Is the American Government Legitimate?
A long-winded and esoteric discussion about an elusive idea.
At the core of our ongoing conversations about the Supreme Court and other institutions is the question of legitimacy. I’m arguing that some radical but legal solutions being proposed, such a massive court-packing, would be illegitimate while others contend the existing system has already lost it.
To some extent, the debate is unresolvable because the concept itself is so elusive. Formal political philosophy is not much help:
If legitimacy is interpreted descriptively, it refers to people’s beliefs about political authority and, sometimes, political obligations. In his sociology, Max Weber put forward a very influential account of legitimacy that excludes any recourse to normative criteria (Mommsen 1989: 20). According to Weber, that a political regime is legitimate means that its participants have certain beliefs or faith (“Legitimitätsglaube”) in regard to it: “the basis of every system of authority, and correspondingly of every kind of willingness to obey, is a belief, a belief by virtue of which persons exercising authority are lent prestige” (Weber 1964: 382). As is well known, Weber distinguishes among three main sources of legitimacy—understood as the acceptance both of authority and of the need to obey its commands. People may have faith in a particular political or social order because it has been there for a long time (tradition), because they have faith in the rulers (charisma), or because they trust its legality—specifically the rationality of the rule of law (Weber 1990 [1918]; 1964). Weber identifies legitimacy as an important explanatory category for social science, because faith in a particular social order produces social regularities that are more stable than those that result from the pursuit of self-interest or from habitual rule-following (Weber 1964: 124).
In contrast to Weber’s descriptive concept, the normative concept of political legitimacy refers to some benchmark of acceptability or justification of political power or authority and—possibly—obligation. On one view, held by John Rawls (1993) and Ripstein (2004), for example, legitimacy refers, in the first instance, to the justification of coercive political power. Whether a political body such as a state is legitimate and whether citizens have political obligations towards it depends, on this view on whether the coercive political power that the state exercises is justified. On a widely held alternative view, legitimacy is linked to the justification of political authority. On this view, political bodies such as states may be effective, or de facto, authorities, without being legitimate. They claim the right to rule and to create obligations to be obeyed, and as long as these claims are met with sufficient acquiescence, they are authoritative. Legitimate authority, on this view, differs from merely effective or de facto authority in that it actually holds the right to rule and creates political obligations (e.g. Raz 1986). On some views, even legitimate authority is not sufficient to create political obligations. The thought is that a political authority (such as a state) may be permitted to issue commands that citizens are not obligated to obey (Dworkin 1986: 191). Based on a view of this sort, some have argued that legitimate political authority only gives rise to political obligations if additional normative conditions are satisfied (e.g. Wellman 1996; Edmundson 1998; Buchanan 2002).
Emphases all mine.
I tend toward a Weberian view of legitimacy. Indeed, the purely descriptive view strikes me as tautological and unhelpful. Alas, the normative view is more elusive, reminding me of Potter Stewart’s infamous description of obscenity: I know it when I see it.
Legitimacy in a normative sense can exist in an authoritarian state. So long as the people believe the king or other ruler has the right to rule and is doing so within the traditions of the society, he’s legitimate. Conversely, it’s hard to see how a totalitarian one can be seen as legitimate, given both the coercive nature of state control and that people aren’t free to express opinions.
Legitimacy would seem easier to assess in a democratic system, given regular elections, freedom of expression, and routine polling of public opinion. But democracies are built on a notion of popular sovereignty and it’s quite possible for a system to lose legitimacy even with fair and free elections.
Aside from very small communities, democracies have to be of the representative kind to function. And there are all manner of systems for allocating representatives in operation around the world, none of which are inherently illegitate. Parliamentary systems aren’t inherently more or less legitimate than presidential or mixed ones. Unitary systems aren’t inherently more or less legitimate than federal ones. Ditto single-member districts vs proportional representation or all manner of other ways of allocating votes.
Indeed, a purely representative system could well be illegitimate. An election in Iraq, for example, treating it as a unitary state creates the dreaded “an election is a census” problem, wherein the Shia will always rule over the Sunnis and Kurds. In such a polity, legitimacy is challenging but almost certainly requires some high degree of regional autonomy and incredibly high protection for individual and group rights.
As discussed in my earlier post on the changing nature of American federalism, our country is radically different than the one the Constitution was designed to govern. I tend to think that our present system remains legitimate because it operates within a set of longstanding rules and that the American people, broadly speaking trust those rules.
It didn’t lose legitimacy when George W. Bush won the Presidency in 2000 despite having half a million fewer votes nationally than Al Gore. The race was run according to the agreed-upon rules. Indeed, the reverse could well have happened and it nearly did in the very next election, where Bush won a larger victory over John Kerry who could have won the election if a relative handful of votes in Ohio had flipped.
The 2016 election was more problematic given the magnitude of the deficit: nearly three million votes. But, even though my strong preference was in the other direction, I didn’t consider the outcome illegitimate because of that. Clinton failed to turn out the vote in the Rust Belt and the fabled “Blue Wall” failed her. Tough luck.
To use a sports analogy, I still adamantly believe Dez Bryant caught that crucial pass in the playoff against Green Bay in 2014 and that the referees cost the Dallas Cowboys a touchdown and likely a trip to the NFC Championship game. I nonetheless believe the New England Patriots were the legitimate champions of the NFL for that season.
To the extent there is a problem with any of those outcomes, it’s about the appearance of cheating.*
In 2000, I thought the Democrats were playing fast and loose with the rules during the recount and that the Florida Supreme Court illegally changed the rules of the game after the fact, so welcomed the outcome in Bush v. Gore. But Democrats quite rightly fumed at the Republican Secretary of State in Florida seeming to put her thumb on the scale. And the fact that the winner’s brother was Governor of Florida at the time and was using his power to help preserve the marginal outcome didn’t help. (The Butterfly ballots, hanging chads, and other issues struck me as tangential to legitimacy. My preference then and now is to follow the pre-existing rules, which were written under a veil of ignorance.)
In 2016, the primary legitimacy concerns, in my judgment, had less to do with the popular vote loser winning the race than the way the race was run. While there is no way to know whether various forms of Russian interference changed the outcome, they certainly tainted the race. (Indeed, undermining its legitimacy was as much the point as getting Trump elected.) Even more importantly, widespread actions by Republicans in many states to rig the system to make it harder for Blacks and other Democratic-leaning constituencies to exercise their franchise were deeply troubling.
