Tuesday, February 16, 2021
Whatever else one might say about the Trump presidency, the bottom line is that he fought the Swamp, and the Swamp won.
I know that many, probably including many readers of The American Spectator, believe that Trump “really won” the last election. That’s not what I mean by “won.” My intellectual hero, Justice Oliver Wendell Holmes Jr., wrote in a famous article that I first read in law school, “The Path of the Law,” in the Harvard Law Review in 1897, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
As we all know, and are constantly reminded by the pro-Biden media, the courts and state election officials have all ruled against President Trump’s claims of election fraud and other irregularities; the Electoral College voted 306-232 in favor of Joe Biden, Congress certified the results, and Mr. Biden was sworn in as president on January 20. That’s what Holmes meant by saying that “the law” is not some looming omnipresence in the sky, but the cold, hard reality of what those in power will actually do — a theory sometimes called “positivism” or the “prediction theory of law.”
If the Democrats stole the last election, they stole it mostly legally in Holmes’s sense because they got away with it and the powers that be were unwilling to intervene. Or, as we used to say in Evansville, Indiana, where I grew up in local politics, “The other side stole the election fair and square.”