLMLnAzbo/s1360/coverfinal.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1360" data-original-width="1088" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhpi0scg0Ql8lK2PNfsQI6bcM1LOxtJ2dVMNSUIf6clPsw-WRTFpvqVhNZEx58tTB2tTfY4rFzbW_TXkLT3WxXwF6TAG1fGFtz7L5U3x1lf1WBB7sLwVstFGyzUr3RgT7woyhlLMLnAzbo/s320/coverfinal.jpg" /></a></div><br /><br /><p>This is a short summary, which appears on the back cover:</p><p>
</p><p class="MsoNormal"></p><blockquote><p class="MsoNormal">In the fall of 1802, Beethoven’s anxiety over his loss of
hearing reached a crisis point.<span style="mso-spacerun: yes;"> </span>Deafness
would mean he could no longer play or perform in public, and also would have to
withdraw from Viennese society.<span style="mso-spacerun: yes;"> </span>For a gifted
composer filled with good will towards his fellow men, this was the most unjust
punishment of all.</p>
<p class="MsoNormal">While composing a ballet score in 1801, Beethoven had
absorbed the legend of the Titan Prometheus.<span style="mso-spacerun: yes;">
</span>To punish him for stealing divine fire and bringing it to men, Zeus had
Prometheus chained to a rock, where each day an eagle gnawed out his liver.<span style="mso-spacerun: yes;"> </span>Prometheus regenerated himself overnight, refused
to buckle under to Zeus, and endured until Hercules set him free.</p>
<p class="MsoNormal">This book documents the little-known story of how Beethoven
drew inspiration from Prometheus’ example.<span style="mso-spacerun: yes;">
</span>Transforming the music he wrote for the ballet, he surmounted his
deafness, broke free of the classical mold and composed the <i style="mso-bidi-font-style: normal;">Eroica</i> Symphony, a masterpiece which
changed the course of music forever.</p></blockquote><p>For some of the previous blog posts in celebration of Beethoven, please follow these links:</p><p><a href="https://accurmudgeon.blogspot.com/2014/12/beethoven-benedictus.html">https://accurmudgeon.blogspot.com/2014/12/beethoven-benedictus.html</a></p><p><a href="https://accurmudgeon.blogspot.com/2010/12/untold-story-of-beethovens-eroica.html">https://accurmudgeon.blogspot.com/2010/12/untold-story-of-beethovens-eroica.html</a></p><p> <br /></p><p> <br /></p><p> </p><p class="MsoNormal"></p>
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<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="macro"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="toa heading"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Bullet"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Number"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Bullet 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Bullet 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Bullet 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Bullet 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Number 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Number 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Number 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Number 5"/>
<w:LsdException Locked="false" Priority="10" QFormat="true" Name="Title"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Closing"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Signature"/>
<w:LsdException Locked="false" Priority="1" SemiHidden="true"
UnhideWhenUsed="true" Name="Default Paragraph Font"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text Indent"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Continue"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Continue 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Continue 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Continue 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Continue 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Message Header"/>
<w:LsdException Locked="false" Priority="11" QFormat="true" Name="Subtitle"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Salutation"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Date"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text First Indent"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text First Indent 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Heading"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text Indent 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text Indent 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Block Text"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Hyperlink"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="FollowedHyperlink"/>
<w:LsdException Locked="false" Priority="22" QFormat="true" Name="Strong"/>
<w:LsdException Locked="false" Priority="20" QFormat="true" Name="Emphasis"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Document Map"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Plain Text"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="E-mail Signature"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Top of Form"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Bottom of Form"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Normal (Web)"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Acronym"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Address"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Cite"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Code"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Definition"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Keyboard"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Preformatted"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Sample"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Typewriter"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Variable"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Normal Table"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="annotation subject"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="No List"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Outline List 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Outline List 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Outline List 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Simple 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Simple 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Simple 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Classic 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Classic 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Classic 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Classic 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Colorful 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Colorful 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Colorful 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Columns 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Columns 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Columns 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Columns 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Columns 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 6"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 7"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 8"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 6"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 7"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 8"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table 3D effects 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table 3D effects 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table 3D effects 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Contemporary"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Elegant"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Professional"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Subtle 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Subtle 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Web 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Web 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Web 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Balloon Text"/>
<w:LsdException Locked="false" Priority="39" Name="Table Grid"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Theme"/>
<w:LsdException Locked="false" SemiHidden="true" Name="Placeholder Text"/>
<w:LsdException Locked="false" Priority="1" QFormat="true" Name="No Spacing"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading"/>
<w:LsdException Locked="false" Priority="61" Name="Light List"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 1"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 1"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 1"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 1"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 1"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 1"/>
<w:LsdException Locked="false" SemiHidden="true" Name="Revision"/>
<w:LsdException Locked="false" Priority="34" QFormat="true"
Name="List Paragraph"/>
<w:LsdException Locked="false" Priority="29" QFormat="true" Name="Quote"/>
<w:LsdException Locked="false" Priority="30" QFormat="true"
Name="Intense Quote"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 1"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 1"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 1"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 1"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 1"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 1"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 1"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 1"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 2"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 2"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 2"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 2"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 2"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 2"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 2"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 2"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 2"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 2"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 2"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 2"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 2"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 2"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 3"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 3"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 3"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 3"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 3"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 3"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 3"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 3"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 3"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 3"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 3"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 3"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 3"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 3"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 4"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 4"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 4"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 4"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 4"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 4"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 4"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 4"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 4"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 4"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 4"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 4"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 4"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 4"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 5"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 5"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 5"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 5"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 5"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 5"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 5"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 5"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 5"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 5"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 5"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 5"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 5"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 5"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 6"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 6"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 6"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 6"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 6"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 6"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 6"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 6"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 6"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 6"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 6"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 6"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 6"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 6"/>
<w:LsdException Locked="false" Priority="19" QFormat="true"
Name="Subtle Emphasis"/>
<w:LsdException Locked="false" Priority="21" QFormat="true"
Name="Intense Emphasis"/>
<w:LsdException Locked="false" Priority="31" QFormat="true"
Name="Subtle Reference"/>
<w:LsdException Locked="false" Priority="32" QFormat="true"
Name="Intense Reference"/>
<w:LsdException Locked="false" Priority="33" QFormat="true" Name="Book Title"/>
<w:LsdException Locked="false" Priority="37" SemiHidden="true"
UnhideWhenUsed="true" Name="Bibliography"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="TOC Heading"/>
<w:LsdException Locked="false" Priority="41" Name="Plain Table 1"/>
<w:LsdException Locked="false" Priority="42" Name="Plain Table 2"/>
<w:LsdException Locked="false" Priority="43" Name="Plain Table 3"/>
<w:LsdException Locked="false" Priority="44" Name="Plain Table 4"/>
<w:LsdException Locked="false" Priority="45" Name="Plain Table 5"/>
<w:LsdException Locked="false" Priority="40" Name="Grid Table Light"/>
<w:LsdException Locked="false" Priority="46" Name="Grid Table 1 Light"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark"/>
<w:LsdException Locked="false" Priority="51" Name="Grid Table 6 Colorful"/>
<w:LsdException Locked="false" Priority="52" Name="Grid Table 7 Colorful"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 1"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 1"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 1"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 1"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 1"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 1"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 1"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 2"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 2"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 2"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 2"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 2"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 2"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 2"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 3"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 3"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 3"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 3"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 3"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 3"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 3"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 4"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 4"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 4"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 4"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 4"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 4"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 4"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 5"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 5"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 5"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 5"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 5"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 5"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 5"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 6"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 6"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 6"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 6"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 6"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 6"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 6"/>
<w:LsdException Locked="false" Priority="46" Name="List Table 1 Light"/>
<w:LsdException Locked="false" Priority="47" Name="List Table 2"/>
<w:LsdException Locked="false" Priority="48" Name="List Table 3"/>
<w:LsdException Locked="false" Priority="49" Name="List Table 4"/>