And, to close the circle on the sports analogy, while I simultaneously believe Bill Belichick is the finest coach and Tom Brady is the greatest quarterback of the Super Bowl era, their repeated flouting of the rules to gain a competitive advantage does indeed taint their legacy in my mind. I still count their rings and support their eventual election to the Hall of Fame on the first ballot.
Additionally, while I don’t find a slight skew of the system towards rural voters inherently problematic, the fact that the system is stacked in multiple ways to that end is indeed troubling. Having a Senate that’s institutionally skewed to one set of interests that happens to coincide with one political party is defensible in a federal system with enormous social and cultural diversity. But stacking that with a President elected through a similarly skewed system and then having said President and Senate make lifetime appointments to the Supreme Court to cement that advantage for decades is a bit much.
My strong preference for fixing all of this—and the one that would be most legitimate—is to abolish the Electoral College in favor of a national popular election for President and make Supreme Court appointments term-limited (say, 12 years) rather than for life. Alas, both would require Constitutional amendment, which is very hard indeed. It’s conceivable that SCOTUS reform could get passed. I don’t see how to get small states to give up their representative advantage.
In terms of things that don’t require such broad consensus, getting rid of the filibuster, as we did for judicial appointments, may well help and is almost certainly coming if the Democrats take back the White House and Senate in a few weeks. (But, of course, the filibuster would have kept Brett Kavanaugh off the bench, so pick your poison.)
I would strongly support increasing the House of Representatives. While one per 30,000 residents, as envisioned by the Constitution, might be unwieldy, I wouldn’t oppose it. But I’m not really seeing much talk about it.
It’s unclear to me whether the National Popular Vote Interstate Compact, which we’ve discussed here many times over the years, is Constitutional but it would be a legitimate work-around to amending the Constitution and would have the same effect as abolishing the Electoral College if upheld.
I would think any and all of those changes would be legitimate, in that, while they would have partisan and regional impact, they would be seen as within the rules and reflective of the people’s representatives.
As discussed in the Federalism post, I would also think granting statehood to Puerto Rico would be perceived as legitimate. While it would give the Democrats two more Senators, five or six more Representatives (absent an enlarged House), and seven or eight Electoral Votes, the Republican Party platform has actually been more enthusiastic about PR statehood than the Democratic Party’s, going back to at least Ronald Reagan’s day.
I’m much more skeptical about DC and, certainly, Guam and the smaller territories. In the case of DC, aside from the partisan angle, it’s just too small. And the non-PR territories are simply teeny tiny—with 100,000 or fewer residents. Adding them as individual states simply makes no sense under the current construct.
We’ve beaten court-packing to death but I continue to believe it would be perceived as illegitimate. Nine justices has been sacrosanct for the entirety of the modern history of the Republic. Overriding it for partisan advantage simply because Donald Trump got to appoint Justices despite losing the popular vote is hard to justify.
As with the previous examples, however, there’s a caveat. Again, I don’t see Trump’s presidency as illegitimate on the basis of his having received fewer votes. While Russian interference adds an asterisk I still don’t have a problem with his appointing Justices per se.
Alas, the Merrick Garland gambit is troublesome. It was legal but at least pushed the boundaries of normative legitimacy. While I would have likely supported a refusal to vote for an Obama successor to the most conservative Justice on the Court had Antonin Scalia died in August or September of an election year, it struck me as naked partisanship doing so when he died in February or a successor was named in March—nearly nine months before the election.
Now that the shoe is on the other foot, with the most liberal Justice, Ruth Bader Ginsburg, dying just weeks before the subsequent election, we’re at a crossroads. While I’m more sympathetic to the Republican argument that it’s different given unified government than most OTB readers, it’s obviously stunningly hypocritical. Half the country would almost surely see a third Trump Justice being confirmed under the circumstances as illegitimate. That would especially be the case if he did so during the lame duck session having lost the election.
Under that circumstance, I think adding two seats to the Supreme Court to essentially reverse the Garland power grab could be sold as a legitimate corrective. Still, a huge chunk of the country would doubtless see it as a giant escalation that broke a hard and fast rule of the game.
Further, doing all of the above—packing the courts, expanding the House, adding Democratic-leaning states—essentially in one fell swoop as a result of winning a single election cycle would almost surely be seen as a declaration of war on Red America.
And, yes, I understand that a lot of commenters think it’s about time. That Red America long ago declared war on them. While I understand that view, I think it’s wrong. Or, at least, wrongheaded.
While our system is institutionally skewed towards the interest of the suburbs and rural areas, it’s ultimately still dominated by the urban centers. Not just because more people live there and they outvote the rest but because they have most of the money and dominate the media, universities, and other purveyors of ideas and culture. Even with the Senate, Electoral College, and Supreme Court over-representing Red America, it merely acts as a regulator. We’re enacting change slightly slower than we would otherwise.
Indeed, I see the Garland gambit as a desperate, last-ditch effort. Even with the institutional advantages, McConnell and company know they have an uphill fight to keep control of the Senate. Republicans already have to draw an inside straight to win the White House and more states are turning Blue every cycle. And even the Supreme Court is issuing massive rebukes to the values of Red America on things like LGBTQ rights, a trend that’s likely to continue.
Ultimately, then, radical power plays to balance the scales will make those in Blue America who are already winning feel slightly better about the system but further inflame those in Red America who see the country they grew up in becoming unrecognizable. It may increase representativeness at the margins and destroy normative legitimacy altogether.
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* I have no desire to re-litigate any of these events in the comments section. I’m simply laying out may view of the threats to legitimacy of our system.
Here’s an odd question: Could the Senate adopt internal voting rules to reflect and mitigate the small state problem? Would it be feasible to say no bill may advance without the support of Senators representing 50% of the population? Would that automatically violate something in the text of the Constitution, or is it merely a norm that the Senate itself can tweak?
Frankly I don’t think we should care about “inflaming” red America even if that’s possible. After their surrender to Trump, they should be on the receiving end of what they have been dishing. Basically, there is a large country to be run and they keep getting in the way- Covid-19 just being the latest example.
