Given the extreme importance for access to justice that even highly inflammatory issues are decided on a neutral and principled basis, I cross post my recent blog that discusses Legitimacy. The Principles are intended to be non-partisan and universal.
I have previously written to make the point that a President legally elected without a popular vote majority has legal and constitutional legitimacy but not political or moral legitimacy.
That is still true, and hopefully helpful, but no longer a sufficient analysis. Now I offer a number of additional propositions that would apply in a reasonably healthy republic. (The word President should apply with equal force to a “President-elect.”
A President whose formally legal election has been conclusively proved to have been procured by crime or external influence does not enjoy legitimacy of any kind beyond the formal title.
A President, about whose election serious questions have been raised by credible US government institutions as to whether crime or external influence produced the result, is one whose legitimacy is in serious doubt.
A president faced with such serious doubt about their legitimacy should regard it as their first task to resolve that uncertainty, regardless of risk to their continued power.
The duty in this situation of other political and legal actors, and indeed of citizens, is to take every step to resolve that uncertainty, regardless of consequences to their careers or institutional roles.
During the period of uncertainty during which the facts and outcome impact are being explored, the President and other political and legal actors should refrain from actions that assume the legitimacy of the President, other than those actions immediately necessary for the defense of the nation, and those actions that were not in any way at issue in the election as to which doubt exists.
If, after exhausting all efforts to discover the facts and the impact of those facts, doubt remains about what caused the result, the President and the political and legal system should should consider the President to have only qualified legitimacy, with the President’s duty to act on behalf of all Americans being even greater than usual, their responsibility to seek consensus and common ground overwhelming, and with any claims of authority for controversial actions illegitimate.
Finally, it must be emphasized that, if we are to take our Constitution seriously, these principles should apply even when President who had a majority of the electoral college also had a majority of the popular vote, they apply with even greater force when the formal winner did not win even a plurality of the popular vote.
I would urge people to talk with those of all political persuasions about these principles, not in order to delegitimize the apparent victor, but in order to create some consensus about the principles that should guide the nation’s actions.
I believe these principles to be unassailable (although I would welcome suggested improvements). What would surely be more in dispute is what has to be done if and when a President and/or party fail to follow them.