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<![endif]--></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com1tag:blogger.com,1999:blog-759178030677978044.post-15136147635594104532020-12-11T01:35:00.013-08:002020-12-11T21:07:33.975-08:00Lawlessness Everywhere<p> Our country is at a crucial crossing point. In the past, even though there were extraordinarily damaging disputes such as the Civil War, the country survived them by adhering to its founding fathers' principle that ours was "a country of laws, not men." In other words, the Constitution was worth protecting at all costs, lest we descend into some form of tyranny -- which, by definition, is government by man (or men), not by law. The tyrant, not the Constitution, defines in that case what the law is.</p><p>As evidenced by the recent presidential election, it is now an open question whether ours may still be said to be a country of laws. This question is brought into sharpest focus by the recent <a href="https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/SCOTUSFiling.pdf" rel="nofollow" target="_blank">lawsuit filed by the State of Texas</a> in the United States Supreme Court, which invokes that Court's "original and exclusive" jurisdiction over cases and controversies between the several States, conferred by Article III of the Constitution and by Congress (in Title 28, United States Code, <a href="https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1251&num=0&edition=prelim" rel="nofollow" target="_blank">Section 1251</a>). </p><p>While the Supreme Court's jurisdiction is normally "appellate" -- meaning that it has power to review decisions on appeal from lower courts -- "original" jurisdiction refers to the (rather rare) type of cases which must be <i>commenced at the outset</i> in the U.S. Supreme Court. And the additional word "exclusive" means that no State has the ability to file any such lawsuit against another State in any state or lower court, but must bring it, if at all, before the United States Supreme Court.</p><p>Actually, due to the archaic practice of the Supreme Court, a State invoking its original jurisdiction cannot simply file a complaint in that court, but according to tradition, files a "motion for <i>leave</i>" (<i>i.e., </i>permission from the Court) to file such a complaint. According to past decisions, the Court's inherent power over its own docket confers it with the <i>discretion</i> to deny such leave at the outset, and so refuse to exercise such jurisdiction. However, recently justices (<i>e.g., </i>Justice Thomas, joined by Justice Alito) have suggested that the Court lacks that discretion when States invoking the Court's original jurisdiction have no other judicial forum available to adjudicate their claims. (See the discussion in Texas' Brief in Support of Motion for Leave to File, in <a href="https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/SCOTUSFiling.pdf" rel="nofollow" target="_blank">the .pdf of the lawsuit</a>, following the complaint itself, at page 34.)</p><p>The lawsuit asks the Supreme Court to take cognizance of the <i>lawlessness</i> in the voting for president that allegedly occurred in the various "swing" states (meaning those states whose electoral votes could, in the totals recorded in the Electoral College votes next December 14, cause the presidential election to go to one candidate or the other -- because the results otherwise would be inconclusive). There is a very good summary of the complaint's allegations of what went wrong in each swing state's voting procedures <a href="https://www.zerohedge.com/political/everything-you-wanted-know-about-texas-election-lawsuit-were-afraid-ask" rel="nofollow" target="_blank">in this post</a>, so I will not repeat them here.</p><p>Reduced to its essentials, the proposed complaint says that each swing state (Georgia, Michigan, Pennsylvania and Wisconsin) allowed persons <i>other than that state's legislature</i> to alter, before the 2020 election, the previously legislated procedures for choosing the presidential electors from that state. Since the United States Constitution provides, in <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Article II, Section 1, Clause 3</a> (italics added) that "each State shall appoint, <i>in such Manner as the Legislature thereof may direct,</i>" the Electors from that State who are to cast their votes in the Electoral College on the appointed date (which this year falls on December 14), Texas charges each swing State with violating that clause by the actions their officials took without legislative authority, all as detailed in the link in the previous paragraph.</p><p>Now consider the gist of Texas' proposed complaint. The United States is a <i>confederation</i> of States joined in a perpetual Union for their mutual benefit. While each State is sovereign in itself, it <i>submits</i> that sovereignty, through the Constitution to which it accedes, to the <i>overall authority</i> of the United States of America -- which includes its three branches of government. It is the Constitution which defines and delimits the extent of the authority of each of those branches in respect of the country as a whole. And the <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">Tenth Amendment to the Constitution</a> ensures that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."</p><p>Among the powers delegated to the United States are those establishing the Executive Branch (Article II of the Constitution, vesting those powers in a President). But that same Article, as noted earlier, <i>reserves to the States</i> the power to "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."</p><p>Notice that the language of Article II does not delegate the authority to specify how Electors may be chosen to any body other than the "Legislature" of a given State. </p><p>Thus, neither a State's governor, nor Secretary of State, nor a county elections board, nor a county clerk or elections supervisor, nor even a State's Supreme Court or lower court, has been granted any power to specify how that State's presidential Electors are to be chosen. Such an election of Electors for that State may be conducted <i>only </i>in conformity with the laws duly enacted by that State's legislature.</p><p>Normally, a State's legislature passes laws pursuant to authority granted by that State's constitution, in parallel with the way that the United States Constitution authorizes Congress to enact federal laws. But just as Congress' powers to enact laws may be constrained by the Constitution (<i>e.g.,</i> "Congress shall make no law respecting an establishment of religion . . . "), so also may the citizens of a given State establish a constitution which limits that State's legislature in the kinds of law that it may enact.</p><p>In the case of Pennsylvania, for example, that State's constitution spells out in its <a href="https://ballotpedia.org/Article_VII,_Pennsylvania_Constitution" rel="nofollow" target="_blank">Article VII</a> the basic law for elections. Although Section 14 of that Article provides for absentee balloting, that provision in no way authorizes the kind of lax mail-in balloting that Pennsylvania's legislature purported to authorize by its <a href="https://www.votespa.com/About-Elections/Pages/Voting-Reforms.aspx" rel="nofollow" target="_blank">enactment of laws in 2019 and 2020</a>.</p><p>So the Texas lawsuit presents the following substantial question: When a State allows its presidential electors to be chosen in a manner <i>beyond</i> that authorized by its own constitution or legislature (acting in accordance with its constitution), does that unlawfulness prejudice the ability of other States to participate in the Electoral College?</p><p>It seems unarguable that such unlawfulness <i>negates</i> the ability of other States to elect a president under our Constitution. If the result of voting in the Electoral College is tainted by votes from States that ignored their own laws, how can one argue that the States acting illegally had no effect on the result, and operated to frustrate the efforts of those States that followed their own laws? One might as well contend that there was no disenfranchisement of women in a local election if a municipality engineered matters such that only men's votes for their candidate dog-catcher were counted.</p><p>And if we were (by constitutional amendment) to create the position of National Dog-Catcher, electable by the citizens of all 50 States, would it make any difference to the argument if one or more States were to provide by law that only males could vote for such a position? How could their votes be counted in the national tally, without a gross inequality resulting? That is the question presented by Texas' complaint.</p><p>In other words, the lawsuit presents certain facts about the procedures followed for the presidential election in the four swing states that allegedly violated their own constitutional and legislative enactments (such as extending the deadline for submission of ballots beyond Election Day as specified by Congress, or waiving the verification of absentee ballots, or by sending out to all voters mail-in ballots even if those voters did not request any absentee ballot). It then requests the Supreme Court to rule that the failure of those States to follow their own constitutional and statutory procedures means that the balloting in those States was invalid to select Electors "in such Manner as the Legislature thereof may direct", because they were elected pursuant to procedures <i>not</i> expressly authorized by the Legislature or Constitution of that State. And in turn, that invalidity taints the vote in the Electoral College, by mingling invalid votes with valid ones.</p><p>As Justice Marshall famously stated in <i><a href="https://www.landmarkcases.org/cases/marbury-v-madison" rel="nofollow" target="_blank">Marbury v. Madison</a>, </i>"it is emphatically the province and duty of the judicial department to say what the law is." And that is all that the Texas complaint seeks by way of relief -- it expressly does <i>not</i> seek to have the Court adjudicate which candidate won the election.</p><p>Many of the opposition briefs filed in the Supreme Court exaggerate and distort the limited relief which Texas and its co-plaintiffs seek from the complaint. Georgia, for example, claims in its filing that "Texas seeks to alter how Georgia appoints it electors" (<a href="https://www.supremecourt.gov/DocketPDF/22/22O155/163383/20201210145849997_Georgia%20--%20Brief%20in%20Opposition.pdf" rel="nofollow" target="_blank">Brief in Opposition</a>, at page 12). Exactly the opposite is true: Texas seeks to have Georgia <i>adhere</i> to its previous legislatively established method of appointing Electors. It does not want Georgia to change the rules in the middle of the game. What can be wrong with that request?</p><p>Yet to read the <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22o155.html" rel="nofollow" target="_blank">briefs filed in opposition</a> to Texas' motion to file its complaint is to indulge in all manner of egregious hyperbole and rodomontade concerning the supposedly "true" object of its filing. For just one extreme example, the Attorney General for Pennsylvania claims <a href="https://www.supremecourt.gov/DocketPDF/22/22O155/163367/20201210142206254_Pennsylvania%20Opp%20to%20Bill%20of%20Complaint%20v.FINAL.pdf" rel="nofollow" target="_blank">in his brief </a>that Texas' attempt to invoke the original jurisdiction of the Court is a "<b>seditious</b> abuse of the judicial process" (my emphasis added). Sedition, however, is an attempt to betray, or go around, specific provisions that govern the conduct of a nation -- which can scarcely encompass the application of a State to that country's Supreme Court for relief pursuant to its Constitution. </p><p>It is instructive, therefore, to focus on just what kind of relief the Texas lawsuit seeks. Here are the first two paragraphs from the prayer for relief, taken from the proposed complaint:</p><p></p><blockquote><p>WHEREFORE, Plaintiff States respectfully request that this Court issue the following relief:</p><p>A. Declare that Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin administered the 2020 presidential election in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution.</p><p>B. Declare that any electoral college votes cast by such presidential electors appointed in Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin are in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution and cannot be counted.</p></blockquote><p></p><p>If one were to take the opposition <a href="https://www.supremecourt.gov/DocketPDF/22/22O155/163383/20201210145849997_Georgia%20--%20Brief%20in%20Opposition.pdf" rel="nofollow" target="_blank">filed by Georgia</a> as definitive (p. 30), one would conclude that these two prayers invoke a non-existent remedy, because no court (including the Supreme Court) can render any advisory opinion in a matter not involving a genuine "case or controversy" between the parties before it. But again, Georgia's contention to that effect is hyperbole: a declaration that Georgia failed to follow its own statutory procedures in the presidential election of 2020 would by no means be abstract or advisory, but would be akin to what the Court did in <a href="https://scholar.google.com/scholar_case?case=2298973060085224552&q=bush+v.+gore&hl=en&as_sdt=2006" rel="nofollow" target="_blank"><i>Bush v. Gore</i> (2000) 531 U.S. 98</a> (per curiam) -- where its declaration of Florida's failure to apply consistent standards in the counting of ballots followed from its application of federal constitutional law to Florida's election procedures. </p><p>Thus if it accepts Texas' complaint, the Supreme Court would be well within its adjudicatory powers to grant the relief requested in the two paragraphs quoted above. What about the next requests?</p><p></p><blockquote><p>C. Enjoin Defendant States’ use of the 2020 election results for the Office of President to appoint presidential electors to the Electoral College.</p><p>D. Enjoin Defendant States’ use of the 2020 election results for the Office of President to appoint presidential electors to the Electoral College and authorize, pursuant to the Court’s remedial authority, the Defendant States to conduct a special election to appoint presidential electors.</p></blockquote><p></p><blockquote><p>. . .</p><p>F. Enjoin the Defendant States from certifying presidential electors or otherwise meeting for purposes of the electoral college pursuant to 3 U.S.C. § 5, 3 U.S.C. § 7, or applicable law pending further order of this Court. </p></blockquote><p></p><p></p><p>These paragraphs invoke the Court's power to provide <i>injunctive</i> relief, <i>i.e., </i>an order from the Court that a party refrain from certain conduct. Again, such relief is well within the Court's ability to grant in the context of a given lawsuit. It is meant as a remedy to preserve the <i>status quo</i> from being illegally altered. Under that test, the Court again could use its powers to prevent any of the swing states from certifying election results that were the product of unconstitutional election procedures. Otherwise, its judgment that they failed to follow their own required procedures would be nugatory and of no practical effect. </p><p>(The final paragraph F of the prayer might need emendation -- it is true that is is the State, through its governor, that "certifies" the electors appointed by that State, but it is the <i>Electors themselves, </i>not the State, that meet "for purposes of the electoral college . . .". The suit does not propose to make the individual Electors defendants, so the Court could not issue any injunction against them to prevent them from meeting. The first part of the injunction, preventing the State from "certifying" any results of the Electors, would appear to be adequate to keep any results of their meeting from being considered by Congress when it meets to counts the votes certified by the various States on January 6.)</p><p>I do not take into consideration paragraph E of the proposed complaint, which I regard (as an order to the various States' legislatures) to be beyond the powers of the Court to grant: in this confederation, with its separation of powers, the United States judiciary has no power to order any State's legislature to pass any legislation whatsoever. </p><p>The point, however, is moot. If the Court has the power to prohibit a State from certifying the electors chosen by an unconstitutional process, which I take as a given under our federal system, then that power is adequate to present that State's legislature with the two alternatives contained in paragraph E, namely, either provide for the selection of legally qualified Electors, by holding a new election or by appointing them directly, or else do nothing and ensure that that State will not participate in the electoral college.</p><p>In sum, I do not see any merit in the claims by the swing states (or their <i>amici</i>) that the Court has no ability under the Constitution to entertain the Texas lawsuit. To concede that point would be to concede that each State in this federal Union may engage in lawlessness (defined as a failure to follow its own binding laws, or to encourage their disregard) without affecting any other State, or the Union itself. </p><p>That cannot be the case, in a nation of laws. If we fail to uphold our laws -- whether that failure be in the inaction or dereliction of individual bodies at the local level, or of State legislatures, or of the Congress, or of the United States Supreme Court -- we cease to be a nation of laws.</p><p>And in that case, we will be well on our way to becoming a nation ruled by tyranny. There is no other choice.</p><p> [<b>UPDATE 12/11/2020, 9:00 PM PST</b>] <i>Alea iacta est. </i>The Supreme Court declines to deal with the country's pervasive lawlessness. The country will soon be in the hands of the lawbreakers and their enablers. The words that ring out at the start of every session of the Court have never had more meaning: "<i>May God have mercy on the United States of America and this honorable Court!</i>"</p><p><br /></p><p><br /></p><p><br /></p><p><br /></p><p><br /></p><p><br /></p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com8tag:blogger.com,1999:blog-759178030677978044.post-47082303224300808972020-11-08T23:07:00.024-08:002020-11-11T23:11:15.471-08:00Down to the Brass TacksNow that Election Day has passed, your Curmudgeon feels free to comment on the current mess, since all the usual suspects have shown their cards and taken their predictable stances on the very predictable result of the Presidential race. (Hint: thanks to <a href="https://everylegalvote.com/primer" rel="nofollow" target="_blank">the looseness of "mail-in balloting"</a> as allowed by multiple States, abetted by an imaginary COVID-19 factor, the result as I write <a href="https://everylegalvote.com/country" rel="nofollow" target="_blank">is inconclusive</a>.) <div wfd-id="45"><br /></div><div wfd-id="44">Notwithstanding the differing State results that are in dispute, the Democrats and their captive media have "called" the election in favor of their candidate, even though there can be no confirmed "President-Elect" until the next Congress (the 117th in our history) meets on January 6, 2021 to tally the votes from the Electoral College as certified by the governors of the respective States. And even then, it may still not be possible to declare that Candidate A or Candidate B is the definitive President-Elect of the United States. </div><div wfd-id="43"><br /></div><div wfd-id="42">By Congressional statute (3 U.S.C. § 7), enacted pursuant to Article II, Sec. 1, cl. 5 of the Constitution, the Monday after the second Wednesday in December of a given Presidential election year has been specified as the date on which all State electors are to meet in their respective State capitals and cast their ballots for both President and Vice President. In 2020, that date falls on December 14.</div><div wfd-id="41"><br /></div><div wfd-id="40">Normally, the electors for any given State are those persons who (first) <a href="https://crsreports.congress.gov/product/pdf/IF/IF11641" rel="nofollow" target="_blank">have been nominated beforehand by a registered political party or independent candidate</a> within that State (or Congressional district), and then (second) who have the fortune to have their Presidential candidate receive the highest number of votes cast in that State (or district) in the November election. But when is it determined that a given Presidential candidate has received the requisite highest number of votes?