Constitutional Connections: Popular Enforcement of the Constitution

For the Monitor
Published: 10/18/2020 10:01:12 AM

I recently was asked whether the Constitution requires a peaceful transfer of power following an election. Sadly, the question is not merely theoretical. President Trump has stated that, if he loses the upcoming election, it will be through fraud. And he has made it clear that he will be unrestrained in his response to any efforts to oust him from office through an election he pronounces fraudulent.

The question of whether the Constitution requires a peaceful transfer of power prompts consideration of how we should conceptualize our Constitution. Is the Constitution merely the document that was written in 1787, ratified in 1788, and since amended 27 times? Does analyzing it begin and end with a legalistic examination of what its text explicitly permits and forbids? Or should we conceive of our Constitution, and the task of interpreting it, in some other way?

In thinking through these questions, it is useful to recall the English understanding of constitutionalism from which our system emerged. In 1787, the English had no written constitution. And yet, if one could ask an informed English citizen of the time whether there was an English constitution, the answer would be yes. The word “constitution” would not have been understood to refer to a written document. Rather, it would have been understood to refer to England’s lived civic reality: a monarchy sharing power with a bicameral Parliament and governing according to a set of unwritten values, traditions, norms, and rules.

Importantly, in England, it was widely understood that those cloaked with governmental power could act “unconstitutionally,” even though there was no written text by which the constitutionality of the act would be judged in a court of law. The values, traditions, norms, and rules of the English constitution, while unwritten, were nonetheless understood to be very real. They were enforced through the tools of “popular constitutionalism,” which included petitions, various forms of civil disobedience, and the refusal by juries to enforce laws deemed unconstitutional.

Did we change our fundamental understanding of what a constitution is when we undertook to capture in writing our own foundational values, traditions, norms, and rules? And should we view that writing as exhaustively describing what our constitution “is”? Surely, the answer to both questions in no.

As an initial matter, our written constitution warns against reading the written document to capture the entirety of our constitutional understandings. The Elastic Clause, for example, states that Congress possesses powers beyond those specifically listed: “The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the [enumerated powers of Congress], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” And the Ninth Amendment makes clear that there are limits on government beyond those listed: “[T]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

More basically, as stated in its Preamble, the written Constitution’s purpose was and is to serve as a social contract – a contract that would enable the founding generation, and the generations to follow (“our Posterity), “to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty.”

Like other written contracts, the document’s formal substance was not the end for which it was written. Rather, the written Constitution was to serve as a means to the ends listed in the Preamble, all of which (it was hoped) would take shape in our country’s lived civic reality. And like other written contracts, the Constitution should be read to contain an implied covenant of good faith and fair dealing.

The implied covenant of good faith and fair dealing, read into most contracts, requires that contracting parties refrain from conduct that would injure the rights of other parties to receive the contract’s benefits. The law has long recognized that parties to a contract must act in good faith and deal fairly with each other if the contract is to serve its purposes

We come now to the principal point. By undermining domestic tranquility, refusing to “take care that the laws be faithfully executed” (as Article Two requires), and calling into doubt our continued existence as a republic, a president’s refusal to recognize and honor the election results would constitute an egregious violation of the Constitution’s implied covenant of good faith and fair dealing. Which is to say, such behavior would constitute an egregious violation of the constitution, broadly understood to encompass both its written and unwritten terms.

So how might such a violation be remedied? Often, constitutional violations are subject to judicial remedies. But our courts often stay out of political disputes, and a refusal by President Trump to recognize the results of election he loses would lead to the mother of all political disputes. And in any event, would a president unwilling to abide by the election results heed a judicial ruling telling him to step aside?

In addition, the very nature of the violation in question – rejection of the outcome of an election – takes off the table the usual remedy for constitutional violations where, as here, the courts and other constitutional devices (e.g., impeachment and removal from office) are not available: to vote the offender out.

To respond effectively to a president’s unwillingness to assent to a peaceful transfer of power, “We the People” might need to turn to tools of popular constitutionalism such as peaceful demonstrations, boycotts, work stoppages, and other collective action. Such measures, although thankfully rare, remain an essential part of our constitutional order to be used during times like these.

(John Greabe teaches constitutional law and directs the Warren B. Rudman Center for Justice, Leadership & Public Service at the University of New Hampshire Franklin Pierce School of Law. The opinions he expresses in his “Constitutional Connections” columns are entirely his own.)

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