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Illegitimate Illegitimacy

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Legitimacy Roulette

Legitimacy is a thorny problem in politics, because the notion itself is subtle and to some extent necessarily subjective. “Legitimate” doesn’t mean “good.” Legitimacy is instead bound up in the question of consent, and people have been known to consent not only to imperfect governments but to horrifying ones. There is a good argument to be made that the regime in Beijing, for example, enjoys widespread consent, offers a measure of upward accountability, and is legitimate as a political question even though it is both evil and repulsive, and even though the consent it enjoys is not universal. If we are to understand how the world actually works, then it is important to distinguish between normative and descriptive claims.

(For a full and worthwhile discussion of these questions, see Francis Fukuyama’s Origins of Political Order.)

We Americans have a tendency to collapse complex political questions into simpleminded questions of preference: hence “democratic” ends up meaning “I think this is good,” “unconstitutional” denotes only “I don’t like this,” etc. “Legitimate” ends up being used in the same way. This is a real civic failure, because it reinforces the tribal superstition that if a vote or a Supreme Court decision doesn’t go your way, then either the Constitution or democracy has suffered a violation, meaning that at any given time approximately one half of the population is expected to remain at a low boil of pre-revolutionary agitation. This is a reminder that positive education for citizenship is necessary because the alternative to good ideas is bad ideas, not no ideas. The civic mind is a garden, and something will grow there — either flowers or weeds.

“Legitimacy” selfishly construed can be a powerful political weapon. That is why each of the last three American presidents has been characterized by his opponents as illegitimate and why that characterization has been fortified by conspiracy theories: that Bush v. Gore was a corrupt decision, that Barack Obama was a Kenya-born interloper, that Donald Trump’s election was secured by Russian hackers. The late John Lewis insisted that Donald Trump is not the “legitimate” president of the United States, and many other Democrats have made similar claims. Impeaching Trump was less a matter of adjudicating specific claims about specific misdeeds than it was a general statement of Democratic belief in his illegitimacy, which is why the passion for impeachment never spread very far beyond the fever swamps of narrow partisanship. It came and went like a summer storm.

To the very limited extent that the question of Trump’s legitimacy is based on anything other than partisan hatred, it is related to the notion that the Russians in 2016 hacked into the vote-counting system and rigged the outcome for Trump, a claim that a large majority (two out of three) of Democrats reported believing in a YouGov/Economist poll. That story is pure fiction, but, as Representative Alexandria Ocasio-Cortez insists, it is more important to be morally correct than factually correct, at least as far as brain-dead partisans are concerned. That is a way of saying that a lie becomes the truth when it serves the right power interests — an article of political faith that is, in the long term, incompatible with the maintenance of a self-governing liberal democratic political system.

Weaponizing legitimacy is irresistibly tempting for the vulgar partisan. That is why we always see a flood of stories in Democrat-aligned newspapers about the tottering legitimacy of the Supreme Court (or Chief Justice John Roberts’s personal integrity) when a contentious case is being heard. We sometimes see similar stories about congressional legitimacy when Republican leaders use procedural tactics to frustrate Democratic desires, and in recent years we have seen many stories arguing that the Electoral College is illegitimate because it has cost the Democrats political victories that they believed to be rightly theirs. Similarly, Democrats became very intensely concerned about gerrymandering right around the time Republicans got good at it. Like “unconstitutional,” Democratic activists use “racist” to mean “I don’t like that,” and so the Electoral College, Senate procedure, Republican redistricting advantages, and even the idea of free speech itself have been at times dismissed as racist, which is simply another way of saying “illegitimate” in Democratish. Republican denunciations of Democratic spending priorities as “socialism” generally serve the same function. Of course, there are many partisans who sincerely believe such claims; stupidity, including freely chosen stupidity, is something that democratic institutions must take into account. Further complicating this is the fact that there are racists in American life, as well as socialist political initiatives.

While much of this discourse is only cynical partisans “working the refs,” there also is a deeper belief, seldom put into words, that constitutional democratic liberalism means, “We get what we want.” And so we, through our deputized intellectual elites, do a great deal of work reverse-engineering rationales for our desired outcomes. That is why Democrats looking to the Supreme Court to give them victories they fail to achieve in Congress or in the states must pretend that the First and Second Amendments do not say what they say and that the 14th Amendment says what it does not say.

