When Assessing Blame for the Jan. 6 Assault on the US Capitol, Don’t Forget the Courts

March 14, 2021 Updated: March 14, 2021

There is plenty of blame to go around for the illegal and unprovoked assault on the U.S. Capitol by a combined group of criminals and misguided citizens on January 6. Everyone from the news media to members of Congress has expressed opinions on the cause of this debacle, but one group that has unjustly escaped criticism in the courts.

Many millions of honest, law-abiding citizens, Democrats, Republicans, Independents, still have serious questions about the federal election that was held from early October until mid-November of 2020. Unfortunately, few of those questions have been seriously answered.

What is clear is that some states, under the guise of the COVID-19 epidemic, changed voting procedures through the executive branch or judicial branch actions in apparent contravention of the U.S. Constitution, which gives sole power for determining state voting procedures in presidential elections to the state legislatures, Article II. Section 1. However well-meaning or insidious these changes were since they were not passed by the appropriate state legislatures, they appear to run afoul of the Constitution.

Unfortunately, it appears that none of these cases were heard on their merits. Instead, both state and federal courts at all levels, including the U.S. Supreme Court, used procedural dodges such as “standing” and “latches” to avoid ever hearing arguments from both sides on the merits of these cases. If a state has no “standing” to have its case heard on the merits by the Supreme Court, as prescribed in Article III, when it believes that another state has violated the Constitution in a way that is injurious to that state and its citizenry, where does the state go to seek justice? This failure of the courts to provide substantive due process in these cases makes a mockery of the Constitution.

This failure did not go unnoticed by millions of voters, some of whom were illegally on the U.S. Capitol grounds on Jan. 6.

History, including our own history, has shown that people lean toward taking matters into their own hands when they feel that they cannot get justice in the courts. Remember the Tax Stamp Act and the Boston Tea Party? In fact, our Founders speak directly to this evil of courts failing to provide justice in the Declaration of Independence.

In the current cases, in addition to the issue of unconstitutionally changed voting procedures, the courts have failed the American people by refusing to hear claims of improper voting procedures, ballots turning up in the middle of the night without clear providence, and downright fraud, such as voting by unregistered, ineligible, and, in some cases, deceased people, on their merits.

Our legal system relies on an adversarial process where aggrieved parties and their opponents have the right to discover facts, through subpoenas of evidence and compulsory interviews and cross-examinations of witnesses under oath, in order to resolve the truth. This substantive due process, which is guaranteed through the 5th and 14th Amendments to the Constitution, was denied to the American people by courts throughout the country in the wake of allegations of voting improprieties in the 2020 federal election.

This failure of the courts is not unheard of; they often look to sidestep difficult or politically unpopular issues. However, in so doing the courts have done a disservice to both the outgoing Trump administration and the incoming Biden administration.

By refusing to resolve these allegations of voting improprieties through the court system, the courts have left tens of millions of people of all political persuasions wondering what really happened in the 2020 election. This is unfair to Trump supporters who feel they do not know who really won and to Biden supporters who are discouraged by the cloud over President Biden’s new administration.

The courts must act now to hear these various cases on the merits, regardless of outcomes, to avoid a loss of faith in our voting process in the future. Failure of the courts to do so makes a mockery of the so-called independence of the Judiciary and presents a cause for future unrest among the citizenry on the losing side in the next election.

For the country to achieve civil unity while allowing for political disagreement going forward, American citizens need the courts to provide substantive due process by hearing these cases on their merits and avoiding using procedural dodges. Nothing less than the future of the country hangs in the balance of the scales of justice.

Dr. Roby is a civil libertarian and a student of the Constitution who has served as a court-qualified expert witness in both civil and criminal cases in both federal and state courts.