When the results of Tuesday’s election for President became known, after getting over my shock, I immediately began to think of ways the new President would ride roughshod over the Constitution. I felt at some point patriotic Americans would have to rise to the occasion and demand adherence to the Rule of Law. I am in a new state of shock that it is the anti-Trump camp that I have to worry about first.
I hear there were protestors marching all week, which apparently continues tonight as I write this. “Not My President” it says on their placards. Well he soon will be, if you read Article II and the Twelfth Amendment. Or is it OK to ignore the constitution when you are disappointed with an election?
Some are calling on the Electors to independently change the outcome of the election. This is not that easy although the constitutional dimensions of this proposed action have never fully been litigated.
Article II required each state to develop a procedure for appointing Electors. Those statutes likely carry the weight of law, and likely this call for independent conduct violates those state laws. Some Electors have voted not in accordance with the lists of votes their state provide them. Never has this changed the outcome of an election.
Some say the popular vote should control, and the Electoral College is an antique. The framers of the Constitution clearly rejected the popular vote 
approach not because of time to assemble the votes, but because of the compromise found in Article I. There it is arranged for Congress to be bicameral, where the Senate is comprised of the same number of seats for each state regardless of size. Electors are numerated to each state on the same basis. States with populations which are smaller than say, New York, would have no reason to remain in the Union if the President was elected on a straight population basis, smaller states have a real say in who is President.
Keying the Electoral College to the same representation in Congress is foundational to the country. This is the deal that was made. Now we get to repudiate this compromise because the President-Elect is coarse and oily and we worry about his future conduct?
Next I hear California has a movement for succession from the Union. This has been tried before, not so coincidentally under similar circumstances. Abraham Lincoln was elected President on an abolition of slavery platform notwithstanding zero Electors from the 10 soon to be Confederate States voting for him.
These states legislatures voted one by one to leave the Union, and a few weeks after Lincoln’s inauguration Fort Sumter was fired on, unleashing a war that cost somewhere between 600,000 to 750,000 American lives. All that carnage because they didn’t like who got elected President. Because they believed they were “right” and their countrymen plainly “wrong”. This election has been a lot like that.
On the field at Gettysburg Lincoln spoke of not allowing the dead to have died in vain, that we resolve to carry forward our constitutional government, representative in nature such that “government for the people, by the people, for the people shall not perish from the earth.” We have to believe he meant all the people, even those who voted for Donald Trump.
After Gettysburg the United States was not united. Resolving the constitutional question of unilateral succession from the Union as is proposed in California took nearly two more years of war. The American Civil War settled the question of the constitutionality of unilateral succession in the negative.
Let us pray this legal question is not litigated in battlefields again.
Lawyers Road Review 