</div><div wfd-id="39"><br /></div><div wfd-id="38">Ay, there's the rub. Again normally, the vote tallies in the various counties and districts of the State are completed within a day or two of Election Day, and are clear enough so that there can be no dispute about which candidate got the most votes. But occasionally, as happened in <a href="https://history.house.gov/HistoricalHighlight/Detail/35920?ret=True" rel="nofollow" target="_blank">the Presidential election of 1876</a>, and as almost happened in the Presidential election of 2000, there were disputes about which candidate prevailed in various States, so that the slate of electors entitled to cast votes for their respective candidate was rendered uncertain. The Constitution specifies that in such cases, as well as in any case where no candidate receives a majority of the Electoral College votes, <a href="https://history.house.gov/Institution/Origins-Development/Electoral-College/" rel="nofollow" target="_blank">the final selection</a> of the President goes to the newly elected US House of Representatives, and the selection of the Vice President goes to the newly elected Senate.</div><div wfd-id="37"><br /></div><div wfd-id="36">As regards the election results in Pennsylvania, North Carolina, Georgia, Michigan, Wisconsin, Arizona and Nevada, we are witnessing a repeat of what happened in Florida in 2000. You may recall that the then Democratic Party candidate Al Gore contested the official count in certain counties of that State in favor of the Republican Party's George W. Bush. Gore, however, was under a deadline to have the recounts he requested resolved in his favor before the Florida Secretary of State certified the official count to the Governor, who would then sign the certificates attesting selection of the Republican slate of electors to the Electoral College.</div><div wfd-id="35"><br /></div><div wfd-id="34">Again, Congress has legislated what happens when there is a dispute in any given State over its proper slate of electors. Section 5 of Title 3, U. S. Code, provides that if election results are contested in any state, and if the state, prior to election day, has enacted "procedures to settle controversies or contests over electors and electoral votes", and if these procedures have been applied, and the results have been determined six days before the electors’ meetings, then these results are considered to be conclusive. Six days before the prescribed meeting of the Electoral College on December 14 of this year falls on December 8. (The date is referred to as "Safe Harbor Day", because the statute makes any resolution of election disputes reached by that date presumptively conclusive, <i>i.e., </i>not subject to further contest.)</div><div wfd-id="33"><br /></div><div wfd-id="32">Thus the various contests filed by the Trump campaign in the respective States will have to have been resolved ("determined") on or before December 8, 2020 in order to have those results apply to the Electoral College vote. Here again, however, the federal nature of our Union kicks in. For while it probably will not be practical to have <i>all</i> contests in <i>all</i> disputed States determined in the courts by December 8, it may suffice for <i>one</i> such dispute to have been finally determined at the highest possible level by that date, if that determination is definitively made by the United States Supreme Court (SCOTUS), and if it fairly applies in the other cases, as well. That is because, under our federal system, the rulings of SCOTUS on federal law are automatically binding on all lower courts, both federal and State.</div><div wfd-id="31"><br /></div><div wfd-id="30">The case that currently is most advanced on the calendar for SCOTUS review is one brought by the Republican Party of Pennsylvania against Secretary of State Kathy Boockvar, which challenges the decision by a unanimous Pennsylvania Supreme Court to (1) extend the statutory deadline for receipt of all mail-in and personal ballots by three days after the legislated deadline of 8 p.m. on November 3; and (2) require the various election boards to include in their counts any ballots received by the extended deadline which could not definitively be shown to have been mailed after November 3 (<i>i.e.,</i> ballots in envelopes bearing blurred postmarks, or even no postmarks at all). This ruling, be it noted, shifted the burden of proof from the individual voter to the given elections board to establish that a ballot was <b>not </b>sent in by the statutory deadline -- and why would a Democratic-majority elections board try to prove that a ballot for their candidate had not been sent in on time? </div><div wfd-id="29"><br /></div><div wfd-id="28">In that case before SCOTUS, Justice Alito <a href="https://www.supremecourt.gov/orders/courtorders/110620zr_g31i.pdf" rel="nofollow" target="_blank">issued an order</a> requiring segregation of all late ballots pending action on the petition for review by the full court. The Court could issue a further order in the case as early as tomorrow, or on any day this week. And whatever the Court decides will provide the best indication of whether that case will become the vehicle for resolving the disputes in other States besides Pennsylvania (to the extent those disputes involve State courts or officials changing or acting contrary to State law).</div><div wfd-id="27"><br /></div><div wfd-id="26">As is usual with legal matters, the issues involved are quite technical, and turn on just what relief a party has requested, and what the view of a majority of the Justices is as to whether that (or other) relief can be granted in the context of the case. Here is one <a href="https://macris.substack.com/p/why-trump-will-triumph-in-pa-litigation" rel="nofollow" target="_blank">very strong summary</a> of the issues for the Republican petitioners, and here is another informed view that <a href="https://www.scotusblog.com/2020/11/the-dilemma-of-the-pennsylvania-injunction-request/" rel="nofollow" target="_blank">calls into question</a> whether SCOTUS will grant any definitive relief. In the words of <a href="https://accurmudgeon.blogspot.com/2020/10/a-timely-reminder.html" rel="nofollow" target="_blank">my previous post</a>, "you pays your money and you takes your choice."</div><div wfd-id="25"><br /></div><div wfd-id="24">If there is one saving grace amidst all of this confusion, it is that our Constitution again speaks quite clearly as to who has the definitive say about a State's choice of electors to the Electoral College. Here is the language of Article II, Section 1, clause 2, which has been with us since the original document was ratified in 1789 (with my bold emphasis added):</div><blockquote>Each State shall appoint, in such Manner <b>as the Legislature thereof may direct,</b> 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.</blockquote><div wfd-id="23">Thus if the various State and federal courts prove inadequate to the task of resolving the election disputes in each contested State before the Safe Harbor day of December 8, the <i>Legislatures</i> of those States are empowered to step in and resolve the disputes by designating <i>their own</i> slates of electors. And it has not gone unnoticed that of the disputed States (Pennsylvania, North Carolina, Georgia, Michigan, Wisconsin, Arizona and Nevada), all but Georgia and Arizona have Democratic governors, as well as Democratic Secretaries of State, and Democratic election officials, while they each (except for Nevada) have legislatures in which both houses <a href="https://www.ncsl.org/Portals/1/Documents/Elections/Legis_Control_2020_April%201.pdf" rel="nofollow" target="_blank">have <i>Republican</i> majorities</a>. </div><div wfd-id="22"><br /></div><div wfd-id="21">The question thus becomes: if the proceedings to challenge the election results in each of those States become bogged down while the various courts flounder amidst all the technicalities of intervening in a given State election, will the Legislatures of those States have the gumption to exercise their Constitutional power to resolve those disputes definitively, in time for the final vote of electors by December 14? On the answer to that question depends who will be President on Inauguration Day, January 20, 2021.</div><div wfd-id="20"><br /></div><div wfd-id="19">A few more observations may be in order. </div><div wfd-id="14"><ul style="text-align: left;" wfd-id="15"><li wfd-id="18">First, the blame for the current election mess must be laid squarely at the feet of the <b>Democrats</b>. Only they pushed to change the rules to allow mail-in voting, ballot harvesting, no requirements for voter ID or prior registration, extended periods for both early and late voting, and similar loose measures intended to generate possibilities for manipulation. <br /><br /></li><li wfd-id="17">Second, the rush to "call" a winner of the 2020 election has been driven by the major news networks, who are unanimously biased against President Trump. But the media have no power under the Constitution to declare anyone as "President-Elect". That title may be bestowed <b>only</b> upon the winner in the Electoral College vote of December 18, or if not there, then upon the candidate selected by the new House of Representatives that convenes on January 6, 2021. <br /><br /></li><li wfd-id="16">Third, if the choice ultimately goes to the new House, the vote for President will not be by a majority of its individual members, but (again as specified in <a href="https://constitutioncenter.org/interactive-constitution/full-text" rel="nofollow" target="_blank">the Twelfth Amendment</a>) by the collective delegations for each State in the House, with each delegation having a single vote. As of the latest results for the 435 House elections, Republicans on January 6 will <a href="https://www.270towin.com/2020-house-election/state-by-state/consensus-2020-house-forecast" rel="nofollow" target="_blank">control 26 of the State delegations,</a> and will thus have a majority of the 50 delegations so voting. </li></ul></div><div wfd-id="13"><br /></div><div wfd-id="12">In summary, what happens between now and January 20, 2021 is pretty much up to the Republican legislators elected to Congress and to their various State legislatures. </div><div wfd-id="11"><br /></div><div wfd-id="10">Thank you for bearing with me to the end of this post. I have done my best to state only facts, and not opinions, except where I ascribe what I regard as justified blame for the current uncertainty. You of course are free to disagree; I ask only that you be civil in the comments.</div><div wfd-id="9"><br /></div><div wfd-id="8"><br /></div><div wfd-id="7"><br /></div><div wfd-id="6"><br /></div><div wfd-id="5"><br /></div><div wfd-id="4"><br /></div><div wfd-id="3"><br /></div><div wfd-id="2"><br /></div><div wfd-id="1"><br /></div><div wfd-id="0"><br /></div>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com8tag:blogger.com,1999:blog-759178030677978044.post-39651266661030025682020-10-30T22:33:00.000-07:002020-10-30T22:33:00.689-07:00A Timely Reminder<p>As explained in several earlier posts, this blog has purposefully remained silent during the civil (and religious) strife that has dominated discourse prior to Election Day next Tuesday. Your Curmudgeon has been as dismayed as any of you who grace this blog with your attention and comments about the escalating sense of disconnect between reality and rhetoric.</p><p>A few factors remain constant. The Episcopal Church (USA) continues its <a href="https://www.episcopalnewsservice.org/2020/10/16/2019-parochial-reports-show-continued-decline-and-a-dire-future-for-the-episcopal-church/" target="_blank">downward spiral into irrelevancy</a>, by adhering strictly to <a href="https://www.firstthings.com/article/2009/03/the-unhappy-fate-of-optional-orthodoxy" target="_blank">Neuhaus' Law</a> in steadily <a href="https://livingchurch.org/2020/10/24/bishop-love-resigns/" target="_blank">driving out all those brought up in its orthodox traditions</a> (<a href="https://accurmudgeon.blogspot.com/2015/06/bishops-bless-blasphemy-curmudgeons-cup.html" target="_blank">including your Curmudgeon</a>), which traditions it has now proscribed. Other denominations that have abandoned orthodoxy are <a href="https://juicyecumenism.com/2019/09/25/mainline-protestantism-decline-continues/" target="_blank">experiencing similar declines</a>.</p><p>The result of the elections in four days will, I submit, demonstrate whether there is a similar phenomenon at work among the body politic. The contest is not between two political parties, but between those who insist on the nation's adherence to its foundational principles and those who (for whatever motivation) insist that those principles be jettisoned -- and replaced by, well, you pays your money and you takes your choice: or in other words, whatever notions can command an ephemeral allegiance among those who are dominant for the moment.</p><p>That choice is no choice at all. The alternative to adhering to the principles that have made this nation great is actually a multiverse of discordant discontent, fueled by whatever (one believes) has sunk one's boat, or has prevented one from reaching ascendancy. There is simply no way to unite that multiverse around a common ground, because each is convinced he or she has been gored by a different ox, and so requires different "justice" in recompense.</p><p>As we approach this election, therefore, I would like to call to the attention of this blog's faithful followers a timeless parable from the pen of the incomparable G. K. Chesterton, expressed at virtually the outset (1905) of his literary career. Notice especially its relevance to those "peaceful protesters" who have decided to rid us of commemorative statues of our forbears:</p><p></p><blockquote>
Suppose that a great commotion arises in the street about something, let us say a lamp-post, which many influential persons desire to pull down. A grey-clad monk, who is the spirit of the Middle Ages, is approached upon the matter, and begins to say, in the arid manner of the Schoolmen, “Let us first of all consider, my brethren, the value of Light. If Light be in itself good—” At this point he is somewhat excusably knocked down. All the people make a rush for the lamp-post, the lamp-post is down in ten minutes, and they go about congratulating each other on their unmediaeval practicality. But as things go on they do not work out so easily. Some people have pulled the lamp-post down because they wanted the electric light; some because they wanted old iron; some because they wanted darkness, because their deeds were evil. Some thought it not enough of a lamp-post, some too much; some acted because they wanted to smash municipal machinery; some because they wanted to smash something. And there is war in the night, no man knowing whom he strikes. So, gradually and inevitably, to-day, to-morrow, or the next day, there comes back the conviction that the monk was right after all, and that all depends on what is the philosophy of Light. Only what we might have discussed under the gas-lamp, we now must discuss in the dark.</blockquote><p></p><p> – G.K. Chesterton, <i>Heretics</i>, 1905
</p>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com6tag:blogger.com,1999:blog-759178030677978044.post-39258903459475875962020-06-19T10:59:00.000-07:002020-06-19T13:38:36.722-07:00SC Court on Remand Vindicates Bishop Lawrence and His ParishesAt 8:39 a.m. EDT this morning, South Carolina Circuit Court Judge Edgar Dickson filed his <a href="https://tinyurl.com/yc54zkkh" rel="nofollow" target="_blank">long-awaited decision on remand</a> in the drawn-out dispute between Bishop Lawrence and the (now) Anglican Diocese of South Carolina vs. the Episcopal Church (USA) and its diocese (created to replace that of Bishop Lawrence when the latter voted to withdraw from ECUSA).<br />
<br />
The decision is a full and clear vindication of all of the arguments made by Bishop Lawrence and his parishes, with the exception of those concerning trademarks, insignia and intellectual property (which Judge Dickson held were governed by federal trademark law). Making factual findings as to each of thirty-six individual parishes, Judge Dickson ruled (1) following the still-controlling decision of the South Carolina Supreme Court in <i><a href="https://accurmudgeon.blogspot.com/2009/09/dennis-canon-loses-in-south-carolina.html" target="_blank">All Saints Waccamaw</a>,</i> ECUSA's <a href="https://accurmudgeon.blogspot.com/2008/08/dennis-canon.html" rel="nofollow" target="_blank">Dennis Canon</a> by itself does not create or impose a legally binding trust on any church property in South Carolina; (2) none of the thirty-six parishes ever expressly acceded to the Dennis Canon in any written document; and (3) Bishop Lawrence's Diocese did not lose its status as beneficiary of the Camp Christopher Trust when it exercised its legal right to disassociate from ECUSA (again following another holding of the <i>Waccamaw</i> case).<br />
<br />
Judge Dickson does an excellent job of laying out these conclusions at the close of his Order:<br />
<blockquote class="tr_bq">
The neutral principles of property, corporate, and trust law [in South Carolina] have been consistent for years. Lawyers and judges understand those principles and are competent to decide issue[s] based upon them. Additionally, neutral principles of law avoid[] all religious discussion, including which party is “true” to their denomination. </blockquote>
<blockquote class="tr_bq">
This is a property case. A decision on property ownership is usually governed by the title to real estate—the deed. In this case, all the Plaintiff Parishes hold title to their property in fee simple absolute. </blockquote>
<blockquote class="tr_bq">
Ownership may be [a]ffected by [a] trust: a clear, convincing legal statement of a trust—not a promise, not a pledge, not polity. This Court concludes that there is no signed writing by the Plaintiffs expressly acceding to the Dennis Canon. This Court concludes there is no evidence
establishing an intent by the Plaintiff Parishes to create a trust in favor of Defendants nor did the Plaintiffs ever vote on or consider acceding specifically to the Dennis Canon. Statements of allegiance are insufficient to establish an expressed trust. TEC unilaterally drafted the Dennis Canon. Since TEC and TECSC are not the owners of the Parish properties, they cannot establish a trust for themselves simply by declaring that they are also the beneficiary of the trust. The Dennis Canon by itself does not create a “legally cognizable” trust nor does [it] transfer title to property.
