As promised here.
The 2021-2022 term of the U.S. Supreme Court ended recently on a victorious note for America’s conservatives, and on a bitter note for America’s leftists. I am thinking of Dobbs v. Jackson Womens Health Organization, West Virginia v. EPA, and New York State Rifle and Pistol Association v. Bruen.
Dobbs is the case in which the Supreme Court overturned the anti-life rulings in Roe v. Wade and Planned Parenthood v. Casey. In West Virginia v. EPA the Court struck down the Environmental Protection Agency’s economically destructive overreach in the regulation of carbon dioxide emissions. And in Bruen the Court rejected a New York law restricting the right to bear arms.
U.S. Representative Maxine Waters (D - CA 43) captured the left’s reaction to these rulings when she said (in connection with Dobbs) “To hell with the Supreme Court. We will defy them.”
If the left succeeds in overturning or circumventing the Court’s decisions in these matters, conservatives — already outraged by leftist lunacy — will be livid.
If the left doesn’t succeed, its vilification of America and America’s political traditions will continue. Memes like “burn America to the goddam ground” will grow in popularity on social media and will spread to left-wing “news” outlets. The loss of the House in November 2022 and (very possibly) the Senate and White House in November 2024 will only intensify the left’s rage. Perhaps — like New England and the abolitionists of two centuries ago — Deep-Blue States will instigate a secession movement.
It would be wise, at that point, for those States with strong conservative governance to propose a national divorce. Leftists could have their own way in their part of the continent, and conservatives could be left in peace in their part of the continent. Let’s call these groupings Governmentland and Freedomland.
There would be some messy details to sort out. Foremost among them would be the question of defense. But it seems to me that if Governmentland shirks its share of the burden, Freedomland could easily afford a robust defense after having shed the many useless departments and agencies — and their policies — that burden taxpayers and the economy.
Further, a Freedomland foreign policy that is unfettered from the United Nations, and based on strength rather than diplomacy, would be a refreshing and fruitful departure from eight decades of feckless interventionism.
Because Freedomland would exist to foster the freedom and prosperity of its own citizens, it would have strict controls on entry. Visitors and temporary workers would vetted and strictly monitored. Prospective immigrants (including those from Governmentland) would be kept out by physical and electronic barriers, and would be vetted before they enter the country. Citizenship would be granted only after an applicant has demonstrated his ability to support himself (and his family if he has one in country), perhaps with the help of churches and charitable organizations. Non-citizens would be ineligible to vote, of course, and would have to have been citizens for 10 years before they are allowed to vote. (By that time one would hope that they would have been weaned from any allegiance to or dependence on a nanny state.)
What about trade between Governmentland and Freedomland? Self-sufficiency should be the watchword for Freedomland. It should not outsource energy, technology, or other products and services that are essential to defense. Some outsourcing may be necessary in the beginning, but there should be a deliberate movement toward self-sufficiency.
Freedomland’s constitution could be modeled on this one, though with some revisions to accommodate points made above.
Finally, why is a national divorce a matter of urgency? Complete victory for the enemies of liberty is only ever a few elections away. The squishy center of the American electorate — as is its wont — will eventually swing back toward the Democrat Party. With a competent Democrat in the White House, a Congress that is firmly controlled by Democrats, and a few party switches in the Supreme Court, the dogmas of the left will be stamped upon the land; for example:
Billions and trillions of additional dollars will be wasted on various “green” projects, including but far from limited to the complete replacement of fossil fuels by “renewables”, with the resulting impoverishment of most Americans, except for comfortable elites who press such policies).
It will be illegal to criticize, even by implication, such things as abortion, illegal immigration, same-sex marriage, transgenderism, anthropogenic global warming, or the confiscation of firearms. These cherished beliefs will be mandated for school and college curricula, and enforced by huge fines and draconian prison sentences (sometimes in the guise of “re-education”).
Any hint of Christianity and Judaism will be barred from public discourse, and similarly punished. Other religions will be held up as models of unity and tolerance.
Reverse discrimination in favor of females, blacks, Hispanics, gender-confused persons, and other “protected” groups will become overt and legal. But “protections” will not apply to members of such groups who are suspected of harboring libertarian or conservative impulses.
Sexual misconduct will become a crime, and any male person may be found guilty of it on the uncorroborated testimony of any female who claims to have been the victim of an unwanted glance, touch (even if accidental), innuendo (as perceived by the victim), etc.
