The US Constitution

[mistermack]

I'm a Brit, I know very little about the US Constitution. But I'm wondering if it needs amending. 

What would have happened, if Donald Trump had gone all the way on the day of the Capitol Riot, declaring a stolen election, and issuing orders to the military, and security services, to suspend normal government and institute martial law? 

That's how a coup is normally achieved. How close is the USA to that actually happening at some point?

As the nation worships it's constitution, should there not be some amendment to cover such an event, to give clear guidance to the military and security services on how to respond to an illegal order from above? So that they have a clear duty to simply refuse the order, on constitutional grounds? Maybe it is already covered. But the way that the event was covered in a recent documentary, the situation looked quite shakey for a while during the riot, and there was real uncertainty what would have happened, if Trump had issued those kind of orders. 

[dimreepr]

17 minutes ago, mistermack said:

As the nation worships it's constitution, should there not be some amendment to cover such an event, to give clear guidance to the military and security services on how to respond to an illegal order from above?

They did, but the world evovled; that's why it needs amending...

[swansont]

I’m not sure what you would add. People who are flouting the rules aren’t going to be stopped by more rules, and the same for people who choose not to enforce them

[iNow]

1 hour ago, mistermack said:

what would have happened, if Trump had issued those kind of orders

He did. What saved us is that enough people refused to follow them. Sadly, the groundwork is being laid right now so it will be much easier next time. 

There are good ideas in the voting rights act being pushed through Congress right now which will directly help with the issues you cite, but it’s being steadfastly blocked by the GOP and will only pass if the filibuster is changed. 

[Endy0816]

He still wouldn't have been lawfully declared President.

If no President decided by 20th, would only result in VP Elect being placed in charge instead and Trump escorted out.

There's a reason why Military and Secret Service are sworn to defend the Constitution from all enemies foreign and domestic...

 

[dimreepr]

7 minutes ago, Endy0816 said:

He still wouldn't have been lawfully declared President.

If no President decided by 20th, would only result in VP Elect being placed in charge instead and Trump escorted out.

There's a reason why Military and Secret Service are sworn to defend the Constitution from all enemies foreign and domestic...

 

Indeed... they just need the occasional reminder of who the enemy is...

[Endy0816]

13 minutes ago, dimreepr said:

Indeed... they just need the occasional reminder of who the enemy is...

Top brass wouldn't want to be involved in domestic crap. Would also be the mass resentment of the suspension of Posse Comitatus.

Edited October 24, 2021 by Endy0816

[dimreepr]

2 minutes ago, Endy0816 said:

Top brass wouldn't want to be involved in domestic crap. Would also be the mass resentment of the suspension of Posse Comitatus.

If you need a posse, you're not part of the posse comitatus...

[J.C.MacSwell]

How does one write into the constitution how to recognize an actually stolen election from a false claim of one?

[mistermack]

I was thinking in terms of not just an expectation that an illegal order must be disobeyed, but a constitutional duty. 

I would make it apply all the way down the chain of command, so that any lower rank that received such an illegal order from a superior, would be obliged to disobey it. So that even if all of the generals went with a coup, their subordinates would have to disobey.  And so on and so on, all the way down to the rank of private.

So that nobody in the services would be in a quandary, "should I obey a clear order, or disobey because I don't think it's legal ? " 

It's that lack of clarity that often enables a coup to succeed. Soldiers are conditioned to obey and not question orders from their immediate superiors. So when the worst happens, they obey through fear, and confusion. And once the process starts, the herd instinct takes over, and it would be a scary prospect to go against it.

3 minutes ago, J.C.MacSwell said:

How does one write into the constitution how to recognize an actually stolen election from a false claim of one?

You would have to fight it out in the courts. Say Trump actually DID steal an election, he could be impeached legally, and in the meantime, any illegal orders issued by the White House would have to be disobeyed by the military etc. 

[dimreepr]

3 minutes ago, mistermack said:

I was thinking in terms of not just an expectation that an illegal order must be disobeyed, but a constitutional duty. 

I would make it apply all the way down the chain of command, so that any lower rank that received such an illegal order from a superior, would be obliged to disobey it. So that even if all of the generals went with a coup, their subordinates would have to disobey.  And so on and so on, all the way down to the rank of private.

So that nobody in the services would be in a quandary, "should I obey a clear order, or disobey because I don't think it's legal ? " 

It's that lack of clarity that often enables a coup to succeed. Soldiers are conditioned to obey and not question orders from their immediate superiors. So when the worst happens, they obey through fear, and confusion. And once the process starts, the herd instinct takes over, and it would be a scary prospect to go against it.

We all need a leader... the herd dictates... 

[Endy0816]

4 minutes ago, dimreepr said:

If you need a posse, you're not part of the posse comitatus...