</blockquote>
What does this mean on the ground? Again, Judge Dickson -- in contrast to <a href="https://accurmudgeon.blogspot.com/2017/09/faults-in-south-carolina-decision-laid_3.html" target="_blank">the indeterminate and scattered holdings of the South Carolina Supreme Court</a>, whose "Collective Opinions" he was forced to parse and make sense of -- leaves nothing unclear:<br />
<blockquote class="tr_bq">
<b>IT IS THEREFORE ORDERED </b>that the thirty-six Plaintiff Parishes be, and hereby
are, declared and affirmed as the title owners in fee simple absolute of their respective parish real
properties, with improvements thereon and their accompanying personal property.<br />
<b>IT IS FURTHER ORDERED</b> that certified true copies of this order shall be filed in the
Clerk of Court’s Office in the county where each parish is located.<br />
<b>IT IS FURTHER ORDERED</b> that the Defendants herein have no interest in the
Plaintiff Parishes’ properties.<br />
<b>IT IS FURTHER ORDERED</b> that ownership to Camp St. Christopher remain as titled
to the Trustees of the Corporation as stated in the 1951 deed.<br />
<b>IT IS FURTHER ORDERED</b> that the Federal Court has jurisdiction over all matters
related to trademarks, service marks, and intellectual property.<br />
<b>IT IS FURTHER ORDERED</b> that the request for the Appointment of a Special Master,
the Petition for an Accounting are denied.<br />
<b>AND IT IS SO ORDERED.
</b></blockquote>
Your Curmudgeon does not gloat or boast, but tries to keep things humble and accurate here. Nevertheless, <a href="https://accurmudgeon.blogspot.com/2020/04/south-carolina-supreme-court-rebuffs.html" target="_blank">this earlier post</a> foreshadowed this result. It was obvious to a lawyer's mind that no three justices of the South Carolina Supreme Court had agreed on <i>anything</i> except that they were not overruling <i>All Saints Waccamaw,</i> which remained good law. And following that lead, Judge Dickson finds that each of the questions presented for him on remand was already resolved by that earlier decision.<br />
<br />
Those commenters who took the arrogance of Justices Hearn and Pleicones (who were actually in the minority, but refused to acknowledge it) at face value were misled into thinking that they properly summarized the fractured holdings of the Court. But they did not. All they did was adhere to their blinkered view that South Carolina should revert to <a href="https://accurmudgeon.blogspot.com/2009/06/o-tempora-law-of-church-property-i.html" target="_blank">the deference rule</a> in church property disputes -- and that view, as Judge Dickson conclusively demonstrates, was not the majority view.<br />
<br />
Where will things go from here? Well, Judge Dickson notes that there is still a pending motion to reconsider ECUSA's earlier motion to dismiss, but that motion is pretty well now moot, given that he has ruled on the merits. So what ECUSA and its diocese can do is once again appeal to the South Carolina Court of Appeals, and then to the state's Supreme Court. But this time, things will be different:<br />
<br />
1. There are two new Justices on the Court (replacing Pleicones and Toal, who retired), plus Justice Hearn has recused herself from all further proceedings in this case. That leaves only four, as there were on +Lawrence's earlier Petition for Rehearing, but <i>this </i>time a 2-2 split would mean that Judge Dickson's Order would stand. So ECUSA's attorneys would need to get the votes of three of the four sitting Justices. Given the Court's repeated refusal to interfere with the process on remand, that eventuality does not seem likely.<br />
<br />
2. To this day, as Judge Dickson notes, <i><a href="https://accurmudgeon.blogspot.com/2009/09/dennis-canon-loses-in-south-carolina.html" target="_blank">All Saints Waccamaw</a> </i>remains the law of the land in South Carolina, and it governs each of the property and trust questions on remand. ECUSA failed, even with the dubious participation of Justice Hearn, to get three votes to overturn <i>Waccamaw.</i> So where will they get them now, with Justice Hearn removed from the case?<br />
<br />
3. This time (unlike last time), the record on appeal will include all of the individual parish documents, which show conclusively that <i>none</i> of them ever expressly "acceded" to the Dennis Canon as such. At most, some (but by no means all) parishes employed general language about being bound by the Constitution and "rules" (Canons) of the Episcopal Church in the United States. Moreover, the record will show that Bishop Lawrence's diocese expressly revoked any effect of the Dennis Canon upon parish properties <i>before</i> it withdrew from ECUSA.<br />
<br />
4. As Judge Dickson notes in his Order (p. 6), "the trial court's findings of fact will be upheld on appeal when they are reasonably supported by the evidence unless: (1) the findings of fact are wholly unsupported by the evidence; or (2) unless it clearly appears the findings were influenced or controlled by an error of law." On the prior appeal, as Judge Dickson also points out, ECUSA and its diocese did not even appeal from Judge Diane Goodstein's findings of fact as to the parishes' not acceding to the Dennis Canon. But now Judge Dickson has extended and expanded those findings <i>as to each individual parish,</i> and they are amply "supported by the [documentary] evidence" he cites.<br />
<br />
5. There is absolutely no evidence in the record, as Judge Dickson observes, of fraud or deceit justifying the law's imposition of a "constructive trust" on the parishes' properties. Instead, the evidence shows that they individually, and not ECUSA, paid for their own properties, and built and maintained their buildings at their expense.<br />
<br />
6. Bishop Lawrence and his Diocese have moved on from their state-law claims to the trademarks and insignia of the traditional South Carolina Diocese. (The federal case, where the ownership to those marks is in dispute, is on appeal to the Fourth Circuit, and will be decided in that court.)<br />
<br />
These considerations argue strongly against any chance of success were ECUSA and its diocese to try to appeal from Judge Dickson's order. But that never stopped them before, so <a href="http://www.episcopalchurchsc.org/news-blog/lower-court-judge-issues-ruling-contrary-to-sc-supreme-court-decision-from-august-2017" target="_blank">do not hold your breath</a>.<br />
<br />
<br />
<b><br /></b>
A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com18tag:blogger.com,1999:blog-759178030677978044.post-90095579576048020012020-06-15T13:28:00.001-07:002020-06-15T13:28:44.699-07:00"Inclusive" ECUSA: "Love Never Ends" -- but +Love Must Go In a theological dispute that ECUSA's Presiding Bishop Michael Curry <a href="https://episcopalchurch.org/posts/publicaffairs/presiding-bishops-response-bishop-william-loves-november-10-2018-pastoral-letter" rel="nofollow" target="_blank">has now personally allowed to become a travesty</a>, the Episcopal Church in the USA (what I call "ECUSA", because it is a spawn of today's secular United States, and as such is not qualified to assume the broader mantle of "TEC", or "<i>The</i> Episcopal Church"), <a href="https://episcopalchurch.org/title-iv/active-cases" rel="nofollow" target="_blank">held a formal hearing</a> whose object was to remove the Rt. Rev. William H. Love, Bishop of Albany, from the post to which his diocese long ago elected him. <div><br /></div><div>His sin (<i>sc. </i>offense against the authorities) that requires his deposition? It was <a href="https://accurmudgeon.blogspot.com/2018/11/loves-last-stand.html" rel="nofollow" target="_blank">his faithfulness</a> to the "doctrine, discipline and worship of the Episcopal Church (USA)" -- exactly as he vowed when he took Episcopal orders, and again when he was consecrated one of that organization's bishops.</div><div><br /></div><div>Bishop Love took God at His word when He decreed in Gen. 2:24 that "Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh." In today's PC terminology, he denied to same-sex couples their humanly implied right to have their unions receive God's sanction and blessing in the churches of his Diocese. But the 2018 General Convention passed a Resolution (see below) purporting to make the availability of an "alternate rite" for same-sex couples <i>mandatory</i> in all dioceses. And Bishop Love has steadfastly refused to allow any such rite to be celebrated in any of his parishes. <br /></div><div><br /></div><div>For such an unforgivable trespass upon General Convention's claimed divine prerogatives, Bishop Love must now depart his post, according to that apostate group's current leadership.</div><div><div><br /></div><div>To my regular readers: please forgive the barely concealed disgust in those lead-in paragraphs. Your Curmudgeon cannot refrain from it, when it comes to describing the apostasies of the church in which he was raised from birth, and from which its leadership, by those same apostasies, has now forever alienated him. As I have documented abundantly on this site, that leadership continually abuses its (<a href="https://accurmudgeon.blogspot.com/2009/08/further-look-into-ecusa-finances.html" rel="nofollow" target="_blank">$350 million worth</a> of swaggering) power. Your Curmudgeon was trained always to <a href="https://accurmudgeon.blogspot.com/2016/01/who-dares-call-it-by-name.html" rel="nofollow" target="_blank">speak the truth to power</a>. If that truth be seen in some circles as contempt for "ECUSA's leadership" (<a href="https://accurmudgeon.blogspot.com/2009/04/oxymoron-of-church-politics.html" rel="nofollow" target="_blank">an oxymoron in itself</a>), then so be it -- <a href="https://www.phrases.org.uk/meanings/if-the-shoe-fits.html" rel="nofollow" target="_blank">let the shoe fit him who wears it</a>.</div><div><br /></div><div>The (in)validity of the charges brought against Bishop Love turns first upon the status of <a href="https://www.episcopalarchives.org/cgi-bin/acts/acts_resolution.pl?resolution=2018-B012" rel="nofollow" target="_blank">Resolution B012</a> passed (after many amendments from the floor, which you may trace at the link) at ECUSA's 2018 General Convention. That Resolution states at its outset (with my bold emphasis added):</div><div><div><i></i><blockquote><i>Resolved,</i> That the 79th General Convention <b>authorize for trial use, in accordance with Article X of the Constitution and Canon II.3.6,</b> “The Blessing of a Civil Marriage 2” and “An Order for Marriage 2” (as appended to the report of the Task Force for the Study of Marriage to the 79th General Convention), beginning the first Sunday of Advent, 2018 . . . </blockquote><div>The two liturgies referenced in the Resolution purport to be ceremonies joining or blessing the union of two persons of the same gender in what they each call a "marriage" now recognized ecclesiastically by General Convention, but <i>not</i> by ECUSA's standard Book of Common Prayer (1979 revision). It was the adoption of their predecessors in the 2015 General Convention that proved to be the final straw that compelled your Curmudgeon to quit his theretofore lifelong membership in ECUSA -- because of the ceremonies' reliance on outright blasphemy against Christ and His Church (as explained in <a href="https://accurmudgeon.blogspot.com/2015/06/bishops-bless-blasphemy-curmudgeons-cup.html" target="_blank">this earlier post</a>). When ECUSA's assembled bishops blessed ritual blasphemy, it was time for faithful Christians to depart from their company. <br /></div><div><br /></div><div>Way back in 2012, when General Convention was beginning to consider proposals to provide trial services for the ecclesiastical union of two men or two women (I refuse to use the term "marriage" to describe such things, because it <a href="https://accurmudgeon.blogspot.com/2012/09/aristotle-never-conceived-of-same-sex.html" target="_blank">would be a category mistake</a>), I put up a series of carefully researched articles that demonstrated why General Convention lacked the legislative power to do any such thing, without first proposing to <i>amend</i> the Book of Common Prayer. (See <a href="https://accurmudgeon.blogspot.com/2012/07/on-impossibility-of-enacting-trial-rite.html" target="_blank">Part I here</a>, <a href="https://accurmudgeon.blogspot.com/2012/07/on-impossibility-of-enacting-trial-rite_02.html" target="_blank">Part II here</a>, <a href="https://accurmudgeon.blogspot.com/2012/07/on-impossibility-of-enacting-trial.html" target="_blank">Part III here</a>, <a href="https://accurmudgeon.blogspot.com/2012/07/on-impossibility-of-enacting-other.html" target="_blank">Part IV here</a>, and <a href="https://accurmudgeon.blogspot.com/2012/07/how-prayer-book-supplements-received.html" target="_blank">Part V here</a>.)</div><div><br /></div><div>The reason for its inability is that both the Constitution (Art. X) and the Canons (Canon II.3.1) make the BCP <i>mandatory</i> and <i>normative</i> for all forms of worship in the Episcopal Church (USA). And General Convention -- to repeat myself -- has <b>not</b> altered the marriage liturgy or rubrics in the BCP, <b>both</b> of which specify that Episcopal marriage is the <b>union of a man and a woman </b>in Holy Matrimony.