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A silver lining: America’s institutions remain intact

Our system of laws worked as shaken lawmakers emerged to restore confidence in free and fair elections

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Vice President Mike Pence, left, and Speaker of the House Nancy Pelosi, D-Calif., read the final certification of Electoral College votes cast in November’s presidential election during a joint session of Congress after working through the night, at the Capitol in Washington on Thursday, Jan. 7, 2021. Violent protesters loyal to President Donald Trump stormed the Capitol Wednesday, disrupting the process.

J. Scott Applewhite, Associated Press

When House and Senate members chose to reconvene Wednesday night to continue counting electoral votes, they did more than just signal victory over the mobs that invaded the Capitol earlier that day. They were signaling victory for the rule of law.

That’s no small thing, and it ought to give all law-abiding Americans a sense of peace and reassurance.

It also signaled that, in response to a comment often attributed to Benjamin Franklin concerning the republic he and the other founders gave us, that this generation of congressional leaders, despite everything, intends to keep it.

The Constitution requires the president of the Senate, who is the vice president, to “in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” 

The “certificates” come from each state, signed by governors and certifying the official votes for president and vice president by electors chosen in each state. The Electoral Count Act of 1887 specifies that this will happen on Jan. 6.

By reconvening Wednesday night, while it still was Jan. 6, Congress demonstrated that the United States remains a nation guided by laws, not personalities. President Donald Trump had urged Vice President Mike Pence to reject certain votes and declare Trump the winner of the presidential election. The law and the Constitution do not allow that, and so it didn’t happen.

Americans can’t afford to take this deference to law, nor the history of how it has held the union together, for granted.

The clash of personalities and the law first appeared in the 1790s when a group of people in western Pennsylvania violently opposed a tax on whiskey imposed by the federal government. Some formed their own courts and took control of local militias. President George Washington launched a military response to quell the insurrection and impose the rule of law, setting a powerful precedent.

Perhaps no president took as much criticism for his handling of the law than Abraham Lincoln, who often was branded a dictator by his enemies. Yet he was careful to construe his actions in the context of the law and extraordinary times. Clearly, a dictator would have been less concerned about such things, suspending the law for his own interests. But Lincoln, despite taking necessary liberties, preserved the importance of the law.

The Great Depression provided another big test of American institutions. President Franklin D. Roosevelt tried to expand the Supreme Court to get his proposals into law. In the end, new institutions were established within the constitutional framework, while Congress kept the president from overreaching.

Legal institutions held during Watergate, as well. Ultimately, President Richard Nixon’s alleged abuses of power were checked by Congress, which forced him to resign.

Neither the closeness of the 2000 election nor the attacks of 9/11 were real threats to the nation’s rule of law, despite concerns at the time. The Constitution’s checks and balances, and its methods of succession for the chief executive in the event of death, cover many contingencies.

We have, through the years, been critical of how Congress has ceded power to the president and the courts by refusing to grapple with many defining issues of the day. We have raised warnings about federal overspending and a mounting national debt. The power to create rules has given bureaucracies undue control over too many items, and presidents often push the limits of their war powers beyond what is reasonable.

But the Constitution and the concept of federalism, in which much of the power of government devolves to the states, remains a strong thread that orders civil society and guards against abuses. 

It worked again this week, late on Wednesday, as shaken lawmakers emerged to restore confidence in free and fair elections. 

Americans should be grateful.