YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
LEGITIMATE POLITICAL DISCOURSE Over my twenty years of teaching constitutional law I’ve often discussed current constitutional issues with my students. In fact, in my introductory course, I typically devote the first few minutes of each class not to the syllabus, but to the great controversies of the moment, from abortion to vaccine mandates. Sometimes the issue is the changing composition of the Supreme Court. There have been six successful nominations during my teaching career: Alito; Sotomayor; Kagan; Gorsuch; Kavanaugh; and Barrett. My students and I have discussed them all. Each one has inspired reasoned and sometimes passionate debate. My current students will soon have another nomination to chew on: whomever President Biden nominates to replace retiring Associate Justice Breyer. In one sense, this nomination will likely be historic: Biden has promised to nominate a Black woman to the Court for the first time in U.S. history. But in another sense, it will be routine: Whomever Biden nominates will not change the Court’s ideological composition, where Republican nominees hold a six-three advantage over Democratic nominees. The new Justice, whoever she turns out to be, will write a lot of dissents. Unfortunately, there is a far more urgent constitutional issue that my students and I are currently discussing: the continuing impact of the January 6 Insurrection. We have been following the January 6 Committee’s public activities, including its recent request for information from Ivanka Trump and several subpoenas directed at the people allegedly behind the creation of fake electoral college vote certifications. The Committee’s public hearings will likely not occur before the end of the semester, so we are confined mostly to press reports about its activities and about the Insurrection itself. Fortunately, from a teaching perspective, there is a lot happening. Perhaps most notably, former President Donald Trump recently claimed that former Vice President Mike Pence had the constitutional authority to determine the outcome of the 2020 presidential election when the electoral votes were counted on January 6: “Unfortunately, he didn’t exercise that power. He could have overturned the election!”1 There are two important points to address in those two brief sentences. First, no vice president has the power to determine the outcome of a presidential election by picking and choosing among electoral votes. According to the Senate’s former in-house historian, Donald A. Ritchie, “[t]here’s not much he can do. His job is really just to read them out aloud. It’s up to the members if they are going to do anything.”2 Which makes eminent sense. Otherwise, Dan Quayle would certainly have chosen George H.W. Bush (and himself ) over Bill Clinton and Al Gore in January 1993. Al Gore would have chosen himself over George W. Bush in 2001. And I’m sure that Joe Biden would have been sorely tempted to choose Hilary Clinton over Donald Trump in 2017. And that just ain’t the way it works. The second point to note is that Trump claimed that Pence “could have overturned the election!” Trump’s opponents have pointed out that “overturned” seems to be an admission that Biden won the election. And
it doesn’t seem to be a misstatement. Elsewhere in the same speech, Trump talked about Pence’s power to “change the outcome.”3 A few days later, Pence repudiated Trump in no uncertain terms: “Frankly there is no idea more un-American than the notion that any one person could choose the American president. Under the Constitution, I had no right to change the outcome of our election. And Kamala Harris will have no right to overturn the election when we beat them in 2024.”4 Pence is correct constitutionally, although his political prediction is somewhat less certain. As his open break with Trump illustrates, the GOP seems to be at war with itself, and the flashpoint seems to be January 6. Recently, the Republican National Committee censured Representatives Liz Cheney and Adam Kinzinger, the two Republican members of the January 6 Committee. The censure resolution states, in part, “Representatives Cheney and Kinzinger are participating in a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse.”5 The reaction was immediate and harsh. Republican Senator Susan Collins of Maine said it was “absurd” to call the Insurrection “legitimate political discourse.”6 Senate Minority Leader Mitch McConnel criticized the RNC resolution and described the events of January 6 as a “violent insurrection for the purpose of trying to prevent the peaceful transfer of power, after a legitimately-certified election, from one administration to the next.”7 Collins and McConnell are correct. While our First Amendment gives broad protection to core political speech, as well as the right to assemble, it does not protect violence. It does not even protect threats of violence.8 Nor does it protect incitement of violence.9 On January 6, 2021, over a hundred police officers were injured in the Insurrection. Several of them died shortly thereafter. If that isn’t violence, I don’t know what is. And it sure isn’t “legitimate political discourse.” 1
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“Quiet part loud: Trump says Pence ‘could have overturned the election,’” The Guardian, January 31, 2022, available at: https://www.theguardian.com/usnews/2022/jan/31/donald-trump-mike-pence-overturn-election. “Can Congress Overturn the Electoral College Results? Probably Not,” New York Times, December 14, 2020, available at: https://www.nytimes.com/2020/12/14/us/ politics/congress-election-role.html. “Quiet part loud: Trump says Pence ‘could have overturned the election,’” The Guardian, January 31, 2022, available at: https://www.theguardian.com/usnews/2022/jan/31/donald-trump-mike-pence-overturn-election. “In blunt rebuke, Pence says Trump was ‘wrong’ to claim vice president could have overturned 2020 election,” USA Today, February 4, 2022, available at: https://www. msn.com/en-us/news/politics/in-blunt-rebuke-pence-says-trump-was-wrong-toclaim-vice-president-could-have-overturned-2020-election/ar-AATu7hp. “RESOLUTION TO FORMALLY CENSURE LIZ CHENEY AND ADAM KINZINGER AND TO NO LONGER SUPPORT THEM AS MEMBERS OF THE REPUBLICAN PARTY,” February 4, 2022, available at: https://int.nyt.com/data/documenttools/rnc-jan6resolution/2d6a07e7cf8d8cfb/full.pdf. “‘Legitimate political discourse’: Three words about Jan. 6 spark rift among Republicans,” Washington Post, February 8, 2022, available at: https://www. washingtonpost.com/politics/2022/02/08/gop-legitimate-political-discourse/. Id. Virginia v. Black, 538 U.S. 343 (2003). Brandenburg v. Ohio, 395 U.S. 444 (1969).
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. March 2022
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