USA
How we get to civil war

Damon Linker
Mon, December 14, 2020

It's a tense moment in American politics.

Democrat Joe Biden won the presidential election, and it wasn't especially close. Yet President Trump has not only refused to concede the election. He has repeatedly insisted, without evidence, that he won in a landslide that was denied to him and his supporters by systematic voter fraud. It would be one thing if these were the delusional rantings of a lone sociopath. When the village idiot proclaims himself to be Napoleon Bonaparte and no one recognizes him as such, he's just a lunatic. But when a large faction of the village affirms that he is in fact a Corsican general, things get more complicated.

That's where we are now, with 126 Republican members of the House of Representatives insisting, in an amicus brief filed in support of a lawsuit dismissed by the Supreme Court last week, that the election in four crucial swing states was stolen by the Democrats.

This combination of events — the courts rejecting legally frivolous efforts to overturn election results while significant numbers of Republican officeholders (and voters) continue to cheer on the conspiracy — shows that the primary danger of this moment isn't and never was that Trump would succeed in his hapless coup attempt. The primary danger was and is that Trump would shape public opinion in an explicitly anti-democratic direction, creating a large constituency in the country for rejecting election results that don't deliver partisan victories. Trump is cultivating an appetite for one-party rule, and setting the country on a path that could produce constitutional breakdown and civil war.

How far are we from such a catastrophic turn of events? There was some street violence in Washington, D.C., on Saturday evening after an hours-long deranged rally by Trump supporters. But it didn't escalate. And the fact is that, so far at least, members of the Trumpian right have accepted court decisions that have disappointed their hopes. Which means they still recognize the authority of the judicial branch. As long as that persists, the chance of widespread civil unrest will remain remote.

But will it last? That isn't a question that can be answered by looking only to the right.

It takes two sides (at least) to fight a civil war. For significant violence to break out, Democrats would have to play a role, responding to Republican provocations in a way that shreds our remaining deference to institutional authority and norms of restraint, moving the country well beyond the bounds of normal politics into the twilight realm of extra-constitutional action.

Unfortunately, there are signs that some on the left are eager to make precisely such a move.

Last week, in a letter to House Speaker Nancy Pelosi, Rep. Bill Pascrell (D-N.J.) proposed that Section 3 of the 14th Amendment empowers her to block the 126 House Republicans who signed on to the failed lawsuit from taking their seats in the 117th Congress, on the grounds that they are traitors to the country and the Constitution, much like the Confederates who waged war against the Union in the 1860s. A handful of political commentators have echoed these and related arguments.

Leave aside for the moment the near certainty that Pelosi will reject such advice. It's important to think through precisely why this is such a terrible idea.

The language to which Pascrell is appealing was adopted and imposed after the Confederacy had been decisively defeated in the Civil War. That gave the North considerable leverage to impose its will on the vanquished traitors of the seditious South. And yet even so, Reconstruction failed. The South ultimately refused to accept the North's terms and wore it down, first through terrorism, then through the imposition of state-sponsored apartheid. Is an analogous approach really supposed to be considered a viable plan today, when Democrats have only a razor-thin majority in the House for leverage?

Even if Reconstruction had been a smashing success a century and a half ago, it couldn't possibly be useful for anything today besides throwing off a spark that ignites a civil conflagration. By calling the 126 recalcitrant Republicans traitors and refusing to seat them, Pelosi would be unilaterally setting up the Democratic Party in the House as a regime-level authority empowered to render summary judgment of fundamental political disputes.

The almost certain result of such a move would be to split the legislative branch, with the excluded Republicans setting up an alternative Congress independent of the Democrats and the remaining Republicans in the House and Senate forced to choose which side to join. The same process of choosing would take place across the country, with individuals, legislatures, governors, civil servants, courts, and ultimately, state and federal troops lining up on opposing sides, ready to accept or reject legislation passed by one or the other Congress.

It is in trying, and failing, to adjudicate the rapidly multiplying conflicts among competing sources of authority that an actual civil war would likely begin.

How likely is any of this to happen?

At the moment, not very. Pascrell is just one member of Congress, and Pelosi is much too politically prudent to follow his lead.

But what happens if Republicans act out on Jan. 6? That's when both houses of Congress convene for a ceremony during which the sitting vice president is supposed to tally the Electoral College votes and declare Joe Biden the official winner of the election. Will Mike Pence turn on Trump to do this? Even if he does, things could get messy if even one member of the House and one from the Senate raise objections about a state's vote totals. In that case, the two houses of Congress would return to their chambers for a two-hour debate and then votes on whether to disqualify the results of any state about which an objection was raised.

None of this is at all likely to change the ultimate outcome. Too many Republican senators have made clear their intention to stand behind the certified vote tallies and Electoral College results. Putting them together with Democrats will ensure that Biden's win will stand in the Senate.

But how will Democrats in the House respond to a two-hour circus potentially involving dozens of their Republican colleagues making outrageous accusations of voter fraud? And how will that anger and bitterness affect the outcome of the race for House speaker, which will be heating up at roughly the same time? Might Pelosi find herself facing a formidable challenge from her left — from members of her caucus eager to lash out with more than words at the Republican side of the aisle, perhaps by locking out members of the GOP who actively tried to overturn the election?

As I said, it's a tense moment. But that doesn't release officeholders and analysts from the burden of acting responsibly. On the contrary, the stakes increase that burden. It may feel good to contemplate lashing out at one's enemies. But actions have consequences, and they can be truly awful. Instead of bringing an easy and satisfying victory, rash moves in the pressure-cooker of the present could easily send us down a path of outright constitutional breakdown and an outbreak of violence the likes of which this country hasn't seen in over 150 years.

Those who advocate for such actions had better do so with eyes wide open.