Legislating the obvious

By | Friday, October 16, 2020 Leave a Comment

I recently heard someone point out that our nation was built upon the notion that some truths are self-evident. It is even enshrined in our Declaration of Independence. And yet, this isn’t true. The founding fathers had to write down their list of what they believed to be self-evident. If these ideas had really been self-evident, they would not have had to enumerate them. It is only because they weren’t self-evident that they were noteworthy.

Furthermore, over the centuries, we have collectively realized that even our august founding fathers got it wrong when they wrote down our "self-evident" rights. We now recognize that all people are created equal, not just the wealthy, white, male landowners that they had in mind. Also, these rights may or may not have been endowed by a creator. We can even disagree about whether life and liberty should be on the list, as we do incarcerate lawbreakers, and some of us believe that committing certain crimes should be punishable by death.

Over the last 240-ish years, we have continued to discover that things we thought were self-evident, weren’t, and we’ve had to create laws to make it clear. It turned out that some people thought it was OK to own, buy, and sell other people. It should be self-evident that doing so is abhorrent, but we needed to create the 13th amendment to bring the point home. Lo and behold, it wasn’t evident to everyone that women should be allowed to vote, so we needed an amendment to clarify that not-so-subtle point. Amazingly, we continue to need to remind our citizens that women are equal to men in all ways - though we haven’t managed to enact an amendment to give that truth the full weight of law.

Most of us assume all sorts of things outside of the governmental arena which turn out not to be self-evident. When you order a cup of hot coffee, it is hot. However, coffee cups now need a warning to remind the consumer. If you are going to ride your bicycle at night, you should have a light and/or reflectors, and the bike manufacturer shouldn’t need to tell you so. Yet, apparently, bicycle verndors must put reflectors on bikes if they are to be sold here. I once rented a U-Haul truck that had a notice on the inside of the driver's door that read, "Warning: door will not open when lock button is depressed." Really? I could go on all day listing truths that some people don’t hold as self-evident. I’m sure you can too.

Surprisingly, in just a few short years, the tRump administration and Republicans in Congress have managed to do a host of things which I thought was self-evident that politicians shouldn’t do. Apparently we need to create laws to stop both our elected officials, and candidates for office, from doing things that any moral, ethical person knows are simply wrong. It turns out that we need a law against nepotism. My mind boggles at the idea that we need a law that says that Presidents can’t just ignore the emoluments clause of the Constitution, yet there it is. Politicians shouldn’t knowingly lie without some justification (e.g. national security). If you can prove that a news outlet is presenting fake news, then sure, call them out on it, but tRump has shown us that we actually need a law requiring proof before making such an assertion. Go figure.

All of which is an exceedingly long preamble to what I actually wanted to write about. Readers of this blog will know that I am a Democrat and despise dOnald tRump and mItch mCconnel to the point where I am not willing to give their names proper capitalization. But, on this one occasion, I find myself in the extraordinary position that I agree with them. Yikes!

I believe that tRump should be allowed to nominate a replacement for Ruth Bader Ginsberg on the Supreme Court, and the Senate should consider the nominee and vote to approve or reject based on merits. Of course, I also believe that mCconnel and Senate Republicans should absolutely, positively, have not blocked President Obama’s nomination of Merrick Garland in 2016. To my great disbelief, I've discovered that we need a constitutional amendment clarifying elected officials’ terms in office.

I am convinced that a President’s term begins the very moment they take the oath of office, and ends the moment their successor is sworn in. A President’s (natural) term is exactly 1,461 days (4 * 365.25). No more and no less. During that time, the President should, and must, do everything that they are empowered and required to do, and must not do anything the presidency prohibits. Further, no one, not the Congress nor the Judiciary, should be allowed to block them from the rightful performance of their duties.

The President is empowered to nominate judges, so no one should be able to block them from doing so, nor refuse to consider their nominee, regardless of the proximity to any other event (e.g. an upcoming election.) The Senate might well reject a nominee, but they must hold appropriate hearings on the matter, and confirm or reject based on the nominee’s qualifications, not partisanship, and not when in the President's term the hearing is held. I am no fan of Amy Coney Barrett, but her nomination was appropriate, and she should be approved if found worthy of a position on the bench.

If the Chief Justice of the Supreme Court drops dead immediately after a new President utters the final syllable of the oath of office, then that President can name a replacement before the Justice’s body hits the floor. So, too, should the Chief Justice die while stepping up to the dais to swear in the new President, then the outgoing President has the right to nominate a replacement right there and then, in spite of it being just seconds before the end of their time in office.

The same is true of all elected officials. Their powers and duties begin the moment their term begins and end the moment their term ends. These powers and duties don’t end early just because someone thinks it’s too close to the next election, nor for any other reason.

I hold this truth to be self-evident, and I can't believe I need to point it out.

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