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Civil War Begins When the Constitutional Order Breaks Down

A lithograph cartoon depicting U.S. Rep. Preston Brooks' attack on Sen. Charles Sumner in the U.S. Senate chamber on May 22, 1856. (J.L. Magee/public domain)

A Georgetown Institute poll finds that two-thirds of us believe we are edging closer “to the brink of a civil war.” Yet Americans cannot properly analyze this “gathering storm.” We lack a framework, a lexicon, and the historical data (from other civil wars) to see clearly what is happening to us.

Here is a quick template for how we might more usefully decipher how this nation gets to another civil war. It is arranged as a short series of questions: 1) What is civil war? 2) Why do political-constitutional orders sometimes breakdown, rather than simply transform in response to change? 3) How is violence essential to constitutional and political resolution? 4) How close is the U.S. to such a break down, and its consequences?

What is civil war? 

Civil war is, at root, a contest over legitimacy. Legitimacy—literally the right to make law — is shorthand for the consent of the citizens and political parties to abide by the authority of a constitutional order. Civil war begins when this larger political compact breaks down. 

Civil War means that there is a functional split within the source of legitimacy between two parties, each of which was formerly part of the old constitutional order. Thus each can claim that it represents the source of new legitimacy, and the right to define a new or reworked constitutional order. 

Hence civil war becomes a struggle in which one party must successfully assert a successor legitimate order, and to which the opposing party must eventually submit. This is above all a contest over constitutional authority. Inasmuch as civil war happens after constitutional breakdown, it means that resolution must be reached not only outside of a now-former legal framework, but also unrestrained even by longstanding political customs and norms. Extra-constitutional force is now the deciding factor, which is why these struggles are called civil wars.

Americans are most familiar with our own such battles, from 1775-1783 and 1861-1876. For example, Parliament’s “Intolerable Acts” (1774) stripped Massachusetts of its governing legitimacy, leading to armed resistance to Parliament’s authority. Two “legitimacies” at war.

In 1860, the election of Abraham Lincoln convinced Southern electorates that the incoming Republican administration would strip them of their way of life. The slave states could only accept a constitutional order that fully supported slavery. The only legitimacy lay in Slavocracy—while the North, for its part, would not, as Lincoln declared, accept “the nationalization of slavery.”

Why do some constitutional orders breakdown rather than transform?

Our political stability has depended on the tenure of periodic “party systems.” Legitimacy flows from the give and take of a two-party relationship. American party systems have had dominant parties or states. In the first party system, four of the first five presidents (32 out of 36 years) were slaveholders from Virginia. The second party system was more balanced between Democrats and Whigs, but broke down in the 1850s when the Whigs up and vanished, with party stability disappearing with them. The new GOP dominated the third system, 6-2, with one of the Democrats impeached. Equally, the fourth was also Republican, 6-1, with a Republican third party challenge electing the only Dem. FDR’s fifth party system put Democrats in office for 32 out of 48 years, with both GOP administrations governing within a New Deal worldview.

Many thought that Reagan’s electoral wave signaled a sixth party system, yet it failed to take root. After 1992, the parties have alternated presidents every eight years, and with each succeeding administration, the political milieu has grown yet more rancorous and divided. There is no relationship between parties now — save as sworn enemies — let alone a “system.” 

The situation resonates with the 1850s. When collegial understandings between “The Democracy” and the Whigs evaporated, a new opposing party appeared suddenly, and as an enemy. No other relationship was possible.

Hence, a party system ending without a consensual replacement means that longstanding customs and norms that undergird constitutional relationships are quietly pared away. In other words, well before legal confrontations over legitimacy, the erosion of informal rules sets up adjudicating crises over formal rules. This was a feature of the final deterioration in Congress before 1860, marked by brawls on the floor of the House and a bloody assault in the Senate.

Dismantling a web of political relationships precedes the dismantling of constitutional legitimacy.

How is violence essential to constitutional and political resolution?

Violence is the magical substance of civil war. If, by definition, political groups in opposition have also abandoned the legitimacy of the old order, then a successor constitutional order with working politics cannot be birthed without violence. Hence violence is the only force that can bring about a new order. This is why all memorable civil wars, and all parties, enthusiastically embrace violence.

The character of civil war is existential. The breakdown of the old order forces frightening prospects on society. If constitutions represented a collective source of authority, in its violent replacement are suddenly two opposing and inimical pretenders, each crying for both allegiance and punishment. Moreover, one party’s victory is the inevitable loss of the other’s way of life. 

