Will We Be Citizens or Subjects?
A decisive moment comes and passes, a fleeting chance for action. People rise to the occasion or not, their measure taken and place in history assigned.
We, the citizens of the United States, have reached such a moment. For those who still remember the old republic, the questions it poses are self-evident. Do we make a stand or nervelessly surrender our rights? Do we affirm ourselves citizens—an historically rare and noble title—or do we accept becoming subjects, the fate of most humankind?
We might, of course, hope for a quiet subjecthood, one in which our rulers permit us to go about our lives reasonably undisturbed. But that would no longer be our call, only their clemency.
In the course of this lamentable year, we’ve seen the clemency of our aspiring seigneurs on full display. It clearly doesn’t extend to our laws which they impudently flout. Nor to the truth, which they smoother or twist in caricature. Nor to property, which they seize by decree or have their Blackshirts burn. Nor to the American past, American institutions, and American traditions that they hate and trash. If we choose to submit to their mercies, we shouldn’t imagine they’ll long be tender.
Some have been arguing that we ought just to get on with it, accept the media-hyped election results and prepare for more winnable battles down the road. But as evidence of grotesque irregularities continues to pile up, it becomes ever harder to accept that time-honored bromide with equanimity. We can’t, to be sure, know exactly what this presidential election’s actual outcome was, but we do know how unbelievable the facts are as popularly presented. We also know which side is responsible for the mudslide now covering the electoral landscape. And we can make a good guess as to the truth that’s been buried beneath.
Many of those who urge us to move along do so out of the most honorable of motives. Many are sage and experienced. But their calculations emerge from an obsolete understanding of American politics, certainly of the politics of this dark moment. For them, the tides of political fortune have always flowed back and forth and will continue to do so. But that consolation, a balm in times past, is now treacherously misleading.
We face something altogether new, a genuine effort at revolution. During our long republican past, shared economic and social precepts, a common civic culture, religious conviction, and an all-embracing patriotism buffered partisan conflict. Today, we’re back to the human default, wherein “those who have the power take and those hold who can.” And the item in contest is America itself.
A gauntlet has been thrown and its meaning is unmistakable: “We the ascendent, the wise, the socially just, can do as we please, and you the misbegotten progeny of this tainted land must take it as it’s dished. We don’t care what you think. We don’t care that you know. Do what you want, squawk, whine, whimper, whatever; we, your betters, will prevail.”
We can pretend to ignore this gauntlet. We can walk away. Like the bullied boy we can solace ourselves by fantasizing about what we’ll do to that nasty bruiser when he shows up next. But we’ll only be fooling ourselves. From here on he’ll own us. We’re permanently unmanned.
Pretending that what has happened can be calmly borne, just another starting point for conventional politicking, is to normalize it. Why shouldn’t those now congratulating themselves proceed to do it again many times over? They can perfect their act, extending it to all electoral levels. And to paraphrase Macbeth, once one has gone far in inequity, there’s no turning back. Criminality needs criminality to cover itself. Corruption simply cements.
What is to be done? Whatever that is, it must depart from politics as usual, the standard model of American governance that our elites wish to inter. Conventions needn’t be abandoned, what’s left of the system must continue to be worked, but an audacity is now called for, a willingness to stretch institutional bonds to a degree that genuinely alarms our conniving subverters. At this late stage in our political degeneration nothing less will suffice.
President Trump and his allies have rightly taken their case into the courts. But more needs to be accomplished, and with swift and dexterous versatility, in the courts of public opinion. At times like these even the most conscientious jurist will judge the wind as well as the law. And, at the moment it’s blowing hurricane force in only one direction.
Our situation must be fundamentally understood more in political than juridical terms. That means our strategy must buttress legal arguments with formidable public acts.
Jurists are mortals—as are legislators whose ultimate support we’ll need more than the courts. Both are cowed by the pressure of elite opinion. To do the correct thing, both will need to be steeled by countervailing forces. They fear, correctly, that adhering to the law will bring out the rioters and streetfighters. They must be brought to see that vast numbers of peaceful but equally angry citizens won’t accept cowardly skulking when the nation is in danger.
So damn the COVID, the president must now lead his followers into America’s streets and squares. They must especially flock to the capitol complexes of all the critical states and register indignant protest. They must do the same under the media’s noses in Washington, New York, and Los Angeles, creating a clamor that broadcast agitprop can’t drown out. This has already begun, but its intensity must greatly ratchet up, becoming incessant and overwhelming. If that be demagoguery, make the most of it!
In the face of their literal coup, let ours be a counter-coup de théâtre. If the president and his attorney general believe they have the federal goods on individual malefactors, let them convene grand juries, bring in indictments and make midnight (and televised) arrests of top perps. Why shouldn’t we take instruction from our foes?
And don’t just petition the jurists, have the president and his lawyers lay their case before a joint session of Congress. If House Speaker Nancy Pelosi (D-Calif.) won’t give him House leave, provide the Senate with an exclusive. You say nothing like that has ever been tried? Then no better reason for doing it now. The proceedings would be an educational spectacle the networks, and the president’s traducers, couldn’t ignore. And its grand show would suit the occasion.
The courts won’t call the election for Trump. They shouldn’t. The best that can be expected is a vacating of the results in those states where misdeeds have been particularly egregious.
Since there’s no time for reruns, the state legislatures will then have to grasp the nettle. They could throw their electoral votes to Trump or, much more likely, find some way to withhold them, or perhaps pick electors who’ll abstain or vote for some stand-in.
If, in consequence, neither Trump nor Biden have an electoral majority, the choice will devolve upon the newly elected House, with the constitutionally prescribed delegation-by-delegation voting system strongly favoring the president. The (probably) Republican Senate will re-elect Vice President Pence.
Should state legislators fail to show sufficient spine, or should there be rival electoral ballots submitted, there is a final ditch to fall back upon. The Republican Senate could raise objections to accepting dubious electoral votes. Something like that happened in 1876, the last time rampant corruption caused official tabulations to be formally challenged. Possible end games in a scenario like that are too tangled to assess, but the battle could be won. There are scholarly nits to be picked about the legal proprieties of various extremis maneuvers, but in the post-Obergefell age they’d have more than enough legal color for political deployment given dire necessity.
And if we fail? We fail—but not without forever having branded this election as the leprous thing it was. And in doing so we will have laid the necessary foundation for a continuing unconventional struggle, one that explores the outer boundaries of our Constitution’s resources to trap “His Fraudulency” and friends in the snares they themselves have laid.
But I’m getting ahead of events. We’ve not yet reached that point. The election is still in the balance and we must do our heartfelt best to prevail. Our forefathers measured up to their great moment when it thunderously came down upon them. They passed history’s test. Despite the counsels of concession, it is their example that we should now be following.
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