As the farce of Four Seasons Total Landscaping evolved into the outrage of attempts to strong-arm state officials to change vote tallies and then the terror and tragedy of the assault on the Capitol, it is easy to lose track of the broader implications for our constitutional order. Beyond a deeply unserious President, the cravenness of those seeking to curry favor with his extremist followers, and his misfiring legal team lie some important lessons about our constitutional regime. In particular, these events raise serious questions about the role and effect of popular constitutionalism in our system.
Challenging
Formally Adequate Election Returns
Much of the public
interest litigation of the past half-century was built on the procedural
foundations of Ex
Parte Young. That 1908 decision
holds that suits to enjoin government officials’ actions do not offend
sovereign immunity because those officials are not truly representing the state
when they act unlawfully. Without Ex
Parte Young and similar doctrines, much of the litigation that carried forward
the Civil Rights Revolution would have been impossible.
The part of the challenge
to the election that has any coherence is based on a similar theory: that the states’ election results are legally
invalid and thus can be disregarded. Advocates
of progressive constitutional change should be cautious in criticizing election
opponents on purely formalist grounds when anti-formalist bars to litigation
have repeatedly proven crucial to preserving the rule of law and protecting
vulnerable people. Indeed, conservatives’
new doubts about formalism should be welcomed.
The challenges to the election’s validity should be addressed squarely on
their merits.
Leaving aside patently absurd theories – such as the one that Vice President Pence could simply gavel his way to a second term – these challenges have three alternative bases, one factual and the other two legal. All are problematic, but each bears important implications for popular constitutionalism.
Factual
Challenges to the Election’s Validity and Our Capacity to Deliberate
The factual
premise underlying the challenge to the election’s validity is that it was
afflicted with massive fraud. An initial
question is whether this should still matter:
at what point do we become “holders in due course” of the results of the
election, entitled to rely upon it? As I
teach my Property and Contracts students, the common law made a sharp distinction
between forgery and fraud. A forged deed
or contract is literally not worth the paper it is written on: no matter how much a third party relies on such
a deed, it has no legal effect. A deed
or contract actually signed by a party can, however, become binding when relied
upon in good faith by third parties even when that signature was obtained by
fraud. The question is which is the
better analogy to the election returns.
Superficially,
claims of election fraud are analogous to fraudulent deeds and contracts and
thus may be relied upon by third parties, such as the U.S. Congress, once they
are submitted through the proper channels.
In fact, however, what critics are alleging is a form of forgery: reporting people to have cast votes opposite
to those they actually rendered. (By
contrast, the Gore supporters misled into voting for Pat Buchanan in 2000 by “butterfly
ballots” look much more like the victims of fraud.) Hence, a purely procedural refutation of the
claims of election fraud is difficult. Those
claims must be adjudicated on their merits.
Because I believe
election integrity is everyone’s business, I have made a serious effort to examine
the critics’ proffered evidence. I
cannot find anything remotely plausible.
Indeed, under Rule 104(b) of the Federal
Rules of Evidence, most of what they offer would not even be relevant
because it depends on premises for which the critics lack evidence sufficient
to support a rational finding. For
example, storing boxes of votes under a table or moving them around a
tabulation center is only relevant if the votes inside those boxes were
improper, which the critics do not even begin to demonstrate.
Within the
community of Trump supporters, the gaps are filled by the President’s unsubstantiated
word that the election results are improper.
They similarly are untroubled by the adverse adjudications of numerous
courts, which they regard as corrupted by their opponents. Their confidence in the President is so
strong that they are prepared to disregard other widely accepted methods of
discerning the truth, including the discounts to the credibility of witnesses
with bad
reputations
for truthfulness
(see Rule 608), discounts to the credibility of witnesses with strong
personal interests at stake (cf., Rules 611(c)(2) and 804(b)(3)), and
draws adverse inferences against parties failing to carry burdens of production
of evidence (Rule 311), particularly when those parties have the resources to
obtain any evidence that might exist (cf., Rule 1004(c)).
Many of us have
strongly-held beliefs that, while likely correct, we do not aggressively
advance in political discourse because we recognize that we lack the sort of
proofs that might persuade those starting from different commitments. On other occasions, we sally forth with these
beliefs but are not altogether surprised when our inability to produce proofs
meeting societal standards means those ideas are rejected. For example, despite fervent beliefs in the
merits of a universal basic income, seemingly adverse results
of two experiments removed this proposal from serious discussion for half a
century.
It therefore is
disappointing that so many of our fellow Americans see no need for proofs that can
persuade those not sharing their affection for their leaders. This is a real secession from a shared
political community.
It is no
coincidence that the leading popular constitutionalist of our time, Bruce
Ackerman, is also intensely focused on improving our means of political
discourse and deliberation. He and James
Fishkin imagine a “Deliberation
Day” on which people meet to debate and reach decisions on crucial issues of
the day. However realistic that may have
been when they first proposed it, our increasing polarization has made it much
less so today. A basic prerequisite to
collective deliberation is acceptance of the need to make arguments from a
common, shared set of norms about truth-finding, to make arguments that have a
plausible appeal to other members of the political community.
