By COLIN KOOPMAN
It is hard to believe that we may well be living in the last month of American democracy. Staggering as the very possibility seems, here we are. The Republican Party’s nominee for the office of the President has explicitly, and repeatedly, refused to commit to the peaceful transfer of power. He continues to heap paranoid doubts on the validity of the electoral process. Yet he insists on playing the very game whose rules he claims are rigged, fraudulent, phony. If one of the two major candidates for President will not recognize the validity of the electoral process, how can the government he would lead as President expect to be recognized by those whom he would claim to govern? How could such a government convince its voters that it really is democratic, that is, of the people?
When things approach their breaking point in American politics, we like to think that the Constitution will be there waiting for us at the end of it to hold things together. Imagine that Trump loses the electoral college and popular vote to Biden in a few weeks (as polls suggest is likely), but then contests his loss in the courts and directs his supporters to contest it on the streets (as seems almost certain). Imagine next that a losing Trump is able to mobilize a few state legislatures to swap out their electors, and then convinces his hollow surrogates in the Senate like Mitch McConnell to get in line (behind those like Senator Mike Lee, who has been casting aspersions on the very idea of democracy itself; truly astonishing given that any public authority he has derives onlyfrom the results of a democratic election in his home state).
Imagine finally that die-hard Republicans take the battle to the Supreme Court, which Trump and McConnell have just finished packing with three adversaries of voter rights. If all that happens, could the Constitution then really save the Presidency and his government? In 2016, the popular majority of voters may have refused Trump, but they could still consent to (even while they were grieving about) the electoral processes required by the Constitution, for at least it promised them another turn four years later. But will voters, indeed those on both sides, be able to come out of the 2020 election with any faith left in the Constitution’s electoral process?
Is our faith in democracy at bottom a faith in what the Constitution says? Or is it a faith in one another and our collective consent to free and fair elections? These questions are suddenly real, far-fetched as they may have seemed only a few months ago.
These are questions that soldiers and generals will find themselves asking when they are called into duty by a sitting President raging against the protestors outside his window who demand that he concede to the official vote. These are questions that middle-class Republicans will be asking at the ballot box when they calculate the gains of another expedient tax cut against the risks of a lapse into an authoritarianism that will surely wipe out their wealth when the money flees highly-leveraged U.S. stocks into European markets, gold trusts, and the suddenly-safe bet of cryptocurrency. These are questions facing most (but not all) of those bit-part Republican politicians who have been ushered into Trump’s theatre and must now be wondering if achieving their own little political fantasies is really worth total implosion. These are questions that most Americans are already confronting as the sparks fly across all that dry tinder that the country became this past summer.
The Constitution governs us. But what governs the Constitution and our system of law that rests upon it? On what authority does the entire legal system ultimately rest?
The fundamental point of any and every functioning legal system is the recognition of the source of all valid law by those whose lives are regulated by that system. This is the idea of the “the rule of recognition.” It is the most important insight of one of the most brilliant legal minds of the late twentieth century: Herbert Lionel Adolphus Hart. H.L.A. Hart was born in England in 1907, served with the MI5 intelligence unit during WWII (where one of his colleagues was Alan Turing, who helped invent the very idea of computational machinery, aka what we today call computers, such as the one beneath your hand), and then taught legal theory (aka the philosophy of law) at the University of Oxford for more than twenty years.
The rule of recognition is a brilliant yet simple idea. No law stands on its own feet. Every law gains its authority by being embedded in some more fundamental aspect of a legal system. The rules specifying appropriate use of common space in your favorite public park refer back to a broader system of municipal codes in your city, which in turn depend on a specifiable set of laws in your state, which in turn must be consistent with specifiable requirements of federal law. This is why the overly-zealous czar of the local village green cannot forbid political speech in the park rotunda on the sole basis of the content of those expressions (for it would violate the First Amendment). But on what feet does the Constitution stand on? Is it just somehow pulled up by its own bootstraps? Many Americans like to believe in that myth, but of course it makes no sense.
The Constitution derives its authority from being recognized and affirmed by those who live under it. We know that no law in the U.S. can get far without the Constitution. Yet what the rule of recognition teaches is that the Constitution itself cannot itself get all that far without us. Imagine some future shadow of what we today call America—a time where the familiar political objection “but it’s not constitutional” carries as little weight as insisting that “but it’s contrary to God’s law” or “but the King on his throne in England forbids it.” Many may still care about God’s law (or what they claim to know of it) but none of us (over here) care about what the Queen (over there) might say, God save her.
The rule of recognition is a legal translation of a much older political idea: that of consent. Hart stands in a long line of empirical (meaning simply that they care about facts) political philosophers stretching back to John Locke. Born in 1632, Locke studied medicine and science in his youth, then turned to politics which led to five years of exile in Holland that ended with his sailing back to England in 1689 on the same ship that brought Queen Mary II back home. Later that year, Locke published a short treatise on government in which he argued that a political system can gain legitimacy only from the consent of those who are subject to it. For Locke, political consent must be real, not assumed. It must, as it were, beat in the hearts of the citizen. A republic is like a marriage—it will not survive if those within it lose their commitment to the partnership. Locke helped us understand why the rights of divine rule, hereditary monarchy, or brutish bullies are no rights at all. Right is only that to which the people consent.
Locke’s idea was brilliant for its time, and remains necessary for ours. Yet Locke himself has come under heavy scrutiny in recent decades for other of his ideas. When critics from the left deride Locke for his libertarian instincts about property or his odious politics of patriarchy, their scrutiny is well taken, and indeed necessary. Yet Locke’s critics too often neglect the fact that they are playing out a Lockean script against the letter of Locke. They are themselves declaring their refusal to consent to a certain kind of regime. In taking their own consent, rather than, say, brute force, as a legitimate basis for refusal they are already Lockean. They are already assuming the cardinal commitment of a Lockean political vision: legitimate political rule depends on its recognition by the people. It is a sure achievement that a Lockean idea of consent has outlived certain outworn Lockean apologies for (or, at best, vacillations over) classism, sexism, and racism.
The idea that consent or recognition is the heart of good government matters much for us in 2020, indeed perhaps almost as much as in 1688, amidst Locke’s Glorious Revolution in England, or the later U.S. revolutions of 1776 and 1861. This idea matters today because we are quite possibly on the precipice of the first constitutional crisis in the memory of any American now living. What Hart’s rule of recognition and Locke’s concept of consent ultimately speak to is just how fragile a thing constitutional democracy is, just how deeply the rule of law depends on us, and just how far the trail of the human serpent, to paraphrase the great humanist William James, runs over everything.
When that chilled November day comes for Americans to ask themselves if they still recognize the basic authority of the Constitution and all law derived from it, what will be the yield of that collective soul-searching? What if too few of us recognize the validity of the law under which we will be asked (or told) to live? What if the poem that had been our athletic democracy no longer beats in our hearts? At that moment we will no longer have any law and order left—but only its shadow. It will still call itself democratic law, of course. But that would only be the last lie.
It is we who recognize what is and is not law. If law has to be imposed against our refusal to consent, then it is no longer law, but only brutality, bravado, or outright theft (or all three). Those who live under real law are time and again prepared to affirm its terms even as they disagree with its letter. For real law is that to which we consent even as we lose, and perhaps most especially right before we are about to lose. It is only in this way that our democratic order of law has thus far managed to outlast the passing of all political seasons. Whether it will survive this autumn’s discontent is ultimately up to us.