There will be parallel treatment of the “crimes” of racism, anti-immigrationism, anti-Islamism, nativism, and genderism.
All health care in the United States will be subject to review by a national, single-payer agency of the central government. Private care will be forbidden, though ready access to doctors, treatments, and medications will be provided for high officials and other favored persons. The resulting health-care catastrophe that befalls most of the populace (like that of the UK) will be shrugged off as a residual effect of “capitalist” health care.
The regulatory regime will rebound with a vengeance, contaminating every corner of American life and regimenting all businesses except those daring to operate in an underground economy. The quality and variety of products and services will decline as their real prices rise as a fraction of incomes.
The dire economic effects of single-payer health care and regulation will be compounded by massive increases in other kinds of government spending (defense excepted). The real rate of economic growth will approach zero.
The United States will maintain token armed forces, mainly for the purpose of suppressing domestic uprisings. Given its economically destructive independence from foreign oil and its depressed economy, it will become a simulacrum of the USSR and Mao’s China — and not a rival to the new superpowers, Russia and China, which will largely ignore it as long as it doesn’t interfere in their pillaging of respective spheres of influence. A policy of non-interference (i.e., tacit collusion) will be the order of the era in Washington.
Though it would hardly be necessary to rig elections in favor of Democrats, given the flood of illegal immigrants who will pour into the country and enjoy voting rights, a way will be found to do just that. The most likely method will be election laws requiring candidates to pass ideological purity tests by swearing fealty to the “law of the land” (i.e., abortion, unfettered immigration, same-sex marriage, freedom of gender choice for children, etc., etc., etc.). Those who fail such a test will be barred from holding any kind of public office, no matter how insignificant.
Are my fears exaggerated? I doubt it. I have lived long enough and seen enough changes in the political and moral landscape of the United States to know that what I have sketched out can easily happen within a decade after Democrats seize total control of the national government. And it can happen given the fickleness of the electorate.
Are there other options? Yes, but none is as attractive as a negotiated partition of the country, although option E (secession) might lead to a negotiated partition. Here are six options, with my assessment of each:
A. The Benedict Option
Bruce Frohnen says this about it (source no longer available online):
[Rod] Dreher has been writing a good deal, of late, about what he calls the Benedict Option, by which he means a tactical withdrawal by people of faith from the mainstream culture into religious communities where they will seek to nurture and strengthen the faithful for reemergence and reengagement at a later date….
The problem with this view is that it underestimates the hostility of the new, non-Christian society ….
Leaders of this [new, non-Christian] society will not leave Christians alone if we simply surrender the public square to them. And they will deny they are persecuting anyone for simply applying the law to revoke tax exemptions, force the hiring of nonbelievers, and even jail those who fail to abide by laws they consider eminently reasonable, fair, and just.
That is exactly what is happening to many who dare speak out against same-sex “marriage”, and who dare to utter what might be construed as conservative views (e.g., Charles Murray and Professor Amy Wax). These are fundamental wrongs that cannot be cured — and may be encouraged — by widespread adoption of the Benedict Option.
B. Geographic Sorting
This refers to the tendency of “Blue” States to become “bluer” and “Red” States to become “redder”. It means that Americans are sorting themselves along ideological lines. This tendency — natural and laudable as it is — doesn’t cure the underlying problem: the accretion of oppressive power by the national government. Lives and livelihoods in every State, “Red” as well as “Blue”, are controlled by the edicts of the legislative, executive, and judicial branches of the national government. There is little room for State and local discretion. Moreover, much of the population shift toward “Red” must be understood as opportunistic (e.g., warmer climates, lower taxes) and not necessarily as an embrace of “Red” politics.
In my experience, for example, Californians who fled that State’s high taxes and heavy regulation for Texas brought with them a strong preference for the kinds of programs that cause high taxes and heavy regulation. They voted accordingly when they arrived in Texas, apparently ignorant of the connection between the programs they desire, the taxes they must pay, and the regulations they must endure. (The good news was that they were outnumbered on the whole, so that the State government remained staunchly Red. The bad news was that in places like Austin, they helped to reinforce a regime of high taxes and burdensome regulation.)
C. Convention of the States
A much-discussed option in recent years is a convention of the States, called in accordance with Article V of the Constitution, to amend the Constitution. The aim of such a convention would be to underscore what the Constitution says about the limits on the power of the national government. But the Constitution already says those things. There is no need to underscore them, they just need to be enforced. The options discussed below offer ways to enforce the Constitution.
