Noah Feldman

Will US Democracy Survive? Here’s How to Figure That Out.

Are we living in 1858 or 1968?

That is, are America’s divisions so profound and political institutions so crippled that we are poised for a breakdown akin to the Civil War? Or is the current polarization the product of conflicting social forces that can be gradually reconciled or redirected into more healthy electoral competition?

In this more hopeful scenario, even if we undergo 1970s-style economic malaise and the odd trauma like Watergate, we re-emerge and enter a phase of comparative national health and even greatness.

There have been signs of normal, if imperfect, political life in the 11 months since Joe Biden and the scant Democratic majority in Congress took office. But polarization only seems to be getting wider. In Congress, even what should be routine matters — like lifting the debt ceiling — continue to blow up into potential crises for no reason.

Meanwhile, the Supreme Court appears willing to undermine its legitimacy by reversing Roe v. Wade. Such a ruling would not only unleash an intense and protracted national struggle over abortion rights, but also lead to a deeper questioning of whether the court itself is fulfilling its function as a protector of fundamental rights.

Not very far in the background, Republicans at the state and local level are setting out to elect officials who might well acquiesce in Donald Trump’s claims that an election he lost was stolen from him. If those officials were prepared to invalidate the results of legitimate democratic elections — and the candidates seem to be undergoing selection with that goal in mind — then the national political crisis could become existential.

If Trump were to run and lose the 2024 election, yet be declared the winner by Republican-controlled state legislatures, we could find ourselves in a constitutional crisis that a delegitimated Supreme Court could not resolve. If he were to win the electoral vote in 2024 lawfully while losing the popular vote, as he did in 2016, progressives and liberals might take to the streets in protest of the undemocratic Electoral College — and the protests, if met with violent police reaction, might become violent themselves.

In general, I am an optimist about the resilience of our political institutions. In the spring of 2017, addressing what I (mistakenly) thought would be the biggest public audience of my life, I ended a TED talk about the partisanship of the 1790s by reassuring everybody that, notwithstanding Trump’s election, “It’s going to be OK.”

Two and a half years later, in December of 2019, I testified before the House Judiciary Committee on Trump’s impeachment, telling a lot bigger audience that the US president had committed high crimes and misdemeanors. Even then, though, after the Senate declined to convict Trump, I remained optimistic that he would be voted out of office, and that he would have no choice but to go. Those things happened. They were close calls, but they did take place.

In assessing the performance of our institutions after the stress test that was the Trump presidency, my view remains that our constitutional democracy made it because of the strength of our formal institutions. Informal norms got broken a lot under Trump, and it is going to take more than just one presidential administration to rebuild them.

But the Democratic Congress did what it could to check Trump, including impeaching him twice. And the courts held out against most of his excesses.

The Supreme Court blocked a citizenship question from going on the census. It stopped Trump from rescinding protection for the undocumented immigrants who came to the US as children. It didn’t overturn the Affordable Care Act.

Above all, the justices tartly declined Trump’s repeated invitation to overturn the results of the election and make him president for another term. These, too, are proof of resilience in a system that appeared to be teetering.

Based on these and other optimistic interpretations of observed fact, it isn’t unreasonable to conclude that our current situation is much more like 1968 than like 1858.

In the run-up to the Civil War, Congress failed to solve the looming crisis with a durable national compromise like those it had brought about in 1820, 1833 and 1850. 1 Congressional dysfunction had gone so far as to allow actual physical violence on the floor of the Senate, where Charles Sumner of Massachusetts was caned in 1856 and suffered permanent serious injury.

The feckless James Buchanan had failed as president to stand up to the secessionist wave. Relying on a legal opinion by his attorney general, Jeremiah Black, Buchanan ended up stating publicly that while secession was an act of revolution, the federal government lacked all authority to coerce the seceding states back into the union.

Meanwhile, the Supreme Court had squandered much of its legitimacy by deciding the infamous Dred Scott v. Sandford case, a failed attempt to solve the continuing struggle over slavery in the federal territories by stopping Congress from legislating on the subject.

With the federal government impotent, the door was open for Southern states to secede. Federal officials in those states resigned en masse. State officials convened secession conventions and declared their militias to be under their own or Confederate control. The militias obeyed the orders of the state governments.

It was a different story in 1968. Extreme political acrimony coupled with deep social divisions also led to violence. The rioting in more than 100 cities that followed the assassination of Martin Luther King Jr. dwarfed the Black Lives Matter protests and counter-protests of the past year and a half.

The most important reason the unrest in the 1960s did not destroy the country is that the conflicts over the Vietnam War and the civil-rights and women’s movements were generational. They could be resolved by institutions that effected both partial change and partial co-optation. That allowed the conflicts to be tamed and transformed into more ordinary forms of electoral division.