This requires some intellectual plasticity. For example, if 50 percent + 1 of U.S. voters choose Joe Biden in the imaginary national presidential election in November but Donald Trump wins the non-imaginary election in the Electoral College, then there will be riots predicated on the notion that Trump’s reelection under such circumstances was illegitimate because the imaginary process is legitimate and the actual process is illegitimate. How is that possible? Because “legitimacy” is magic. “Democracy” in this context is crudely construed to mean “the majority gets what it wants,” and partisans rely on such crudeness when it suits them. But such crude majoritarianism is only blessed when it produces the desired results. If the nation’s sodomy laws had been put up to a vote on the day Lawrence v. Texas was decided, a large majority of Americans would, if the polls of the time are to be believed, have voted to uphold those laws. They were bad laws, but they were neither undemocratically nor unconstitutionally enacted, and their survival was not incompatible with the legitimacy of the Supreme Court — in fact, the Court’s nullification of those laws was itself an illegitimate use of its power, however well-intended.

The Emancipation Proclamation would not have been endorsed in a national referendum. And slavery was not unconstitutional — the Constitution plainly assumed slavery’s existence. The full abolition of slavery required the 13th Amendment. That amendment probably would not have passed a national popular vote. Neither would have gay marriage. As a practical matter, freedom of speech and freedom from unreasonable searches and seizures would almost certainly fail to pass majoritarian muster right now.

Abortion would not have won an election on January 22, 1973. And so it must be a constitutional right, previously undetected. The partisan mind is incapable of admitting that there are things in the law that shouldn’t be there as well as things that aren’t in the law that should be, because the partisan mind believes that its own preferences are not only self-evidently good and worthy but mystically transformative: If the right people want something to be true, then it becomes true. It takes a mighty effort of the imagination to believe that a right to abortion or to homosexual relations had been lurking in the penumbras of the Constitution for centuries before a small committee of Democratic lawyers discovered it — and to believe simultaneously that the First Amendment somehow does not mean what it says.

But you can count on the effort’s being made.

That is what is sometimes known as “motivated reasoning.” There are many constitutional scholars — including some who favor abortion rights — who concede that the legal rationale behind Roe v. Wade was simply manufactured out of political fancy and personal preference, an argument fitted after the fact to a political (as opposed to legal) ruling that was never in doubt. The civically and intellectually responsible alternative for the pro-abortion side — to admit that the Constitution is silent on the question and to make their case on honest political grounds in the electoral theater — would have been much more difficult for Democrats politically. And so, given a choice between their own political interests and seeing to the actual legitimacy of the federal government, of which the rule of law is a component, they chose narrow political self-interest. Which is to say, “legitimacy” can and is used to undermine legitimacy. Put another way, illegitimate illegitimacy erodes legitimate legitimacy.

As a matter of electoral calculation and personal conscience, it is easier to engage in that kind of thing when the political discourse is dominated by shrieks of existential hysteria, and so such shrieking is supplied by the usual suppliers. Those are the people who are telling you that America is finished if x rather than y wins the upcoming presidential election. Of course they believe it is true, for the same reason they believe the Constitution specifically endorses this or that and forbids the other — such a belief retroactively justifies preexisting commitments and inclinations. A great deal of our political discourse is dedicated to reassuring people that they are right to hate the people they hate, that such hatred is necessary and righteous.

Turning the Christian maxim on its head, tribal partisanship is about hating the sinner, not the sin — the sin may be useful, after all, in the right hands. What the United States is suffering from is something like the mutual excommunications that divided the Christian world, first splitting East from West with the schism at the beginning of the second millennium and then fracturing Christendom even further with the bitterly contested divorce of the Reformation. We are developing a kind of political theology asserting that members of the opposite party — by which we really mean the opposite tribe — cannot hold power legitimately, that their holding power is ipso facto evidence of an illegitimate process or situation.

And like much of what is worst in our national life, we place the blame for this on political parties, elites, the media, special-interest groups, and anywhere else except where blame actually belongs, where responsibility is rightly fixed, and where legitimacy ultimately resides — with ourselves.