There is also the matter of a balanced-budget amendment to the Constitution. There is no need to hold a convention of the States to propose and ratify such an amendment. And if the national government could be reined in, so that it more closely resembles the one intended by the Framers, spending by the national government would also be reined in.
D. Departmentalism
Despite recent victories for liberty, the U.S. Supreme Court has too often sided with its big-government enemies. And, in keeping with the traditon of “playing by the rules”, the executive branch has acceed to the Court because of the doctrine of judicial supremacy.
The answer to judicial supremacy is departmentalism. Michael Stokes Paulsen and Luke Paulsen describe it in their book, The Constitution: An Introduction:
All branches of government are equally bound by the Constitution. No branch of the federal government— not the Congress, not the President, not even the Supreme Court— can legitimately act in ways contrary to the words of the Constitution. Indeed, Article VI requires that all government officials— legislative, executive, and judicial, state and federal—“ shall be bound by Oath or Affirmation, to support this Constitution.” Thus, the idea of a written constitution is closely tied to the idea of constitutional supremacy: In America, no branch of government is supreme. The government as a whole is not supreme. The Constitution is supreme. It is the written Constitution that prevails over every other source of authority in the United States.
It is crucially important to account for the States in any discussion of departmentalism. Too often all of the branches of the national government have been in agreement about the abrogation of the constitutional contract. Look at the New Deal Supreme Court, for example, which merely upheld Social Security and other unconstitutional legislation proposed by FDR and eagerly embraced by Congress. Similar examples from later administrations include but are far from limited to Medicare and Medicaid (advocated by Lyndon B. Johnson) and their vast and costly expansion through Obamacare.
Further, there are many notable instances in which the Supreme Court has struck down State laws that seem to lie beyond the province of the Constitution, and has done so on flimsy pretexts with the obvious aim of making law that expands the power of the national government. Notable examples are Roe v. Wade (1973), which manufactured a “right” to abortion, and Obergefell v. Hodges (2015) which legalized same-sex “marriage”, despite the wisdom embedded in long-standing social norms.
As sovereign entities and parties to the constitutional contract, the States can (and should) refuse to implement unconstitutional decrees emanating from the central government. Mike Huckabee, former governor of Arkansas, seems to understand this:
“If these people in California can thumb their nose at a law they don’t like [i.e., national immigration law] then I guarantee there will be a pro-life governor who will simply say no more abortions in our state and that’s just the way it is,” … Huckabee … told Fox News….
Far too many Americans have … bought the line that the “Supremacy Clause” of the Constitution states that the federal government is supreme over the states. That is most certainly not what is said in Article VI of the Constitution! Rather, the supremacy clause of the Constitution states that the Constitution is the supreme law of the land. A law passed by Congress that is not “in pursuance” of the Constitution is therefore no law at all — and neither is a decision of the Supreme Court that does not follow the Constitution.
While the wording of the Constitution is quite clear — the Congress makes all laws under the supremacy of the Constitution — it is still far too common to hear the misinformed remark that Supreme Court decisions are “the law of the land.” On the contrary, a Supreme Court decision is “the law of the case,” and is binding only on the parties involved in that case….
No one knows how the federal government would react if a state’s governor directed legal authorities to enforce homicide laws against clinics and abortionists. But, as Huckabee told Fox News, it might happen. In Oklahoma, a former state representative, Dan Fisher, is running for governor, and is vowing to do just that. Right now, Fisher is running far behind in public opinion polls for the Republican nomination. He is not expected to win the governorship.
But at some point, a pro-life governor may decide it is time to test the federal government on this point. If the federal courts and the rest of the federal government would actually follow the Constitution instead of a rogue decision by the Supreme Court, the federal government’s reaction would be meek acquiescence. Hopefully, that is what would occur, though no one can predict what the outcome would be. [Steve Byas, “Huckabee Predicts That a Pro-Life Governor Could Defy the Feds“, The New American, April 9, 2018]
The United States has been through this before, in the Nullification Crisis of 1832-33,
during the presidency of Andrew Jackson, which involved a confrontation between South Carolina and the federal government. It ensued after South Carolina declared that the federal Tariffs of 1828 and 1832 were unconstitutional and therefore null and void within the sovereign boundaries of the state….
Military preparations to resist anticipated federal enforcement were initiated by the state. On March 1, 1833, Congress passed both the Force Bill—authorizing the President to use military forces against South Carolina—and a new negotiated tariff, the Compromise Tariff of 1833, which was satisfactory to South Carolina.