@Tim D.:
It would be far less extraconstitutional than the filibuster and, indeed, I’d like to see something like that. I don’t see how it would work in practice, though.
@Raoul:
While I understand the impulse, that’s an invitation to civil war.
@James Joyner: I’m not sure how it could be made binding on a Senate elected by a minority of the population (such as the current one), but I’m not an expert about how leadership is selected or what rules are used for that. But it does feel like it could be an interesting messaging opportunity for a Dem majority, and perhaps as a way of “re-purposing” the current filibuster rather than ending it.
As you point out, governmental legitimacy is not the same as legality. Legitimacy ultimately comes from the consent of the governed. A state that wishes to survive must constantly evolve to insure that consent, or risk revolution. As it turns out, though, revolutions almost never achieve their ultimate ends even when the existing rulers are cast down. I’ve long thought that we in America had an absolutely unique experience but have misconstrued it as being some kind of general lesson: the rulers we overthrew didn’t live here and were a long long way away which meant our revolution resolved without the long term destruction, strife, and escalating retaliation that is the norm. Our rulers just gave up and went away. The outcome of the Civil War more typical and is the rule to the Revolutionary War’s exception.
Another nearly unique outcome that we incorrectly see as inevitable has also warped our ability to actively promote a more fair system in both governance and economics: in the 1920’s our rich and powerful were witnessing their equivalents being put up against the wall and shot in Russia and later in China, and the “contagion” spreading through the world. And for once, they backed down. Almost overnight they stopped petitioning their state and federal leaders to come and shoot some strikers when miners walked out or factory workers demanded better conditions. The communist revolutions around the world did nothing to help the average worker in their country but it sure as heck benefited the workers here and in Western Europe. Those days are long past though and with the fall of the Soviet Union the rich and powerful have once again started coopting the State to their exclusive benefit. In the past four decades 100% of the benefits of the growth of productivity has gone into the pockets of the top 20%. One. Hundred. Percent. The system that realized that may be legal and may constitute the “agreed upon rules”. But that system is not legitimate.
@James Joyner:
As is the Trump States destruction of our society. If we are to have a negotiated settlement my side needs to show the Trumpers they have something to lose and could very well lose it. Your continual advice to continue to take it and just ask nicely for them to change is not going to get us anywhere.
James, your daughters are still young. As the parents of twenty somethings I can tell you that the young in the non-Trump states are angry, and rightfully so. I fear some radical crank forming them into a mob and leading them into disaster. Their lives are being stolen, literally in some cases, by the Trumpers, and they understand that these losers and failures are put in power by a minority of the populace. At every turn they are told to just take it and don’t take things “too far”. Well, when Kap kneeling is too far, then they see all such calls as illegitimate.
KM, what do you think about this comment?
The U.S. contends with a basic question: is the compromise that was used to found the country worth the country it founded?
The compromise has allowed the U.S. to lipstick a happy face on its early removal and enslavement of two different sets of people located a world apart, acts that lie at the root of its problems today.
The compromise has allowed law enforcement at every level of U.S. government to become automatically and forever corrupt, from the beat cop all the way up to the glorified arms dealers we call “defense contractors.”
The compromise has allowed lawyers to shadow rule from pits of self-loathing and shame. At the center of government’s revolving doors of legislators, lobbyists, and defense contractors are lawyers who sold their souls for money, producing only woe and empty frat boy high fives.
This is why all the statues are being targeted. The U.S. is waking up to the lies it has told about itself, that “American Exceptionalism” was simply an excuse to be excepted from the law, much less civil company.
Be thankful Trump is a dunderhead. A true charismatic would have won the day, as the GOP became a cult under Reagan, and has only reached Koreshian proportions since.
@James Joyner: Civil War? Isn’t that a bit hypebolic? I doubt very much that relatively well-off people are going to risk life and limb. If anything, it is those at the bottom (e.g., minorities) who have real gripes and not much to lose.
I agree with the analysis in your next-to-last paragraph. The Republicans are acting out of desperation. They could still have a very viable conservative party, but to do so, they would have to figure out how to increase their appeal to black and Latino Americans (they do pretty well with Cubans already). Instead of pushing that way, they went for Trump and anti-immigration (and it wasn’t aimed at Canada). But they didn’t, so they are shrinking demographically, and scared about losing their grip.
AND, when they do something illegitimate, how do we as the opposition respond? If we clear our throats, it will be ignored. We have to say what we will do in response, and then do it if needed.
Yes, there is an election upcoming, and that’s an opportunity. Of course, Trump loves to flirt and tease the idea that he’ll ignore election results. I think he’s mostly trolling Democrats. Yet, this doesn’t seem like a joking matter. (I formulated a rule for this from my time as an assistant professor: Students don’t think jokes about the test are funny.) It’s funny to them, though, in a very cruel humor sort of way. But that’s one thing they elected Trump for: His cruelty.
As long as they keep their racist base, they’ll never be able to do that…
@Tim D.:
Constitutionally, each house is the final arbiter of its own rules, so sure, what you’re describing would be constitutional.
@James Joyner:
You’re assuming that isn’t a desire of a significant minority of the electorate in red states. The vast majority of Civil War threats come from the RW, not the Left.
What do you think the Trump Administration if Antifa were armed and organized like the RW militias of the 90s or like the Bundys and their crowd? As you point out:
I think it’s understandable and wrong-headed as well, at least politically. But the GOP/RW has been redefining norms at the government level for quite a while now. Hell, they and their media ecosystem have no problem redefining kneeling, a social gesture that signaled the same message for all of human history. Indeed, the latter example is rooted in evolutionary biology.
But again, it isn’t the Left who has been threatening civil war. It isn’t the Left arming themselves in preparation for it.
But this is part of the problem, no? I found a paper by Chemerinsky from 2004ish thr other day, and his point was that the Senate blocking nominees is supposed to moderate the nomination process of the Executive. I think @Kingdaddy’s post from today is a nice dovetail to that idea.
@MarkedMan:
While I agree that the rich have utilized the institutions of government to entrench their power, it’s simply not true that the bottom 80% have not benefitted. People are richer now than ever before in any meaningful way you’d wish to measure. They have access to more and better food. They live in bigger homes. They have a vastly more advanced information ecosystem. They drive nicer, safer, more advanced cars. They have access to far more advanced drugs and medical procedures. Etc. Etc. The gap between rich and poor has certainly increased over the same period but the rising tide actually lifted all boats.
