By Larry Schweikart
Rand Paul is noted among conservatives as one of the more Constitutionally-oriented voices in the Senate. He has consistently been a state’s rights advocate. Last night, in a letter and Twitter thread, Paul offered a spirited defense of his vote to accept the electors for Joe Biden sent by Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. The vote, and subsequent certification, of every one of these states, has been challenged (to say the least) as fraudulent at best, totally illegitimate at worst. Paul’s acceptance of what appears to be fraudulently-obtained electors from a Constitutional perspective appears to be worth analysis.
Paul states that “Voting to overturn state-certified elections would be the opposite of what States’ right Republicans have always advocated for.” Here, he is probably correct. It would involve Congress substituting its will for state legislatures, which are strongly empowered in the Constitution. “Our founders never intended that Congress have the power to overturn state-certified elections.” He then argued that his “oath to the Constitution doesn’t allow me to disobey the law.”
But what does the Constitution say about extenuating circumstances? Does it allow the nation to vote itself into slavery, or to commit national suicide by electing a Hitler or Chavez? For the most part, the phrase in the Declaration of Independence, that “whenever any form of government becomes destructive of these ends [life, liberty, and the pursuit of happiness], it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” However, almost immediately after establishing the Constitution, Alexander Hamilton wrote in Federalist No. 28 that rebellion endangered all government. Thus the right of rebellion was tossed out the door.
The 14th Amendment, however, offered a different, Constitutional, scenario: “But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state." Or, if there is a fraudulent election that denies to citizens the right to vote or abridges that right in any way, the state is penalized by a reduction in its representation. That would appear to mean that electors would not be accepted.
The larger question would be, “Is there a level of fraud that is so obvious and repulsive that it's a clear violation of the 14th Amendment and would override the will of the states?" If so, what is that line? How much fraud constitutes “enough” for Congress to overturn an election by the states?
We have an answer, and it contradicts Senator Paul. In 1877, three Southern states (Florida, Louisiana, and South Carolina) produced results for Samuel Tilden, the Democrat that was obtained by fraud and threats of violence against Republican (mostly black) voters. It was noted that In South Carolina, 101% of all eligible voters had voted. (Shades of several Michigan, Pennsylvania, and Wisconsin counties). Congress acted because it had “dueling electors,” that is, electoral slates for the Democrats signed by the state attorney general (Florida), the Democratic gubernatorial candidate (Louisiana) or none at all (South Carolina). Congress solved this crisis by passing a law (note: after the fact), forming an “electoral commission” to settle the issue. The key fact—which might be of interest to Senator Paul—is that what triggered the need for this commission was fraud at the state level. It was very clear, therefore, that all elections were not equal, that they must be free and fair so as to not violate the 14th Amendment.
There is no doubt from any historians that the Founders regarded violations of political and civil rights as a form of slavery, that is, the lack of sovereignty. This argument goes to a far deeper and, to be honest, more cloudy larger debate: do the citizens of a democracy in their personal sovereignty, or in a republic collectively, have the right to sell themselves into slavery? (Slavery is prohibited in the 13th and 14th Amendments). More broadly, do those citizens have the right to commit national suicide by electing a Hitler or Hugo Chavez? In both cases, one of the first acts of these despots was to prohibit or abolish congress or the judiciary (or curtail their powers to make them “un-democratic”). Is this legitimate, Senator Paul?
Interestingly, no states any longer list suicide as a crime (What are they gonna do, give you the death penalty?); nevertheless, every state had laws making it a felony to aid, advise, or encourage another to suicide. Why? If killing yourself is acceptable, why is it unacceptable for another to urge you to kill yourself? As late as 2018, a Maryland man was convicted of attempted suicide. California medical facilities are required to commit anyone who, in their estimation, is suicidal. Why?
Because despite all the convolutions of abortion law, life is still more or less held to be sacred, and one cannot take one’s own life because it does not belong to you. This same reasoning is applied to a nation. Because of the act's finality, a nation may not vote itself into slavery or commit suicide because doing so would violate the fundamental rights of all, including those who did not vote for it. What does this mean for electors and fraudulent elections? It has to mean the same thing: that the fundamental political and civil rights of all are violated by permitting fraudulent votes. So, Senator Paul, can you please explain how you are permitted to violate the 14th Amendment and invalidate the votes of 74 million people because properly labeling the certified elections of fraud as legitimate in five or six states supports “state’s rights?” I await your next defense of the indefensible.
Larry Schweikart is the co-author with Michael Allen of the New York Times #1 bestseller, A Patriot’s History of the United States, author of Reagan: The American President, and founder of the Wild World of History, a history website with full curricula for grades 9-12 for U.S. and World History courses including teacher guides, student workbooks, tests/answer keys, maps/graphs/images, and video lessons to accompany all units (www.wildworldofhistory.com)