But that was long ago, in a time when a State might reasonably expect to be able to defend itself militarily against U.S. armed forces, or at least put up a good fight. What would happen now and in the future depends mainly on who occupies the White House at the time.
But departmentalism cuts both ways. A defiant Democrat is more likely to invoke it than a Republican who believes in judicial supremacy.
A more drastic measure is required to restore the constitutional order.
E. Secession
In accordance with the doctrine of departmentalism, a State may be tempted to nullify an unconstitutional act of the national government. But there are probably many such acts that the State (or a preponderance of its citizens) would wish to nullify. Why do the thing piecemeal — and risk intervention by the national government for the sake of a single issue — when a sweeping solution is at hand? The sweeping solution, of course, is secession.
Secession is a legitimate constitutional act — a legal act, in other words — conventional wisdom to the contrary notwithstanding.
The best way to show that secession is legal is to construct a legal case for it, in the form of a resolution of secession:
In Convention, __________ 20__.
The Declaration of the representatives of the people of the State of _______________.
It has become necessary for the people of _______________ to dissolve the political bands which have connected them with the United States of America, and to assume the separate and equal status of an independent nation. A decent respect for the opinions of mankind requires that the people of _______________ should declare the causes which impel them to the separation, and explain its legality.
The Constitution is a contract — a compact in the language of the Framers. The parties to the compact are not only the States but also the national government created by the Constitution.
It was by the grace of nine States that the Constitution became effective in 1789. Those nine States voluntarily created a new nation and national government and, at the same time, voluntarily ceded to that government certain specified and limited powers. The States and their people were given to understand that, in return for the powers granted it, the central government would exercise those powers for the benefit of the States and their people. Every State subsequently admitted to the union has subcribed to the Constitution with the same understanding as the nine States whose ratification effected it.
Lest there be any question about the status of the Constitution as a compact, we turn to James Madison, who is often called the Father of the Constitution. Madison, in a letter to Daniel Webster dated March 15, 1833, addresses
the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.
Madison continues:
It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity.
Moving closer in time to the ratification of the Constitution, this is from Madison’s report on the Virginia Resolutions of 1798, a report that was adopted by the General Assembly of Virginia in 1800:
The third resolution is in the words following:–
“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact–as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.”…
The resolution declares, first, that “it views the powers of the federal government as resulting from the compact to which the states are parties;” in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties….
The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution,” or compact, is, in the judgment of the committee, equally free from objection…. [I]n that sense the Constitution was submitted to the “states;” in that sense the “states” ratified it; and in that sense of the term “states,” they are consequently parties to the compact from which the powers of the federal government result. . . .
. . . The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity.
Finally, in The Federalist No. 39, which informed the debates in the various States about ratification, Madison says that
the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. . . .
That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.
Madison leaves no doubt about the continued sovereignty of each State and its people. The remaining question is this: On what grounds, if any, may a State withdraw from the compact into which it entered voluntarily?
There is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1869) — that States may not withdraw from the compact because the union of States is perpetual:
The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
The Court’s reasoning is born of mysticism, not legality. Similar reasoning might have been used — and was used — to assert that the Colonies were inseparable from Great Britain. And yet, some of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that the Colonies were not obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States.
In fact, the Constitution supplanted the Articles of Confederation and Perpetual Union, by the will of only nine of the thirteen States. Madison says this in Federalist No. 43 regarding that event:
On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? . . .
The . . . question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.
Moreover, in a letter to Alexander Rives dated January 1, 1833, Madison says that
[a] rightful secession requires the consent of the others [other States], or an abuse of the compact, absolving the seceding party from the obligations imposed by it.
An abuse of the compact most assuredly legitimates withdrawal from it, on the principle of the preservation of liberty, especially if that abuse has been persistent and shows no signs of abating. The abuse, in this instance, has been and is being committed by the national government.
The national government is both a creature of the Constitution and a de facto party to it, as co-sovereign with the States and supreme in its realm of enumerated and limited powers. One of those powers enables the Supreme Court of the United States to decide “cases and controversies” arising under the Constitution, which is but one of the ways in which the Constitution makes the national government a party to the constitutional contract. More generally, the high officials of the national government acknowledge that government’s role as a party to the compact — and the limited powers vested in them — when they take oaths of office requiring them to uphold the Constitution.
