Georgetown Institute poll finds that two-thirds of us believe we are edging closer “to the brink of a civil war.” Yet Americans cannot properly analyze this “gathering storm.” We lack a framework, a lexicon, and the historical data (from other civil wars) to see clearly what is happening to us.
Here is a quick template for how we might more usefully decipher how this nation gets to another civil war. It is arranged as a short series of questions: 1) What is civil war? 2) Why do political-constitutional orders sometimes breakdown, rather than simply transform in response to change? 3) How is violence essential to constitutional and political resolution? 4) How close is the U.S. to such a break down, and its consequences?
What is civil war?
Civil war is, at root, a contest over legitimacy. Legitimacy—literally the right to make law — is shorthand for the consent of the citizens and political parties to abide by the authority of a constitutional order. Civil war begins when this larger political compact breaks down.
Civil War means that there is a functional split within the source of legitimacy between two parties, each of which was formerly part of the old constitutional order. Thus each can claim that it represents the source of new legitimacy, and the right to define a new or reworked constitutional order.
Hence civil war becomes a struggle in which one party must successfully assert a successor legitimate order, and to which the opposing party must eventually submit. This is above all a contest over constitutional authority. Inasmuch as civil war happens after constitutional breakdown, it means that resolution must be reached not only outside of a now-former legal framework, but also unrestrained even by longstanding political customs and norms. Extra-constitutional force is now the deciding factor, which is why these struggles are called civil wars.
How is violence essential to constitutional and political resolution?
Violence is the magical substance of civil war. If, by definition, political groups in opposition have also abandoned the legitimacy of the old order, then a successor constitutional order with working politics cannot be birthed without violence. Hence violence is the only force that can bring about a new order. This is why all memorable civil wars, and all parties, enthusiastically embrace violence.
The character of civil war is existential. The breakdown of the old order forces frightening prospects on society. If constitutions represented a collective source of authority, in its violent replacement are suddenly two opposing and inimical pretenders, each crying for both allegiance and punishment. Moreover, one party’s victory is the inevitable loss of the other’s way of life.
Hence in such conflicts, the entire society must choose sides, and it is an all-or-nothing choice. Moderates and undecided, and those peaceful fence sitters all are forced to join warring factions. In civil war, perhaps the greatest violence, in the heart, is the aggressive coercion to join a warring cause.
War becomes a great, mutual ritual of resolution between enemies-once-brothers. Here, longstanding customs and norms, paradoxically, come right into play. While old political norms may have been discarded, old conflict norms again take center stage. If there is to be a war, certain expectations, even hallowed traditions come into play: How battle should be formed, and also too, the pathways battle resolves.
How close is the U.S. to such a breakdown—and its consequences?
American constitutional order has not broken down, yet. Constitutional legitimacy still rules. Recent tests of legitimacy confirm this. A presidential impeachment in the 1990s did not lead to conviction in a trial, nor did anyone expect it to. The Supreme Court decided a contested presidential election in 2000, and the decision was everywhere accepted. 2016, in contrast, was bitterly accepted. Yet even the relentless force to depose the president that followed, through a special prosecutor, was spent by the spring of 2019.
Yet if these are tests of robust legitimacy they are hardly reassuring. A daily torrent of unfiltered evidence suggests that our constitutional order is fissuring before our eyes. That we have skirted constitutional crisis for the past quarter century is no reassurance, but rather an alarm of continuing erosion. Each new test is yet more bitterly contested, and still less resolved.
Today, two irreconcilable visions of American life believe that they can continue only if they own the whole order. Yet ours has been a sharedconstitutional order. As we witnessed from 1860-1876, it must proceed as a consensual and joint party system: It cannot exist through single party ownership. The single-minded drive toward this goal—especially now by Blue state Democrats—has embrittled our constitutional order, and is creating the basis for a full-scale legitimacy crackup. Here’s what it might look like:
A contested election that Court decision fails to resolve. Supreme Court legitimacy has eroded in the years since Bush v. Gore. Today, a Court decision that is rejected by half the nation would not only effectively drain its authority, but also leave the U.S. no final arbiter in governance. Democrats’ courtpacking would certainly abet this.
Declaration of a pre- or post-election state of emergency. As Commander-in-Chief, the executive can temporarily assume extraordinary powers. We have witnessed such moments as recently as 9-11. What if the emergency had a domestic focus, such as a “coup d’état” within the government itself? What if it was the refusal of Congress to accept such an executive order, or even the continued tenure of the president?
Already, warring sides have hardened their hearts so that they will do almost anything in order to prevail. The great irony is that their mutual drive to win—either to preserve their way of life, or make their way of life the law of the land—means that the battle has already become a perverse alliance. Today they refuse to work together in the rusting carapace of old constitutional order. Yet nonetheless they work shoulder-to-shoulder, together, to overthrow it. For both sides, the old order is the major obstacle to victory. Hence victory is through overthrow. Only when constitutional obstacles are toppled can the battle for light and truth begin.
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