</div><div><br /></div><div>Let's try an analogy or two here in order to understand the magnitude of the problem facing Bishop Love's Hearing Panel at this point. Suppose General Convention enacted a resolution that purported to authorize, "for trial use, in accordance with Article X of the Constitution and Canon II.3.6" (exactly as it did in the case of 2018 Res. B012), a liturgy for Holy Eucharist to be celebrated by a <a href="https://livingchurch.org/2015/06/28/bishops-wary-lay-presidency/" rel="nofollow" target="_blank">lay (<i>i.e., </i>non-ordained) person (which it called a "President")</a>. Would the bare reference to its authority under Art. X and Canon II.3.6 suffice to make the measure constitutional, or even canonical (which at bottom has to be the same thing, because the Constitution limits what GC may enact as Canons)?</div><div><br /></div><div>Or again, suppose General Convention passed with the same references a resolution authorizing the substitution of readings from the <a href="https://amazingdiscoveries.org/blog/50-u-s-churches-read-quran-sunday/" rel="nofollow" target="_blank">Muslim Qur'an in place of those from Holy Scriptures</a>. (I am deliberately choosing from among examples within our lifetime in order to avoid any charge of fantastical fabrication.) <br /></div><div><br /></div><div>Could either such a measure be upheld as canonical -- <i>i.e., </i>within the competency and powers of General Convention as spelled out in ECUSA's Constitution and Canons? No? Well, why not?</div><div><br /></div><div><i>Because in both instances, the proposed "alternatives" would violate the rubrics of the Book of Common Prayer. </i>Those rubrics bar anyone but a duly ordained priest or bishop from officiating at Holy Eucharist, and prescribe given readings <i>from the Old and New Testaments</i> for each Sunday in the calendar. If General Convention could change the liturgies of the BCP by passage of a single resolution at any one session, then the rites of the BCP would cease to be the constitutionally <i>mandated</i> forms of Sunday worship, and Article X of ECUSA's Constitution would lose all of its force and meaning.</div><div><br /></div><div>And <i>that </i>is why Article X of ECUSA's Constitution requires that all proposed revisions or additions to the BCP pass a first reading in both Houses at a given General Convention, followed by a formal transmittal of them to the individual dioceses for deliberation in their respective annual conventions, following a passage (by carefully specified majorities) on second reading in each House at the next succeeding General Convention. (For the qualifying details, see my posts on amending / revising the BCP as linked above.)</div><div><br /></div><div>For reasons of expedience, the backers of 2018 Res. B012 chose <i>to deny</i> that they were <a href="https://livingchurch.org/2018/07/03/doubts-greet-resolution-b012/" rel="nofollow" target="_blank">proposing any addition or alteration to the Book of Common Prayer</a>. But their proposed "alternative to the rite of marriage in the BCP" does just that, and <i>is</i> contrary to its explicit rubrics concerning marriage, as any reader of English may plainly ascertain for himself. So where does that leave Resolution 2018-B012?</div><div><br /></div><div>Its supporters next fall back upon the change they made to Canon I.18 in 2015, purporting to change its definition of marriage (then matching the BCP's rubrics) to one expansive enough to embrace same-sex unions under the "Church's umbrella." <br /></div><div><br /></div><div>To pretend to change the language of the marriage canon, however, is meaningless <a href="https://accurmudgeon.blogspot.com/2015/06/making-mishmash-of-marriage-part-ii.html" target="_blank">if one does not change the rites and rubrics in the Book of Common Prayer</a> -- which requires, as I remind the reader, <i>two</i> successive General Conventions for its accomplishment. <br /></div><div><br /></div><div>Admittedly, the Church's Canons may be changed by resolution duly adopted in just a single session of General Convention -- <i>but not (according to Article X) the Book of Common Prayer!</i></div><div><i><br /></i></div><div>Precisely because it takes a longer process to amend ECUSA's Constitution and BCP than it does to amend its Canons, canon law authorities have uniformly held that the former two documents take precedence over the latter in the case of any conflict. As it states in the last two paragraphs on the last page (p. 482) of Volume I of White & Dykman, <i>Annotated Constitution and Canons</i> (viewable / downloadable <a href="https://www.episcopalarchives.org/governance-documents/white-and-dykman" rel="nofollow" target="_blank">at this link</a>), which is every canon lawyer's bible, in regard to a similar attempt to amend Canon I.7 in 1979:</div><blockquote><div>The 1979 Amendment to Canon 7 is now inconsistent with the authority granted by the rubrics of the rite for the Dedication and Consecration of a Church which is part of the 1979 Prayer Book. <br /></div><div><br /></div><div>The authority granted in the Prayer Book would take precedence over the provisions added to Canon II. 7 at the 1979 General Convention.</div></blockquote><div></div><div>So those members of General Convention who fancifully imagine they solved the problem by their purported 2015 "amendment" to Canon I.18 delude themselves -- <a href="https://accurmudgeon.blogspot.com/2015/06/making-mishmash-of-marriage-part-ii.html" target="_blank">from a constitutional standpoint</a>. And if an organization will not respect the terms of its own duly adopted and agreed Constitution, then what is the point of organizing under it in the first place?</div><div><br /></div><div>From what has been logically demonstrated above, the conclusion logically follows: the prosecution of Bishop Love is neither canonical nor constitutional. It is brought upon baseless charges that have no backing under ECUSA's Constitution and Canons properly adopted thereunder -- which, for the reasons stated, do <b>not</b> include the current version of Canon I.18.<br /></div><div><br /></div><div>The disgrace that should fall upon those in ECUSA who are pressing the charges against Bishop Love is made manifest by these other incontestable facts:</div><div><br /></div><div>1. The same General Convention that passed Resolution 2018-B012, under which Bishop Love is being prosecuted, <b><i>also</i></b> passed <a href="https://www.episcopalarchives.org/cgi-bin/acts/acts_resolution.pl?resolution=2018-D078" rel="nofollow" target="_blank">Resolution 2018-D078</a>, which had language showing that it was expressly intended as a <b>change</b> to a specific part of the BCP, as authorized by Art. X, section b of the Constitution --- so General Convention knew perfectly well how to signal when it was using its authority under Article X to amend the BCP (quoted with my bold emphasis added):</div><i></i><blockquote><i>Resolved,</i> That the 79th General Convention authorize The Holy Eucharist: Rite II, including Eucharistic Prayers A, B, and D, (Expansive Language) for trial use throughout this church <b>as a proposed revision within pages 355-382 of the Book of Common Prayer pursuant to Article X(b) of the Constitution</b>;</blockquote><div>2. Not only that, but the same General Convention showed that it was <i>fully aware</i> of the Constitutional defects in its previous adoption of church-wide "trial rites" intended to <i>supplement,</i> and not amend, the Book of Common Prayer. (As mentioned, my 2012 series of posts linked above went into those defects in depth.) With Resolution <a href="https://www.episcopalarchives.org/cgi-bin/acts/acts_resolution.pl?resolution=2018-A063" rel="nofollow" target="_blank">2018-A063</a>, the Convention passed on first reading a proposed amendment that would grant the following specific authority to the power of a single session acting with the appropriate majorities under Article X of the Constitution, by adding a new subsection (c):</div><blockquote>(c) Authorize for use throughout this Church, as provided by Canon, alternative and additional liturgies <b>to supplement those provided</b> in the Book of Common Prayer.</blockquote><div>(Emphasis added.) This amendment will not become effective, however, until it passes on a second reading at GC 2021 next year. So it cannot save the illegitimacy of Resolution 2018-B012, and it cannot rescue the prosecution of Bishop Love from its illegality, as well. To the contrary -- by passing the proposed Amendment to Article X, General Convention 2018 in effect <i>conceded</i> that it lacked all authority to propose <i>any</i> supplements to the BCP for mandatory use throughout the church without observing the formalities that Article X requires.</div><div><br /></div><div>3. But this third and final fact is truly stunning: the Rt. Rev. Nicholas Knisely, Bishop of Rhode Island, who is the Chairperson of Bishop Love's disciplinary Hearing Panel, was also <a href="https://livingchurch.org/2018/07/03/doubts-greet-resolution-b012/" rel="nofollow" target="_blank"><i><b>one of the proponents</b></i> of Resolution 2018-B012</a> -- the very Resolution whose applicability to him Bishop Love is challenging! Why has no one to date noticed the inherent conflict of interest in Bishop Knisely's appointment to the Hearing Panel? <br /></div><div><br /></div><div>It is all very complex and interrelated, I know. But I hope I have been clear enough in laying the matter out to show what the chief difficulty is with attempting to try (and convict!) Bishop Love for violating "the discipline and worship" of the Episcopal Church (USA):</div><div><br /></div><div>As specified in Canon IV.2, "<b>Discipline of the Church</b> shall be found in the Constitution, the
Canons and <i>the Rubrics and the Ordinal of the Book of Common Prayer</i>" (italics added). The "worship" of the Church is not specially defined in the canons, but how could it <i>not</i> consist of what is in the Book of Common Prayer?<br /></div><div><br /></div><div>The current Rubrics of the Book of Common Prayer repeatedly provide, as they did when Bishop Love was ordained and consecrated, that a celebration of marriage in the Church is <b>only between a man and a woman,</b> and not between two of any other kinds of persons (<i>see</i> the <a href="https://www.bcponline.org/" rel="nofollow" target="_blank">BCP online here</a>, beginning on page 423). <br /></div><div><br /></div><div>The rubrics of the Book of Common Prayer, as we have seen, take precedence over any canon in the case of a conflict, and the rites in the Book of Common Prayer spell out the <b>mandatory</b> forms of the Church's worship.</div><div><br /></div><div>Therefore, it is <i>impossible</i> that, by adhering as he does to the text of the Book of Common Prayer (which does nothing other than incorporate God's words in Gen. 2:24, as also quoted by Jesus in Mt 19:5), Bishop Love can be said to violate either his vows given upon ordination, or the discipline, or the worship of the Episcopal Church (USA).</div><div><br /></div><div><br /></div><div><br /></div><div> <br /></div><div><br /></div><div> <br /></div><div><br /></div><div><br /></div><div><br /></div><div><br /></div><div><br /></div><div><br /></div><div><br /></div><div><br /></div><div> </div></div></div></div>A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com4tag:blogger.com,1999:blog-759178030677978044.post-15045386898577342012020-05-23T15:35:00.001-07:002020-05-23T15:35:56.677-07:00Texas Supreme Court Repudiates ECUSA's SophistriesIn a <a href="http://www.txcourts.gov/media/1446580/180438.pdf">comprehensive and <b>unanimous</b> thirty-page decision filed Friday morning, May 22</a>, the Texas Supreme Court ruled in favor of Bishop Jack L. Iker and reversed <a href="https://accurmudgeon.blogspot.com/2018/04/texas-courts-mighty-labor-is-in-vain.html">the Court of Appeals' earlier decision</a> to the effect that ECUSA's rump diocese, and not Bishop Iker's diocese, controlled the Texas corporation which holds title to the properties of those parishes which in 2008 voted to withdraw their diocese from the unaffiliated and unincorporated association that historically has been called the <a href="https://accurmudgeon.blogspot.com/2009/10/church-pecusa-and-dfms.html">(Protestant) Episcopal Church in the United States of America</a>.<br />
<br />
The decision is as straightforward an application of "neutral principles of law" (espoused by <a href="https://accurmudgeon.blogspot.com/2008/05/who-shall-own-property.html">the U.S. Supreme Court in <i>Jones v. Wolf</i></a>) as one could find among the courts to which ECUSA has presented <a href="https://accurmudgeon.blogspot.com/2008/08/litigation-and-episcopal-church-usa.html">its "hierarchical church" sophistries</a>. It repudiates those sophistries in a succinct passage (pp. 24-25):<br />
<blockquote>
