Legitimacy, Enforcement, and What Comes After

September 20, 2020

I am not the first person on the internet to tell you that since 2016, the number one thing that’s been eroded and removed from American society is the idea of “norms” — things you “can” or “cannot” do not due to a specific consequence (like going to jail, or being removed from office), but due to the generally shared understanding that doing that thing would eventually destroy the consensus that keeps the country functioning.

We’ve all learned just how much of our country operates under inertia, versus the true rule of law, where rules aren’t “expectations”, but are codified with real enforcement mechanisms that are ready and willing to activate when said rules are violated. Some things, like making everyone an “acting” head of a function so you can avoid confirmation hearings, or ignoring how much the chief executive is literally shoveling public money into his businesses, are just tasteless and embarrassing acts of bad faith. Maybe they are technically legal acts under the laws that exist, or maybe they are just so gross and weird that we never thought to put a law in place.

Other acts are even bolder — they rely on enforcement of a very real, legal limitation simply not working, or having insufficient resources. This is like robbing a bank, escaping the local police, and then arguing that what you did is fine, or else someone would have arrested you. When Congress issues a subpoena to a relatively ordinary White House official, they are supposed to show up. While you can end up in a legal battle over what questions they are required to answer based on different executive prerogatives, you have to at least show up. If you don’t, you should be found in contempt and put in prison, which is what would happen if I didn’t show up for a subpoena. Now, it’s become a courtesy to show up, because people played chicken with the enforcement of the rule, and won.

Maximalist Chicken

Most reasonable people I talk to — regardless of their politics — are uncomfortable with the second thing, because it really does feel like the system is broken. Ask a non-political person if something political is okay or not, and eventually you’ll probably end up talking about whether said action is “actually illegal”. People understand the difference between the letter of the law, and the spirit of the law, and they live in a society where everyone from local government to Verizon constantly leans on the former and ignores the latter. But, they generally believe that, when push comes to shove, laws should be enforced.

What people seem to undervalue is the impact that the removal of norms and non-legally binding political behaviors have on society, primarily because people associate “norm” with “social grace”, and either don’t believe or just aren’t aware of how much actual power is kept in check by people simply deciding it would be bad for everyone in general to exercise that power.

That doesn’t mean I think relying on norms is a good way to run a society; in many ways, it’s not. Norms are both weak and alarmingly amoral. Norms have protected racial caste systems, sexual assault, and a host of objectively awful things in place even when said things could no longer be protected by law. But the fact is, America has been (for all it’s problems) a pretty good place to live, and a pretty good social framework to build on, largely due to norms that have insulated us from fascism, communism, theocracy, and other failed systems. Those norms have survived because we’ve looked at those various -isms and thought “we actively do not want this place to turn into that”, and that was always more important than getting to be in charge for another 2 or 4 years.

But that shared agreement of some basic things we don’t want to be is exactly what we appear to have lost. And with it, we’ve lost basically the only things keeping us from turning into one of those places we used to fear becoming most.

America is not legally required to be America

The biggest misconception about America — the shiny, positive version of America we want to have, that is — is that it is, by nature of its Constitution — somehow required to be the country that we’re used to living in. My best guess is that this is due to some combination of poor awareness of our own history, the increasingly dated and hard to parse language (for regular people) of our most critical founding documents, and the fact that the country has undergone enormous changes (becoming an international superpower, for one) that have been baked into the culture, but for the most part, neither our institutions nor the actual Constitution. Americans in 1975 had very different expectations of their society than Americans in 1925, but rely on the same basic founding documents with a few (important) amendments and a lot of laws. And we don’t really make laws anymore, to be honest.

The result of this is that people mistakingly assume that the American system of government, as defined in the Constitution, if played to the absolute letter of the law, will basically look like the America they know. This is, as we’re seeing, not even remotely true. The America we know and love is built on staggering levels of public, communal investment, and long-term thinking that — while influenced and affected by varying degrees of partisan politics, of course — are not a series of continuing resolutions and scorched earth governance designed to maximize the ability to jam party loyalists into lifetime court appointments. We didn’t beat the Nazis, go to the moon, end slavery, clean up a wide variety of truly ghastly environmental problems, build the world’s most dynamic capitalism, etc., etc. by constantly pushing the burden of reasonableness onto whoever would take it, as long as it wasn’t me.

None of that is legally required. America being a decent, functional society that respects its citizens and seeks the consent of the government is not baked into the Constitution. Instead, for 250 years, we’ve made the active, often difficult decision to use the Constitution as inspiration for building a place like that.

Why Mitch McConnell Sucks

I don’t agree with the political views of Senate Majority Leader Mitch McConnell or Chief Justice John Roberts, but I have wildly different opinions of the two. Roberts is the driving force behind some of the worst things that have happened to American politics and society, not the least of which is the gutting of the Voting Rights Act. The Citizens United decision opened the floodgates to a disgusting amount of corrupt, untraceable money that has poured into our elections for no good reason. He’s done immeasurable damage to some of the most important concepts in the country, because he’s an entitled, out of touch elitist.

However, he is infinitely less dangerous than Mitch McConnell because if nothing else, he understands the mortality of his own institution. The Supreme Court was not ordained by God; its specifics are barely even spelled out in the Constitution. We listen to it because we choose to listen to it, and it’s very possible that we’re approaching a moment where the part of the government that actually does stuff is told by the Supreme Court that it CANNOT do something, and simply replies “watch me”. If Democrats are the ones to do it, they’ll get it done by abusing the lack of specifics in the rules and simply adding more judges until they get what they want. If Republicans are the ones to do it, they seem more likely to ignore the Court without any legal argument at all, but simply because nothing will happen when they do it. Either way, the Court lives in a delicate world where it has to make adhering to the Court’s decisions easier than NOT adhering to them, and Roberts has (smartly) started to do this by breaking ties in ways that at least somewhat reflect the political mood.

