December 19, 2020

Battered and Scarred, the Guardrails Held.

by Hal Gershowitz

Comments Below

Come, let us praise John Marshall, Chief Justice, 1801–1835.

And, of course, the authors of the Federalist Papers, Alexander Hamilton, James Madison, and John Jay. They and the other founders, including Washington, Jefferson, and Franklin, represent an almost miraculous assemblage of great thinkers simultaneously concentrating on the single objective of creating an entirely new, audacious, and, for sure, a risky experiment in governance.

That they were there, in one place, focused on that singular purpose is one of the greatest gifts one generation has ever passed on to the generations that were to follow. Their thinking changed the world and saved the 2020 Presidential election from the assaults of the 45th President of the United States. The founders created the essential guardrails that held up to the greatest domestic assault on our democracy since its creation.

Chief Justice John Marshall:

Let us begin with John Marshall, our nation’s fourth Chief Justice, who, it has been observed, made the Supreme Court supreme. It was in deciding a rather arcane case, Marbury versus Madison, that the Supreme Court established its place as a co-equal branch of government—the branch that could invalidate any law passed by Congress and signed by the President that it found in violation of the Constitution, and, perhaps most important, the final authority on what does and does not comport with the Constitution. No President in the 217 years since Marbury versus Madison has ever challenged the Supreme Court’s primacy in matters of constitutional law.

The Supreme Court is the ultimate guardrail protecting constitutional government in the United States of America. While the President is the Commander and Chief of the Armed Forces, he and all those military officers who serve under him have sworn allegiance only to the Constitution of the United States, and not to a temporary employee of the people, even if he or she works at 1600 Pennsylvania Avenue.

There is no ambiguity concerning the branch of government that, ultimately, decides the law under the Constitution. It is the judiciary, and ultimately, the Supreme Court. The current, overwhelmingly conservative, Supreme Court’s decision to refuse to bend to the absurd challenges brought by Trump’s political sycophants has sealed Trump’s fate as a one-term President as determined by over 80 million voters who chose his opponent over him.

The President (any President) doesn’t really turn over power to a new President. Donald Trump’s presidency simply expires at noon on January 20, 2021. As of that date and time, he will have no power to turn over to anyone. As a former President whose presidency has expired, he either leaves the White House on or before January 20 or is simply a guest or a trespasser.

This automatic expiration of power, previously unheard of in the history of nations, is what makes the Office of President of the United States a wonderous institution. So, ever since Chief Justice Marshall declared in Marbury versus Madison that it “is emphatically the duty of the Judicial Department to say what the law is,” the entirety of government, without exception, has complied with decisions of the high court.

It was so when Republican President Eisenhower sent federal troops to Little Rock Arkansas to end segregation in public schools in that city, or when Richard Nixon turned over the infamous oval office tapes to the House Judiciary Committee when ordered to do so by the Court, or when the Court ordered a cessation to the unending counting of ballots in Florida, bringing the 2000 election to an end. And as even Attorney General Barr opined, if the Court disagrees with President Trump, “then he’s lost the case.” And so, he has.

The Federalist Papers:

Hamilton, Madison, and Jay, collectively penned eighty-five articles or essays that we know, today, as the Federalist Papers.  John Jay, who became ill, only contributed five of the essays. James Madison contributed twenty-nine and Alexander Hamilton a remarkable fifty-one. These documents made the case for ratification of the new Constitution and, therefore, of the new national government. They, collectively, represent a window into the minds that produced our most enduring form of constitutional government, whereby those who govern do so at the pleasure of the governed.

This new American Constitution produced a robust, free society that was, as Alexis de Tocqueville was to observe a generation later, “like nothing he had ever seen before.” The Federalist Papers also provide the best insight into the original rationale or intent of the framers and, consequently, they have, over time, become recognized as the best source for understanding the framers’ original intent.

Hamilton makes a landmark statement in Federalist Paper 78: “No legislative act, therefore, contrary to the Constitution, can be valid.” This comment foreshadows the doctrine of judicial review enunciated by Chief Justice John Marshall 15 years later in Marbury v. Madison. In his decision, Marshall declared it was the province of the Supreme Court to determine if a law is, or is not, constitutional—that is, in conformity with “the supreme law of the land.” Now, that’s quite a guardrail.