In sum, TEC’s determinations as to which faction is the true diocese loyal to the church and which congregants are in good standing are ecclesiastical determinations to which the courts must defer. But applying neutral principles to the organizational documents, the question of property ownership is not entwined with or settled by those determinations. The Fort Worth Diocese’s identity depends on what its documents say. To that end, the Diocesan Constitution and Canons provided who could make amendments and under what circumstances; none of those circumstances incorporate or rely on an ecclesiastical determination by the national church; and nothing in the diocese’s or national church’s documents precluded amendments rescinding an accession to or affiliation with TEC. Applying neutral principles of law, we hold that the majority faction is the Fort Worth Diocese and parishes and missions in union with that faction hold equitable title to the disputed property under the Diocesan Trust. </blockquote>
<br />
The opinion then makes short shrift of ECUSA's remaining arguments. It demolishes ECUSA's <a href="https://accurmudgeon.blogspot.com/2008/08/dennis-canon.html">Dennis Canon</a>, first by holding that a beneficiary like ECUSA cannot declare a trust in its favor in Texas on property that it does not own, and second by holding that even if the Dennis Canon could be said to create a trust in ECUSA's favor, the Canon does not, as Texas law specifies, make the trust "expressly irrevocable". Thus it was well within the power of Bishop Iker's Fort Worth Diocese to revoke any such trust, which it did by a diocesan canon adopted in 1989 -- to which ECUSA never objected in the twenty years following that act.<br />
<br />
The Texas Supreme Court affirmed the Court of Appeals' holding that ECUSA could not assert title to the parishes' properties by way of any "constructive" trust (a creation of the law to prevent a wrongdoer's "unjust enrichment"), or by the ancient doctrines of estoppel or trespass-to-try-title, or by accusing Bishop Iker and his fellow trustees of the diocesan corporation of breaches of fiduciary obligation allegedly owed to ECUSA. Each of those claims would involve the civil courts unconstitutionally in disputes over religious doctrine.<br />
<br />
In conclusion, the Court affirmed the judgment of the Court of Appeals on the grounds last noted, reversed its principal holding that as an ecclesiastical matter, ECUSA got to say which corporation under <i>Texas civil law</i> was the entity which held the parishes' property in trust, and reinstated the trial court's judgment that Bishop Iker's corporation was in law the trustee of the properties of the parishes in his diocese.<br />
<br />
Where does the matter go from here? First of all, back to the trial court, whose judgment (now made final by the Texas Supreme Court) "permanently enjoined [ECUSA]'s clergy and leaders from acting as "The Episcopal Diocese of Fort Worth" (opinion, p. 11). That injunction may now be enforced, and so ECUSA and its rump diocese will have to come up with a different name.<br />
<br />
(That is one of the downsides of <a href="https://accurmudgeon.blogspot.com/2009/02/machiavelli-ritornato.html">a litigation strategy</a> pursuant to which you pretend to be the "true" diocese that continued in the place of the one that withdrew. You argue that the vote to withdraw was "illegal" under ECUSA's Constitution and Canons, which in fact are silent on that subject [see the Court's opinion, p. 23], and so conclude that it is the withdrawing entity that has to find a new name. It is a game with all-or-nothing stakes. Now ECUSA and its followers in Fort Worth have played it and lost.)<br />
<br />
Also facing a required change will be the ECUSA-aligned parish of All Saints in Fort Worth, which thanks to the graciousness of Bishop Iker was allowed to stay in property which the trial court ruled belonged to Bishop Iker's corporation, pending the final outcome of the appeal. See my <a href="https://accurmudgeon.blogspot.com/2015/07/final-judgment-in-fort-worth-case.html">earlier post on that topic</a> for details. <br />
<br />
ECUSA's provisional bishop in Fort Worth issued a pastoral letter to his parishioners in which he stated he was joined by ECUSA's Presiding Bishop, Michael Curry -- you may <a href="https://episcopaldiocesefortworth.org/bishop-mayer-letter-to-the-diocese-in-wake-of-supremt-court-decision/">read it here</a>. The letter is remarkable for showing a lack of understanding as to what the Court held, when it says:<br />
<blockquote>
I remain convinced that we are right in our affirmation that we are the continuing Episcopal Diocese of Fort Worth and that I am its bishop.</blockquote>
Can the man not read English? Look at what the Court says in the first sentence of the paragraph that I first quoted above: "In sum, TEC’s determinations as to which faction is the true diocese loyal to the church and which congregants are in good standing <i>are
ecclesiastical determinations to which the courts must defer</i>" (my emphasis added). The Court says it again on page 20: "No one disputes
that TEC’s determinations as to its denominational leaders and “good standing” with the church are ecclesiastical questions." (The Court also said the same thing in its earlier opinion in the 2013 case of <i>Masterson v. Diocese of Northwest Texas, </i>as it shows by quoting a passage from it in its current opinion at page 23.)<br />
<br />
This Texas case is <i>not</i> about whether ECUSA <a href="https://accurmudgeon.blogspot.com/2008/08/murder-of-crows.html">needs to follow its own Constitution and Canons</a> when it fashions an ersatz diocese out of the remnant clergy and parishioners who elect to remain in ECUSA when one of its member dioceses votes to cancel its affiliation with General Convention. Those are ecclesiastical matters which cannot be determined in the civil courts, <a href="https://accurmudgeon.blogspot.com/2013/11/rump-diocese-tries-hail-mary-pass-in.html">as ECUSA's own canons recognize</a>.<br />
<br />
By the same token, however, ECUSA's ecclesiastical powers do not extend to overriding the laws of the various States in which it operates. The very essence of "neutral principles" is that a church is treated just as any other citizen of that State would be when it comes to complying with the laws and regulations dealing with entities like corporations and unincorporated associations. To hold otherwise -- as the high courts in New York, California, Connecticut, Georgia and several other States have done -- is <a href="https://accurmudgeon.blogspot.com/2009/06/o-tempora-law-of-church-property-ii.html">not only to misread </a><i><a href="https://accurmudgeon.blogspot.com/2009/06/o-tempora-law-of-church-property-ii.html">Jones v. Wolf</a>,</i> but also to violate the First Amendment by favoring one religious denomination at the expense of others.<br />
<br />
ECUSA and its rump diocese may be speaking softly for now, but true to their form, they most likely will petition the United States Supreme Court to review this decision in an effort to get that Court to explain just what it really meant in <i>Jones.</i> Given that Court's reluctance, in each of the dozen or so instances it has been asked to do so in the forty-odd years since 1979, I would not take any bets on ECUSA's chances of success. But when you have over $350 million in trust funds at your disposal, and have had no qualms about spending <a href="https://accurmudgeon.blogspot.com/2015/05/what-is-ecusa-spending-on-lawsuits.html">well over $60 million on attorneys and church property litigation since 2000</a>, one's chances of success would not appear to be a factor under consideration.<br />
<br />
In other words, keep your powder dry, and stay tuned for more.<br />
<br />A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com11tag:blogger.com,1999:blog-759178030677978044.post-70080546669036694042020-04-03T09:09:00.001-07:002020-04-03T18:34:26.167-07:00South Carolina Supreme Court Rebuffs ECUSA AgainOn Tuesday, March 31, the South Carolina Supreme Court <a href="https://adosc.org/wp-content/uploads/2020/04/20_3_31_sc_deny_writ_prohibition.pdf">entered an order</a> that denied without comment <a href="http://www.episcopalchurchsc.org/news-blog/tecsc-files-petition-for-a-writ-of-prohibition-with-sc-supreme-court">the petition filed the previous month</a> by ECUSA and its ersatz diocese in South Carolina seeking a "writ of prohibition" (that is, an order to halt proceedings) directed to the Circuit Court of Dorchester County (Hon. Edgar Dickson, Judge) in an effort to prevent him from interpreting or clarifying <a href="https://www.sccourts.org/opinions/HTMLFiles/SC/27731.pdf">the August 2, 2017 splintered decision of that same Supreme Court</a>.<br />
<br />
This was the second attempt by ECUSA's attorneys to derail the proceedings on remand before Judge Dickson, who was assigned to the case by the Court after three of the Justices (one of whom belatedly recognized she was disqualified) voted to reverse the judgment of Circuit Judge Diane Goodstein. That judgment had declared that the real and personal property of each individual Anglican parish belonged to that particular parish, and the diocesan property was owned by the diocese and trustees headed by the Rt. Rev. Mark Lawrence. Last March, ECUSA and its diocese filed with the Supreme Court <a href="http://www.episcopalchurchsc.org/news-blog/petition-to-sc-supreme-court-seeks-enforcement-of-church-property-decision">a petition for a writ of mandamus</a> (an order directing a lower court to do a specific act) seeking to have the Court command Judge Dickson to "enforce" the rulings contained in its August 2017 decision. The Court denied that petition without comment, as well.<br />
<br />
This time, the order dismissing the request for a writ of prohibition was signed by all four Justices currently qualified to act on the case (with Justice Hearn having disqualified herself). That can be interpreted as a fairly strong statement that the majority of the Court is not persuaded that Circuit Judge Dickson is doing anything improper on remand. As Bishop Lawrence's attorneys pointed out <a href="https://adosc.org/wp-content/uploads/2020/04/20_3_2_Filed-Return-to-Petition-for-Writ-of-Prohibition.pdf">in their opposition to the petition</a> (see p. 6), and as their own attorneys conceded in argument before the Circuit Court, ECUSA and its diocese can always take an appeal from any final order that Judge Dickson sees fit to enter. That admission alone was sufficient ground for the Court to deny ECUSA's petition.<br />
<br />
How do ECUSA and its attorneys manage to contend that there are any "rulings" in the August 2017 decision capable of being enforced? By vastly oversimplifying the jumble of five separate Justices' opinions, that's how.<br />
<br />
I have demonstrated <a href="https://accurmudgeon.blogspot.com/2017/09/faults-in-south-carolina-decision-laid_3.html">in earlier posts</a> just how divided and disunited were the individual Justices (including especially Justice Hearn, who had not yet seen fit to disqualify herself -- on the ground that she was an active member of one of the parishes whose property was at stake in the case, and had earlier underwritten the effort by dissident Episcopalians to remove Bishop Lawrence from his position). It is logically impossible to derive any legal result from the five opinions other than that three of the Justices (including the one now disqualified) voted to reverse the trial court's judgment.<br />
<br />
So Judge Goodstein's judgment awarding the property is now reversed. What comes next? Ah, that is the question -- and one looks in vain for a mandate (direction) from any three of opinions as got what the Circuit Court should do on remand towards entering a new judgment. As Judge Dickson said at the outset of the arguments on the motions before him:<br />
<blockquote class="tr_bq">
The Court: The first motion that I have today, going through the list that y'all gave me the last time y'all were here, and I think the one I am most interested in is the motion to decide what I am supposed to decide. The clarification motion, okay.
</blockquote>
In response to the contention by ECUSA's attorney, Mary Kostel, that the Court's ruling as to who owned the property was "clear", Judge Dickson responded: "We would not be here if it was clear."<br />
<br />
And indeed, as pointed out in Bishop Lawrence's <a href="https://adosc.org/wp-content/uploads/2019/04/19_4_11_filing_ltr_sc_supreme_ct-_return_to_pet_mandamus.pdf">response to the petition for mandamus</a>, just <i>one day</i> before filing its motion for enforcement with Judge Dickson, ECUSA had filed a brief in opposition to Bishop Lawrence's petition to the United States Supreme Court for a writ to review the August 2017 decision of the South Carolina Supreme Court (p. 4):<br />
<blockquote class="tr_bq">
On May 7, 2018, Petitioners [in the Circuit Court, <i>i.e.,</i> ECUSA and its diocese] argued to the United States Supreme Court that it should not grant Plaintiffs' Petition for Certiorari because the Collective Opinions were "a poor vehicle for review." Brief of Respondents in Opposition to Petition for Writ of Certiorari, 2018 WL 2129786 at 23-26. Petitioners [ECUSA and its diocese] contended this was so because the Collective Opinions are based on an "incomplete record", which "contains significant ambiguities." Id at 2, 23. The Collective Opinions are "fractured not only in rationale but even on facts." Id at 2, 9. The absence "of a majority opinion on the standard of review" creates "ambiguities" making it "difficult to discern which of the trial court findings stand." Id. at 23-24.
