Those who are appalled by President Donald Trump's refusal to say he will abide by the result of the election are properly appalled.
It's an example of the dark side of the president's disdain for norms. His fans rather like that disdain, and I get why they do. Washington is often a swamp, and there is a deep state. But another name for the deep state is civil service. And the swamp is within our shining city on a hill _ our nation's capital.
Yes, there is a lot of arrogance at the State Department and the CIA _ rather like the Vatican Curia. But there are also some great patriots with deep knowledge in both places.
Moreover, even a corrupt establishment may be preferable to no elite.
And even flawed rules, customs and folkways are preferable to chaos and disorder.
Two examples of that truth come from the Congress: the filibuster and seniority. Without them, things get worse, not better.
But the president, under the Constitution, is a law enforcer, not a lawmaker, and the president takes an oath _ an oath _ "to preserve, protect and defend the Constitution of the United States."
You can't have the president, of all people, saying he may break the system. It is intolerable.
We used to speak of the "imperial presidency," during Watergate and the period when the Richard Nixon presidency hit the rocks. The presidency of Ronald Reagan was rather elegant _ imperial in style. Subsequent presidencies were imperial in action. Modern presidents tend to confuse themselves with lawmakers, which, to good old George Washington, whose statues some fools want to take down today, is to confuse the presidency with kingship.
Washington, more than any man, helped to establish and save the republic by refusing a third term, and titles and privileges of nobility, when he was offered them.
Modern presidents _ Dwight Eisenhower, John F. Kennedy, Lyndon B. Johnson and Nixon _ all made imperial claims, especially in foreign policy. Barack Obama, the ex-constitutional law professor, was a born-again executive power advocate as president. Civil liberties were held to be subservient to the presidency, and there were deemed to be virtually no limits to executive orders. There was zero humility about presidential power. Indeed, Obama tacitly claimed the power to assassinate enemy leaders (since he did it). No wonder that the intelligence community ran amok with FISA orders and spying on Trump, and his campaign, and God knows who else, in the late Obama term.
Trump joins Obama in his belief that presidents have the right to assassinate.
Trump takes claims of presidential power to explicit, unsubtle levels. He seems to believe what Nixon once said: "Well, when the president does it, that means it is not illegal."
It would apparently be a shock to our current president to learn that, under the Constitution, some things are not his right, or his call. The president is not king for four or eight years.
For even Nixon would not claim the right to nullify an election.
Indeed, Nixon passed on the opportunity to challenge the 1960 election, when he, and many others, had good reason to believe there was major election fraud in Chicago. Maybe that was an act of patriotism. Maybe it was the act of a politician who knew that electoral legitimacy mattered more than his own fortunes or suspicions.
It is not just Trump. Many Americans don't accept the result of elections any more. If the wrong guy won _ from my perspective _ he must be illegitimate. He must be a pretender. I will not accept him as my president.
A considerable number of Americans believed that President Obama was illegitimate. (And we all know who rode the birther conspiracy to prominence.) Many more denied that Trump was a legitimate president. Many, many Democrats; much of the intelligence community; and, I am sad and sorry to say, much of the press simply would not and could not accept the results of the 2016 election.
Hillary Clinton has already said that if Trump wins the election, Joe Biden should not concede. Nancy Pelosi refuses to rule out another impeachment if the president is reelected.
So this lack of respect for laws, rules, norms, majority rule, minority rights, the traditions of Washington and the Constitution itself, is deep, wide and has been building for some time.
How do we avoid a constitutional crisis? How do we keep our republic?
An immediate step would be for the majority and minority leaders of the Senate to call upon the chairs of the two major parties, as well as the two major presidential candidates, to pledge that they will accept the results of the 2020 election. It may take a while to count the votes. But that's OK. We have almost three months to do so.
And this brings me to the Supreme Court and to Supreme Court nominee Amy Coney Barrett, who calls herself an originalist, in the mold of Antonin Scalia.
I think originalism is inadequate as a philosophy of law, in part because no text short of "Christ wept" is self-evident and immune to interpretation. But originalism is a useful corrective to courts that wish to legislate and make new law _ imperial courts.
Judges, like presidents, ought to be limited by law and practice. Neither group is humble by nature, so we must insist upon a little, just a little, humility.
I look forward to Judge Barrett's confirmation hearings. I think any woman with seven children, two of whom are adopted, and a vital career is a hero. And I think she is very smart _ smart enough to have judicial humility before the grandeur of the founders and the Constitution. I hope so. I don't want judges deciding another presidential election.
Ultimately we keep our republic by restoring respect for the rule of law, and the limits the law both imposes and implies.