Hence in such conflicts, the entire society must choose sides, and it is an all-or-nothing choice. Moderates and undecided, and those peaceful fence sitters all are forced to join warring factions. In civil war, perhaps the greatest violence, in the heart, is the aggressive coercion to join a warring cause.

War becomes a great, mutual ritual of resolution between enemies-once-brothers. Here, longstanding customs and norms, paradoxically, come right into play. While old political norms may have been discarded, old conflict norms again take center stage. If there is to be a war, certain expectations, even hallowed traditions come into play: How battle should be formed, and also too, the pathways battle resolves.

Hence, the “Cousins’ War” of 1775-1781 quite clearly took its battlefield cues from the English Civil War (1642-1651), and followed the rituals, not only of formal battles, but also the norms and standards for victory and defeat. Likewise, the Confederacy, three generations later, explicitly declared itself a glorious cause cut from the same cloth as the declaration of 1776. 

Our antique civil wars were not bound to formal rules, yet somehow they held to well-etched bounds of expectation. American society today has very different norms and expectations for civil conflict, which certainly will constrain how we fight the next battle. 

Today’s America no longer embraces a national landscape of an industrial-lockstep battlefield (think Gettysburg, D-Day). Our next civil war—as social media so eloquently reminds us—will enact its violence on a battle campus of equal pain, if less blood. Yet there will be much blood, however it will take form like the gatheringchaos of our world.

How close is the U.S. to such a breakdown—and its consequences?

American constitutional order has not broken down, yet. Constitutional legitimacy still rules. Recent tests of legitimacy confirm this. A presidential impeachment in the 1990s did not lead to conviction in a trial, nor did anyone expect it to. The Supreme Court decided a contested presidential election in 2000, and the decision was everywhere accepted. 2016, in contrast, was bitterly accepted. Yet even the relentless force to depose the president that followed, through a special prosecutor, was spent by the spring of 2019. 

Yet if these are tests of robust legitimacy they are hardly reassuring.  A daily torrent of unfiltered evidence suggests that our constitutional order is fissuring before our eyes. That we have skirted constitutional crisis for the past quarter century is no reassurance, but rather an alarm of continuing erosion. Each new test is yet more bitterly contested, and still less resolved.

Today, two irreconcilable visions of American life believe that they can continue only if they own the whole order. Yet ours has been a shared constitutional order. As we witnessed from 1860-1876, it must proceed as a consensual and joint party system: It cannot exist through single party ownership. The single-minded drive toward this goal—especially now by Blue state Democrats—has embrittled our constitutional order, and is creating the basis for a full-scale legitimacy crackup. Here’s what it might look like:

A contested election that Court decision fails to resolve. Supreme Court legitimacy has eroded in the years since Bush v. Gore. Today, a Court decision that is rejected by half the nation would not only effectively drain its authority, but also leave the U.S. no final arbiter in governance. Democrats’ courtpacking would certainly abet this.

Declaration of a pre- or post-election state of emergency. As Commander-in-Chief, the executive can temporarily assume extraordinary powers. We have witnessed such moments as recently as 9-11. What if the emergency had a domestic focus, such as a “coup d’état” within the government itself? What if it was the refusal of Congress to accept such an executive order, or even the continued tenure of the president?

State nullification of Federal policy, laws, or executive decisions.State nullification, indelibly tied to another civil war, casts a long shadow. States are selectively nullifying executive decisions and federal law, like Blue states with sanctuary cities and legal marijuana. What if beleaguered Red states defied Federal gun confiscation (second amendment) or exercise of religion (first amendment) laws/executive orders, by calling up state militia and mobilizingstate defense  forces?

The issue here is not “What if?” but rather, “What then?” It is not about the authenticity of conflict scenarios, but rather about how contingencies we cannot now predict might bring us to a breaking point, andthe breakdown of legitimacy.

Already, warring sides have hardened their hearts so that they will do almost anything in order to prevail. The great irony is that their mutual drive to win—either to preserve their way of life, or make their way of life the law of the land—means that the battle has already become a perverse alliance. Today they refuse to work together in the rusting carapace of old constitutional order. Yet nonetheless they work shoulder-to-shoulder, together, to overthrow it. For both sides, the old order is the major obstacle to victory. Hence victory is through overthrow. Only when constitutional obstacles are toppled can the battle for light and truth begin.

Editor’s Note: The first paragraph was edited to reflect the exact wording of the Georgetown Institute poll.

Michael Vlahos is a writer and author of the book Fighting Identity: Sacred War and World Change. He has taught war and strategy at Johns Hopkins University and the Naval War College and is a weekly contributor to The John Batchelor Show. Follow him on Twitter @JHUWorldCrisis

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