Those high officials have nevertheless have committed myriad abuses of the national government’s enumerated and limited powers. The abuses are far too numerous to list in their entirety. The following examples amply justify the withdrawal of the State of _______________ from the compact:
A decennial census is authorized in Article I, Section 2, for the purpose of enumerating the population of each State in order to apportion the membership of the House of Representatives among the States, and for none of the many intrusive purposes since sought by the executive branch and authorized by Congress.
Article I, Section 1, vests all legislative powers of the national government in the Congress, but Congress has authorized and allowed agencies of the executive branch to legislate, in the guise of regulation, on a broad and seemingly limitless range of matters affecting the liberty and property of Americans.
Further, in violation of Article III, which vests the judicial power of the national government in the judicial branch, Congress has authorized and allowed agencies of the executive branch to adjudicate matters about which they have legislated, thus creating conflicts of interest that have systematically deprived millions of Americans of due process of law.
Article I, Section 8, enumerates the specific powers of Congress, which exclude many things that Congress has authorized with the cooperation and acquiescence of the other branches; for example, establishing and operating national welfare and health-care programs; intervening in the education of American’s children in practically every village, town, and city in the land; intrusively regulating not only interstate commerce but also intrastate commerce, the minutiae of manufacturing, and private, non-commercial transactions having only a faint bearing, if any, on interstate commerce; making and guaranteeing loans, including loans by quasi-governmental institutions and other third parties; acquisition of the stock and debt of business enterprises; establishment of a central bank with the power to do more than issue money; requiring the States and their political subdivisions to adopt uniform laws on matters that lie outside the enumerated powers of Congress and beyond the previously agreed powers of the States and their subdivisions; and coercing the States and the political subdivisions in the operation of illegitimate national programs by providing and threatening to withhold so-called federal money, which is in fact taxpayers’ money. The view that the “general welfare” and/or “necessary and proper” clauses of Article I, Section 8, authorize such activities was refuted definitively in advance of the ratification of the Constitution by James Madison in Federalist No. 41, wherein the leading proponents of the Constitution stated their understanding of the Constitution’s meaning when they made the case for its ratification.
One of the provisions of Article I, Section 10, prohibits interference by the States in private contracts; moreover, the Constitution nowhere authorizes the national government to interfere in private contracts. Yet, directly and through the States, the national government has allowed, encouraged, and required interference in private contracts pertaining to employment, property, and financial transactions.
Contrary to the express words of Article II, which vests executive power in the president, Congress has vested executive power in agencies that are not under the control and supervision of the president.
The Supreme Court, in various holdings, has curtailed the president’s ability, as commander-in-chief, to defend Americans and their interests by circumscribing his discretionary authority in matters concerning the capture, detention, interrogation, and appropriate imposition of military punishment for offenses against the law of war, of enemy prisoners captured in the course of ongoing hostilities pursuant to a congressional declaration of war or authorization for use of military force.
Amendment I of the Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” But Congress has nevertheless abridged the freedom of political speech by passing bills that have been signed into law by presidents of the United States and not entirely struck down by the Supreme Court of the United States.
Amendment IX of the Constitution provides that its “enumeration . . . of certain rights, shall not be construed to deny or disparage others retained by the people.” But Congress, in concert with various presidents and Supreme Court majorities, has enacted laws that circumscribe such time-honored rights as freedom of association, freedom of contract, and property rights. That such laws were enacted for the noble purpose of ending some outward manifestations of discrimination does not exempt them from the purview of Amendment IX. As Amendment XIII attests, freedom is for all Americans, not just those who happen to be in favor at the moment.
As outlined above, the national government has routinely and massively violated Amendment X, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
We, therefore, the representatives of the people of _______________ do solemnly publish and declare that this State ought to be free and independent; that it is absolved from all allegiance to the government of the United States; that all political connection between it and government of the United States is and ought to be totally dissolved; and that as a free and independent State it has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.
[Signatures of the delegates to the convention]
F. Coup
If all else fails, a more drastic measure may be called for:
When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup. [Thomas Sowell, “Don’t Get Weak“, National Review, May 1, 2007]
Glenn Reynolds, who is decidedly anti-coup, writes
that the American Constitution, along with traditional American political culture in general, tends to operate against those characteristics, and to make the American polity more resistant to a coup than most. It is also notable, however, that some changes in the Constitution and in political culture may tend to reduce that resistance….