</blockquote>
This is just another example of ECUSA's unabashed hypocrisy in making diametrically opposed arguments to different courts, depending on the occasion. (For another egregious example, <a href="https://accurmudgeon.blogspot.com/2008/09/hypocrisy-thy-name-is-david-booth-beers.html">see this post</a>.) For the US Supreme Court, the jumbled South Carolina opinions were "ambiguous" and "difficult to discern", but in the South Carolina Circuit Court, just one day later, all was suddenly "clear." lol<br />
<br />
Unfortunately, many lay members of ECUSA's South Carolina diocese are swayed by their attorneys' oversimplification of the South Carolina Supreme Court decision, as shown in various of their blogs and comments. (I will not link to them; they are in their own bubble, and do not wish to be disturbed by the truth.)<br />
<br />
For them, this case should have been over long ago, thanks to the boost that Justice Hearn gave to their case (and of course, they see nothing wrong with her conduct). They feel they won in the Supreme Court, fair and square, and now all that's left is for them to take over the Anglicans' properties and bank accounts.<br />
<br />
But such people misread the purported "summaries" by two individual Justices (Hearn for the majority voting to reverse, and Toal for the dissent) as speaking for the whole Court, when the fact is that <i>there was no one opinion joined in by any three justices of the five. </i>There were three votes <i>only for a single result:</i> reverse Judge Goodstein’s judgment. Once reversed, the task returns to the Circuit Court to apply the law as decided by the Supreme Court to the evidence in the case.<br />
<br />
Judge Dickson is obviously not persuaded by ECUSA's slick arguments; otherwise he could have entered an order granting their "enforcement" petition long ago. Instead, he called for each side to submit page and line references to the case transcript showing exactly where each and every individual parish "acceded in writing" to the Dennis Canon. In doing so, he is simply taking Chief Justice Beatty at his word, since it was his vote to reverse the trial court's decision that determined the 3-2 outcome on that point. In his opinion, the Chief Justice wrote (with my emphases added):<br />
<blockquote class="tr_bq">
These parishes that <b>did not expressly accede to the Dennis Canon</b> should retain ownership of the disputed real and personal property. (421 S.C. at 249, 806 S.E.2d at 102.) </blockquote>
<blockquote class="tr_bq">
TEC argues that the parishes' accession to the Dennis Canon created the trust. <b>Assuming that each parish acceded in writing, </b>I would agree. (<i>Id.</i> at 250-51, 806 S.E.2d at 103.) </blockquote>
<blockquote class="tr_bq">
In my view, the Dennis Canon <b>had no effect until acceded to in writing by the individual parishes</b>. (<i>Id.</i> at 250, 806 S.E.2d at 103.) </blockquote>
<blockquote class="tr_bq">
. . . the parishes that did not accede to the Dennis Canon <b>cannot be divested of their property.</b> (<i>Id.</i>)</blockquote>
Could he have been more clear? He was simply <i>assuming</i> that twenty-nine of the thirty-six plaintiff parishes (per Justice Hearn's count; according to Acting Justice Toal, there were only twenty-eight claimed by ECUSA) "acceded in writing" to the Dennis Canon, because that is what ECUSA's attorneys represented to the trial court in an undocumented and unreferenced statement in a post-trial brief.<br />
<br />
Statements by attorneys can never count as actual evidence; they only <i>represent</i> what they believe the evidence shows. (ECUSA never bothered to put the actual evidence of "accession" into the trial record, so there was nothing for the Supreme Court to review on that point, and nothing on which any of the Supreme Court's justices could have based a definitive conclusion.) And as Judge Dixon is now finding out, that representation by ECUSA's attorneys was wrong.<br />
<br />
According to the papers filed by Mark Lawrence's attorneys with Judge Dixon, <i>not a single plaintiff parish </i>ever signed a document stating that they expressly agreed to the trust which the Dennis Canon attempted to impose. And remember that Chief Justice Beatty, in contrast to Justices Hearn and Pleicones, agreed with Justice Toal in dissent that under South Carolina law as defined in the (2009) <a href="https://accurmudgeon.blogspot.com/2009/09/dennis-canon-loses-in-south-carolina.html"><i>All Saints Waccamaw</i> case</a>, only an express written agreement by a parish to place its property into a trust for ECUSA's benefit could create an enforceable trust in that State. Again, to quote from the Chief Justice's opinion:<br />
<blockquote class="tr_bq">
Further, in my view, the Dennis Canon, by itself, does not have the force and effect to transfer ownership of property as it is not the "legally cognizable form" required by Jones. See Jones, 443 U.S. at 606 (recognizing that courts must give effect to churches' intent when deeds and trust documents executed by the general church "provided [the documents] are embodied in some legally cognizable form"). While the Dennis Canon may use the term "trust," this word alone does not unequivocally convey an intention to transfer ownership of property to the national church or create an express or constructive trust. See <i>Lollis v. Lollis,</i> 291 S.C. 525, 530, 354 S.E.2d 559, 561 (1987) ("In order to establish a constructive trust, the evidence must be clear, definite, and unequivocal.").
</blockquote>
That is the only position that is consistent with the Court's earlier holding in <i>All Saints Waccamaw. </i>Once again, I remind those uninformed bloggers sympathetic to ECUSA that only <i>two</i> Justices voted to overrule <i>Waccamaw</i> and reinstate a rule of deference to ecclesiastical authority, but they were in the minority on that point. The other three Justices -- a <i>majority</i> -- voted to <i>uphold</i> the doctrine of neutral principles as enunciated in <i>Waccamaw. </i><br />
<br />
And that means that the Circuit Court is bound by <i>Waccamaw </i>as well. Absent a <i>writing signed by the individual parish's authority,</i> that Court is not free simply to hand over the properties to ECUSA's minions. Following the Supreme Court's majority, Judge Dickson is bound to rule in accordance with the actual evidence of consent -- or lack thereof. If ECUSA's attorneys cannot produce any such evidence (and to date they have not; only blanket, generalized affirmations of the Constitution and Canons, <i>which will not suffice under </i>Waccamaw), the properties will stay as they now are.<br />
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<br />A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com4tag:blogger.com,1999:blog-759178030677978044.post-49889645538022178992020-02-25T14:42:00.000-08:002020-04-01T20:44:29.157-07:00ECUSA Attempts an End Run in South CarolinaLast week, in a brazen maneuver to cut matters short in the South Carolina litigation, the Episcopal Church (USA) and its ersatz diocese filed a request, invoking the original jurisdiction of the South Carolina Supreme Court, for that court to issue its writ of prohibition <a href="http://www.episcopalchurchsc.org/uploads/1/2/9/8/12989303/2020.02.21_petition_for_a_writ_of_prohibition.pdf">to prevent the lower court from conducting any further proceedings on remand in the matter</a>.<br />
<br />
Some non-legal commentators on the ECUSA side have used the word "appeal" to describe what the church did, but that term assumes there was an order from which to <i>take</i> an appeal -- and there wasn't, at least not yet. The lower court judge assigned to the case on remand, Judge Edgar Dickson, had scheduled a hearing in the case for this Thursday to consider the motion and petitions <i>filed by ECUSA and its diocese</i> to appoint a special master, order an accounting and issue writs of execution to force the parishes to hand over their properties.<br />
<br />
Given that ECUSA and its diocese have constantly complained that Judge Dickson has steadfastly ignored their motions and petitions, it is curious indeed to puzzle out just why they chose last week to try to cut matters short in the trial court, after the judge had notified all the parties that he would take up ECUSA's requests. Perhaps they were afraid that he might actually <i>deny</i> them on their merits -- thereby creating an order that <i>they </i>would have to appeal.<br />
<br />
By invoking the Supreme Court's original jurisdiction over its inferior courts, the ECUSA parties at this point are demonstrating outright that they no longer have any confidence in Judge Dickson's integrity to reach an impartial resolution of the puzzle presented to him by <a href="https://accurmudgeon.blogspot.com/2017/09/faults-in-south-carolina-decision-laid_3.html">the five scattered opinions that came from the Court</a>. Just as they requested the Court last June, ECUSA's attorneys want to have the Court step in <i>now</i> and put an end to further delay in implementing what they claim was the Court's "clear mandate."<br />
<br />
The problem is, the Supreme Court's membership has changed since it rendered its fractured decision. Two of the then Justices (Toal and Pleicones) have retired from the Court, while a third (Hearn) belatedly recused herself from taking any further part in the case. That leaves only Chief Justice Donald Beatty and Justice John Kittredge out of the original panel, and those two were at odds with each other: the Chief Justice supported the official ECUSA line about <a href="http://accurmudgeon.blogspot.com/2008/08/dennis-canon.html">the Dennis Canon</a>, while Justice Kittredge was having nothing to do with any sort of remote trust that could be imposed on a parish's property without its written consent.<br />
<br />
Under those circumstances, the success of the petition filed by ECUSA will at the outset turn upon the view of it by the two new appointees to the Supreme Court: <a href="https://www.sccourts.org/supreme/displayJustice.cfm?judgeID=1143">Justice John Cannon Few</a> and <a href="https://www.sccourts.org/supreme/displayJustice.cfm?judgeID=1145">Justice George C. James, Jr.</a> If they agree between themselves on how to deal with the petition, their votes will carry the day by making the tally 3-1 (whether to deny the petition or to grant it). And if they disagree? The result (presuming that the C.J. and Kittredge are still at odds) would be a 2-2 tie, with the result that the writ could not issue.<br />
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Long and short of it: The Court will issue the petition restraining Judge Dickson only if the two new appointees both vote with the Chief Justice to grant the writ. <br />
<br />
After all, there is nothing compelling the Court to be as impatient as ECUSA is to get a result; the Justices will each still collect their paychecks regardless of how they rule. And after all the time and effort Judge Dickson has expended to get to the point where he is now ready to take up ECUSA's motions, one would think that the Court will be in no great hurry to take the case away from him, either.<br />
<br />
Could it be that there is so little merit to the ECUSA side of the matter that they have grown desperate to avoid any actual ruling on just how weak their arguments are?<br />
<br />
For instance: in their petition, ECUSA's attorneys bluster and say (p. 4):<br />
<blockquote class="tr_bq">
This Court already reviewed the evidence from the trial record, considered the issues preserved for appeal, reached a final decision, and remitted this case to the Circuit Court for enforcement purposes. Petitioners (the prevailing parties before this Court) cannot be forced to re-litigate these issues nor can the Circuit Court re-adjudicate them. </blockquote>
There is a good deal that these assertions simply gloss over, or take for granted. Because I have already commented extensively, in <a href="https://accurmudgeon.blogspot.com/2017/09/faults-in-south-carolina-decision-laid_3.html">earlier posts</a>, on the faults and discrepancies in the various individual opinions, I will not repeat that analysis here. Suffice it simply to point out one of the grossest exaggerations of all made by ECUSA and its attorneys, namely that Chief Justice Beatty's opinion showed that he agreed with Justices Pleicones and Hearn that the trial court's findings as to the ineffectiveness of the Dennis Canon to create any trust could be ignored. As I explained earlier: <br />
<blockquote class="tr_bq">
From what the separate Justices state in their opinions, it has to be
concluded that only two of them (Pleicones and Hearn) were in favor of
disregarding the findings of the trial court, and of starting anew from
scratch. The other three apparently believed that the trial court's
findings of fact were binding upon them, subject only to a substantial
evidence requirement in support.<br />
<br />
<i>. . .</i>
In other words, there were <b>three</b> votes out of five (a majority)
to regard the trial court's findings of fact as binding upon the Supreme
Court, rather than subject to <i>de novo</i> review. This analysis alone should give pause to those who triumphed in announcing that they had prevailed by a 3-2 vote.<br />
<br />
In his separate opinion concurring partly in those of Justices Hearn and
Pleicones, Chief Justice Beatty voted in favor of reversing<i> </i>the trial court's <b>legal</b> conclusion (following the rule handed down in the <i>Waccamaw</i> case
-- see the previous post) that the Dennis Canon could not create an
effective trust in South Carolina. Instead, C.J. Beatty concluded that
the Canon, in combination with the individual parishes' supposed
"accessions" through their corporate articles and bylaws, operated to
create a binding and irrevocable trust on their properties in favor of
the national Church and its diocese, as a matter of law.<br />
<br />
This conclusion, as just noted, was one of law, not of fact. So the
adjudicatory effect of Chief Justice Beatty's opinion depends upon his
application of the law to the trial court's factual findings (which were
binding upon the three members of the appellate court who rejected the
"equity" standard of review). The problem that underlies Chief Justice
Beatty's legal conclusion is that it rests upon certain <i>assumptions of fact</i> that were <i>contrary</i> to those found by the trial court (<i>e.g.,</i> that
the various "accessions" signed by the individual parishes were
informed enough to operate as a consent to the creation of a trust that
was legally recognizable ["cognizable"] under South Carolina law).<br />
<br />
A good part of the petition for rehearing (pp. 18-22, and 24-31) is
devoted to a detailed showing that there was never any express consent
by the various parishes, under the specific wording of their so-called
"accessions" to the national Church's canons (including its Dennis Canon
after 1979), that would be sufficient under South Carolina trust law to
create any kind of trust in favor of ECUSA and its local diocese in
those parish properties.<br />
<br />
Justice Beatty does not address these discrepancies -- he was unaware of
them, since the documents were not made part of the record on appeal
(because ECUSA <i>never raised any appellate issue involving them</i>).
