Wednesday, August 10, 2022

What the End of Democracy Looks Like in Real Life

by Neil H. Buchanan

During the more than seven years that I have been warning about the inevitable end of constitutional democracy in the United States, I have almost exclusively focused on the legal mechanics of how this process will play out.  Being a law professor, I am inexorably drawn to "on paper" explanations, that is, laying out the procedural mechanisms that Republicans are using to turn the US into a one-party state.

Thus, I have pointed out the various ways in which future presidential elections can be hijacked via strategies that tax lawyers would sardonically describe (in a different context) as "perfectly legal" -- that is, gambits that are apparently within the letter of the law but are still terrible outcomes.  The Electoral College exists; the Constitution gives state governments the power to choose electors in utterly non-democratic ways; the Supreme Court has made it clear that Republicans can suppress votes and gerrymander at will; the Court might go even further and endorse the so-called Independent State Legislature theory to cut Democratic governors out of the process; and so on.

Earlier this summer, I pointed out that those mechanisms are ultimately put into operation by people, and we need to understand why so many people have become willing to subvert our republican form of government to maintain power at all costs.  These non-mechanical considerations are important in understanding the on-the-ground reality in which all of this will play out.  After all, even if Republicans could pull off their autocratic coup bloodlessly (based on the "on paper" possibilities that I have described), they are now encouraging a burn-it-all-down attitude.  Will they bother to keep it tidy?  Even if they wanted to, could they at this point stop it from becoming utter bloody chaos?

These questions are motivated, of course, by the right-wing freakout regarding the search by federal agents of Donald Trump's house to look for documents that he had illegally taken with him from the White House.  (Those documents were apparently not difficult to find upon serving the warrant and searching the grounds.)  The response from Trump, Republicans, and the wingnut-overse has been stunning to the point that it actually surprised people (like me) who thought that we had seen the worst.

The most worrisome part of that reaction has been the immediate talk of "civil war" by Trumpists, combined with the failure of the Republican Party (both its political operation as well as congressional leaders) to tamp down any such talk of violence in response to the search of Mar-a-Lago.  Even people who are supposedly the most responsible voices in the party quickly jumped on board with the idea that this plain vanilla, by-the-book legal action was most definitely politically motivated, lawless, and unjustified.

To be sure, there is a tendency to overreact to bluster and big talk from the right, which MSNBC's Lawrence O'Donnell amusingly deflated in a commentary last night.  As he noted, the media focused on people who showed up in Palm Beach to show support for Trump, but the number of media covering that "event" was larger than the number of people who were standing around holding Trump flags and hoping to be interviewed by credulous reporters.  Most potently, O'Donnell noted several times that none of the people who tweeted that this would immediately unleash the violent fury of Trump's supporters actually walked away from their keyboards to participate in public bloodletting.  The title of the segment made the point crisply: "There is no uprising."

This is important, because it is true that many of the Trumpy types simply like to talk about how the nation's true patriots will gladly die for (their weird understanding of) freedom, but talk is cheap.  What O'Donnell should have acknowledged, however, is that we wanted to believe that something like January 6 would never happen, yet we were living in a fool's paradise to think that "Will be wild!" and other incitements would lead to nothing more than another lie-filled set of speeches followed by grumbling on Fox News.  Violence had not happened, but then it happened.

But even short of the most extreme worst-case scenarios -- an outbreak of terrorist acts against Democrats, bombings of government buildings, and so on -- the terribly fascinating aspect of the Republicans' words this week is that they show the ground-level reality of what a country looks like when one major party simply abandons its commitment to the rule of law.  Although I can point out that Republicans have identified the mechanical processes that they will surely use to install themselves in power in perpetuity, a big part of the lived reality is that they have stopped accepting anything like legal restraints on anything that they want to do.

I have occasionally pointed out that Republicans have taken an important historical slogan, "Taxation without representation is tyranny," and changed it to, "Taxation is tyranny, full stop."  That captures the vibe of their arguments over the past forty years or so, but in one way it misses an important, deeper reality.  Republicans are not in fact anti-tax so much as they are opposed to Republicans being taxed -- more specifically, the richest Republicans.  Even the states (like my current home, Florida, as well as Texas and others) that do not impose income taxes do raise money through taxes.  They do so, however, either through "tax exportation"  -- essentially forcing non-citizens to pay a state's bills, usually by taxing tourists (again, with Florida leading the way) -- or by imposing extremely regressive taxes, principally sales taxes.