@MarkedMan:
Over what, exactly? [EDIT: I don’t mean that flippantly. There are a lot of reasons to be PO’d. But I don’t know what, in this context, they’re mad about.]
@Raoul:
I don’t think the relatively-well-off are who we have to worry about. Still, I think there are rather obvious parallels between now and 1860.
The problem, as alluded to in the post, is that we no longer have the same sort of loyalty to the states as we had then. Which means that it wouldn’t be a neat independence movement suppressed by the superior force but rather an uprising from the rural areas. If Atlanta burns, it’ll come from elsewhere in Georgia, not someone marching from DC.
@Teve :
Still reading through the OG post but my inclination is it’s not so much an invitation to civil war but rather a bully daring us to hit back. For decades, conservatives and the GOP have been destroying legal and democratic norms, deliberately ingratiating their religious /cult ideals in our intentionally secular government and function under the concept of Might Makes Right. They have decided the concept of legitimate is what THEY decide and we no longer matter. They outright say we are not part of Real America and have no right to decide what is legitimate. We are not We The People and to assert a claim to it invites possible violence and retribution.
We’re at the point where the abused person has to decide if physically defending themselves is worth it. Do you hit back at the person beating you? Are you capable of inflicting enough damage to make the ensuing violence worth it? Because let’s face it: that punch is coming whether you fight back or not. They’re not going to stop abusing you because you follow their arbitrary rules or accept the mistreatment. They’re not going to follow any agreement to halt the bad behavior and in fact may increase it. There’s literally no incentive to stop because they’re getting what they want and have convinced people like James to tell us rolling over is the better since it will only be a repeated punch instead of a possible full-fledged beat down.
The challenge is there: What Are You Gonna Do About It? Do nothing and they win by default. The beatings will continue. Do something and understand it’s gonna get ugly…. but you might get an outcome better then what you’re living with. The choice is clear if we have the nerve to proceed. Fuck. Them. If this is what brings them to actual violence and war – the possibility that all their jerry-rigging might not keep them in permeation power – then so be it. It won’t because fundamentally they understand they’re punching above their weight. All the tut-tutters and moderates don’t want violence; suburbanites & police/military aren’t going to stand for the alt-right burning their house down any more then BLM. A “civil war” won’t happen – it will be a bunch of conservative terrorists attacking American cities and sympathies will radically shift left.
Don’t fight back against the abuser because they might hurt you more? Seriously? The ONLY choices the abused have to survive is to escape or fight back. To do nothing is die a slow agonizing death.
But what if field goals from smaller market teams counted as much as touchdowns? It had always been that way, six points, and you were mostly ok with it, but then they wanted that seventh point too, because they just kicked a ball through those uprights?
On the 2000 election…
I have very little doubt that if Bush had been trailing by a trivial number, you would have been persuaded by “count every vote”. 80% confidence, because you’re basically normal.
Both “don’t change the rules” and “count every vote” are to some degree compelling, and justifiable, but only one gets to your preferred outcome and is propagated through the media that you generally agree with more.
What’s more, by accepting that argument then, you want to keep that argument now, to be consistent. Georgia disenfranchises black folks, well, you certainly don’t agree with it, but them’s the breaks we have rules to follow, let’s not throw out the baby with the bathwater, two wrongs don’t make a right…
And, really, Florida was a toss-up — the results were within the margin of error of our ability to count votes, and it was a crazy one-off event with the popular vote inversion, and most people on the left looked at the outcome and said “well, that will never happen again, and it’s not worth tearing the country apart for.” And then 9/11 happened, and united the country behind George W. Bush at least momentarily.
Aside from a few cranks, George W. Bush had the consent of the governed, if not the approval. There’s been grumbling, and a lot of what-ifs, but generally, George W. Bush, his presidency, his awful wars, his SCOTUS appointments, and all of it is accepted as legitimate if regrettable.
Democracy means that sometimes you lose, and that was such a weird event, and it was so close anyway…
What were the odds that we would have a popular vote inversion 16 years later with a President who did nothing to unite the country, and did not benefit from some event that unified the nation?
And now more people see just how badly warped the playing field and rules are. Now everyone recognizes that Oklahoma field goals are worth New York touchdowns.
@MarkedMan: made the salient point that the current government is legally legitimate, but is trending to be illegitimate in the eyes of a majority of the citizens and without popular support, the system will collapse.
Yes, R’s and conservatives are desperate to remain in power, which had me posit the question months ago, as when conservatives will begin demanding the reversal of Reynolds v. Sims that settled into law the concept of one person one vote. That would be legal, but how legitimate.
@james. In what sense is DC too small to be a state? DC has a larger population than North Dakota, Vermont and Wyoming. Who knows, but after the 2020 census, it could overtake Alaska.
@KM:
Are you sure that will shift sympathies?
A few years ago, I would have thought that armed protestors storming state capitals would shift sympathies, but I was wrong. At this point, I don’t assume any atrocity will shift sympathies.
Somewhere in Nazi Germany there were people complaining that the death camps were too close to their homes, and that the ash and the smell of burning Jews was depressing their property values.
@James Joyner :
Not really. Any civil war today wouldn’t be a break away to form a new nation but a group of people actively trying to overthrow the government to remake it in their own image. That’s a coup or insurrection, a very different beast. The South & Midwest aren’t going to go “Whelp, screw all y’all we Fundiestan now”; people of a specific cultish belief or extreme political conviction attacking American citizens with political goals in mind is *terrorism*, not a civil war. Your average conservative isn’t going to be out in the streets with a gun – I mean, would you over this? It’s gonna be the QAnon and Cult45 weirdos, the gun nuts and the alt-right militias. The ones who want blood and vengeance for their bitterness and the public isn’t going to be too keen when Karens start attacking grocery stores over SC court picks.
The average American just wants to live their lives. They’re not signing up to fight in the streets for a cause. Should the worst happen, they’re going to be utterly shocked Uncle Bob is a radical terrorist killing people even if it’s those damned libs.
@Sleeping Dog:
Clearly, you are only thinking about the population of humans. What about the population of cows? DC is lacking in cows.