The civics-book statement of American government is that Congress passes laws that must be signed by the president (or passed over a veto), and that those laws must be upheld by the judiciary to have effect. In practice, today’s government operates on a much more fluid basis, with administrative agencies issuing regulations that have the force of law – or, all too often, “guidance” that nominally lacks the force of law but that in practice constitutes a command – which are then enforced via agency proceedings.…
[I]t seems likely that to the extent that civilians, law enforcement, and others become used to obeying bureaucratic diktats that lack a clear basis in civics-book-style democratic process, the more likely they are to go along with other diktats emanating from related sources. This tendency to go along with instructions without challenging their pedigree would seem to make a coup more likely to succeed, just as a tendency to question possibly unlawful or unconstitutional requirements would tend to make one less likely to do so. A culture whose basis is “the law is what the bureaucrats say it is, at least unless a court says different,” is in a different place than one whose starting impulse is “it’s a free country.”…
[P]ersistent calls for a government-controlled “Internet kill switch”49 – justified, ostensibly, by the needs of cyberdefense or anti-terrorism – could undercut that advantage [of a decentralized Internet]. If whoever controlled the government could shut down the Internet, or, more insidiously, filter its content to favor the plotters’ message and squelch opposition while presenting at least a superficial appearance of normality, then things might actually be worse than they were in [Fletcher Knebel and Charles Bailey’s Seven Days in May, which imagined an attempted coup by a Curtis LeMay-like general].…
[T]he most significant barrier to a coup d’etat over American history has probably stemmed simply from the fact that such behavior is regarded as un-American. Coups are for banana republics; in America we don’t do that sort of thing. This is an enormously valuable sentiment, so long as the gap between “in America” and “banana republics” is kept sufficiently broad. But it is in this area, alas, that I fear we are in the worst shape. When it comes to ideological resistance to coups d’etat, there are two distinct groups whose opinions matter: The military, and civilians. Both are problematic….
[T]here are some troubling trends in civilian/military relations that suggest that we should be more worried about this subject in the future than we have been in the past…
Among these concerns are:
A “societal malaise,” with most Americans thinking that the country was on “the wrong track.”
A “deep pessimism about politicians and government after years of broken promises,” leading to an “environment of apathy” among voters that scholars regard as a precursor to a coup.
A strong belief in the effectiveness and honor of the military, as contrasted to civilian government.
The employment of military forces in non-military missions, from humanitarian aid to drug interdiction to teaching in schools and operating crucial infrastructure.
The consolidation of power within the military – with Congressional approval – into a small number of hands….
A reduction in the percentage of the officer corps from places outside the major service academies.…
A general insulation of the military from civilian life…. “Military bases, complete with schools, churches, stores, child care centers, and recreational areas, became never-to-be-left islands of tranquility removed from the chaotic crime-ridden environment outside the gates…. Thus, a physically isolated and intellectually alienated officer corps was paired with an enlisted force likewise distanced from the society it was supposed to serve [quoting from an essay by Charles J. Dunlap, “The Origins Of The American Military Coup of 2012,” Parameters, Winter, 1992-93, at 2]….
[D]istrust in the civilian government and bureaucracy is very high. A 2016 Associated Press/National Opinion Research Center poll found that more than 6 in 10 Americans have “only slight confidence – or none at all” that the federal government can successfully address the problems facing the nation. And, as the AP noted, this lack of confidence transcends partisan politics: “Perhaps most vexing for the dozen or so candidates vying to succeed President Barack Obama, the poll indicates widespread skepticism about the government’s ability to solve problems, with no significant difference in the outlook between Republicans and Democrats.”
As a troubling companion to this finding, the YouGov poll on military coups…also found a troubling disconnect between confidence in civilian government and confidence in the military: “Some 71% said military officers put the interests of the country ahead of their own interests, while just 12% thought the same about members of Congress.” While such a sharp contrast in views about civilian government and the military is not itself an indicator of a forthcoming coup, it is certainly bad news. Also troubling are polls finding that a minority of voters believes that the United States government enjoys the consent of the governed. This degree of disconnection and disaffection, coupled with much higher prestige on the part of the military, bodes ill. [“Of Coups and the Constitution“, University of Tennessee Legal Studies Research Paper No. 294, July 1, 2016, last revised February 7, 2017]
Military personnel are disciplined and have access to the tools of power, and many of them are trained in clandestine operations. Therefore, a cadre of properly motivated careerists might possess the wherewithal necessary to seize power.
But … a plot to undertake a coup is easily betrayed. Among other things, significant numbers of high-ranking officers are shills for “wokeism”. A betrayed coup for liberty could easily become a coup for tyranny.