May 25, 2021

Scholars Letter Urging the Creation of a January 6th Commission


As law professors who teach and write about the U.S. Constitution and about the law of democracy, we urge you to support the creation of a National Commission to Investigate the January 6 Attack on the United States Capitol Complex. Before January 6, 2021, the record of the United States with regard to the peaceful transfer of political power was virtually unique among Western democracies—an achievement of global envy. Even during the Civil War, observance of the constitutional and statutory processes by which presidents are chosen led to the unimpeded selection of each successive President. The events of January 6th threatened American security, inflicted national trauma, and exposed weaknesses in our democratic institutions. What should have been a day to celebrate the steadiness of our democratic tradition was marred instead by the violent interruption of Congress’s certification of the 2020 presidential election. The assault resulted in as many as 140 injuries to both U.S. Capitol and D.C. police.

The proposal to create a January 6th Commission is modeled on the National Commission on Terrorist Attacks Upon the United States, commonly known as the 9-11 Commission. The 9-11 Commission set the gold standard for bipartisan insight into complex national security issues, producing recommendations that made our country safer. Like the 9-11 Commission’s statutory charter, this proposal carefully provides for equal representation of both major parties in the composition of the Commission and, in a significant concession to the requests of the House Minority Leader, requires that all subpoenas be bipartisan. According to Rep. John Katko (R-N.Y.), the ranking member of the House Committee on Homeland Security, the January 6th Commission proposal is “nearly identical” to a bill he and 30 other House Republicans proposed in January.

As many scholars have noted, the unwritten democratic norms that guide political behavior in the United States may be as important as our written constitutional rules to the viability of our free republic. Among the most important of these norms has been every party’s acceptance of the legitimacy of the opposition and a presumption of deference to the legal processes by which electoral outcomes are determined. The events of January 6th threatened to shred those norms and to upend the rule of law.

A January 6th Commission could provide an invaluable service to the cause of American democracy. At a time when partisanship seems to threaten the ability of people of good will even to settle on a common factual understanding of important events, the Commission would be well situated to develop an objective account of the facts and causes related to the January 6th attack—an account in which Americans of all parties could have confidence. The lessons to be learned will be pivotal for ensuring the future security of the Capitol complex and its personnel, protecting the safety of our elected representatives and their staffs, and ensuring that we fortify our democratic institutions before it is too late.

As scholars who teach students about the importance of accountability in a functioning democracy, we regard Congress’s prompt creation of a January 6th Commission as a matter of national urgency.

 

Peter Shane

Jacob E. Davis & Jacob E. Davis II Chair in Law, The Ohio State Moritz College of Law

Matthew Adler

Professor of Law, Duke University School of Law

Felice Batlan

Professor of Law and Director of the Institute for Compliance, Chicago-Kent College of Law, Illinois Institute of Technology

Brian Bix

Frederick W. Thomas Professor of Law and Philosophy, University of Minnesota Law School

Ted Blumoff

Professor of Law, Mercer University Law School

John C. Brittain

Olie W. Rauh Professor of Law, University of the District of Columbia Clarke School of Law

Hal Bruff

Rosenbaum Professor Emeritus, University of Colorado Law School

Gilbert Carrasco

Professor of Law, Willamette University College of Law

Martha Chamallas

Robert J. Lynn Chair in Law, The Ohio State University Moritz College of Law

Matthew Charity

Professor of Law, Western New England University School of Law

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, University of California Berkeley School of Law

Alan Chen

Thompson G. Mash Law Alumni Professor, University of Denver Sturm College of Law

Natalie M. Chin

Associate Professor of Law, City University of New York School of Law

Carol Chomsky

Professor of Law, University of Minnesota Law School

Caroline Mala Corbin

Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law

Jonathan Decatorsmith

Clinical Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology

James Douglas

Distinguished Professor of Law, Thurgood Marshall School of Law at Texas Southern University

David Fisher

Professor of Law, University of Minnesota Law School

Timothy Floyd

Professor of Law, Mercer University School of Law

William Forbath

Lloyd M. Bentsen Chair in Law, University of Texas Austin School of Law

Jamie Franklin

Assistant Clinical Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology

Lawrence Friedman

Professor of Law, New England Law Boston

Amanda Frost

Professor of Law, American University Washington College of Law

Ruben Garcia

Professor of Law, University of Nevada Las Vegas William S. Boyd School of Law

Frederick Mark Gedicks

Guy Anderson Chair & Professor of Law, Brigham Young University Law School

Douglas Godfrey

Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology

Paul Gowder

Professor of Law, Northwestern University Pritzker School of Law

Mark Graber

Regents Professor, University of Maryland Carey Law School

Kent Greenfield

Professor of Law and Dean’s Distinguished Scholar, Boston College Law School

Christopher Griffin

Director of Empirical & Policy Research and Research Professor, University of Arizona James E. Rogers College of Law