I occasionally remind readers that Bush I speechwriter Peggy Noonan once argued absurdly that she knew of four people who were audited by the IRS, and because all of them were Republicans, that was all the proof she needed that the Obama Administration was deliberately targeting Republicans for tax harassment.  Even so, Republicans are manic about auditing poor people who dare to apply for the Earned Income Tax Credit -- a wage subsidy for earned income, making it only available to the working poor, not Ronald Reagan's mythical "strapping young bucks" or welfare queens who supposedly get something for nothing.
 
And of course, not a single Republican screamed from the rooftops that we must "get to the bottom" of the IRS's audits of James Comey and Andrew McCabe during Donald Trump's time in office.

The issue, then, is not that Republicans have a deep commitment to less intrusive enforcement of tax laws, or anything like that, any more than they are anti-tax in the sense of truly wanting there to be no government.  They simply want a different set of rules for themselves.  (This is not a new phenomenon.  The Puritans were not opposed to religious oppression.  They were merely opposed to being the oppressed.)

And that is why this week's freakout is an important opportunity to assess what it looks like when Republicans reveal themselves to have abandoned all commitment to the rule of law -- that is, to the neutral application of legal mechanisms to all people.  Just as "taxation without representation is tyranny" becomes "taxation of us is tyranny, representation or no," suddenly the Fourth Amendment is turned inside out and upside down.  Here is the text of that amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Based on the not-openly-stoking-violence part of the Republicans' reaction this week, their understanding of the Fourth Amendment has a similar two-stage reinterpretation.  First, it becomes something like this:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable all searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Like "taxation is tyranny, full stop," however, that misses the next step, which amounts to a new, honest version of their ideal Fourth Amendment:
None of the people we like shall be subject to searches and seizures, no matter the evidence of criminality.  Why?  Because no one we like shall be subject to criminal prosecution.  Or, for that matter, civil liability.  Anyone who tries to do anything bad to anyone we like is a political operative who is weaponizing a Gestapo-like deep state.
This outcomes-not-fair-procedures focus is consistent with Republicans' attempts (long pre-dating Trump's party takeover) to reject results that they do not like.  They recalled a Democratic California governor almost two decades before their failed attempt to knock out Gavin Newsom last Fall.  They perpetrated the "Brooks Brothers Riot" in 2000 to stop the counting of ballots in South Florida.  Though it is less well known, and before it became politically necessary for now-jurists John Roberts, Brett Kavanaugh, and Amy Coney Barrett to dutifully carry out their part of the 2000 Republican strategy that resulted the 5-4 Bush v. Gore decision, some of George W. Bush's key advisors had been planning to challenge the legitimacy of an election in which Bush won the popular vote while Gore won the Electoral College (which was a very real possibility in that election.)

There is, in other words, a Republican psychological ground game that is at least as important to ending democracy as is their plan to follow the mechanics laid out in their legal playbook.  There is no longer even the passing attempt to justify outlandish assertions about stolen elections or anything else.  Everything is simply: "A bad thing happened to people we care about, and that cannot stand."  Following election procedures to the letter, and carrying out careful audits?  No matter.  Requesting a search warrant, backed up by all of the elements required?  Nope.

The end of the rule of law and constitutional democracy is not only about how to manipulate the minoritarian openings in the law but also about getting people to be willing to participate in undermining the Constitution.  That is achieved by making them sufficiently loyal, which is not only a matter of sliming Democrats with culture wars issues but also convincing Republicans that the only way that they can ever be unhappy -- not just losing elections, but even being on the losing end of a single legal proceeding -- is because the entire system is against them and cannot be trusted.
 
Trump's supporters believe the lies about the 2020 election because they cannot and will not believe that they should ever be disappointed.  That attack on the notion of objective reality is now trickling down into every aspect of accountability in government.  Once people have accepted such a non-reality, everything else follows.  "We didn't lose, because we can't lose," is not the attitude of the citizens of a democratic republic.  It is, based on recent evidence, the attitude of nearly the entire Republican Party today.

No comments: