Legality, Legitimacy, and Coups

Conservatives have always been the defenders of “law and order,” but in the postwar era, it was liberals and progressives who most trusted in the law. For the baby boomers who still dominate our public life, the Supreme Court — far from being the reactionary body it had been for most of American history and has now become again — was the guardian of our rights, issuing wise decisions grounded in tolerance and liberty. Overcoming generations of gridlock and obstruction, Congress endorsed those rulings with expansive legislation protecting civil liberties and voting rights. And both the legislative and executive worked together to manage the economy so that prosperity and opportunity would not come at the expense of worker or consumer safety or environmental degradation. There were pockets of backwardness, to be sure, and much work to do, but the unique resilience of American institutions guaranteed that the moral arc of the universe bent toward justice.

Even at the time, this was a fantasy, the product of Cold War propaganda. In reality, American institutions consist of a series of sloppily-applied patches to an incoherent bargain meant to keep the slavers on board — which, when push came to shove, didn’t even keep the slavers on board. The progress we experienced in those years resulted from decades of tireless activism and rebellion, combined with an economic boom of such unimaginable proportions that there seemed to be more than enough to go around and, of course, the need to demonstrate that capitalism wasn’t the oppressive and exploitative system the Commies claimed it was. Economic crisis, conservative backlash, and the fall of the USSR put an end to the happy fantasy of the inherently progressive Constitution.

Or at least it should have. For the Democratic gerontocracy, though, the dream of the 60s never died. Even amid previously unimaginable setbacks, they maintain their faith that the American system — if left to operate as intended, without “cheats” like packing the Supreme Court — will ultimately produce progressive results. And more than that, any results that are not possible in the system as it currently stands are short-sighted, illegitimate, even dangerous.

In short, the liberals have collapsed any difference between legality and legitimacy. If the US system of government produces a result, it is legitimate because it is legal. As principled and realistic as that stance might sound in some quarters, it is incredibly dangerous. This is because the law is not a static reality — it is written and interpreted by human beings, and there is no guarantee that those human beings will be wise philosopher-kings like the postwar Supreme Court is fondly imagined to have been. By refusing to dispute anything that can put itself forward as “the law” and by dismissing any extra-legal action or tactic as illegitimate, they inevitably wind up conceding in advance to conservative chicanery — all of which can of course be dressed up as “the law,” given that conservatives are overrepresented among the human beings who write and interpret the law.

We can see the dangers of this approach in the debate over Trump’s coup attempt on January 6. There is no ambiguity — Trump wanted to seize power illegitimately, and I don’t see any benefit to splitting hairs so that it’s not “technically” a coup. No, he was not doing a sheer brute-force coup where they arrested the opposition and installed their people at the top of the executive branch by force, but clearly he meant to hold onto power in a way that goes even beyond the loser-can-win technicalities of the Electoral College. But at the end of the day, he was trying to find some legal loophole to achieve it. It’s conceivable that Pence could have played along and refused to count the “disputed” states and the Supreme Court could have endorsed his decision. At that point, no one would have a majority of the Electoral College, and it would have been thrown to the House, which would have elected Trump.

Everything would have been perfectly “legal,” in that the VP would be following his supposed understanding of the law, which the Supreme Court, as final authority on such matters, would have endorsed. In this situation, the Democrats would have left themselves no room to dispute or even complain — it was legal, so it was legitimate. It would certainly have been an unexpected result of our legal institutions, but as a wise man once said, “them’s the breaks.” Similarly, those calling for the members of Congress who disputed the electoral vote count to be kicked out as insurrectionists are surely right on substance — but those members were exercising their rights under the law governing the certification of the Electoral College result. They were doing so in bad faith, but the law does not specify that objections have to be in good faith or even grounded in fact. How can they be threatening to overthrow the Republic by following the law?

If Trump’s actions counted as a coup attempt — and again, I see no reason why we wouldn’t say that — then there is definitely a case to be made that the 2000 election was a successful coup. The fact that the decisive state’s governor was the “winning” candidate’s brother, the interference of the Supreme Court in the recount process, etc., all point toward the distinct possibility that the election was stolen even within the terms of the existing legal order (though, again, what the Supreme Court says goes….). But even if it were indisputable that Bush really won a majority of the votes in Florida, the result was still illegitimate! It had been over a century since an Electoral College upset. That possibility had become a dead letter. Indeed, the Bush campaign was worried that the opposite result would occur, with Gore winning the Electoral College despite losing the popular vote, and were readying legal strategies to dispute such a technicality — and rightly so. The person who gets the most votes should become president. That had been the norm and expectation for a hundred years and more. A legal technicality that subverted that norm should not be allowed to stand. Legitimacy should trump legality.

But that’s not what happened. Instead, Gore conceded in advance, on election night itself, then presided over the Electoral College certification, personally dismissing all challenges to the vote count — even though in that case there were genuine questions. Congressional Democrats and the mainstream media treated Bush as a normal, legitimate president, because, after all, every step in the process that led to his inauguration was perfectly legal. And that set the precedent that Electoral College technicalities were legitimate, which gave us Trump, who may very well end US democracy as a whole — again, through perfectly legal means, if the Supreme Court legally decides that state legislatures have the legal right to choose their own Electors.

The outcome was not solely in Gore’s hands, of course. Bush could have put country before career, requested that his electors vote for Gore instead, and declared he would refuse to serve if chosen by the Electoral College against the public’s wishes. Or he could have formally taken office and then resigned after Gore was named House Speaker. Or or or… There would have been any number of ways to “get out of it” if both parties agreed on the desired result of the person with the most votes becoming president. But that would have meant putting legitimacy before legality, which neither party wants to do — the Republicans because they want to win, and the Democrats because they would rather lose than acknowledge that the law is not a neutral arbiter but a terrain, perhaps even the terrain, of political struggle.