It would be the only state in the union without a rural economy. That’s genuinely weird. That would be as weird as a state without any urban areas. Even Spare Dakota has a medium sized town that is sort of like a city.
I’m ok with the weird, since I think people should have the right to vote and have their votes count equally and adding them as a state helps offset some other unrepresentative problems (outsized influence of Spare Dakota, Wyoming, etc), but I’m not going to pretend it isn’t weird.
@James Joyner:
There is a kind of invitation to civil war, but that’s not the one.
It strikes me than in the decades leading up to the US Civil War, the slave states kept having their way as regards the legality, and legitimacy, of slavery in every court decision, and in most laws. But not in the number of new slave states, nor in the preferences of most of the population (a bigger majority if blacks were counted).
The country, not to mention the world, was trending heavily towards the abolition of slavery (and don’t forget the matter of Haiti, which aside from independence was a slave revolt). So Lincoln or no Lincoln, slavery was increasingly untenable.
That’s what got them to secede and fight.
We face a similar, albeit not identical situation today. The minority keeps managing to win elections and dominate the presidency and Congress from time to time, but the country, and again the world at large, is trending towards more tolerance, and even active acceptance, of more and different minorities and other disadvantaged groups.
That’s what irks them, for some reason, and that’s what they may fight.
The major difference is they now lose at the courts. Other than that, it’s eerily similar: they still cannot impose their will on the majority, therefore they feel they are oppressed.
@Sleeping Dog: I like the distinction that you’re making on legal v. legitimate.
Right now the system is set up that Democrats need extraordinary circumstances to have governing power — a 50/50 election is a decent size GOP win under current counting rules for the House, the Senate and the White House.
This is a significant problem with the consent of the governed where a coin is being flipped with a shaved coin. And it is not just one shaved coin. We know that the Republican Party has benefited from massive foreign influence operations in 2016, and is inviting the same in 2020. We know that the Republican Party is doing its damnedest to keep people who are likely to vote against it from voting. We know that when there are significant small (d)emocratic responses to GOP overreach, districts are gerrymandered so that popular opinion runs into the wall of lines that are irresponsive to electoral swings that have not occurred in a hundred years and the minority representatives with disproproportate power use that power to neuter Democratic governors in multiple states.
All of those items in the paragraph above are either strictly legal, or legal from the point of view of a former soccer referee when the only foul that matters is the one that draws a whistle. Those are the current rules. And the rule set is designed to consistently screw a very large, and growing group that routinely can assemble political majorities but can not access the associated power. This is a consent of the governed problem.
When there are rules that disproportionally screw a group, that group has a few options: continue to be the Washington Generals, change the rules or refuse to play the game at all.
So, if there is speculation about how to change rules within the framework of pre-existing norms and precedents on the conditional case that a routinely screwed population can gain political power in order to exercise that political power, that is legitimate as well. And yes, adding states so that the Senate only leans 4 or 5 points GOP instead of 7 or 8, and the House goes from leaning 3 points GOP to 2 points GOP and reversing the impact of the Garland refusal are going to piss off rural, white middle aged guys who think that the world and its future should always center them. Oh well, rules that only modestly favor them instead of incredibly favor them are still legitimate.
@Gustopher:
Fairly sure. The reason why the Civil War left such a mark is war doesn’t happen here. We are remarkably blessed to have a continent-wide nation where for generations, wafare has been Elsewhere and (relative) peace reigns. We don’t really worry about car bombs or terrorists attacking public places. That’s why went something does happen like 9/11, it’s so terrible shocking and leaves a deep scar our national psyche instead of a sad common experience.
Americans fear terrorists like kids fear the boogey man – something under the bed but not a real threat. If we have legit reason to worry about our neighbors going McVeigh, Americans are going to turn on the right so damn fast your head will spin. It’s a matter of self-preservation, you see. The public didn’t really think those armed protesters storming state capital were there to kill people – they bough the polite fiction it was a “protest” and not blatant intimidation tactics because nobody they care about was hurt. Strip that fiction away and watch Americans do what they do best – label the insurrectionists “Other” and close ranks. It happened on 9/11 in NYC, th city most red America is convinced is the Devil’s vacation spot. What’s gonna happen when it’s in their backyard?
@Sleeping Dog:
I think they’re all too small to be states under our current arrangement but can’t take statehood away from the ones that already have it. Some think adding additional tiny, unrepresentative states that vote Democratic is the way to balance the scales. I think it compounds the problem.
@James –
You seem to be using two different definitions of “legitimate” in your post such that things that were raw expressions of power in the past (and are in accordance with your preferences) are “legitimate” but things that would be similar expressions of power (but offend your sense that they are changes) are “not legitimate”. This seems to be a major and consistent weakness in your arguments over the past few days as I reviewed them this morning rejoining the world after the holiday.
The reality is that if the actions are within the rules, they are “legitimate” but that that question if wholly irrelevant. What matters is whether they are righteous. Do they benefit the country and its inhabitants? Do they strengthen of weaken us? Do they make sense? Are they consistent with a principle other than might makes right?
Your views seem to ignore fairness, equity or rationality in favor of conservation of power among those who already have it.
You express concern that the Democrats using their political power the same way the GOP would would lead to “civil war” but have expressed no concern that their failure to respond will inexorably lead to the destruction of the United States. Make no mistake, a government that enshrines power in a minority is inherently unstable and will be overthrown. If the trends continue, if we don’t address the blatant unfairness of the current system, there will be a reckoning.
@KM:
That was true in 1775 and 1860, too. Sometimes war is thrust upon you.
@SKI:
Over time, yes, these become reasonable questions of legitimacy. We change rules that seem unfair when they impact the game often enough.
But we have mostly accepted as legitimate–righteous, even—rules that protected the interests of various groups even if they were not in accordance with the preferences of the raw majority. That’s obviously true of protections for racial, religious, sexual, and other minorities. But it’s also true of protecting regional interests.
Mr. Smith going to Washington and defeating the will of the majority via the filibuster was noble. Until it happened so often as to become the normal order; now, we’re on the verge of eliminating it.
And, over time, I think this is right. But we understand that partisans are going to partisan. We’ve always allowed Gerrymandering as reasonable. It even greases the gears to keep them running smoothly in small doses. But, done with too heavy a hand—or with a consistent slant—it becomes illegitimate. Where one crosses that line is hard to say.
You’d have to be more specific here. I don’t inherently find rules that prevent 50% + 1 of the population from ramming their policies down the throat of the country problematic. Indeed, in a diverse polity such as ours, I think they’re good. But, again, stacking a series of such skews on top of one another gets problematic.
You seem to be deep into Susan Collins territory here James. You are very troubled and concerned by all these breaking of norms, but they were legal and we just have to accept the outcomes to maintain some sort of faith that the whole system is “legitimate.” Meanwhile, if the other side breaks norms, it’s completely illegitimate and a declaration of war.
Flip it around: What would you think if I said the idea of packing the court was legal and in fact necessary to address critical issues of fairness and representation. I’m deeply troubled by the norm-breaking (which in fact I would be), but you and the R’s will just have to accept it to maintain a sense that the system is “legitimate.”
Basically, you are completely underestimating how outraged and upset the left already is about the Supreme Court, and dismissing their concerns while saying escalation is just a declaration of war against the R’s is basically going to be met with some variant of “the R’s already declared war. Bring it.” For years now the far right (and now the mainstream Republican party) has been claiming that they are in a battle for the soul and very existence of America, and thus anything is justified as long as it supports them in an existential fight. With Ginsburg and the Supreme Court appointments, they have now managed to convince the left that this is an existential fate of the country situation as well.
I fear the future. Even if there is no true Civil War, I suspect multiple mass shootings (on the Las Vegas scale, not Rittenhouse or 5/10 people) are coming, no matter who “wins”.
@James Joyner:
The current rules don’t “prevent 50% + 1 of the population from ramming their policies down the throat of the country”. They are regularly being used to allowa minority of the population to ram their policies down the throat of the country.
Majority rule protecting minority rights is the goal. You seem unwilling to acknowledge that we have minority rule screwing everyone’s rights.
@James Joyner:
Pssst, they have impacted the “game” enough. They are literally killing people – even if you personally don’t feel threatened.
You have a non-radical commentariat and non-radical co-bloggers all telling you that the current rules aren’t seen as righteous or legitimate any more. You should listen.
@KM:
I don’t know about the leftward shift, but there are a lot of guns in those cities and — based on at least the one incident in Portland — the conservatives will only be allowed to roll in from elsewhere in their pickups and shoot things up for so long. There are suggestions the urban police will side with the “invaders”. I think that will stop as soon as the paychecks do.
The language that has been used in Colorado has been interesting. In the last few decades, it has been the rural folks who use phrasing like, “the urban and suburban Front Range cities have declared war on rural Colorado.” That’s an actual quote. In that particular case, the root cause was that the suburban legislators in the General Assembly declined to increase the tax subsidies flowing to the rural areas by as much as the rural folks had hoped for.
Myself, while I am inclined to believe the Union is doomed, my likely scenario is a peaceful partition for a bunch of reasons. The urban/rural things may be incidental, but won’t be the root causes. In about 20 years, state legislatures will begin thinking seriously about whether or not they would be better off if those people “over there” were trading partners but not governing partners.
@James Joyner:
Serious question – if Biden packs the court and the alt-right decides to do something about it, where do you stand? If “war is thrust upon you” as average America James Joyner, are you going to be OK with it? You down with red states and rural areas planning attacks or QAnon folks start living out their boogaloo fantasies? Will it be a civil war to you or a group of terrorists coming for you and yours?
I live in a very, very red and Trump-proud area and I can tell you for certain that should that occur, none of my neighbors will be joining the revolution. They are horrified by this because suddenly all that internet talk about “civil war” might not just be talk anymore…. and it means their comfy lives are at risk. It means their nice lawns and houses could be destroyed, their livelihoods gone and family members lost. A friend’s mother who is one of the most conservative women I know was freaking out after RBG died because she’s worried it means Shit Got Real. They like their reality and aren’t going to tolerate it being ruined to get Roe rescinded. It’s just not worth it to them and I’m willing to bet my life that’s true for the majority of conservative Americans.
You keep trying to frame this in a way that makes it sound different then what it is: straight up terrorism threats by extremists groups that we should cow to or else. Substitute “GOP” with “Muslim” and see how your argument sounds. This is why you’re getting so much pushback. There’s no damn reason to accept the premise that riling red America will cause them to get violent unless you acknowledge they were prone to violence action anyway. You don’t have to worry about Daddy punching you for trying to better your life unless you know Daddy’s willing to punch you in the first place. Don’t anger China or they might nuke us! Don’t anger Saudi Arabia or they’ll cut off the oil! Don’t anger the GOP or it might be civil war!
If it happens, it happens. But I’m calling their bluff. There’s enough crazies in the country to do damage but most of us are not on their side and will prevail…. and they know it. They’re hoping their swagger will scare you into compliance because that’s all they really have.
@Michael Cain:
It’s funny to me, being a total city guy who has worked in alot of rural areas, that so many rural folk think that there aren’t guns in the inner cities. I would suggest that if a real shooting war broke out, which I hope it does not, the inner cities will be very, very well armed.
Also, if you decide to come on in and start shit, leave the red hat at home. It makes for an easy target.
@MarkedMan:
Reading history of the Great Depression I’ve been struck by how often some wealthy individual or conservative politician is quoted as thinking Red revolution was just around the corner, although it wasn’t, really. However Piketty talks about the massive destruction of capital in two World Wars being what enabled, in Piketty’s usage, le Trente Glorieuses, the three post-war decades of prosperity and democracy. The plutocrats didn’t back down so much because of a Red Scare as because fate took away so much of their money. (Less so in the US, obviously, than Europe, but still a real effect, the Crash and Depression being part of the Great War process.)
@EddieInCA:
indeed, a young black man I know in downtown Jacksonville, who keeps multiple handguns and long guns in his cars, is who I learned about RIP rounds from. Hideous things.
@Kathy:
You are misinformed. The addition of states was very much gamed to keep slave states and free states in balance, with all sorts of messy compromises. There was an effort to let Kansas choose whether to be a free state or slave state, which led to people moving there to change the balance, and a period known as Bloody Kansas.