Justice Beatty apparently relied for his conclusion on the unsupported
assertions of ECUSA's attorneys, made in a post-trial motion for
reconsideration, that all the subject parishes had "acceded" to the
Dennis Canon. He simply delivers an omnibus ruling that the standards
for trust creation were met in the case of parishes who "acceded" to the
national canons (<i>i.e., </i>according to the representations of ECUSA's attorneys -- which were <i>not</i> evidence in the case). </blockquote>
Thus there is good reason to fear, once Judge Dickson cuts through the thickets of argument and reads what the Justices' individual opinions actually said and decided, that the trial court on remand will need to finish the job that the Supreme Court avoided: evaluate <i>the actual evidence</i> as to just which of the 29 parishes <i>actually acceded to be bound by the terms of the Dennis Canon.</i><br />
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And that observation, I submit, goes a long way towards explaining just why ECUSA, its diocese and their attorneys all thought it time to prod the hibernating bear in its cave: better to face a sleepy bear than a judge who is actually taking the trouble to inform himself as to what happened. Stay tuned for more.<i> </i> <br />
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<br />A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com5tag:blogger.com,1999:blog-759178030677978044.post-21088179137172512402019-09-20T16:04:00.002-07:002019-09-21T09:30:18.910-07:00Fallout from the South Carolina Travesty ContinuesThis blog has almost (but not quite) ceased its coverage of things that are wrong with the Episcopal Church (USA), or ECUSA, as I choose to dub it. The subject has become too desultory; the conduct of ECUSA and its leadership in wreaking havoc upon good and faithful Christians is beneath contempt, let alone notice. Out of respect and friendship for my many long-standing friends in South Carolina and Texas, however, I will continue to offer commentary on the events in those States as they continue to unfold.<br />
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Yesterday, in South Carolina, the federal district court there published its <a href="https://www.dioceseofsc.org/wp-content/uploads/2019/09/tec_fed_trademark_seal_name_19_9_19.pdf">73-page decision and ruling</a> on the various trademark cases that were before it. The court essentially invalidated the rights of Bishop Lawrence and his Diocese to their traditional names and marks, which they had enjoyed for the previous two and a half centuries. District Judge Gergel found that he was constrained to make this ruling because of a single isolated <i>obiter dictum</i> in a single (one out of five) opinion by the <a href="https://accurmudgeon.blogspot.com/2017/09/faults-in-south-carolina-decision-laid_3.html">hopelessly fractured justices of the South Carolina Supreme Court</a> in the earlier state-law case.<br />
<br />
As documented extensively on this site, there was no single controlling opinion in that case. Two justices wanted to overrule the holding in <a href="http://accurmudgeon.blogspot.com/2009/09/dennis-canon-loses-in-south-carolina.html"><i>All Saints Parish of Waccamaw</i></a> that <a href="https://accurmudgeon.blogspot.com/2008/08/dennis-canon.html">ECUSA's Dennis Canon</a> was not self-effecting in South Carolina (<i>i.e., </i>the Dennis Canon by itself could not impose a trust on the property of ECUSA parishes without their written consent). But two votes out of five do not a majority make, so the holding in <i>All Saints Waccamaw</i> still stands.<br />
<br />
A third justice (Chief Justice Beatty) held that the Dennis Canon could create a trust on parish property if the parish itself had consented to be bound by that canon in writing. Having no idea of just how many South Carolina parishes had done so (because the evidence of individual parish consents -- such as may have existed -- was not in the record before the Supreme Court), the justices simply <i>lifted a number out of ECUSA's brief to that court, </i>and duly assumed that 29 parishes had "acceded" in writing to the Dennis Canon, and so were bound by the trust it imposed. (See <a href="http://www.sccourts.org/opinions/HTMLFiles/SC/27731.pdf">the decision, at n. 38</a>.)<br />
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That made the third and deciding vote for the overturning of the holding of the trial court in Dorchester County to the contrary. But whereas the trial court <i>had</i> looked at all of the so-called accession documents, and had declared them ineffective to constitute any form of consent to be bound by the Dennis Canon, that evidence had not been included in the record on appeal, <i>because neither side was challenging the trial court's finding in that regard. </i>The bare and unsupported assertion in ECUSA's brief was simply argument -- <i>not</i> evidence -- to the contrary. Yet the Chief Justice's unquestioning adoption of ECUSA's unsupported number somehow became the law of the case: twenty-nine parishes had supposedly "acceded" in writing to the Canon, while another seven had not: therefore, the latter seven could hold on to their property, while the others could not.<br />
<br />
Along his destructive way, Chief Justice Beatty tossed out another firebomb with his aside that "[i]n my view, the disassociated diocese [of Bishop Lawrence] can make no claim to being the successor to the Protestant Episcopal Church in the Diocese of South Carolina" (op., <a href="http://www.sccourts.org/opinions/HTMLFiles/SC/27731.pdf">421 S.C. 229, at 251 n. 29</a>). He offered no legal reasoning to support his opinion. He did not concur with the views of Justices Hearn and Pleicones that the state court was bound by ECUSA's recognition of its replacement diocese and could not examine that issue under neutral principles of law. (Moreover, once Justice Hearn recused herself from the case after the fact, her views on the merits of the case deserved no deference whatsoever. So in actuality, Justice Gergel could have found there were only <i>two </i>justices out of four who ruled on who succeeded whom, and thus there was no clear majority on the state law issue of successorship.)<br />
<br />
<br />
Justice Gergel, however, declined to consider any effect of Justice Hearn's belated recusal on the weight to be given to her opinion on the case. It was enough for him to deem that the "votes" of three justices had tied his hands on that question, so that he could not consider it afresh. In so concluding, Judge Gergel fell into the trap of confusing the secular succession of legal entities under the civil law with the <i>ecclesiastical</i> succession of religious entities in a denomination.<br />
<br />
No one disputes, or could dispute, that the newly organized Episcopal Church in South Carolina (ECSC), which was organized for the first time <a href="https://accurmudgeon.blogspot.com/2013/01/with-malice-toward-none-and-charity-for.html">at a meeting of its delegates in January 2013</a> and immediately recognized as a diocese by ECUSA without going through any of the formalities required by Article V of ECUSA's Constitution, was regarded by ECUSA as a successor to the Diocese of Bishop Lawrence which had earlier voted to dissociate from General Convention. The vacancy left by that withdrawal obviously required a successor, and so ECSC was it.<br />
<br />
But viewed in secular legal terms, the Diocese of Bishop Lawrence had its own continuity of existence. It was still (under South Carolina secular law) the same unincorporated association of clergy and parishes after it voted to withdraw that it was before that vote -- it had the same bishop, the same headquarters, telephone number and address, the same employees and records: <i>nothing</i> had changed except for its affiliation with ECUSA.<br />
<br />
And most notably, it still owned and possessed the same name, brands and marks as it had before its withdrawal. Those were not given to it by ECUSA, but invented and trademarked by that Diocese on its own, as its own property. Yet thanks to the aside by Justice Beatty in a footnote, the <i>civil law </i>question of legal successorship becomes subsumed under an ecclesiastical question which no one would dispute.<br />
<br />
Or, stated another way: from an ecclesiastical law point of view, no one would take issue with Chief Justice Beatty's assertion. The last thing Bishop Lawrence's diocese wanted was to be seen as continuing as a member diocese of the apostate ECUSA. But from a <i>civil law</i> point of view, Justice Beatty's claim is simply wrong on its face. An entity whose existence is recognized under South Carolina secular law does not cease to exist, or become some new entity altogether, simply because it changes its religious affiliation.<br />
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To readers of this blog, I apologize for seeming to harp on the same point again and again. The civil Courts in San Joaquin, Pittsburgh, Fort Worth (the Court of Appeal, not the Texas Supreme Court) and now South Carolina have one by one each succumbed to this confounding of ecclesiastical and secular law -- led there in each case by the misleading and deliberately confusing arguments of ECUSA's legal teams. The reason I am not blogging so much anymore on these subjects is that it is too dispiriting to see judges make the same mistake again and again and again, to ECUSA's benefit.<br />
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<br />A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com4tag:blogger.com,1999:blog-759178030677978044.post-63087592117819518312019-03-24T08:20:00.001-07:002019-03-24T17:52:16.170-07:00Much Ado over Nothing [UPDATED]The whole of the District of Columbia, to say nothing of the rest of the country, is on pins and needles as we wait to find out just what is in the final report that Special Prosecutor Robert Mueller has turned in to Attorney General William Barr. The latter is supposed to produce <a href="https://apnews.com/f4f1ea3c16884b49ae853e12e78e42ad">a summary of it for public consumption</a> by the end of today. (<i>See</i> "UPDATE" below.)<br />
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As I write this post, no news source has yet claimed to be in possession of a copy of the report, or even of its conclusions. All we know at this point may be <a href="https://news.yahoo.com/read-william-barr-apos-letter-220354944.html">summed up in two statements</a>:</div>
<blockquote class="tr_bq">
(1) There will be no more indictments coming from the Special Prosecutor. His investigation is <i>finished.</i> </blockquote>
<blockquote class="tr_bq">
(2) At no point in the process did the Special Prosecutor make any recommendation, or take any prosecutorial action, which the Attorney General had to block, or reject. The Special Prosecutor's investigation had no limits whatsoever (in terms of budget or otherwise) placed upon it, and the Department of Justice did nothing to hinder or interfere with it at any step along the way. </blockquote>
Let me summarize from those two statements: <b>Robert Mueller did not even try to indict President Trump, let alone subpoena him for questioning. Despite <a href="https://www.nbcnews.com/politics/donald-trump/meet-mueller-s-team-best-prosecutors-business-or-angry-democrats-n976226">two years of unhampered investigation, costing tens of millions of dollars</a>, Mr. Mueller found <i>nothing</i> on which to base any actionable charges against the President based on conduct during the 2016 election.</b><br />
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<i style="font-weight: bold;">After two full years of insinuation, innuendo and inanity, </i>in other words, neither the Special Prosecutor nor anyone else in Congress has produced or elicited the slightest evidence that President Trump's 2016 campaign conspired with any other persons, whether inside or outside the Soviet Union, to bring about the defeat of the Democratic Party's candidate in that election.</div>
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All contentions to the contrary, over the past two years, have been wishful thinking, baldfaced lies, or pure hogwash. It would be well to keep in mind those who repeatedly assured us that the evidence of duplicity was there, or would shortly be confirmed.</div>
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What is astonishing is how many partisan politicians are staking out their positions even before they know what is in Mr. Mueller's report. Because of those two irrefutable points I set out above, there are no grounds whatsoever upon which to expect that further investigation will lead to facts that could be used to impeach the President. Yet the partisans in Washington are insisting that no stone be left unturned -- that nothing in the report be withheld from them, even if <a href="https://www.theatlantic.com/ideas/archive/2019/03/ken-starr-muellers-report-shouldnt-go-congress/585577/">to do so would violate the law</a> (such as revealing testimony before the grand jury, which by law remains sealed).</div>
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Already the House committee chairmen are taking the tack that Mueller's investigation was "too limited" in scope, and that only a broad fishing expedition, backed by Congressional subpoena power, will finally reveal the hidden truths about the President's impeachable "high crimes and misdemeanors." In other words, they will never be satisfied with simply finding out what is in the Special Prosecutor's report.</div>
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Can the nation as a whole tolerate two more years of grandstanding, posturing, distortion, and yes, flat-out lying? And <i>that</i> spectacle on top of an election campaign with more than twenty contenders, each one grasping at ways to capture the public's attention?</div>
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Batten down the hatches. As the old salt said, "You ain't seen <i>nuttin' </i>yet."<br />
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<br />
<b>[UPDATE 03/24/19, 4:15 PM PST</b>: Attorney General Barr's four-page summary for Congress of the Mueller report <a href="https://www.axios.com/mueller-report-bill-barr-investigation-congress-d106072d-0120-4b6b-8cef-cbd6915a0f60.html">has now been made public</a>. It notes that the report itself consists of two parts: the first part addresses Russian interference with the 2016 presidential election; the second part deals with the factual issues bearing on whether the President attempted to obstruct justice in any way.<br />
<br />
The summary states that with regard to the first part, "the Special Counsel's investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election." That should put a definitive end to speculation that Trump or anyone working for or with him "colluded" with the Russians -- but just watch how Democrats in the House will proceed to subpoena witnesses and documents as though that conclusion had never been expressed.<br />
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In contrast to the report's first part, which specifically exonerates President Trump and his campaign from any findings of conspiracy or coordination with the Russians ("collusion" is not a defined federal crime), the second part of the report neither establishes criminal acts by President Trump amounting to obstruction of justice, nor exonerates him from such charges. Instead, the Special Prosecutor noted the unique circumstances and problems in determining whether a sitting president could be found to have attempted to obstruct justice in the process of carrying our his duties to supervise the executive branch of government. His report thus catalogs all the conduct and evidence which the Special Counsel regarded as potentially relevant to the charge, and expressly leaves it to the Attorney General to make a "prosecutorial judgment" on the matter in light of DoJ policies and guidelines.<br />
<br />
The Attorney General's letter to Congress spells out how he, in consultation with Deputy AG Rod Rosenstein, the Office of Legal Counsel and other departmental officials, and "after applying the principles of federal prosecution that guide our charging decisions . . . concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense." In other words, there will be no attempt to bring charges against President Trump for obstruction of justice.<br />
<br />
This conclusion, while exonerating President Trump from the DoJ's point of view, unfortunately will not be the end of this business. Watch for the Democrats in the House to demand that Attorney General Barr release to them all of the evidence and contents of the report so that they may use what Mr. Mueller gathered in their plans to draft a bill of impeachment against President Trump; and watch especially if House Speaker Pelosi backs off from her current stance against impeachment.<b>]</b> </div>
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A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.com7