Commentary: How to Restore Faith in the Constitution

by Stephen B. Presser

In one of the most extraordinary passages of his most extraordinary book, C.S. Lewis, the 20th century’s greatest Christian apologist, wrote of Jesus Christ, that he was either the son of God, as he claimed, or a madman. In the Christmas season, believers take comfort in their faith and joyfully embrace the first alternative.

The United States has a tradition of separating church and state, but there is a competing tradition, equally venerable, that our government is only fit for a religious people, one that understands there is a divine order to which humankind ought to conform, and that, as Supreme Court Justice Amy Coney Barrett once explained, it is our task to contribute to the building of the Kingdom of God.

If a higher power holds sway on earth, however, it was difficult (as it often is) to discern a celestial hand in the ordering of American politics at the close of this last annus horribilis. Many, if not most, of our Constitution’s framers believed that their task of establishing a government freed from the European tyranny of monarchy and hereditary aristocracy was a providential one.

Still, in our jaded and secular time, with society caught in the grip of a horrific pandemic, and with draconian social restrictions still in place, optimism and faith are severely challenged.

Our president, some of his subordinates, one of the nation’s greatest mayors, and some of our wisest pundits, appear sincerely to believe that we have just experienced the greatest election fraud in our country’s history. An enfeebled man who barely campaigned purportedly received millions more votes than a vigorous incumbent who exceeded the vote tally of any previous president running for reelection.

We have a problem like that posed by Lewis—either Joe Biden pulled off something that can only be described as miraculous, or the American people are the victims of the worst political crime and political gaslighting ever perpetrated.

Public opinion polls make clear that most Republicans are convinced that this was a stolen election, and most Democrats differ. We were a divided nation before, but with so many Americans now convinced that if Biden is inaugurated, we will have an illegitimate president, it is difficult to understand how we can continue to have faith in our electoral system and in the notion that ours is a government of laws and not one of arbitrary power exercised by a sinister cabal.

There is only one way out of our dilemma, and that is for some neutral fact-finder to examine the evidence of fraud put forth by Rudy Giuliani, Sidney Powell, Peter Navarro, Trump himself, and others among the president’s advocates, and to reach a conclusion the American people will accept.

So far our courts have refused a full examination of the merits of this dispute, and the mainstream media has chosen, uncritically, to accept the view of Biden partisans.

The attitude of the mainstream media and the Democrats is to deny that anything untoward took place, and to hasten the ejection of Trump from the White House and the installation of a Biden-Harris Administration.

If that administration is to have any chance of securing the approval of most of the American people, however, its legitimacy is going to have to be established by more than fiat.

Congress has now chosen to exercise its constitutional prerogative to endorse a Biden victory, but it is still imperative for the doubts held by so many Americans to be resolved. If the American experiment is to stand a chance of enduring, somehow there must be a means to seek to reveal the truth or falsity of the allegations Trump and his supporters have made about this election.

It would be better if our mainstream media would do its investigative job, and if the Supreme Court would exercise its responsibility. This now appears unlikely, and faith in our basic institutions and in our exercise of the franchise is endangered. Those who objected to the certification of the Electoral College vote by Congress had argued for the appointment of an independent governmental commission modelled after the one used in the 19th century to resolve a similar contested election. That effort foundered in the face of the disturbances at the Capitol on January 6.

Nevertheless, the very idea of the supremacy of popular sovereignty is at risk unless somehow we can create a means for these charges of election chicanery to be examined, perhaps by a consortium of objective researchers, academics, and lawyers, who could then submit their findings to the court of public opinion. That court has always been the highest tribunal, and, as always, only the virtue of the American people can preserve this republic.

These are unprecedented times. There must be a clear confirmation or denial of a stolen election in 2020, and the American people must demand accountability if not before a Biden inauguration, then in 2022 and 2024. Only that will restore faith in our constitutional system.

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Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.

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