Events since the
election suggest that a large segment of the electorate feels entitled to
enforce upon the nation a position that is only persuasive if one
unquestionably accepts the word of its own leaders. This effectively means we have lost the
capacity for deliberation. We can still
make decisions by voting, but without the capacity to deliberate with such a
large fraction of the country – very nearly half of those voting for president
and an even larger fraction of those voting for lower offices – we cannot
legitimately engage in constitutional change.
To be sure, the New Deal constitutional settlement and the Civil Rights
Revolution were imposed over the objections of vehement minorities, but by the
time those revolutions became entrenched the minorities were relatively
small. The President’s followers are a minority,
but they are a very large minority and one that is thoroughly estranged from
our political community.
Legal
Challenges to the Election and the New Deal Constitutional Settlement
The legal prongs of
the election challengers raises equally important issues for popular
constitutionalism. Leaving aside the
wild theories of unserious people, the critics make
two main arguments.
First, they invoke
Art. I, § 4, cl. 1, and Art. II, § 1, cl. 2, for the proposition that only
Congress and the states’ legislatures may make laws concerning the selection of
electors. They argue that this delegitimizes
accommodations made by executive officials for the pandemic and judicial
decrees in response to various voting rights lawsuits. This argument lumps together numerous wildly
disparate policies: many were attempts
to interpret state election laws and others were attempts to apply federal law
consistent with the Supremacy Clause.
More broadly, however,
this sharp distinction between statutes, passed by legislatures, and other
rules, resulting from executive actions reflects a view of the law is a
throwback to the mode of legal thinking that characterized the period prior to
the rise of the administrative state. As
early as 1928, the Court had indicated that it
did not regard this sharp line as sustainable.
The settlement of
the New Deal constitutional crisis with the legitimation of broad powers for
the administrative state rendered untenable the sort of formal distinction on
which the challengers’ argument depends.
That settlement was achieved through popular constitutionalism rather
than Article V, leaving the election challengers two diametrically opposite
choices. Some evidently dispute the
legitimacy of the New Deal settlement.
Others, however, are attempting a new, armed kind of popular
constitutionalism in the spirit
of Lexington and Concord. The country
thus is facing not just the usual question of what, if any, substantive changes
to make in our constitution but also whether we should take procedural guidance
from Bruce Ackerman or Rush Limbaugh.
The challengers’
second main legal argument is that Art. II, § 1, cl. 4, empowers only Congress
to set the date for choosing electors, that Congress has chosen November 3, and
that any rules that allow votes arriving after that date to be counted are
unconstitutional even if those votes were cast on or before the specified date. This argument depends on a certainty that “ch[oo]sing
the Electors” does not mean the voters making their choices but rather election
officials receiving and recording those choices. Discerning this provision’s original meaning
is difficult as it was written before states embraced the popular election of
presidential electors: casting and
counting votes were virtually simultaneous when they occurred within a state
legislature.
This is not as
clearly a question of popular constitutionalism, but one’s reaction to it says
a great deal about one’s attitude toward constitutional change. The longevity of rules allowing late-arriving
votes postmarked by Election Day is certainly more important to those accepting
some form of dynamic constitutional interpretation than it would be to those
rejecting popular constitutionalism.
Similarly, arguments that those objections should have been litigated
prior to the election have more in common with the New Deal settlement’s pragmatic
approach to constitutional interpretation than they do with earlier approaches
to constitutionalism.
Popular
Constitutionalism and the Unthinkable
Emerging
news
reports
show how very close the mob came
to getting its hands on Members of Congress, how willing many of them were to
commit violence even against the police officers they claim to support, and how
the Pentagon inexplicably failed to respond while preventing the Maryland
National Guard from entering Washington.
Reportedly, it was only a call from Vice President Pence – who is
completely outside the official chain of command – that eventually persuaded
the Secretary of Defense to allow the National Guard to rescue Congress. This requires us to consider both the
legitimacy of these actions and what would have happened had the mob
succeeded.
Formal textual
analysis takes us only so far. Governor Hogan
could have ordered Maryland’s National Guard into Washington under Art. I, §
10, cl. 3, allowing states to “engage in War [when] in such imminent Danger as will
not admit of delay.” Even there, some purposivist
reasoning is necessary to understand that the assault on the Capitol was effectively
an assault on Maryland (and all the states).
Section 3 of the
Fourteenth Amendment arguably disqualified President Trump as soon as he aided
the insurrection by tweeting anger at Vice President Pence while the mob
demanding the Vice President’s execution was roaming the Capitol. Although this betrayal of his oath had not
yet been adjudicated, it justified the Vice President’s order that the Pentagon
help suppress the insurrection. Alternatively,
Art. II, § 1, cl. 6, may have empowered the Vice President because the
President’s failure to suppress, or even criticize, the insurrection showed an “Inability
to discharge the Powers and Duties of [his] Office”. Again, the constitutional purpose is crucial.
