What's Wrong With Political Violence?
by Michael C. Dorf
The powerful House Select Committee public hearings that began last night should serve as a reminder--if any were necessary--of the grave peril that confronted and still confronts our democracy. Even more than the facts that were displayed, the failure of Republican members of Congress other than apostates Liz Cheney and Adam Kinzinger to participate and the failure of Republican state media (i.e., Fox) to air the hearings illustrate the danger, for they reveal that, for the right, condemnation of political violence is not automatic but dependent on who's engaged in that political violence.
Can that charge be fairly leveled against the political left as well? During the second Trump impeachment proceedings, lawyers for the defense and many of their allies tried to equate Trump's incendiary campaign with statements by Democratic politicians in support of the Black Lives Matter protests of the summer of 2020. The argument was that statements like Trump's admonition to his supporters to "fight" were mere hyperbole and thus no different from similar words from Democratic politicians. However, while one can find similarity in wording, as a matter of both the law of incitement and common sense, context matters. No mainstream Democratic politician said anything close to what Trump did under analogous circumstances.
With the possible exception of Congresswoman Maxine Waters, Democratic politicians expressed support for the goals of BLM protesters and for their right to protest peacefully but condemned out-and-out violence. While some left-leaning commentators excused property damage, there is simply nothing comparable on the mainstream liberal/progressive side of the spectrum to the RNC's description of the January 6 attempted coup as "legitimate political discourse." Support for political violence is a fringe position on the American left; it is mainstream on the right.
The recent news of a foiled attempted assassination of Justice Kavanaugh is a useful illustration. I would not be surprised to learn that there were statements by individuals on social media expressing sympathy for the would-be assassin, but no responsible Democratic politician holding any authority was anything but rightly horrified. Attorney General Merrick Garland's statement was just right: "Threats of violence and actual violence against the justices of course strike at the heart of our democracy," Garland said, adding that the Justice Department "will do everything we can to prevent them and to hold people . . . accountable."
So, responsible political actors and observers should condemn political violence in all its forms, right? With a caveat about what one means by "political violence" in extreme circumstances, yes. I'll begin with the caveat: If one lives under an evil and undemocratic regime, violence may be a legitimate means of attempting to change that regime. Partisans fighting against the Nazis in occupied countries or Ukrainians today fighting to retake, or undermine the occupiers' authority in, areas the Russians have unlawfully seized can be described as engaging in a form of political violence, but the use of force in such circumstances has a different character because there is no democracy to undermine.
I am reluctant even to endorse that limited caveat, because there are all-too-many real-world examples of its abuse. From Northern Ireland to Sri Lanka to Israel/Palestine to Kashmir and more, one sees people who have or believe they have legitimate claims to self-determination directing violence not only against the armed forces and political leadership of the illegitimate (or perceived-to-be-illegitimate) occupiers but as an instrument of terror aimed at civilians--perhaps rationalized on the ground that the civilians themselves are complicit in the occupation. Such forms of violence are most common in conflicts between locals and foreign occupiers but can also be seen in civil wars.
Meanwhile, in the absence of the caveat, the case against political violence is straightforward. Even in a flawed democracy, so long as there are nonviolent means of achieving one's ends, the use of violence is immoral. It is also likely to be counterproductive: violence will typically lead to both an authoritarian crackdown and escalating violence by one's political opponents.
That's really all I have to say about this matter, but I'll close with an addendum about the relation between peaceful protests and violence. In a Verdict column last month, I discussed the constitutional law governing protests outside the homes of Supreme Court Justices and other government officials. I also observed that even if such protests are legally permissible, there may be sound strategic reasons for movement activists for abortion rights (or other causes) to refrain from engaging in home protests, which could serve to distract from their cause. I'll add that more generally there is always a risk that actual legitimate political protest can turn violent.
After all, one can never control everybody who sympathizes with a cause. The would-be assassin of Justice Kavanaugh and the gunman who opened fire on Representative Steve Scalise and others in 2017 may well have taken their cue from arguments against the positions espoused by their targets' political opponents, but that does not make the proponents of those arguments responsible for the rogue violence. However, where--as in the leadup to and on January 6, 2021--it is plain that one's words have a substantial likelihood of inciting actual violence, political leaders and commentators have a responsibility to temper the message.
Political violence is especially dangerous even if only threatened if it enjoys the support of allied government officials, which is the point with which I began about the distressing backsliding of Republican elected officials into January 6 gaslighting. As I wrote last year in an essay for a Brennan Center symposium:
Armed supporters of Trump or whoever succeeds him in leading his fascist movement function like a semiofficial paramilitary force. They may in fact be quite good at keeping a kind of peace through their intimidation, so that actual violence rarely materializes.
When such violence does materialize, it is of course horrific, as the opening round of the Select Committee public hearings underscored. But the ongoing failure of the elected GOP leadership to condemn its shock troops is as much a threat the heart of our democracy as the threat to Justice Kavanaugh that AG Garland rightly condemned. Or as Congresswoman Cheney said last night to her "Republican colleagues who are defending the indefensible: there will come a day when Donald Trump is gone, but your dishonor will remain."