Americans and the rule of law


For over 40 years, I told my classes that Americans were not a particularly revolutionary people. By and large, they accepted the vote of the people to make change from one political party to another. This tradition was first established in 1800 when Thomas Jefferson, a Democratic-Republican, defeated President John Adams, a Federalist, as his party was then known.

Even the Civil War was not revolutionary, in the sense that the seceded Southern states had no intention of overthrowing the duly elected presidency of Abraham Lincoln. The goal was separation, as when the Americans in 1776 separated from the British Empire, with no aim to overthrow King George III and his administration.

On Saturday, the Associated Press unofficially declared Joe Biden, the Democratic nominee, the winner of the election after he won the most votes in Pennsylvania. The president had already filed several lawsuits charging voter fraud, without evidence, and so far, judges have dismissed all of them. Many states are undergoing recounts. The states must certify the votes by Dec. 8, six days before electors cast their ballots. President Trump has stated many times that if he is not re-elected, he may not leave office, because of his unfounded claim of widespread voter fraud concerning mail-in and absentee ballots. No president has ever uttered those words. The 20th Amendment is clear: The terms of the president and vice president shall end at noon on January 20. Period.

He also asserted at one point that he could unilaterally change the election day, which has been set in federal law since 1845 as the first Tuesday after the first Monday in November. He cannot break that law.

He also contended that his supporters, perhaps even armed, should “stand by” should Joe Biden win the election, because the only way Biden could defeat Trump would be when thousands of votes were unlawfully cast. There has never been evidence in any election of widespread voter fraud. Nor in this one.

We have witnessed armed “militias,” some in camouflage, moving into the Michigan statehouse. And a few weeks later, the FBI arrested several men, some involved in that statehouse incursion, for conspiring to kidnap the governor of that state, as well as the governor of Virginia.

Supreme Court precedent, as of 2008, determined that the Second Amendment established the individual right to own a firearm. But it is useful to point out that both constitutional and linguistic historians filed “friend of the court” briefs (known by their Latin name as amicus curiae briefs). They demonstrated that the vast number of times the word “militia” was used in the 18th century referred to an organized military unit, not an individual.

There are a raft of federal and state laws prohibiting anyone from interfering with a citizen’s right to cast their ballots. A person may not impede anyone from entering a polling station, or threaten them in any way.

This is what I meant all those years ago when I told my students that we are a people of the rule of law. As presidential historians have pointed out, we did not know the winner of recent presidential elections on election night in 1960, 1968, 1976, 2000, 2004, or 2016. We have seen many contested elections in the past.

That 1800 presidential election required the House of Representatives to decide whether Democratic-Republicans Jefferson or Aaron Burr would serve, and it took 36 ballots. This problem arose before presidents and vice presidents were elected on the same ticket. The 12th Amendment in 1804 resolved that issue.

Perhaps the most contentious of all was in 1876, when Republican Rutherford B. Hayes took the White House after a special presidential commission consisting of 15 people, five from each party and five from the Supreme Court, came up with a compromise. The problem was that the vote in three Southern states (Louisiana, South Carolina, and Florida) resulted in contested elections. The commission decided that Democrat Samuel Tilden would concede in exchange for Rutherford’s promise to end Reconstruction by withdrawing federal troops from the South.

Tilden accepted the result, and Hayes became the 19th president of the United States.

Considering the upheaval caused by the current pandemic and economic downturn, it is no wonder so many Americans voted by mail. I did — for the first time since I was eligible to vote back in 1964.

President Trump has ordered his campaign to file lawsuits in several states, contesting the vote. While the U.S. is indeed a litigious society, he has gone over the brink, becoming involved in more than 4,000 legal actions in his career as a businessman and now as a politician.

Americans will prevail in this turbulent time. When Jan. 20, 2021, comes round, whoever wins the most votes — in person or by mail-in ballot — will be sworn into office for the next four years. We will remain a people rooted in the rule of law.


Jack Fruchtman, a resident of Aquinnah, taught constitutional law and politics for more than 40 years. He is currently updating his book “American Constitutional History.”