After completing the article below on Friday, I heard the news that the Supreme Court denied Texas’s lawsuit against four states alleging a violation of Texas voters’ constitutional rights in the November election. Against the denial of standing, Justice Samuel Alio, together with Justice Clarence Thomas, argued the court had no discretion to refuse such an original jurisdiction case between two or more states, but did not comment on the case’s merits.
Chapman University law professor John C. Eastman on Wednesday moved to intervene on behalf of President Trump in the Texas suit against Pennsylvania, Georgia, Michigan, and Wisconsin. Immediately, Eastman was assailed as the man who raised the “racist birther” charge against Kamala Harris.
Having known Eastman for decades, I can attest that he is among America’s great intellectual and moral anti-racist scholars and attorneys. I have raised different issues about Harris than Eastman, but his questions about her eligibility had nothing to do with racism but instead raised fundamental questions about Article II’s eligibility requirements.
As an attorney and law professor, and in government service at the U.S. Commission on Civil Rights, Eastman has presented principled conservative arguments which are based on the Declaration of Independence and its interpretation by Abraham Lincoln.
In addition to his University of Chicago law degree, a clerkship with Clarence Thomas, and a doctorate in politics and government from Claremont Graduate University, he has had electoral forays, last contending in 2010 for the Republican nomination for attorney general in California. He came in second in that race, and Kamala Harris won her primary and narrowly became the attorney general in the November election.
As director of the Center for Constitutional Jurisprudence of the Claremont Institute, Eastman exhibited tireless energy speaking and writing, serving on boards of conservative groups and filing amicus briefs, often with former Reagan Administration Attorney General Edwin Meese.
An Eastman brief goes well beyond the ordinary competence of an amicus brief, and that is true of this brief filed on behalf of the president as well. His argument is short and, if followed, would be revolutionary, since his arguments question precedents. But this is an unprecedented situation.
Eastman summarizes the controversies involved in the four states in question, which have received much publicity—statistical anomalies in voting patterns, irregularities or even illegalities in distributing mail-in ballot applications and in securing and counting ballots, and numerous other instances of fraud and violations of election law.
In response, many legal scholars have condemned as unprofessional the attempt to have the Supreme Court nullify the prevailing results of the election in four states. They would even consider sanctions against the attorneys for filing such motions.
Eastman argues that the court should follow “The Electors Clause of Article II, Section 1, Clause 2, of the Constitution [which] makes clear that only the legislatures of the States are permitted to determine the rules for appointing presidential electors. The pertinent rules here are the state election statutes, specifically those relevant to the presidential election . . .. Non-legislative actors lack authority to amend or nullify election statutes [emphasis added].” Without affirmation of the state legislatures, the four states’ electoral votes should not be counted.
The court “should further direct the defendant States to review their election results in compliance with pre-existing state law and count only lawfully cast ballots and thereby determine who truly won the contest for President of the United States.”
“Only then,” argues Eastman, “will the public’s faith in the election process be restored . . ..”
My own view is that we laymen citizens should rest our arguments on The Federalist, numbers 43 and 44, which echo the language of the Declaration of Independence. As our current condition is often compared to that of the Civil War, James Madison in speaking as Publius about the newly proposed American union, seems particularly worth considering. The new nation is both a social contract among individuals and a union of states. That blended founding principle is one reason for the confusion we see in the dispute over the briefs. Can America remain a union of states but under a social contract if distrust of motives persists?
Publius answers in Federalist 43:
The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed. Perhaps, also, an answer may be found without searching beyond the principles of the compact itself….
Or perhaps not. As for what happens if some states fail to join the Union:
The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an over-curious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncanceled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other.
Might such states, Publius suggests, live on in a kind of state of nature, where violence and force might be the law, despite our best oral intentions? (See Federalist 1.) Our problem today, however, is not only the lack of a common legal language, but the want as well of a common moral language. Can the voices of those who have attacked the Constitution as the product of slaveholders, sexists, and oligarchs merit any authority in these disputes about the meaning of these documents from 1776 and 1787? How then do we avoid a state of nature?
Federalist 44 puts the issue even more starkly, in its portrayal of fundamental principles that underlie the Constitution. If anything violates the rule of law, it is a bill of attainder, which is disguised legislation aimed at a particular person.
Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters . . .. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding . . ..
Has not the political history of the last four years been little more than one gigantic Bill of Attainder against the person of Donald Trump? Consider concocted tales of Russian collusion, bureaucratic subversions, and impeachment. The last four years are a revolt against constitutional government. The very meaning of the rule of law has been deconstructed and transformed into what is most opposed to the rule of law.
These fundamentals are what are really at stake here in the Texas lawsuit. Denying this meaning of the rule of law and its dependence on fundamental, natural rights would turn federalism and the meaning of the Supremacy Clause on their head:
In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.
This monster, the real Kraken if you will, is in our midst. That’s where our problem is.
*****
I close with a story from the 2004 Bush campaign in Ohio. The Bush campaign assigned me to serve on a lawyers’ team (even though I’m not one) to drive around and visit polling places to make sure the Republican poll watchers were doing their jobs properly. So my assigned partner and I drove around a rural county east of Columbus, which was festooned with Bush signs. We sometimes surprised the poll workers, older men and women who said they had never gotten a visit from election HQ before but assured us all was well. We phoned in our bland findings to our team leader, Neil, who insisted we ask tough questions and find out more about what was going on.
As we drove around, we heard Rush Limbaugh urge, with some panic in his voice, that everyone get out and vote. In Ohio it was supposed to be close, and it wasn’t looking good for Bush, from what we were hearing about early exit polls (whose inaccuracy soon became clear).
Later, as the voting hours drew to a close, HQ called us in to observe at an inner-city polling place. When we arrived, a huge line of voters, ballots in hand, all black, stood waiting to vote. The voting supervisor threw us interlopers (along with a nasty leftist) out of the polling place, leaving only the officially designated Democrat and Republican poll watchers. The Republican lady had been put through some vicious verbal harassment, but she toughened up and carried on.
My partner wanted to leave, but I argued for us to stay, making sure no busloads of voters came past the 9 p.m. closing time. After voting concluded we checked the posted paper tapes that showed the all-black precincts went overwhelmingly for John Kerry, but Bush appeared to have gotten in the low double digits (13-14 percent). A statewide constitutional amendment defining marriage as between a man and a woman won solidly there and statewide.
Back at Republican HQ, we met Neil and the other big shots, who exuded confidence. After a long day that reassurance felt good. The victory party downstairs seemed anticlimactic, even though the totals weren’t in, but this would not be 2000.
A couple years later I enjoyed the personal fruits of victory and became a colleague of Neil’s at the Bush Justice Department, who laughed when I recalled our brief time together. We both went on to better things. Perhaps he has other memories from those days back in 2004.
John Eastman will also move on to greater things.