A president failed to overturn an election; an insurrection against Congress and the vice president failed; and the Senate acquitted former president Trump of inciting that insurrection in his second impeachment trial.
Just how does the nation move forward from this tumult? The founding generation would urge us to improve the rule of law.
As we all come to understand, law is not a fixed set of rules, court processes, and verdicts. It is a social enterprise involving constant change. When administered well, the tools of law are simply means to greater ends.
Law can provide the language and mechanisms to reach agreement, find neutral ground, and deliver just outcomes. The rule of law succeeds when — as the Constitution Preamble states — it enables the people “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.”
From the very start, the Constitution was meant to change. The first states to ratify these words in 1788 promised holdout states that clear protection of individual rights would soon follow. Congress made good on that promise within six months by passing the Bill of Rights for states to ratify.
Treason (levying war against the nation) and insurrection (carrying arms against the government) were clearly unlawful under that first complete Constitution. They remain unlawful, and federal investigations into the January 6 attack could result in criminal charges.
If convictions for treason or insurrection (and other offenses) can be obtained and sustained on appeal, then — in rule of law terms — they are constitutional successes. If they cannot, then the rule of law success is the government’s decision not to prosecute or the jury’s not-guilty verdict. Either way, there is cause to celebrate the rule of law.
But the true hope of the U.S. constitutional order is to create the conditions — justice, tranquility, common defense, general welfare, blessings of liberty — that prevent the use of armed force against the government. Every attack on the republic is a social failure that points the way to improve U.S. law as a social enterprise.
Recourse to war in 1861 marked a 72-year failure to reconcile notions of liberty and equality with chattel slavery. Four years of war to preserve the republic and free 4 million enslaved persons cost the nation 600,000 lives, billions in economic costs, and untold human suffering.
Improving the rule of law began immediately through Federal Reconstruction and the 13th, 14th, and 15th Amendments. But white nationalism, Jim Crow laws, and segregation demonstrated the inadequacy of those improvements. The nation’s commitment to change fell short.
Even after pivotal 20th-century civil rights laws and Supreme Court rulings, it is clear that a deep undercurrent of race-based inequality and violent extremism still cuts across American society.
But other forces are also at work.
Social media platforms that stoked and mobilized the mob are largely unregulated. Rural communities are increasingly disconnected from the nation’s economic growth, healthcare services, and other measures of “general welfare.” Many veterans were involved in the Capitol attack — a stunning circumstance since the Founders expected the military to suppress insurrection.
The task for the new bipartisan commission studying the Capitol attacks is to identify Constitutional amendments and new laws that enable a digital-age population to fulfill the Constitution’s goals. Closer to home, improving the rule of law begins with new steps to promote justice, equality, and tranquility, just as the Constitution envisions.
David G. Delaney is an army veteran, attorney, and Chatham County resident who is on the faculty of the UNC-Chapel Hill Curriculum in Peace, War and Defense.