@KM: Talk of a red state rebellion always reminds me of a cartoon, I think Oliphant, from years ago. The caption was something like ‘Michigan Militia Maneuvers’. It showed a stand of trees, and sticking out from behind each tree a butt and a gut. We may see “lone wolf”, “boogaloo”, or whatever violence, but here in FL I don’t think the MAGA hat retirees are going to come out of their doublewides and take the field. Although I confess I’m starting to think seriously about buying a gun.
@KM: Sure, Americans are horrified by terrorism, but I think you will find people define terrorism differently depending on who is doing the killing and who is being killed.
We (as a nation) didn’t refer to the assassination of MLK, JFK or RFK as terrorism. We didn’t refer to lynching as terrorism. We didn’t refer to Dylann Roof killing black folks in church as terrorism. Or the killing of Dr. Tiller. Or bombing abortion clinics.
Keep away from mass casualties of middle class white folks, and you aren’t a terrorist, if you’re white and the right kind of white.
@gVOR08:
And that’s the key, isn’t it? Nobody talks about a blue state rebellion – at best, they talk about rural areas in red states having beef with their big cities. It seems ludicrous, doesn’t it, to think about NY and CA planning a rebellion but we don’t think it odd if WY or ND starts nattering away about it. Even the loonies of loons don’t think blue states are rebellion but the Deep State is manipulating to get their way. What does it say about American conservationism that everyone just implicitly accepts the violent separatists are going to on their side?
It’s all talk. It’s part of their mythos – one day, they shall rise up and be free of those Damned Liberals and Elites telling them what to do….. one day. Maybe later. Next time. The fantasy is the appeal, not the actuality of it. Like the folks who dress in camo to play militia instead of joining the Army. They want to get their Rambo on, not truly endanger themselves. There’s always the true-believer nuts but most just wanted to play make-believe and indulge, not burn the world down.
There is a bumper sticker I’ve seen over the years that says ‘I love my country/I fear my government’.
I never assume the owner is a liberal.
@Just Another Ex-Republican:
Well, no. I’ve broken ranks with my former party and endorsed and voted for candidates of the other party, precisely in response to the breaking of norms. But doing so demonstrates faith in the system: that, by voting out the bad actors, we can restore normalcy and force the other party to repent and reform.
@KM:
Well, no. If they resort to acts of violence, they have to be put down. But we should recognize that we have a highly inflamed, polarized country right now and that radically changing the rules of the game after a narrow electoral victory would, quite reasonably, piss people off. It would be reasonably perceived to be, to coin a phrase, illegitimate.
@Gustopher:
We don’t typically use that terminology for one-off attacks on single individuals by unaffiliated actors in that way.
I’m pretty sure we did, actually.
@KM:
Because the blue states are, by and large, winning under the current system. What cause do they have for rebellion?
@EddieInCA: “It’s funny to me, being a total city guy who has worked in alot of rural areas, that so many rural folk think that there aren’t guns in the inner cities.”
I’m seeing a remake of The Long Good Friday, only with urban street gangs fighting against Boogaloos.
And while I’d usually leave it to right-wingers to play the “our assholes are tougher than your assholes” game, you’ve got street gangs in cities where the members have been engaging in gun battles since they were kids. Aside from the vets, the Boogs are mostly just wankers with wet dreams of killing darker people.
@James Joyner:
I am getting tired of all this winning.
@James Joyner:
Yes, and I give you credit for that. It’s not easy to realize one’s “team” has become corrupted. But implicit in your argument is that Democrats must simply accept the benefits the Republicans have accrued by their rule-breaking, and that retaliation in kind would amount, in your own words, to a “declaration of war on Red America.”
In another thread someone else mentioned the Prisoner’s Dilemma–do you see ANY evidence that the D’s withholding fire in the last decade has inspired the R’s to act better? From where I stand, it looks like the R’s just keep pushing the limits and why shouldn’t they? The norm-breaking is almost all on one side (recently), and like bullies everywhere, I see no reason to think the R’s will stop until someone actually stands up to them.
@James Joyner:
I think you will find a lot less consensus on that than you might want.
Right-wing domestic terrorism is rarely called out as such, and never universally. Meanwhile, any attack by a muslim is terrorism regardless of scale, and the right wing throws the word terrorism around for anything done by protestors (Antifa terrorists!)
The word “terrorism” is a lot like the word “legitimate” — it depends on who is getting the short end of the stick.
When a right-wing nut drives their car into a crowd of protestors, it isn’t called terrorism. When a muslim who watched an ISIS video drives their car into a crowd of good, wholesome Americans, it is.
Same action. Political motivations for both actors. Different names.
Hell, when some loser twerp kid brings his gun across state lines to shoot protesters, people on the right hold the little shit up as a hero.
@Teve: Yeah, back in the day, I knew guys who made similar rounds by cutting crosses in the tops of lead slugs they would use making reloads. Good to know that technology has allowed us to improve on what we use to kill our neighbors. 🙁
@KM: Yeah, these gun nut Trumpers would have quite a surprise if they start coming regularly into cities with their thousands of dollars of guns, ammunition an other gear. That stuff is worth a lot of money.
@James Joyner:
And just before one? Like say, less 45 days before?
Why is it that red states being pissed off is a reason for concern and not blue? I’m not harping on you personally, mind you but you tend to parrot the conventional wisdom that liberals just need to suck it up. I’m getting pretty tired of being told my outrage isn’t sufficient or is too dangerous to act upon because some Cletus somewhere might get miffed. The GOP is the one playing with fire here and pretending only the Dems’ potential actions are wrong is how inflammations flare.
If we were winning, we wouldn’t be having this conversation. We’ve having it because the other side is cheating repeatedly to prevent us from winning. They are artificially keeping power when in the course of natural political processes, they’d be out of it. Again, if this was any other country in Africa or the ME, the GOP would be considered the oppressive, voting stealing democracy suppressors.
We are the majority and yet consistently not in power for decades because of cheap political machinations. Why wouldn’t we rebel against that? We really should and if the GOP tries this, we just might. Isn’t that what prompted this whole thread – the question of what’s legitimate and why we should accept it? What happens when Dems finally stop taking this nonsense and start acting like the GOP? That’s what’s causing all this fuss – that we’re going to do to them what they’ve been doing to us and they’re *worried*.
@James Joyner:
Since before the Oklahoma City bombing the Republicans have made it clear they view FBI investigations into domestic terrorism to be off limits unless the terrorists are Muslim.
