Thursday, January 14, 2021

Were the Capitol Hill Rioters Exercising Their Right to Revolution?

If it were true that the Democrats have been stealing American elections through fraudulent votes--most recently in the presidential election on November 3rd and the Senate elections in Georgia on January 5th--wouldn't that justify revolutionary violence to "stop the steal"?  

Wouldn't that justify the insurrection of January 6th on Capitol Hill?  

And wouldn't that justify President Trump in declaring martial law, mobilizing federal troops, and having some Republican-controlled state legislatures declare that he has been elected to a second term in a landslide victory? 

Wouldn't this revolutionary violence be a proper expression of what John Locke called "the executive power of the law of nature"--the power of the people to punish those who violate their natural rights?  (I have written about that herehere, and here.)

This all turns on a big if--if Trump's claims about a stolen election are true.  I have seen no evidence to support Trump's lies.  But I understand that if Trump and his supporters believe his lies, they should feel it their patriotic duty to engage in revolutionary violence to keep Trump in office and prevent Biden from being inaugurated president.

That they do believe those lies was indicated by what was said at the "Save America March" on the morning of January 6--not only what Trump said but also what was said by Rudy Giuliani and John Eastman.  (You can find a video and a transcript of this here.  A video of the entire rally can be found at CSPAN.)

Giuliani claimed that "this election was stolen in seven states," and that the Georgia Senate elections had been stolen the night before using the same techniques for fraudulent voting that had been employed on November 3.  He insisted that these stolen elections would have to be reversed "to save our republic," and that this would require "trial by combat."  To prove that their plan for the day was "perfectly legal," Giuliani introduced Eastman as "one of the preeminent constitutional scholars in the United States."

Eastman is a law professor at Chapman University's Fowler School of Law and the Founding Director of the Claremont Institute's Center for Constitutional Jurisprudence.  (In a previous post, I mentioned Eastman's attempt to get a Trump lawsuit before the U.S. Supreme Court.)  Speaking at the rally, Eastman said that he had proof that the Democrats had used Dominion voting machines to steal elections by putting ballots in a "secret folder" in a machine, so that those ballots could be converted to enough Biden ballots as necessary to win an election.  He claimed that this had been done the night before in Georgia, so that the Democrats could win both of the Senate elections and thus take control of the Senate.

Eastman then said: "And all we are demanding of Vice President Pence is this afternoon at 1:00 he let the legislators of the state look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government or not."  All fifty states have certified the presidential electors for the Electoral College, with a winning number for Biden.  But Eastman here was agreeing with Trump that the Constitution gives the Vice-President the power to refuse to accept these certifications of electors and to ask the state legislatures to review the elections in their states and consider whether Biden electors should be replaced by Trump electors.  If Pence did not do this, and if he thus allowed the stolen election to stand, Eastman declared, that would destroy the "very essence of our republican form of government."

Eastman's position has provoked angry criticism from some faculty members at Chapman University.  In response to this, Eastman just this morning issued a statement (published at the Claremont Institute's "American Mind" blog) on his decision to retire from Chapman's Law School.  He quotes the political science faculty at Chapman as criticizing him for making "false claims" about the 2020 presidential election that "have no basis in fact or law and seek to harm the democratic foundations of our constitutional republic."  He responds by insisting that all of his arguments are based solidly on both fact and law.  He makes two claims of law and two claims of fact.

First, as a matter of both fact and law, he claims that in many states partisan election officials and partisan judicial officials altered or ignored existing state laws governing the conduct of elections.  He says that this violates constitutional law, because Article II, section 1, clearly says that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" for the Electoral College.  The Constitution thus allows each state legislature to appoint presidential electors in any "manner" that they choose.  The state legislature can even choose the electors themselves without having a popular vote, as happened in most states prior to 1828.  Once a legislature has determined by law the "manner" of selecting electors, it must surely be unconstitutional for any election officials or judges to alter those election laws.  But that's exactly what was done in some states, according to Eastman.

Moreover, as a matter of fact, Eastman says in his statement, some legislators have in fact written to Vice-President Pence asking him to delay the electoral vote count until the legislatures can review whether their electoral slate was legally certified.

