by Neil H. Buchanan
In a recent Dorf on Law column, I offered a parenthetical observation at the end of the opening paragraph: "Ah, remember those halcyon days when people who tried to be sensitive to non-Christians' sensibilities were accused of waging a War on Christmas -- instead of today's preference on the right to attack non-conservatives as pedophiles?!" Oddly enough, the topic of that column was tax policy, but it is in fact fitting that it somehow made sense to make a sarcastic remark about culture-war tropes even while writing about such a mundane topic. The Republicans' grievance machine is working overtime, and it is flooding even unexpected corners of our existence with hate.
Even in the best of times in this country, it was not outright shocking when right-wingers would insult people on the left with weird personal attacks. "Why do you hate America?" was their response to critics of the Iraq invasion in 2003, for example. In my first semester as an untenured professor at George Washington University, I was giving a faculty seminar about fiscal policy, and a colleague (whom I had not yet met) asked me if I was in favor of the estate tax. When I said yes, he said, "Oh, so 'from those who have the ability to those who have the need,' I guess?" I laughed and said, "Well, I've been red-baited before, and I probably will be again." To his credit, my colleague later came to my office and apologized (happily, not an "if you were offended" non-apology).
My point is that people criticize and attack each other all the time, and we always have, but even the outrageous stuff is now categorically different. Questioning someone's patriotism because of a disagreement over justifications for military action, or calling them a Marxist/communist/socialist/poopyhead because they think (as Adam Smith put it) that "[t]here is no point more difficult to account for than the right we conceive men to have to dispose of their goods after death," is cheap and demeans the discourse. But what we see now is so much worse.
Here, I will very briefly offer some thoughts on what individuals might do even as their country slides into one-party dictatorship and as the attacks from the increasingly unhinged non-majority insurrectionists become ever more personal. In contrast to my writing about what it will be like to live in a post-democratic world in the sense of how our day-to-day lives and jobs might change, here I want to think about what matters even while the fight has become unwinnable, and after it is lost.
I start by returning to a question of political process having to do with an obscure provision of an obscure constitutional amendment. Prior to Fall 2020, I doubt that I had thought about the Twelfth Amendment since I had read all of the amendments for my 1L Constitutional Law class. The Twelfth never came up in law school (even in that class), and no one thought it ever would.
Today, however, I published a new Verdict column, returning to a topic that I had explored with Professors Michael Dorf and Laurence Tribe in September 2020. There, we responded to chatter from the Trumpist right about using the Twelfth to take the election out of the hands of the Electoral College (where Trump's people correctly anticipated he would lose) and kick it to the House of Representatives, where Trump would win by relying on the strange rule in that amendment whereby each state's delegation would receive a single vote. This would enhance small-state bias even more than elsewhere in our system, and Trump would have won that vote.
I recommend today’s Verdict column (and the column from 2020) to interested readers who might want to know why that gambit would not have worked under the Twelfth Amendment's own terms, but my larger point in that column was to ask whether it could possibly matter in the future that nearly everyone (apparently including some Democrats and many left-leaning pundits, as I have noted with bewilderment over the last year and a half) simply accepts the Trumpian misreading of the amendment that would send a presidential election to the House.
The title of the column ends with my assessment: "Could the Next Coup Attempt Hinge on the Meaning of the Twelfth Amendment? Why Risk it?" That is, among all of the ways in which a tyrannical minority could permanently seize power in the United States, misusing this obscure provision of this obscure amendment is highly unlikely to be the last gasp of our constitutional republic, but it might be. We should shore up everything that needs shoring up.
I still believe that argument (after all, I only wrote it 19 hours ago), but it is worth stopping for a moment to think about why the kick-it-to-the-House strategy is so unlikely to matter either way. Not zero percent probability, so worth worrying about, but still nowhere near front-of-mind.
Republicans, after all, might manage to scare enough people about inflation (for which they have no plan), immigration (for which they have no plan), everything else (for which they have no plan), and critical race theory (about which they have no clue) that they might have been able to win a fair election. But of course they have made sure that it will not be a fair election, both because of intensified voter suppression and partisan seizure of the process of counting and certifying votes.
Even if none of that works, Georgia and Arizona have (and are likely to continue to have) Republican legislatures and governors, so they will almost surely try to certify their 2024 presidential candidate's electors, no matter the outcome at the polls. If Democrats lose the governor's mansion in Michigan, Wisconsin, or (not and) Pennsylvania later this year, that would put a complete Republican lock on the Electoral College; and even if the Democrats hold those governorships, the legislatures-only theory hangs over all of us, with the Supreme Court likely to allow Republican legislatures in those swing states to ignore their governors and state courts and send Republican electors to vote in December 2024.
This litany is familiar to anyone who has read my work over the last year or so, but my purpose in highlighting it here is to remind everyone that the problem is not the Squad, or Joe Biden, or even Joe Manchin and Kyrsten Sinema. The die is cast, and we are only looking at the endgame.
What to do when the game is already lost? I am not invoking Michelle Obama's "When they go low, we go high," as important as that was. She was, after all, talking about a potentially winning strategy in response to Trump's gutter politics. I am asking how people should spend their time during and after the end of what we have always thought of as America.
The answer, I think, is to insist on dignity -- our own, but more importantly those whose dignity and very lives are in much more danger than people like me can ever imagine. I hope that many people followed the story earlier this week about a Democratic state senator in Michigan, Mallory McMorrow, who had been attacked as a pedophile by a Republican who serves in that same body. McMorrow gave a stunningly effective speech on the Senate floor, calling out her attacker and defending the dignity of the various reviled (by Republicans) communities that are under increasing threat.
In an excellent op-ed piece in The Washington Post, Jonathan Capehart wrote: "Don’t let Mallory McMorrow fight bigotry alone." McMorrow had built her argument around the idea that, precisely because she checks virtually every "privileged" box there is -- "So who am I? I am a straight, white, Christian, married, suburban mom." -- it was especially important for her to stand up and fight. Capehart, noting that with "the exception of being Christian and married, I’m really not anything like" McMorrow, cheered her on and called for others to join the fight.
In a sense, I suppose, this is the positive version of the White Savior phenomenon. Whereas various movies traffic in the idea that White people can make lives better for helpless black people ("Green Book" and "Mississippi Burning being particularly reviled on this score, for understandable reasons), Capehart was saying that it is indeed important for people with privilege to use it for good where they can. This does not (as the movie tropes too often do) strip non-privileged people of agency and power (and even humanity), but rather it recognizes that everyone can benefit from having an ally, especially a relatively powerful one.
In other words, McMorrow is saying: "I've checked into my privilege, and yup, there it is. Now, what I am going to do with it?" Capehart says to the rest of us: "Join the fight." Even if we are going to lose many political battles, we can at least use our time and effort to mitigate the harm that the rising antisocial movement on the right will inflict. When it has reached the point where far-right protesters are calling Disney World "Pedo World," this might be the best use of our time and efforts.
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