A president has the constitutional right to contest results of election

A president has the constitutional right to contest results of election
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To state the obvious at the moment, the opponents of Donald TrumpDonald TrumpMeghan McCain: Democrats 'should give a little credit' to Trump for COVID-19 vaccine Trump testing czar warns lockdowns may be on table if people don't get vaccinated Overnight Health Care: CDC details Massachusetts outbreak that sparked mask update | White House says national vaccine mandate 'not under consideration at this time' MORE are freaking out about the possibility that the most populist president of the United States since Andrew Jackson may reject the results of an election that the president and his supporters believe is fixed.

The Washington Post published a feature column earlier this month by Georgetown University law professor Rosa Brooks, who insisted that the dystopian scenario in which Trump refused to concede the election was the most likely outcome in November. The result, the article proclaimed, will be violence in the streets and a constitutional crisis.

How did Brooks arrive at such conclusions? She conducted “war game” simulation exercises at the Transition Integrity Project she founded last year to guard against precisely such a scenario. But of course, no one bothered to mention that the Transition Integrity Project includes only Democrats and disaffected Republicans, and was primarily funded by former members of the administration of Barack Obama.


Other dystopian pictures were painted in the New York Times by former Director of National Intelligence Dan Coats, who was fired by Trump, and by Eric Lach in the New Yorker, who unsurprisingly noted the Transition Integrity Project simulation exercises. The Atlantic and Vanity Fair were among the other media outlets that ran similar accounts.

But why would Trump and his supporters not have the constitutional right to refuse to accept the results of what they in true faith think is a corrupt election? I say “constitutional right” intentionally. Law professors such as Brooks should know of popular constitutionalism, a theory that several of the most celebrated liberal law professors in the country have embraced, and a theory that traces back to the days of colonialism and resistance to British oppression through protests like the Boston Tea Party.

The basic premise with popular constitutionalism is that the government belongs to the people, and the practical effect is that the people assume an “active and ongoing control over the interpretation and enforcement of constitutional law,” as clearly described by former Stanford law dean Larry Kramer, the most celebrated of the popular constitutionalists.

Popular constitutionalism proposes “extrajudicial” interpretation, which assumes that nonjudicial officials need not treat decisions by judges as authoritative and that the people must play a significant role in defining constitutional meaning. Most critical, given the scenario predicted by the opponents of Trump, popular constitutionalism stresses the special, and often neglected, role of social movements in shaping the law.

According to proponents of popular constitutionalism, ordinary political discourse is dominated by what Harvard law professor Richard Parker calls an “antipopulist sensibility.” It is the view that “ordinary political energy” is problematic “because of attributes that set it apart from, and identify it as inferior to, more refined sources of political participation.”


Yale law professor Jack Balkin has shown a similar sentiment in what he calls the “antipopular feeling” that informs most government decisions, including those about constitutional meaning, like “elitism, paternalism, authoritarianism, naivete, excessive respect for the best and brightest, isolation from concerns of ordinary people, inflated sense of superiority over ordinary people, disdain for popular values, the fear of popular rule, confusion of factual and moral expertise, and meritocratic hubris.” In the face of this, Balkin claims, the theory of popular constitutionalism tries to denote the importance of popular understanding of the law.

Every election for president is shaped by law, including constitutional law. So if Joe Biden wins the election that Trump and his supporters sincerely believe was rigged by establishment elites, a theory of constitutional law that has been championed for decades by numerous establishment elites authorizes the president and the ordinary Americans who vote for him to contest the results, including in the streets, if they must do so.

As a law professor myself, I think that popular constitutionalism is a flawed theory of constitutional law. But it is nevertheless a legitimate theory, and the outcome of the election can be resisted in true faith by practicing the democratic activities that popular constitutionalism promotes.

Scott Douglas Gerber is a law professor for Ohio Northern University and associate scholar for the Political Theory Project at Brown University. His books include “First Principles: The Jurisprudence of Clarence Thomas.”