Our Commitment to law: In the original Massachusetts constitution, Article 30 states “[i]n the government of the commonwealth the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” Mass. Const. art. 30.
Article 30 indicates that there are two fundamentals of American constitutional law: the separation of powers, by which we guard against abuse of power, and the rule of law, emphasizing that we will be governed by the final judicially established law. We secure the rule of law by complying with final judgments of our highest courts.
Judges and the Rule of Law: Since at least 1803, when the Supreme Court decided Marbury v. Madison, the nation has recognized that the United States Supreme Court is empowered to construe and give effect to the nation’s written Constitution, which identifies itself as the supreme law of the and. This longstanding tradition means that government actors are bound by the Court’s rulings on the meaning of the Constitution and the limits it imposes on both state and federal law. This duty to follow the law applies to presidential campaigns, including the campaigns to elect and re-elect President Donald Trump. It is important to recognize that the past is often anticipatory, since relatively unimportant occurrences can easily lead to more momentous ones.
In 2016, President Trump won a close presidential election by defeating his opponent, Hillary Clinton, in the electoral college. Supporters of Clinton, however, sought solace in the fact that she had won the popular vote by a substantial margin. Trump, by contrast, insisted that he won the popular vote, too. How did he make that claim? He asserted that unlawful immigrants, non-citizens who have no legal right to vote, had voted illegally in such high numbers that it showed that Trump had won a majority of legally cast ballots. No one bothered to attempt to convert this into a legal claim, and virtually no students of elections and ballot counting even take the claim seriously,
In turn, President Trump predicted, and then concluded, that the 2020 election was plagued by pervasive fraud, purposefully engaged in by his Democrat rivals. He had predicted an unfair or “rigged” election, based on his discovery that there were plans to rely on mail-in voting. Mail-in voting has become widespread, and at least eight states hold elections almost entirely by mail. Its availability apparently increases voter turnout; but some have argued that it increases the risk of ballot fraud. But it is generally agreed that such fraud is not common. Such fraud in the 2020 has never been shown and has been rejected by friends and supporters of President Trump.
The Trump campaign, nonetheless, claimed that ballot fraud was so pervasive that we wound up with a “stolen election.” Trump and some members of his campaign apparatus maintained this view even though the Homeland Security Department concluded that there had never been a more secure national election. “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” Weeks of litigation confirmed that very determination. Eventually the campaign arguments were rejected by the United States Supreme Court.
2020 Was not the First. The 2020 election, moreover, was not the first contested election. Consider the presidential election in 2000. Florida courts ordered a manual recount of the votes placed in that State, and the Supreme Court ruled that the Florida recount scheme denied to George W. Bush the equal protection of the law. Based on this judicial ruling, candidate Al Gore officially conceded the election on December 13 and stated in a televised address, “While I strongly disagree with the Court’s decision, I accept it.” Though not embracing the decision, he still accepted it as conclusive. This reflected his commitment to the rule of law. Many members of the Trump campaign firmly believed that the same outcome was warranted here, however disappointed Trump may have been. The Bush/Gore election controversy supplies a perfect analogy to the 2020 election conflict between Presidents Trump and Biden. Attorney General Barr, no rival to President Trump, confidently asserted that there was not sufficient evidence to suggest that there was such pervasive fraud that the election should have yielded a different outcome.
The Trump campaign contended that he had won a landslide victory and that the election had been stolen by the Democrat party. The evidence is powerful that Trump’s claim of a “stolen election” was false and probably not offered in good faith. See, e.g., Liz Cheney, Oath and Honor: A Memoir and a Warning (2023).
The Separation of Powers: In well over 200 years of Presidential elections, not a single outcome of a presidential election has been rejected by the loser, and every President, starting with Washington, worked to make the transition of one administration to the next operate smoothly. Al Gore qualified his objection to the decisive Supreme Court decision with an unequivocal statement that he “accepted it”—thereby conceding the election. Contrast Gore’s act with the pervasive practice of Republican surrogates of Trump who refuse to concede the reality and legitimacy of Biden’s election. Election outcome denial became standard as to the 2020 election, and that denial has continued in 2024. Sometimes we speak as though it is our unequivocal duty to follow the law that has duly been put into place. But the Gore case illustrates that this idea is implicated as well in the law as it is recognized in decisions of the courts. One might quarrel about the rulings in Bush v. Gore, or in the determination of the 2020 election; what is crucial, however, is that the rule of law is as determinative based on decided cases as valid methods for identifying binding law.
Legal&Political 