Ours is not a limited government founded upon popular sovereignty. It is something unmoored from any sensible reading of the Constitution. Congress, the legislative branch, is a pointless political soap opera, no longer deliberative and relevant for the most part. The real stuff of governance happens in an alliance between government workers in the executive branch and the courts. The same pattern is repeated in the states. The least democratic parts have the greatest effective power.
No better example of this disfigured mode of governance can be found than the actions of the Pennsylvania Supreme Court on September 17 to nullify sections of the state’s election law signed by Democratic governor Tom Wolfe last year. The law stipulated that mail-in ballots had to be received by 8 p.m. on election day. The Court supplanted the plain language in the law with its own judgment of 3 days after the election. Why 3 days? Good question. I’m sure that there’s some rationale but I don’t think that it’s far removed from arbitrary.
On what did the narrow majority of four black-robed potentates hang their hat for their edict? Well, it’s the same tack as finding the right to abortion in emanations and penumbras (Griswold v. Conn. /Roe v. Wade). Find some language in the Constitution (state or federal) clearly meant for something else and stretch it to apply as needed. That way, they can legislate but hide it under “interpretation”.
These legal eagles invented an entirely new elastic clause in the state constitution. The relevant passage in the state constitution, now stretched to satisfy judicial whims, reads, “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Of course, if a deadline can be annulled by such reasoning, so can any standard to ensure a credible election. Shower the state with ballots – which was done – and let them come in by wind and clutches at times made fungible by judicial flights of fancy – which was also done.
The federal Constitution lays the power to establish the “manner” of elections with the state legislatures. If, as part of their “manner”, Pennsylvania’s powers-that-be are willing to tolerate the transfer of the legislative power to judges, we’re stuck with it.
What a sorry state of affairs. Legislatures legislate, courts legislate over them, and everyone who likes the result yawns “ho-hum”. No constitutional provision can prevent the reality of sorry governments producing sorry elections. What do you expect from a corrupt oligarchy?
RogerG