Finally, Eastman asserts: "It is also a fact that a forensic analysis of the one voting machine courts have permitted to be inspected demonstrated not only that the machines are capable of switching votes, but they actually did switch votes in Antrim County, Michigan."

This final claim is dishonest.  Because Eastman does not tell his reader that this "forensic analysis" is very dubious and not at all "demonstrated."  He is referring to a report prepared by an organization called Allied Security Operations Group, which has been accused if making false claims about Michigan's election.  Nor does he tell his reader that Trump won Antrim County (with a population of 23,000) by more than 3,700 votes.  If this was a case of Democrats stealing votes, why did they steal the votes for Trump?

Eastman also fails to explain why his arguments of fact and law have been rejected by every court to which they have been presented--in over 60 lawsuits--even when the judges had been appointed by Trump or other Republican presidents.

Eastman denies that he participated in a riot: "I participated in a peaceful rally of nearly 1/2 million people, two miles away from the violence that occurred at the capital and which began even before the speeches were finished."

But if Eastman and other Trump supporters believe that the Democrats have been stealing elections and that this will destroy the American republican form of government and thus destroy America, why doesn't this justify violent revolutionary activity?  Why shouldn't we expect millions of Americans to show up next week at Biden's inauguration armed and ready to fight a "trial by battle"?

If this does not happen, there will be two possible explanations.  Either Trump and his supporters do not really believe his lies about a stolen election.  Or they do really believe them, but they're afraid they don't have enough force to prevail in a battle with federal police and national guardsmen.  

A recent memorandum from the Joint Chiefs of Staff of the Department of Defense would seem to support the second explanation.  This extraordinary memo was sent two days ago to all active duty and reserve troops of the United States.

The memo begins: "The American people have trusted the Armed Forces of the United States to protect them and our Constitution for almost 250 years.  As we have done throughout our history, the U.S. military will obey lawful orders from civilian leadership, support civil authorities to protect lives and property, ensure public safety in accordance with the law, and remain fully committed to protecting and defending the Constitution of the United States against all enemies, foreign and domestic."

They say that the riot on January 6 was a direct assault on the United States and the Constitutional process.  They pledge that all military service members will defend the Constitution against such violence.

They also pledge: "On January 20, 2021, in accordance with the Constitution, confirmed by the states and the courts, and certified by Congress, President-elect Biden will be inaugurated and will become our 46th Commander in Chief."

In other words, they reject the claim by Trump and Eastman that the election of Biden was fraudulent and unconstitutional; and therefore, they imply, they would refuse to obey any orders from Trump that would obstruct Biden's inauguration.  They also imply by this that there is no justification for revolutionary violence.

In saying that the American military has protected the country "for almost 250 years," they point back to the establishment of the Continental Army in 1774 by the Second Continental Congress.  In that case, the American military fought on the side of colonial revolutionaries who were traitors to Great Britain.  They thus endorse the right to revolution, even as they deny that there is any justification now to invoke that right in fighting to keep Trump in power.

There are reports that the Defense Department is investigating some military personnel who might have participated in the 1/6 riot.  This memo from the Joint Chiefs is a clear warning against joining any such revolutionary insurrection.

This raises some deep questions about whether and how the right to revolution as stated in the Declaration of Independence can be compatible with the constitutional order.  In the Dennis v. United States (1951) decision, the Supreme Court upheld the Smith Act of 1940, which declared it unlawful for any person "to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government."  Under this law, leaders of the Communist Party USA were arrested and convicted for teaching Marxism, which advocated the revolutionary overthrow of capitalism.

The Court seemed to endorse a Hobbesian denial of the Lockean right to revolution: "That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion.  Whatever theoretical merit there may be to the argument that there is a 'right' to rebellion against dictatorial government is without force where the existing structure of the government provides for peaceful and orderly change.  We reject any principle of governmental helplessness in the face of preparation for revolution, which principle carried to its logical conclusion, must lead to anarchy."

Does this mean that the Declaration of Independence--with its affirmation of the right to revolution--is unconstitutional, because no government could ever permit revolutionary change that would bring about its own abolition?  Or would the right to revolution be a constitutional right when it is exercised to overturn an unconstitutional presidential election?  

If Trump and Eastman were right in their assertion that Biden's election arose from an unconstitutional process, would that justify them in leading a revolutionary assault against Biden's presidency?

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