The US could and did leave Vietnam (change). The Jimmy Carter administration did not embrace pacifism but it did adopt a foreign policy more oriented toward human rights (co-optation). When Ronald Reagan was elected and took a more hawkish Cold War approach, that shift was domesticated into an ordinary, safe disagreement with Cold War doves.

In the wake of the King assassination, the federal government continued its policy of ending de jure segregation that was first adopted in response to the civil-rights movement itself (change). The Democratic Party institutionalized support for affirmative action (co-optation).

By the time Reagan Republicans began to eliminate those programs, both judicially and legislatively, the struggle had turned into a normal electoral conflict between Democrats and Republicans. That conflict could play out via elections, not through violence.

As for the social conflict created by the sexual revolution, the Supreme Court legalized abortion and established a constitutional right to sex equality in the 1970s (change). The Carter administration began to appoint women to important federal government positions, including the courts – and the Reagan administration largely followed suit (co-optation).

Although the abortion question never went away, and became a driver in the alliance that Republicans forged between Catholics and evangelicals, the struggle over sexual-equality issues became an ordinary political debate, with occasional judicial interference, as in the 1996 case of whether to allow all-male institutions like the Virginia Military Institute to persist.

By the time the gay-rights movement had its turn in the courts in the first decade of the 2000s, all parties understood the script well, and the transformation of sexual and cultural mores took place with little in the way of ungovernable social conflict outside of elections and courts.

Are today’s deep social conflicts similarly resolvable through a process resembling change, co-optation and normalization?

Today’s conflicts are less generational than those of 1968. Though young people today are more progressive on the whole than older folks, they are not united by a threat like the draft or by adherence to some sexual norms that are markedly different from what their parents accept. Nor are they demanding specifically identifiable revolutionary change, at least not the kind that can be realistically delivered by the government.

To the contrary, #MeToo and BLM are objecting to the failures of co-optation that grew out of 1970s feminism and the civil-rights movement. They are pointing out that feminism didn’t stop sexual harassment and assault, and civil-rights law hasn’t stopped the police from killing Black men at traffic stops.

All this makes it harder for institutions to change in response to activism or co-opt the activists. But it also means the challenges themselves may fade as a result of not having concrete objectives around which to unite.

As for Trump’s warriors, they are united less by a specific agenda for change than by a condemnation of existing institutions. The most extreme expression of this view is the belief held by most Republicans — if you can believe what they tell pollsters — that the 2020 election was stolen and that the 2024 election likely will be, too.

Here is where the danger of antidemocratic activism becomes most manifest. In 1858, Southerners considering secession believed that the constitutional system as it then existed was no longer adequate to defend their interests. Concerned that, over time, they would be encircled and marginalized, they preferred to go it alone. To preserve slavery, their solution was to break the existing constitutional order.

If Trump runs and can’t manage to win in 2024, either because he doesn’t have the votes or because his supporters believe Democrats “stole” the election again, then his followers could have an incentive to subvert the institutions of the government or even attack them violently, as a fringe group did on Jan. 6, 2021.

The possibility of such a turn to violence or other subversion is why it isn’t absurd for retired US generals to call for civic education in the armed forces. It’s why Democrats are right to warn that there is a risk of newly elected Republican local officials following Trump in claiming the results of the 2024 election are faked if and when he loses.

The point of these warnings, though, is to shore up the institutions that are designed to sustain elections and democracy, to build on their existing resilience and to resist failure. That effort can succeed, and in my optimistic view almost certainly will.

Local election officials, Republican and Democrat, were in fact scrupulously honest in 2020. People turned out and voted amid a pandemic, despite impediments put in their way. Trump, some of his staffers, a lot of congressional Republicans and Fox News collectively tried to break democracy. They fell short.

From an institutional standpoint, it will also help that, in 2024, a Democrat will be in control of the US army and the Justice Department. That means the federal government won’t be in court demanding that legitimate election results be overturned. The Justice Department won’t falsely condemn state electoral counts.

And the commander in chief won’t order the army to block his successor from taking office. The institutional dangers of 2020 will be mitigated to that important extent.

And however far the activist conservative Supreme Court goes in the next two and a half years, it is unlikely to acquiesce in an attempt to steal an election. An identically composed court did not do so in 2020. There is a difference between overturning Roe and overturning democracy. The former has been a conservative desideratum for almost 50 years. The latter is anathema to judges of all stripes. Their own power depends on the idea that civilian institutions will obey them when they declare what the law requires.

The conservative justices have already gotten everything they need from Donald Trump. To them, he is an embarrassment — particularly to his three appointees, who are old-style conservatives, not populists, and none of whom has personally expressed Trumpian beliefs or values. Two of them, Justices Neil Gorsuch and Brett Kavanaugh, worked in George W. Bush’s administration.

In short, it doesn’t look as if our political institutions are headed for an 1858 kind of breakdown. The tougher medium-term question is whether the Trump supporters’ condemnation of our institutions, which isn’t susceptible to either change or cooptation, is deep and durable enough to erode them. It won’t be long before we find out.