You can write this off as judicial legislation/activism if you’d like, but remember that Roberts isn’t trying to generate policy outcomes; he’s just aware of the incredibly fragile position the Court is in, that the rest of us forget exists because this made-up-institution with lifetime appointments and broad jurisdiction has a badass looking building and an even more badass name. But Roberts doesn’t forget.

McConnell, on the other hand, is much more fundamentally dangerous. He’s now running the country’s legislative function the way I play video games right before I go to bed. I save my game, and then just start doing the craziest shit imaginable in the hopes that it will work, because I’m bored and quitting anyways. That way, if it works, great! I’ll save again. If not, I’ll just turn off the game. That certainly feels like what’s happening today — Mitch just keeps making increasingly cynical, self-serving decisions, and seeing if the fragile balance that keeps the country together breaks or not, and they keep working.

The problem, though, is that eventually they won’t, and there also won’t be a saved game to go back to. Mitch might have impressed us all with his ability to control huge parts of a powerful country with a distinct minority of support (congratulations, I guess?), but it’s never enough for him. His coalition keeps shrinking without becoming any more accommodating or interested in compromise, so he has to keep coming up with more aggressive ways to stay in charge. It’s a smaller group that makes up for its diminished numbers every year with a stronger, more intensely focused dislike of the majority, and under American norms, that’s not really a governing coalition. So we get stuff like this, where we’ll use a poorly representative body to jam through lifetime appointments to an all powerful body with no electoral safeguards at all.

That is now the plan, as batshit crazy as that sounds. It can fail in two ways. One is the obvious, traditional way — the actual mechanism of circumventing popular will can fail (darn elections!) and his GOP majority could panic and crack at the thought of ramming through an appointee, only to lose anyways and invite a flood of electoral reforms that, while “extreme” by the standard of doing nothing, are mostly about allowing people to vote easily and adding representation for American citizens who lack it for no particular reason. These things will disproportionately benefit Democrats, but at the same time, they will all be inside the bounds of logic and the American norms we expect.

The other way McConnell’s plan can fail is much worse — worse for everyone, but worst of all for him. And it’s that he fails by succeeding. He rams home a Supreme Court justice, sure. But in doing so, he finally fully normalizes the kind of “hey, it’s legal” approach to governance he’s slowly become dependent on. And instead of a right wing that’s driven by activists and reigned in by a few moderates, and a left wing that’s driven by moderates and yelled at by activists, we get two wings that embrace a total war, norms-be-damned strategy. The filibuster goes immediately, which allows court packing — not just to right a wrong, but to advance an agenda, because it’s very much within the rights of the majority. Imagine a Democratic Party that worried as little about institutional integrity as today’s Republican Party, throwing the furniture into the fire just as quickly as today’s GOP.

The only outcome for Mitch that works is — fortunately for him, I guess — the one that certainly seems to happen every time, which is that he makes a slightly more disingenuous power grab that puts a slightly more disproportionate amount of power into the hands of his people, and everyone just grudgingly accepts it because they can’t come up with a norm-compatible way to fight back. And hey, this is what usually happens, so maybe it can work… forever? Let’s just say I’m skeptical. The Boomers are on the way out slowly, but it’s going to happen, and eventually it’s going to start happening quickly. At that point, you’re going to have an enormous class of diverse, relatively educated, motivated, and poorly represented citizens without any Boomer-era perks to lose (“what about my pension?” LOLOLOLOL), demanding that the ruling minority provide a reason why this system even exists at all.

Then what?

I’ll be honest — I certainly don’t blame young-ish liberals for being eager to shed some norms and kick some ass. They’ve been hearing Lucy and the football jokes for their entire lives, and being told by their own party leaders they need to cater their preferences to entitled white guys in far-off diners. Meanwhile, their political opponents take bigger, louder, more emotionally satisfying swings and at worse come out of the battle tied. Why not get their own Mitch, and stick the burden of responsibility on the GOP?

The problem is that you can’t build anything this way — just look at what’s come out of the Trump era. Basically every achievement is either some stupid military vanity project, or not doing something. Not protecting voting rights, not funding this or that, not enforcing inconvenient laws, deregulating things (sometimes by simply ignoring violations or existing regulations). What’s a new thing that works, that is better than the old thing? Freaking Space Force? Give me a break.

Power cynicism has done nothing but give McConnell and crew the reigns to a wagon they can’t even drive. Those won’t advance any kind of non-vengeance, non-resentment powered project, and the liberals I know want to build, grow and change the way a lot of things work. And that’s exactly why Mitch keeps winning — because he knows that if the goal is just to keep anything from happening, he can’t lose. The only way to stop him is to join him in destroying the system, and if the system is destroyed, how will you do anything then? Right?

And that’s where… I don’t know. I don’t know what a packed Supreme Court looks like; I don’t know what electoral reform looks like without a filibuster, or if the demographic and voting trends of the last 20 years, freed from soft-voter-suppression tactics unlocks a wildly different, technocratic America that’s been lurking just underneath the surface.

But it’s certainly possible. And we might actually find out, because if Mitch screws up and reads the room wrong, unlike me, he can’t just turn off the Xbox and go to bed.