@James Joyner:
If by “we” you mean Democrats and Dr. Joyner, fine. If you mean Americans at large… meh… not so much. And the term for the people who bombed abortion clinics, at least among the people that I hung with in those days, was heroes. 🙁
It’s dinner time so I will close out on this note. Upon Trump’s narrow electoral victory in a highly inflamed, polarized country last time, there was a repeated refrain his supporters kept screaming at pissed off liberals and we were told to accept:
Elections have consequences! We won – deal with it!
I plan on screaming it out repeatedly after President Biden begins cleaning up this mess (including court packing) but understand conservatives will be as unhappy as we were. Oh well – elections have consequences and so does norm breaking. Reap the whirlwind and all that…..
@James Joyner:
It seems to me and, if I have the temperature of the room right, most others here that happened with the 2016 election and the shenanigans that followed.
@JohnMcC: Oh, I don’t know… that’s been my attitude since, oh, 1968…
@Gustopher:
You can tell me I’m mistaken.
My impression is the South wanted more slave states, even if the politicos compromised with the Yankees.
Certainly the South wanted no limits on slavery which, of course, is why they started the Civil War once Lincoln was elected because they were scared to death that he was going to somehow take their slaves away from them…the horror…and they were even wrong about that, as keeping the union together was more important to him than abolishing slavery…
@Kathy: I was looking for the right words and missed — I had actually rejected several phrasings, and still came up with that. Whoops. “You are uncharacteristically misinformed” would have been better.
The South’s big concern was protecting slavery in the South. Which went across the board from the fugitive slave act, to trying to increase the number of slave states, to beating northern Senators on the floor of the Senate. There were few norms they would not break.
(Can we get Schumer a cane? would that help the current situation? And John Tester looks like he can swing a cane well…)
And they kept losing here and there, and at best holding the line. Sometimes on legality, sometimes on practicality. Juries would not convict people accused of violating the Fugitive Slave Act by helping slaves, rendering that much less effective. Several states refused to enforce it entirely. For a while states were brought in as pairs, one Free State and one Slave State, but then Bleeding Kansas ended with Kansas admitted as a free state. By 1810, the import of new slaves was illegal, although it continued in dribs and drabs up until the start of the civil war.
The South was losing the culture war before Lincoln was elected. It’s why they feared him so much.
The South was definitely punching above its weight on legislation, but not quite enough to protect slavery from changing attitudes.
The US electoral system with its rural and small state skew baked in at every level of government has long lost legitimacy in my eyes. When according to Nate Silver, the median senate seat is 6-7 points more Republican than the nation as a whole, you can see the needs of urban dwellers not being respected. It’s conceivable that Trump loses the popular vote by 3% and still wins the electoral college. Likewise with the Republicans retaining control of the senate.
What are the downstream effects of this? Educated professionals such as myself will be less attracted to life in the US, with its decaying cities and neglected local infrastructure. Ambitious young people abroad are less likely to move to the US to work.
When you can’t win legitimately at the ballot box due to cheating or system design, you either take to the streets and protest or give up and leave. My family is already making plans to move to Canada or the UK.
@KM:
Yes, and we’re in agreement on that. My contention is that the system itself, while problematic, isn’t inherently illegitimate. The effects have gradually gotten worse over time and could become illegitimate in the future but I don’t think we’re there yet.
The more urgent problem—one that casts doubt on the legitimacy of the system—is that cheating. I don’t know whether, to take an obvious example, the Georgia governor’s race was stolen. But the fact that the victor clearly tried to steal it renders his tenure suspect, if not illegitimate.
@MarkedMan:
I honestly don’t think that’s true. We’ve investigated all/most of those cases under Federal terrorism statutes. The FBI has a whole section devoted to domestic terrorists and calls them that, claiming they’re our most significant homeland threat. Indeed, this is happening even under the Trump administration.
I think there are two major qualities people look at to determine whether a system is legitimate: whether it is basically serving their interests, and whether it matches a sense of intuitive fairness. You can see the difference in the example of someone buying a house in San Francisco in 1980 and seeing its value go way up, then having to pay higher property tax on it. A lot of people see this as against not just their interests but their sense of fairness as well – the house hasn’t changed so why is my rate going up? But when it’s time to sell the windfall is surely legitimate. People will accept losses as legitimate as well; if the city council decides it wants to build a new sewer and raises the mill rate to pay for it, people who disagreed will mostly accept that this is fair even if they don’t like it.
So the maintenance of legitimacy really only requires one or the other most of the time, not that high a bar. And even a system that people think is both profoundly unfair and not really serving their interests as in the case of bourgeois of the ancien regime or the urban proletariat of the Kaiserreich or Democrats in the America where seniors know how to access Facebook can accept systems that don’t have the qualities that would tend to confer legitimacy for a long time, as victorious Dems in 2020 surely will no matter what they’re saying now. Germany had a revolutionary socialist party as its largest formation, but they basically accepted the Junkers had the last word no matter how people voted until they started losing World War I. The problems come when the system is stressed. Imagine this scenario:
The 2048 election comes and passes. Democrats win the popular vote for President by 5, the House by 2, and the Senate by ~12. Republicans will control all three after a partisan 8-1 Supreme Court ruling that Texas’s new requirement to write a short essay in English to receive a valid absentee ballot is acceptable, 20,000 provisional ballots from Brownsville will be thrown out and President-elect Cotton has won the state by 5,000 votes. They fume for a while but do nothing just like in 2000. Then in 2043 there’s a huge recession. President Cotton’s approval rating declines to 23%. He gets less than 200 electoral votes in 2044 but still carries 27 states. The GOP maintains a large Senate majority with the median seat not even all that close. It stonewalls President Ocasio-Cortez’s stimulus plan without a counter-proposal. Her approval rating rapidly declines as unemployment remains high and few think she’s doing anything about it. Desperate, she issues an executive order requiring the Army administer a referendum on moving all the Senate’s current powers to the House. Does it comply? Either way the Constitution has failed. That’s how it ends, if it does. Not with a civil war but with something more like a coup d’etat. It’s avoidable, either with reform or the occasional strategic capitulation by the entrenched minority that allows the center to beat the right occasionally. And I think the present equilibrium could last a very long time. But this has a new kind of fragility and someone is bound to make a mistake eventually