Twelve days ago, we witnessed an unprecedented attack on the nation's Capitol. Mob rule descended on the seat of our government at a critical moment, delaying but, thankfully, not stopping a Constitutional prerequisite for the peaceful transition of power. The attack was marked by chaos, violence, and death, all inspired by hate. The vicious and virulent racism that America has never been able to eradicate, and which has come into ever-sharper relief in recent years, lay at the root of this most shameful day in our country's history.
And yet another sinister force was also at work - an hours-long suspension of the Rule of Law. The insurrection was inspired by what has become known as "The Big Lie," namely, that Donald J. Trump had won reelection. That sinister falsehood, invented by the great con man himself and utterly lacking in supporting evidence, was the central allegation in more than 60 lawsuits in courts across the country, and more than 60 times it was rejected. The dozens of judges who rejected it spanned the political spectrum, including judges who had been appointed by both major political parties, several of whom had even been appointed by the President himself. Fulfilling their Constitutional oaths, they examined the claims and, in every case, found them wanting.
They did so even though rules of civil procedure erect a low bar to the assertion of a claim. To avoid dismissal, a claim must simply have a good faith basis in law and fact, and in federal courts and some state courts must also satisfy a minimal threshold of plausibility. That dozens of politically diverse courts applying such lenient standards uniformly dismissed dozens of lawsuits making the same or similar claims speaks volumes about the absence of any factual basis to support them.
The lawyers did their jobs. The courts did their jobs. The law pointed in a single, clear direction: Joe Biden and Kamala Harris won the election, and by a significant margin. But that wasn't good enough for the Trump mob. Trump had convinced them, or they had convinced themselves, that the courts got it wrong, that the only way Biden/Harris could have won is if the election were rigged. And, as dangerous as their belief in The Big Lie was, even more dangerous was their determination that they had to take the law into their own hands and overturn the election by force. The Rule of Law be damned, they seemed to say, the government belongs to us, and if the courts won't give it to us, we're going to take it despite them.
When large numbers of people are dissatisfied with court rulings, there are a variety of options open to them - they can lobby for a change in the law, they can support the elections of politicians and judges whose views align with theirs, and they can work at persuading government leaders and the general public that they were right and the courts were wrong. All of those pursuits take time, and all require that, until lawful change occurs, the malcontents accept what they perceive as unjust results. What a system of laws forbids, however, is that the disappointed disregard judicial decisions and seek to impose their will through violence. When that occurs, they threaten the very heart of our democracy. Their success would have ushered in an autocratic regime, displacing our system of government and substituting their will for the will of the American people.
A system of government that depends on the consent of the governed is a fragile thing. That is a reality I first understood my first year in law school, when I learned that the Supreme Court has no mechanism for enforcing its own decisions. The Court's power depends on the tacit acceptance by the American people that its rulings are the law of the land, and by government leaders who have the means to enforce them. The breakdown of that acceptance opens the door to lawless tyranny.
Of course, history has shown that there is an important place for civil disobedience as a means of protesting unjust laws. On this day set aside to commemorate the life and work of Dr. Martin Luther King, Jr., we honor his tradition of peaceful protest. But legislators, members of the Executive branch, and other politicians and leaders who promote dangerous lies and, in so doing, incite violent protest, must be held accountable for their actions. If we do not hold them accountable, we have only ourselves to blame when the Rule of Law, and all that follows from it, lies in ashes.
For more about the Rule of Law, please see my post from 2018: Defending the Rule of Law.
Comments
Post a Comment