President Trump has sent his army of lawyers into over fifty courts to present innuendo, random and often wild allegations, and isolated errors as evidence of massive fraud to attempt to disenfranchise millions of voters. In virtually every case the judges, Republican and Democrat alike, have rebuffed the President’s arguments and, often, derided them as being without merit and lacking any credible material evidence.

The justices remind us that in America, allegations, many absurdly wild, are neither evidence nor proof of anything.  In the entire history of the nation, there has never been so intense a domestic attack on the very foundation of our republic as that mounted by President Trump and his campaign to retain power and to impugn the integrity of our court and our democratic institutions. But the nation’s constitutional guardrails have held.

No one should question this President’s, or any President’s, right to pursue legal remedies for illegal acts, especially illegal acts presumed to influence an election. However, that is not really the issue in this recently-concluded presidential election, and it never was. As it turns out, fraudulent acts, human error, and technology malfunctions in this election appear to have been no more significant, and, according to our top state and federal election security officials, even less significant than the garden-variety exceptions to the rules that take place during every election.

The President made it very clear before the election, and before the first vote was cast, he would claim fraud if he lost. Not surprisingly, he made the exact same claim before the 2016 election. Claiming fraud and fakery has become a Trump staple. In so arguing, he has engaged in a mockery of justice and a fraud of his own.

State officials, federal officials, the United States Justice Department, the United States Department of Homeland Security, the FBI, state courts, federal courts, the Supreme Court, Republican and Democratic officials alike, have looked at the bogus charges of fraud. They have found no material wrongdoing and certainly nothing that could have changed the result of the election.

The guardrails have held. They have taken a beating, but they have held. For that, we must praise John Marshall and that remarkable gathering of the nation’s founders.


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9 responses to “Battered and Scarred, the Guardrails Held.”

  1. sheila says:

    Brilliant history lesson, Hal. You have comforted me greatly given this current insane talk of martial law coming from Trump and the White House.

  2. Robert Borns says:

    You say above that no one should question this presidents or any presidents right to pursue legal remedies for illegal acts,especially illegal acts presumed to influence an election. The next question is —is the courts final decision followed. If it is then nothing is out of order. The anger of the country should not be directed at trump. It should be anger directed at those who have relentlessly falsely pursued him with outrageous claims totally without merit. The numerous wonderful accomplishments of trump policies will prove historically much more important to this country than the negativity currently being spewed in his direction.

  3. Ray Galante says:

    Well written. This farcical President will be remembered for disruption and untruths. Literally diminished the stature of the Republican Party. A wasted American President.

  4. Steve says:

    Mary Trump describes her uncle as “The Worlds Most Dangerous Man”. Why am I still having trouble sleeping at night? Especially when I hear talk of declaration of martial law coming from the White House. And when so many in his party think the election was not legitimate, in spite of 50 court decisions PLUS a unanimous Supreme Court decision to the contrary. Your essay is a brilliant summary of how American democracy has been a beacon to the world for over 250 years. It should be required reading for those who, regardless of all you have described, are discussing declaration of martial law in order to maintain DJT in power. They apparently simply do not understand how our constitution works and why it has made America the world’s greatest power. It’s also important to understand that every presidential candidate in American history who has lost election has, along with his deeply devoted followers, graciously conceded to his/her opponent, in spite of their deep conviction that their candidate should have won. Your example of Al Gore loss is perhaps the best example.

  5. Peggy Jacobs says:

    You are always spot on. Thanks for returning me to first year law school. Truly appreciate the significance of Marbury vs. Madison more today than I did then.

  6. Jim katz says:

    As a graduate of the University of Wisconsin law school, Wayback when, I also did not have the appreciation of Marbury versus Madison as well of you have explained it in this essay. It’s required reading for my grandchildren. Thank you for history lesson number 100

  7. I always enjoy reading your essays. Thank you for making so many happenings more understandable. This one was great. I had forgotten about some History and this one about Marbury versus Madison was right on. Trump just does not stop and will not give up. I am afraid he will cause trouble until January 19th!
    Happy Holiday

  8. Sandy says:

    A wonderful essay, Hal. Though you should have given some credit to Lin Manuel Miranda with your introduction to the Federalist Papers 🙂

  9. Charles Anderson says:

    Excellent work Hal. Unfortunately the guardrails have to hold a bit longer when the Senate & House members of the ‘Kool Aid’ gang try once again to overturn the results.

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