The nomination of Brett Kavanaugh and the prospect of a solid conservative majority on the Supreme Court has provoked a new kind of rhetoric from many Democrats. “If he proves as eager an executor of the president’s bitter campaign to overturn Roe v. Wade and sabotage Americans’ health care as his record suggests,” said House Minority Leader Nancy Pelosi, “a woman’s right to choose will be repealed and the health coverage and economic security of 130 million Americans with pre-existing conditions will be in grave peril.”
This is neither wrong nor hyperbolic. With Kavanaugh on the bench, the conservative legal movement will have a decades-long hold on the Supreme Court, and thus an opportunity to reverse the perceived “judicial activism” of the Warren and Burger Courts. After a half-century shaped by those courts and their expansive vision of reproductive and voting rights, among others, a retrenchment sparked by Kavanaugh’s confirmation would be nothing less than a counterrevolution.
But there’s something else in the Democratic response to Kavanaugh and in the broader language of liberal outrage against President Trump and his allies. A generation after Republicans began to attack Democrats as essentially illegitimate, Democrats are now responding in kind, claiming Republicans are a genuine danger to constitutional government. Where the two parties once understood each other as legitimate alternatives in governance, now they increasingly view each other as outright threats to the constitutional order as they understand it.
Although elements of this kind of rhetoric can be found in the 1970s and 1980s—notably Democrats’ crusade against Robert Bork’s nomination to the Supreme Court—the true innovator was Newt Gingrich. As House Speaker after the 1994 midterms, Gingrich brought a philosophy of total war to the GOP. He cast the Clinton administration, and the Democratic Party at large, as something less than fully American. Embracing legislative brinkmanship and government shutdowns, Gingrich and his hard-right supporters blasted away at key norms of compromise and negotiation that helped Congress function. That scorched-earth approach to politics culminated in a bitter attempt to impeach President Clinton, who was cast as a threat to the republic itself.
Democrats, and liberals in particular, took their first serious move in this direction during the George W. Bush administration, filibustering judicial nominations, and adopting the language of acute constitutional threat in response to the most controversial elements of the “war on terror.”
But Republicans were one step ahead. Their innovation in 2009 was to embrace radical obstruction against Barack Obama and congressional Democrats, jettisoning any compromise or negotiation in favor of total victory. This was reinforced by a resurgent conservative grassroots that understood Obama and his brand of technocratic liberalism as a catastrophe for their vision of America. Conservative media figures like Glenn Beck denounced Obama as an incipient tyrant—Beck warned that universal health care would lead to a “fascist state”—while Republican politicians pandered to dark conspiracy theories about the president’s illegitimacy. The clear message, from the grassroots to the leadership of the GOP, was that Obama was an existential threat to the country, to be stopped by any means necessary.
Given Donald Trump’s demagogic racism, open corruption, and clear contempt for the institutions of American governance, Democrats have a better case for treating the current president as a threat to the political and constitutional order. Trump proudly defies the rules and norms of liberal democracy, demonstrating an authoritarian’s contempt for anything that might bound his will. Given that, it’s striking how few Democratic lawmakers have embraced the totalizing rhetoric and tactics deployed by Republicans under the previous administration. While party leaders like Pelosi hint at the stakes, it’s the liberal grassroots, and politicians most in tune with that grassroots, who have adopted a position of absolute opposition, from mass protests to public shaming of administration officials.
The rising tide of vitriol has led to predictions that the republic itself is fraying. But this kind of pitched rhetoric is not entirely unprecedented in American history. Politics at the close of the 18th century was heated to the point of outright violence, as a series of controversies and crises produced partisan conflict that threatened to, as George Washington warned, “tare the [federal] Machine asunder.” There was serious doubt that the new government would survive the 1796 election—doubt that resurfaced in the vicious contest of 1800. Federalists warned of Jacobin radicalism if Thomas Jefferson won the presidency, while Jefferson’s Democratic-Republicans accused Federalists of craving monarchy and tyranny. “All of these controversies had constitutional implications, provoking ongoing anxieties about the need for constitutional change,” writes historian Joanne Freeman. “[T]here was no ‘normal politics’—no long-term disengagement from the national political process among populace and politicians alike.”
Much of early American politics was marked by brinkmanship and uncertainty about the future of constitutional government, with competing sides casting each other as threats to the republic, not legitimate partners in governance. It would take a generation of political adaptation and innovation—including the creation of coherent parties—as well as the weathering of multiple crises, before “ordinary” politics could commence without the threat of constitutional crisis.
More than 200 years later, Americans have now stumbled into another period of political hardball, in which routine partisan combat produces regular constitutional conflict. Democratic politicians remain far behind their Republican counterparts in playing this game. Newt Gingrich was prepared to shut down the government and leverage the House of Representatives’ power to investigate the president. John Boehner, during his time as speaker, embraced legislative hostage-taking as a negotiating strategy. And Senate Majority Leader Mitch McConnell stands ready to weaponize the legislative filibuster, after blockading one Supreme Court nominee and altering Senate rules to advance another. These tactics are about to deliver a conservative majority on the Supreme Court, which is poised to reify the GOP’s structural advantages, further disenfranchising Democrats and Democratic constituencies.
Some observers warn that American democracy is untenable if both sides view each other as threats to the governing order itself, and that, in response to the GOP’s constitutional hardball, Democrats should endeavor to uphold the rules themselves. Hamilton suggested otherwise during the throes of 1800. “In times like these in which we live,” he wrote to John Jay, “it will not do to be over-scrupulous. It is easy to sacrifice the substantial interests of society by a strict adherence to ordinary rules.” He echoed that point in another letter to Jay, writing that republican government cannot stand “if one party will call to its aid all the resources which Vice can give and if the other, however pressing the emergency, confines itself within all the ordinary forms of delicacy and decorum.”
More than anything American democracy requires balance, in which the two parties trade barbs and blows on the same playing field. When our politics deteriorates into imbalance—such as the dominance that slaveholders enjoyed in the prelude to the Civil War—democratic stability is threatened. We are still far from 1860 (or even 1850), but Republicans’ total-war mentality has tipped the scales, ushering a would-be strongman into the Oval Office and fostering minority rule in the face of broad public discontent. If there’s no returning to a more balanced and “civil” status quo—where both sides respect each other as legitimate partners—then the only option is to play by the new rules. Instead of balking at ideas like packing the courts or creating new states from territories and state-sized municipalities, Democrats should see them as necessary tools for restoring balance. American democracy needs new norms if it’s going to persist, and in the spirit of our early history, it may require radical steps to build them.
One more thing
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