A year has passed since supporters of Donald Trump launched a physical assault on the Capitol as Congress was formally counting the electoral college ballots. A congressional select committee is investigating the violence and its sources, despite noncooperation from former White House chief of staff Mark Meadows and other key figures. The nation continues to learn more disturbing information about how the attack was coordinated. Trump himself has still refused to accept his 2020 defeat, recently characterizing the election itself as the real insurrection, and is fighting to keep secret the records and documents connected to the events.
How dangerous is this moment for U.S. democracy? Some analysts, like Barbara Walter, believe that U.S. democracy is in decline and that we are perilously close to civil war. Others have expressed concern about the normalization of violent discourse and how prominent figures on the right celebrate it. While political-violence expert Thomas Zeitzoff characterizes warnings of impending civil war or secession as both wrong and dangerous, political scientists largely agree that U.S. partisanship has become deeply toxic. A group of leading scholars of democracy warned that U.S. elections and U.S. democracy face potentially existential threats that Congress must act to forestall. Many experts and political observers agree that the systematic partisan attack on voting and voting rights by the Trumpist wing of the Republican Party is unprecedented in U.S. history.
As a constitutional scholar who studies political institutions in historical context, I’m not convinced that civil war is on the horizon. But I do take seriously the problematic nature of Trump followers’ dominance in the Republican Party. For example, in 2018, I cautioned that dedicated Trump supporters might not accept the end of his presidency. But rather than foreseeing civil war, I contend that a better historical analogy lies in what happened in the United States after Appomattox.
Civil war or post-Reconstruction?
The U.S. civil war — the only one the country has endured — bore familiar hallmarks: extreme partisan division, geographic sectionalism, and the existence of radically incompatible visions for the role of state and federal government, particularly regarding slavery.
A constitutional crisis, however, need not involve a shooting war. As Gary Jeffrey Jacobsohn and Yaniv Roznai argue in their 2020 book comparing constitutional revolutions, major transformations may take place without broad democratic engagement. They also note that constitutional change in response to popular mobilization may not take a revolutionary form. Such a transformation took place in late 19th-century America, and one possible path forward today is for this to happen again.
As I note in an article soon to be published the Maryland Law Review, after the Civil War’s end, the United States attempted to reconstitute itself around a new vision of national citizenship and equality. This attempt failed. As political scientist Pamela Brandwein has shown, national institutions then in the hands of the Republican Party initially tried to hold states accountable for enforcing rights. That did not continue. The Supreme Court, led by Chief Justice Melville Fuller, retrenched federal authority. Rather than pursue a long civil war, the national Republican Party capitulated, deferring U.S. transformation for generations.
The retreat of national institutions left the playing field open for a pitched battle on the state level. In the south, Democrats relentlessly and systematically attacked voting and voting rights to secure their hold on state governments. With the Supreme Court’s complete repudiation of the project of Reconstruction in Plessy v. Ferguson in 1896, Southern states reconstituted themselves around the ideal of white supremacy, as John Knox advocated in his opening remarks at the 1901 Alabama constitutional convention. By then, no significant national will remained to challenge these anti-democratic and racist developments.
The Republican Party’s Trumpist core is not just dedicated to Trump and to their identities as Trump supporters. They are dedicated to continued participation in politics, using loosely democratic mechanisms in state and local elections as well as more visible and prominent venues to promote a fundamentally undemocratic agenda.
Given this, the Republican Party faces some hard choices. Trump and his supporters have been securing and expanding their power, threatening anyone who does openly oppose them with ouster or primary challenges. Prominent party leaders offer little support to the few who try to push back. These leaders probably recognize that fighting what looks like an increasingly necessary internal war may lead to short-term party losses and defections, as some Trump loyalists attempt to start alternative political organizations or leave politics entirely, depriving the party of their motivated participation.
Democrats face a predicament, as well. Certainly there is political hay to be made by attacking the worst elements of the Republican Party and presenting their anti-democratic and violent rhetoric as representing the party itself. More difficult and costly responses would include searching for and partnering with elements within the Republican Party. Such elements, while disagreeing with Democrats on many major policy issues, would recognize that democracy needs two robust reality-based political parties. These factions could find common ground over such principles as voting is a fundamental right, public health emergencies should not be politicized, and U.S. democracy must be protected and sustained. Few Republicans currently in Congress, however, have appeared to be willing to collaborate in these terms.
Without work within each party and sustained engagement across party lines, polarization will probably make it difficult or impossible to collaborate nationally to resist anti-democratic elements. The compromise that ended Reconstruction may begin to look like a plausible way out: leaving states to develop and implement policies based on the world views of those who control their dominant parties, with all that that could mean for those living there. The groundwork is present in the form of newly revitalized federalism and a Supreme Court that seems willing to grant states latitude, at least in some policy spheres. But even this might be an optimistic vision, given possible Republican dominance in Congress, gained from more than 30 Republican-controlled states’ changes to districting and election laws that could tilt results against majority rule.
Julie Novkov (@NovkovJulie) is the interim dean of Rockefeller College of Public Affairs and Policy and a professor of political science and women’s, gender and sexuality studies at the University at Albany, SUNY, where she teaches courses on constitutional law and civil liberties.