Hello comrades.
I'm a former USonian and I've been politically active most of my life. I thought that it might be fun to share some of the weird legal technicalities that I've learned over the years.
These may be useful, these may not be useful. The USonian legal system is very much a secular version of ancient clergies with its fancy language, recitations, robes, and holy texts for judging moral matters. But maybe some of you will find these quirks interesting!
1. Patents are not property
A mild one to start out. Patents are something called a government franchise. Altho they are traded as tho they were property, they have a quirk. The federal government of the US is the one issuing the franchise, and it can thus revoke it at any time without compensation. The government can actually revoke any property at any time (especially land) but it has to give compensation. But if the federal government wanted to make certain technical innovations (refridgerants with low warming potential, vaccines, medicines, etc.) it could do it literally at zero cost.
2. The Constitution does not want a permanent army.
Sometimes this is called a "standing" army. This one is also very fun for any technicality lovers. Article I of the US Constitution is about Congress and Section 8 of Article I is about its powers. Article I, Section 8, Clause 12 says Congress has the power:
"To raise and support armies".
Compare this to Clause 13 which says it has the power:
"To provide and maintain a navy".
Raise and support vs provide and maintain.
So what? Maybe they just worded it differently. Well I'm being a bit of a trickster because the full text of Clause 12 says "To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years".
The Constitution did not want a permanent army. This is why, to this day, that military spending is done in the Discretionary Budget each year. It's not technically automatic, technically all the soldiers have to re-enlist, and so the army is in line with the Constitution. (See what I mean about the legal system being a secular clergy lol).
3. National Guards are not state militias.
The original meaning of the 2nd Ammendment is even weirder than the modern interpretation that private citizens are allowed to own guns. The original meaning is that private citizens can form their own paramilitaries. This is the right that is actually protected. Now that makes sense in a settler colony originally conceived as a confederation of separate rural settler colonies, but it remains there to this day.
This one is actually the most useful for us leftists because militias are not only legal, they are Constitutionally protected. Having independent militias of the proletariat being armed is protected in the US Constitution. This is a fact that basically no other leftist movement has had and could very easily be leveraged if any leftwing militia is legally challenged. The public legitimacy would be more easily justified and even non-leftist legal system members would defend it.
But that's not the only thing. Many people think that the National Guard are the State Militias that the 2nd Amendment talks about. They are in fact, not! Only 20 of the 50 states have these militias. They are often called "defense forces". Wikipedia has a list of them here if you want.
Another weird thing is that the President likely has the authority to call these state militias into service under their command. 10 U.S.C. 251, 252, and 253 state that pretty clearly.
So then, what the hell are the National Guard?
The National Guard use the other technicality of that Clause 12 from Article I Section 8. It does not say "army" it says "armies". Not only does Congress raise the regular army, it raises armies. The National Guard is raised under Congress's power to "raise and support" armies. Source 1 and Source 2.
The states are just given special control over what are essential local units of a federal army.
And lastly, perhaps most bizarre of all, here is more proof that the National Guard are actually not members of a militia but actual soldiers in the army. This is the case of Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982).
Here's the backstory: Attica is a state prison in the state of New York. A prisoner uprising occured in 1971 against inhuman treatment of prisoners. Around half the 2200 prisoners took part in the uprising. The prison eventually took back control of the prisoners but were forced to begin implementing changes. Racial integration of staff, more humane treatment, etc. But the prison guards' union refused. So they went on strike. The governor of New York (Nelson Rockefeller. Yes, that Rockefeller family) activated the National Guard to run the prison during the strike (and also to scab but it was against racist cops so fuck both of 'em).
And this is where the court case happened. The 3rd Amendment prevents housing soldiers in homes during a time of peace. The prison guards took the state to court and won. The National Guard members were soldiers and members of the army and were housed in lodgings the prison had where some prison staff lived. This was deemed to be a home that the soldiers had been illegally quartered in a time of peace.
4. The reason party delegates don't have to vote in line with their citizens is the 1st Amendment.
I'm sure many of your know that voting for President in the US is not done directly. You vote for a candidate but that is merely an opinion poll. Each state is given a number of "electors" who are unelected people and usually party insiders. These electors are the ones who actually vote for the President and they do so "in their respective state capital on the first Tuesday after the second Wednesday of December".
Then the results of these meetings are brought to Congress on January 6th and tallied up and the new president is officially confirmed.
But the political parties themselves also have a similar system. This is what the national conventions are. And each state is given electors but they are often called "delegates". These delegates do not have to vote for who the state voted for and the reason is the 1st Amendment on freedom of speech and association.
So even tho states could pass laws requiring electors to vote in line with the state's population (or with the national vote), there is nothing they can do to prevent the delegates from voting however they want.
The End
I hope you all found those interesting! I might do another one of these if people found it fun. Feel free to share any other strange quirks you know of.
Excellent and informative post! I'm a technicality lover myself!
Can you explain how elections work in the country? Who are these delegates? How did they reach that position?
Sure! It's a bit long but I hope I can answer all your questions.
There are 2 levels of elections in the US: local and state.
The states handle elections to federal offices like Congress and the President.
There are two elections for each office: the primary elections and the election. The primary election is done usually in March and determines which candidates will be on the ballot for the offices up for election in November. This is basically the same across all states.
The primary elections are elections that technically happen only for the parties. To register as a member of a political party in the US you simply state that you want to when you register to vote. There is not special requirement.
Voting in the primaries is similar for basically every office at the local, state, and federal level. The only one where it is different is for President.
When you go to vote in the primaries you go to your local polling booth and they give you a ballot specific to the party that you are registered with. Some states let you pick which party's ballot you want to vote with but not all. These states have "open primaries".
Some offices like local judges are often not allowed to have party affiliation listed in many states. For these offices sometimes the candidates running are listed on both the Republican and Democrat ballots for the primary. So you sometimes get a situation where the same candidate wins the primary for the Republican Party and the Democratic Party so their name appears twice on the general election (but without any party listed next to them).
Normally though you go in to vote in the primaries and there are between 1 and 5 candidates (usually around 1 or 2) for each of the offices. Many parties only have one person running for an office and sometimes they don't have anyone running at all. The winners of the primaries are the ones listed on the ballot for the actual election in November.
But how do you get listed on the ballot in the primaries?
The requirements are different in each state but they all work the same way. You go to the government offices of whatever county you live in (that's the level between local and state) and they give you a petition form. You need to get enough signatures from people within your voting district of people registered in your party to get on the ballot. Once you get enough signatures, you go to the office again and they put you on the ballot.
Some states have a requirement that for a party to have their candidate on the ballot in the regular election in November, they need to have enough people registered for that party.
When the election in November happens, the winners of each of the parties that had primary elections and who qualified to be on the ballot each appear with the party next to their name. The ballot is usually very long with some local, state, county, and federal offices all being elected at the same time. Oftentimes there will be only 1 option for an office as only 1 party nominated any candidates. Also for local offices or county offices there are sometimes no candidates listed. Almost every state lets you "write in" a candidate. You write the name of a person on a blank spot and fill in the little circle next to their name to vote for them.
Now the complicated bit: the president.
The political parties pick people who work or volunteer for them and have done a lot of work for them to be delegates.
They pick a number of delegates for each state but there is no reason for them to ensure a proportional number. They can pick whoever they want and however many people they want.
Sometime during the summer, each of the parties holds a "national convention" where all the delegates get together and actually vote to nominate someone for president from their party. Before this, the delegates declare publicly who they would vote for if they were picked to go to the convention. So when the primary elections happen for president, the voters actually are picking a delegate, not the president. The way ballots looked in my state had the name of the delegate and then who they said they would vote for if they went to the convention. The delegate who gets the most votes goes to the convention.
So the convention happens and the delegates all cast their votes. But remember that they don't have to vote for who they said they would. They are free to vote however they want. The parties also have something called "super delegates". These are people who the party says have the same voting power as a delegate and so can vote however they want and are never elected. For the Democrats these are usually party donors, current state governors, the Clintons, etc.
In the actual election for president in November, the party nominees are listed on the ballot. But for president it is not an election but an opinion poll. Each state is given a set number of electors by the Constitution and the actual people are chosen by each state legislatue in different ways. Usually they are career politicians but their names are basically never known.
After the election in November, the votes from the people are totalled. Then in December the electors of each state meet in their state's capital for a fancy dinner and they decide how they are going to vote. It is customary for all of the electors to cast their vote for whoever came in first in their state. But they do not have to. They each can vote for whoever they want (altho some states impose a fine of like $500 for doing this). The results of how the electors voted are then written down, certified, and send to Congress.
On January 6th, Congress meets and opens the results from each of the states and counts the votes of the electors. Back in the 1800s before the telegraph this would actually be when people found out who the president was, but nowadays we know on election night in November because each political party has someone at each polling place asking the volunteers counting the votes what the results are. They then text the next person higher up and then they text and then the results are known almost immediately.