Supposed to only be National Guard(State forces) doing enforcement within US. You'd see most of the country(on both sides) up in arms about the use of Federal Troops.

Everything is as setup about well as it can be to prevent a second Julius Caesar situation.

[dimreepr]

4 minutes ago, Endy0816 said:

Supposed to only be National Guard(State forces) doing enforcement within US. You'd see most of the country(on both sides) up in arms about the use of Federal Troops.

Everything is as setup about well as it can be to prevent a second Julius Caesar situation.

I'm always finding reason's to take the piss...

[mistermack]

8 minutes ago, Endy0816 said:

Everything is as setup about well as it can be to prevent a second Julius Caesar situation.

It wouldn't be the second though. Or the 102nd. It's been happening since the year dot. 

The Germans had a pretty stable democratic system before Hitler. If you asked them, before the Nazis took over, they would probably have said that "it could never happen here". 

[J.C.MacSwell]

25 minutes ago, mistermack said:

I was thinking in terms of not just an expectation that an illegal order must be disobeyed, but a constitutional duty. 

I would make it apply all the way down the chain of command, so that any lower rank that received such an illegal order from a superior, would be obliged to disobey it. So that even if all of the generals went with a coup, their subordinates would have to disobey.  And so on and so on, all the way down to the rank of private.

So that nobody in the services would be in a quandary, "should I obey a clear order, or disobey because I don't think it's legal ? " 

It's that lack of clarity that often enables a coup to succeed. Soldiers are conditioned to obey and not question orders from their immediate superiors. So when the worst happens, they obey through fear, and confusion. And once the process starts, the herd instinct takes over, and it would be a scary prospect to go against it.

You would have to fight it out in the courts. Say Trump actually DID steal an election, he could be impeached legally, and in the meantime, any illegal orders issued by the White House would have to be disobeyed by the military etc. 

Say Biden actually stole the election, or not but say someone else, say Trump, claimed it...how do all these individuals come to recognize what is a legal order from Biden and what is not while awaiting the workings and decisions of the courts?

Are you suggesting all who believe Trump should be duty bound to disobey what most accept to be lawful?

Edited October 24, 2021 by J.C.MacSwell

[iNow]

42 minutes ago, Endy0816 said:

Top brass wouldn't want to be involved in domestic crap

I reckon that depends quite a lot on which specific individuals each specific president happens to elevate into said “top brass,” or who is made the Attorney’s General, for example. 

 

4 minutes ago, J.C.MacSwell said:

Say Biden actually stole the election, or not but say someone else, say Trump, claimed it...how do all these individuals come to recognize what is a legal order from Biden and what is not while awaiting the workings and decisions of the courts?

It gets decided by the Chairman of the Joint Chiefs of Staff, the most senior military leader under the president. That individual must give the forces below them the order to either remove the previous president from the office by force, or the command to protect them from anyone claiming to be the new president and attempting to take power / execute the transition. 

See also my previous comment about how and why it matters who gets selected for these roles. 

[J.C.MacSwell]

14 minutes ago, iNow said:

I reckon that depends quite a lot on which specific individuals each specific president happens to elevate into said “top brass,” or who is made the Attorney’s General, for example. 

 

It gets decided by the Chairman of the Joint Chiefs of Staff, the most senior military leader under the president. That individual must give the forces below them the order to either remove the previous president from the office by force, or the command to protect them from anyone claiming to be the new president and attempting to take power / execute the transition. 

See also my previous comment about how and why it matters who gets selected for these roles. 

Right. Not perfect but a better check and balance than where everyone decides for themselves...most of the time.

Civil wars are possible enough without having them compelled by a constitution.

Edited October 24, 2021 by J.C.MacSwell

[Endy0816]

34 minutes ago, iNow said:

I reckon that depends quite a lot on which specific individuals each specific president happens to elevate into said “top brass,” or who is made the Attorney’s General, for example. 

 

It gets decided by the Chairman of the Joint Chiefs of Staff, the most senior military leader under the president. That individual must give the forces below them the order to either remove the previous president from the office by force, or the command to protect them from anyone claiming to be the new president and attempting to take power / execute the transition. 

See also my previous comment about how and why it matters who gets selected for these roles. 

Realistically their authority will go out the window if they too are acting illegally. Take out them, Trump, install whoever is still alive in the chain of succession and proceed from there.

 

38 minutes ago, mistermack said:

It wouldn't be the second though. Or the 102nd. It's been happening since the year dot. 

The Germans had a pretty stable democratic system before Hitler. If you asked them, before the Nazis took over, they would probably have said that "it could never happen here". 

Most US is also biased against anything even vaguely akin to King, Dictatorship, Military coup, etc.