Textual analysis,
however, can only go so far. What would
have happened if the mob had killed enough Democrats to give Republicans a
majority in one or both houses of Congress?
Because the Constitution was written before the rise of the political
party system, it provides no answer. Yet
surely it is clear that, at a bare minimum, a number of Republicans equal to
the number of murdered Democrats would have been obliged to abstain from any
contested votes. Similarly, it would be
improper for Republicans to run in the special elections for any seats opened by
the murderous mobs. And Republican
governors would be obliged to defer to their state Democratic parties on whom
to appoint to replace murdered Democratic senators.
Anything less in
each instance would be tantamount to joining the insurrection, which was
launched to deprive Democrats of positions to which they were elected. The reason Republicans would have been
constitutionally obliged to refrain from exercising any partisan advantage the mob
might have handed them is that popular constitutionalism has embedded some
version of the party system in our nation’s constitution. A few hints of this are discernible in the
Twelfth and Twenty-Fifth Amendments, which both reduce the chances that a
different party will take the White House in the midst of a presidential
term. We the People have surely adopted a
similar principle that murder may not change the control of Congress, at least
in the case of a partisan insurrection.
Those denying a place for popular constitutionalism bear the burden of
explaining why it is preferable to offer murderous partisan mobs the
opportunity to shift control of the federal government.
The Nuclear
Codes and Popular Constitutionalism
A final issue on
which popular constitutionalism has much to say is the danger that an
embittered and lawless president poses to the nation and the world between now
and Inauguration Day. Speaker Pelosi has
conveyed
her concerns about President Trump’s possession of the nuclear codes to the
Pentagon.
Although it
occurred with far less fanfare than the Civil Rights Revolution,
this nation also had a popular constitutional moment concerning nuclear arms during
the roughly the same period. This moment
made two closely related changes to our Constitution. First, because of the speed with which
nuclear weapons could be launched against us, it was accepted that the
President could initiate the most extreme war-making action imaginable –
devastating another country – without a congressional declaration of war. And second, because of their unparalleled
danger, it determined that nuclear arms are fundamentally different from other
means of war-making and are subject to vastly greater controls whether or not a
declaration of war is in effect.
As with other
constitutional moments, it was triggered from the White House. This one, however, was launched by several
different presidents. President Truman
sacked war hero Douglas MacArthur for risking nuclear war with his adventurism
in Korea. President Eisenhower turned a
deaf ear to Hungarian democrats’ pleas because aiding them would have risked
nuclear war with the Soviet Union. For
all the propaganda about President Kennedy’s steeliness during the Cuban Missile
Crisis, he blinked every bit as much as Prime Minister Khrushchev did – and for
good reason. As devoted as President Johnson
was to winning the war in Vietnam, he accepted the defeats that ended his
presidency rather than tip the balance with nuclear weapons. The constitutional change was finally ratified
when President Nixon, ardent anti-communist and Cold War hawk, signed the Strategic
Arms Limitation Treaty with the Soviet Union.
This
constitutional transformation did not pass all the mile-markers that Professor
Ackerman lays out because it had, almost from the beginning, a breadth of
support that obviated the pitched battles of the Civil Rights Revolution. Nonetheless, voters throughout this period marginalized
politicians deemed not to adhere to this emerging constitutional
principle. Mushroom clouds featured in political
advertisements against Barry Goldwater in 1964 and George Wallace’s running
mate, Curtis LeMay, in 1968; both tickets were crushed. As President Carter’s re-election campaign
was falling apart in 1980, he made a desperate attempt to persuade voters that
Ronald Reagan did not adhere to this unwritten amendment to the Constitution; when
Governor Reagan responded with convincing fealty to the nuclear amendment, the
election was effectively decided.
President Trump’s
chaotic and murky bellicose rhetoric lacks the clarity even to begin a
constitutional moment attempting to revise the last century’s nuclear
amendment. It certainly has not been
ratified by the voters. He did not
choose to fight the 2016 election over any coherent counter-proposal. And his loss in 2020 – while Republicans were
doing well in congressional, gubernatorial, and state legislative elections –
suggests that many conservatives had sufficient doubts about his stability to
split their tickets.
Allowing this
president, or any president, to initiate war without a declaration by Congress
would violate the written Constitution. Principled
conservatives who reject the concept of popular constitutionalism should object
to the very existence of the nuclear codes as giving the president an enormous
power that the Framers assigned to Congress.
And for those overtly or implicitly accepting that popular
constitutionalism changed the war-making power for the era of nuclear weapons, a
president so heedless of the facts does not have the power to use nuclear
weapons, or to commence a conflict that could lead to a nuclear attack, unless
this country is demonstrably in imminent risk of nuclear attack.
In keeping with
popular constitutionalism’s nuclear amendment to the war-making powers, surely
the Pentagon can find an officer with transient dyslexia to transcribe the nuclear
codes for the version carried around with the President.