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