Nothing is impossible, but you'd probably have better luck at being President for Life via the other routes. Amending the Constitution or arranging a Constitutional Convention.

Edited October 24, 2021 by Endy0816

[iNow]

7 minutes ago, Endy0816 said:

Realistically their authority will go out the window if they too are acting illegally. Take out them, Trump, install whoever is still alive in the chain of succession and proceed from there.

I’m having a hard time seeing how this gets operationalized IRL if it actually happens. Military is the enforcement arm. They are the muscle behind the decision. If they’re onboard with a flawed decision, then who muscles them out? It’s gonna take more than a few conscientious dissenters and militia clubs with AR-15s to remove a leader being protected by the US military, IMO. 

[swansont]

1 hour ago, Endy0816 said:

He still wouldn't have been lawfully declared President.

Which doesn’t matter if people ignore the law.

1 hour ago, Endy0816 said:

There's a reason why Military and Secret Service are sworn to defend the Constitution from all enemies foreign and domestic...

Congress, too. How’s that going?

[Endy0816]

2 minutes ago, iNow said:

I’m having a hard time seeing how this gets operationalized IRL if it actually happens. Military is the enforcement arm. They are the muscle behind the decision. If they’re onboard with a flawed decision, then who muscles them out? It’s gonna take more than a few conscientious dissenters and militia clubs with AR-15s to remove a leader being protected by the US military, IMO. 

Who is protecting him from the Military?

Don't get me wrong it could happen, but every step will meet resistance from multiple directions.

[TheVat]

1 hour ago, J.C.MacSwell said:

How does one write into the constitution how to recognize an actually stolen election from a false claim of one?

Article Two simply sets up the Electoral College system.   If there be "faithless electors, " that is covered by state law,  which in 47 states either binds the electors or nullifies the vote of faithless one.   Other sorts of filings against an election result can go to either state supreme courts or federal district courts, sometimes ending up in the US Supreme Court.   Supreme Court justices,  whatever their ideological leanings, are usually pretty serious jurists who believe in the rule of law,  so there would have to be some ironclad facts supporting any claims of election fraud.   Note that district courts tossed out something like 61 out of 62 filings of election fraud in 2020.  And the only case that wasn't, IIRC,  involved some fraudulent vote by a Republican that was never actually accepted by the county.   

The best amendment would be to scrap Article Two, section I,  and the related 12th amendment,  and go to a national popular vote.   Had that been done in 2020, the results would have been VERY unambiguous.   The margin was YUGE. 

[Peterkin]

3 hours ago, mistermack said:

What would have happened, if Donald Trump had gone all the way on the day of the Capitol Riot, declaring a stolen election, and issuing orders to the military, and security services, to suspend normal government and institute martial law? 

It would have been a coup. Only, the army was not ready to step in, short of an invasion by aliens or Aliens. Even though Trump had replaced some of the top brass with his own choices, the majority of army brass are still patriots. Even his appointees, there as elsewhere, were not necessarily loyal. That whole administration was so riddled with distrust and fear, as well as incompetence and corruption, that it was incapable of concerted decisive action.

However, a smarter, more aware, more disciplined leader could wreak all the havoc he wanted, by the same methods, better carried out. That's what the red states are preparing for now: sideline the wrong kind of voter, disable their legal and political organizations, keep arming the confederate volunteer militia and wait for the next Goldwater to lead them.  Maybe the Trump presidency was a weather balloon...

A constitution is only as strong as the people who respect its intent. If only the weak respect it, and pin their hopes on it, while the strong twist its meaning to their own ends and disregard the parts that don't serve them, it's not worth the crumbling parchment it's penned on.  In the end, the issue may very well come down to which way the armed forces - not just the top brass; all those officers and enlisted troops who swore their own individual oaths - decide. If they're split down the middle, you know what follows.

Edited October 24, 2021 by Peterkin
inevitable mistakes

[mistermack]

49 minutes ago, Peterkin said:

, the majority of army brass are still patriots.

Worryingly, the rioters were constantly referring to each other as patriots. That seemed to be their buzz word. 

I'm suggesting that something could be written into the constitution that would remove the confusion, under these circumstances. I'm in agreement really that the scenario is fairly unlikely in the USA. But I think a lot of people were surprised by how far that riot went, how much confusion there was over what to do, and how ill prepared the country was. It's just as well that it WAS just a fairly disorganised rabble, and not a carefully planned affair.

I would think that the same thing will be well covered in the future, with preventative measures, but there may be other weaknesses in the system. 

[iNow]

22 minutes ago, mistermack said:

It's just as well that it WAS just a fairly disorganised rabble, and not a carefully planned affair.

Don’t be so sure. This conclusion seems a bit premature.