Wednesday, June 30, 2021

Insider Political Violence is the Iron Fist. Beware the Velvet Glove.

 by Michael C. Dorf

Earlier this year, I participated in a conference sponsored by the Brennan Center focusing on gun rights in times of unrest. The short papers from the conference have now been published. Here I'll say a few words about my paper, Disaggregating Political Violence, connecting it to the ongoing destruction of American democracy.

The core claim of my paper is easy enough to state: Modern U.S. constitutional doctrine governing the limits on government power to intervene when political activity--such as a march or rally--threatens to turn violent is based on a paradigm of what I call "outsider" political violence, that is to say, 

acts perpetrated by anarchists, communists, and other marginal figures who have virtually no chance of succeeding in their political aims but nonetheless pose a threat to public safety. By contrast, with the emergence of political violence as a tactic favored by substantial numbers of supporters of one of the two major political parties, the United States now faces a threat of what I shall call insider violence. Like outsider violence, insider violence poses a risk to public safety, but it also poses a risk of fatally undermining democracy.

I argue in the paper that First Amendment doctrine and (the substantially less developed) Second Amendment doctrine fit poorly with the threat posed by insider violence. Although insider political violence is not new in American history, most of the major past episodes (such as slave patrols, the Klan, and the use of Pinkerton guards and private militias to bust unions) pre-date modern constitutional doctrine. I argue further that while rethinking constitutional doctrine regarding political violence may thus be necessary, it probably will not be sufficient to address the threat we face.

But let's be clear about the nature of that threat. All violence poses an immediate danger to health and safety. What distinguishes insider political violence from outsider political violence and non-political violence is the threat that insider political violence also poses to the democratic order. Thus, when we ask whether something like the January 6 insurrection could happen again (the answer is obviously yes), we are not simply asking whether lives of police, politicians, and the rioters themselves could be put at risk again. Sadly, the risk to life and limb from all forms of violence is ever-present; although violent crime in the U.S. remains well below its early-1990s peak, the recent upward trend in murders is worrying.

So, what is the exact worry about insider political violence? Partly the concern is that it's a form of terrorism, which creates fear that goes beyond the ordinary fear of crime. Day X, an ongoing series from the NY Times podcast The Daily, highlights one especially dangerous form of insider political violence. It describes and analyzes the rise of right-wing extremism and Neo-Nazism within the German military, national intelligence services, and police. There are chilling parallels with Germany's own history in the 1920s and 1930s as well as with very recent events in the United States. Even if they don't succeed in bringing down the democratic political order, Neo-Nazis infiltrating the German security apparatus or marching in Charlottesville with the approbation of the U.S. President understandably generate a level of anxiety beyond the direct harm they do to life and limb.

However, insider political violence also threatens the democratic order. Day X is so named to refer to a day about which the German far right fantasizes--when nationalists will replace the existing constitution with something that looks more like the Nazi regime. As the series explores, extremists in Germany expect and are working to precipitate a crisis that will enable them to seize power. There is reason to think that QAnon conspiracists and their fellow travelers have similar hopes and plans here in the U.S.

There is every reason to take seriously the threat of a violent revolution precipitated by some genuine or manufactured crisis. Indeed, as Prof Philip Bobbitt argued in January, one very plausible account of the insurrection was that it was intended as a kind of Reichstag fire that would lead to widespread violence that would in turn be used as a pretext for Trump's seizure of emergency powers. The refusal of congressional Republicans to authorize a full investigation of the insurrection is not proof positive that it was so intended or coordinated; the more likely explanation is that they are, in this regard as in so many others, simply sniveling cowards afraid of losing primary elections to Trump's designated bootlickers; but it is also possible that congressional Republicans fear that a full investigation would show a damning degree of planning and coordination with Trump and his allies; and that they prefer their own power more than the preservation of American democracy and thus would rather keep those facts hidden.

Even so, and despite my recent scholarly interest in political violence, both in the new Brennan Center article and my forthcoming Northwestern University Law Review article rejecting a right of armed assembly under the combination of the First and Second Amendments, I think it is fairly unlikely that American constitutional democracy will soon succumb to a violent overthrow. The much graver risk is that it will be overthrown--indeed that it is already being overthrown--by state laws enacted by gerrymandered Republican-majority legislatures that allow Trumpist nomenklatura to declare electoral winners regardless of who actually obtains the most votes.

In short, what distinguishes the severity of the risk of insider from outsider political violence is not the violence. The worst episode of political violence in the U.S. in living memory was perpetrated by the 9/11 terrorists, who were utter outsiders and who never posed a risk to stable democratic government.

Trump and the movement that spawned him do pose such a risk. Just as last year Trump tried peaceful means to subvert the democratic order before endorsing violence, so the next time, he and/or his allies or successors will seek to use--are already using--the velvet glove of laws passed by men in suits to accomplish their aims. If they succeed, they will not need to unveil the iron fist of insider political violence.