Stephen Griffin

Professor of Law, Tulane Law School

Catherine Grosso

Professor of Law, Michigan State University College of Law

Pratheepan Gulasekaram

Professor of Law, Santa Clara University School Law

Steven  Heyman

Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology

Jessie Hill

Judge Ben C. Green Professor of Law & Associate Dean for Research & Faculty Development, Case Western Reserve University School of Law

Joan Howarth

Distinguished Visiting Professor, University of Nevada Las Vegas William S. Boyd School of Law

Aziz Huq

Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School

Elizabeth Iglesias

Professor of Law, University of Miami School of Law

Vincent Johnson

South Texas Distinguished Professor of Law, St. Mary's University School of Law, San Antonio

David Kairys

Professor of Law Emeritus, Temple University School of Law

Kit Kinports

Professor and Polisher Family Distinguished Faculty Scholar, Penn State Law

Heidi Kitrosser

Robins Kaplan Professor of Law, University of Minnesota Law School

Thomas Kleven

Professor of Law, Thurgood Marshall School of Law at Texas Southern University

Richard Kling

Clinical Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology

Mae Kuykendall

Professor of Law, Michigan State University College of Law

Michael Lawrence

Professor of Law, Michigan State University College of Law

Katrina Lee

Clinical Professor, The Ohio State University Moritz College of Law

Shaundra Lewis

Professor Shaundra Lewis, Thurgood Marshall School of Law at Texas Southern University

Anne Marie Lofaso

Arthur B. Hodges Professor of Law, West Virginia University College of Law

J.C. Lore III

Distinguished Clinical Professor of Law, Rutgers Law School

Gregory Magarian

Thomas Karole Green Professor of Law, Washington University School of Law

Stephen Meili

Associate Professor and James H. Binger Professor in Clinical Law, University of Minnesota Law School

Jon Michaels

Professor of Law, UCLA School of Law

Frank Michelman

Robert Walmsley University Professor, Emeritus, Harvard University

Sheldon Nahmod

University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law, Illinois Institute of Technology

Michael A. Olivas

William B. Bates Distinguished Chair Emeritus, University of Houston Law Center

Timothy O'Neill

Professor Emeritus, University of Illinois at Chicago Law School

Myron Orfield

Earl R. Larson Professor of Civil Rights and Civil Liberties Law, University of Minnesota Law School

Cathren Page

Associate Professor of Law, Mercer University School of Law

Deborah Pearlstein

Professor of Law, Cardozo School of Law

Richard Reuben

James Lewis Parks Professor of Law, University of Missouri School of Law

David Ritchie

Professor of Law & Philosophy, Mercer University Law School

Kermit Roosevelt

Professor of Law, University of Pennsylvania Carey Law School

Bertrall Ross

Chancellor’s Professor of Law, University of California Berkeley School of Law

David Rudstein

Professor of Law Emeritus, Chicago-Kent College of Law, Illinois Institute of Technology

Steve Sanders

Professor of Law and Adjunct Professor of Political Science, Indiana University Bloomington Maurer School of Law

Christopher Seaman

Associate Professor of Law, Washington and Lee University School of Law

Eric Segall

Ashe Family Chair Professor of Law, Georgia State College of Law

Bijal Shah

Associate Professor of Law, Arizona State University Sandra Day O'Connor College of Law

Jeffrey Shaman

Vincent de Paul Professor of Law Emeritus, DePaul University College of Law

Carolyn Shapiro

Professor of Law and Associate Dean for Academic Administrative and Strategic Initiatives, Chicago-Kent College of Law, Illinois Institute of Technology

Gary Simson

Macon Chair in Law, Mercer University School of Law

SpearIt

Professor of Law, Thurgood Marshall School of Law at Texas Southern University

Roy Spece

John D. Lyons Professor of Law, University of Arizona James E. Rogers College of Law

Joan Steinman

Professor of Law Emerita, Chicago-Kent College of Law, Illinois Institute of Technology

Geoffrey R. Stone

Edward H. Levi Distinguished Professor of Law, The University of Chicago Law School

Franita Tolson

Vice Dean for Faculty and Academic Affairs and Professor of Law, University of Southern California Gould School of Law

Laurence Tribe

Carl M. Loeb University Professor Emeritus, Harvard Law School

Louis Virelli III

Professor of Law, Stetson University College of Law

Adrian Walters

Ralph L. Brill Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology