If you’ll bear with me for a moment, I want to talk a little about the Missouri controversy of 1819 to 1821.
On its surface, it was a struggle over the sectional balance of slave and free states. Would Congress admit Missouri without restrictions on slavery, or would it outlaw the institution in the territory as a condition of statehood?
But there was a deeper dispute at work, over the nature of the American union itself. “In one conception,” the historian George William Van Cleve writes in “A Slaveholder’s Union: Slavery, Politics, and the Constitution in the Early American Republic,”
the Union was a progressively improving nation seeking unified moral ends, based on a constitution founded on and subordinate to a religiously grounded (or ethically universalist) higher law.
And in the other,
the Union was a political union of states dedicated to preserving political and moral freedom, based on a constitution founded only on popular consent and federalism principles that tolerated moral diversity even on evils such as slavery.
The political exigencies of the Philadelphia Convention in 1787 may have forced the framers to protect slavery where it existed. But there was no obligation to accept the spread of slavery beyond the original borders of the United States.
What’s more, for Northern opponents of slavery’s expansion, like Senator Rufus King of New York, the Constitution was not its own justification. Instead, Americans were bound by “the broad Principles of the Law of Nature,” which is the “foundation of all constitutional, conventional and civil laws, none of which are valid if contrary to the Law of Nature.”
Among those principles was the idea that
all men are born free, and justly entitled to the possession of Life & Liberty, and to the free pursuit of happiness — hence that man could not enslave man; and that States could not make men Slaves.
For King, the “political reasons against the extension of Slavery” were strong enough to justify its restriction in Missouri. But even if they weren’t, “the Law of Nature imposes this Restraint, and as slavery may be prohibited by Congress, they are bound to prohibit it.”
On the other side were slaveholding Southerners and their allies who thought this was nonsense. “It is idle to make the rightfulness of an act the measure of sovereign power,” argued William Pinkney, a Democratic-Republican senator from Maryland. “The distinction between sovereign power and the moral right to exercise it, has always been recognised.”
He went on:
Is a citizen, or are the courts of justice to inquire whether that, or any other law, is just before they obey or execute it? And are there any degrees of injustice which will withdraw from sovereign power the capacity of making a law?
To judge the legality of a law according to its morality would make governing impossible. And channeling Thomas Jefferson, Pinkney argued that republican government meant the people themselves could limit natural rights by popular consent:
In such a Government, rights, political and civil, may be qualified by the fundamental law, upon such inducements as the freemen of the country deem sufficient.
There may have been a settlement that would allow Missouri into the United States. But there was nothing to resolve these irreconcilable views of the Union itself. Where slavery was concerned, Van Cleve writes, there was no “rule of law” — no agreed upon foundation for adjudicating conflicts. One side believed the United States was a moral union, the other believed it was a compact of states founded on popular will. Between the two, there was “no basis for agreement on what constituted legitimate political sovereignty in the Union.”
There is no one-to-one comparison from the past to current events; there never is. But drawing on the Missouri controversy, I do have an observation to make about our present situation. Once again, under the guise of ordinary political conflict, Americans are fighting a meta-legal battle over the meaning of both the Union and the Constitution.
Right now, Democrats are fighting to keep President Trump from filling the Supreme Court vacancy left by the death of Ruth Bader Ginsburg. Four years ago, Mitch McConnell and the Republican Senate majority denied confirmation to — or even a hearing for — Merrick Garland, President Barack Obama’s nominee for the vacancy left by the death of Antonin Scalia. A politically risky escalation of constitutional hardball, McConnell justified it as Senate convention, citing a heretofore unknown tradition — he called it “the Biden rule” — which deferred any court vacancy to the next Congress when it occurred in a presidential election year. “We’re following the Biden rule,” McConnell said at the time. “Biden was chairman of the Judiciary Committee in 1992, in a presidential election year, he said the Senate should not act on filling a Supreme Court vacancy if it had occurred that year.”
Under this “rule,” Republicans should defer filling this vacancy until after the November election or into the next year. But they aren’t. Shortly after the announcement of Ginsburg’s death, McConnell said a Trump nominee would “receive a vote on the floor of the United States Senate.” A little later, several key Republicans said they would confirm a nominee. Trump, for his part, said he would make a nomination. Democrats cried hypocrisy. “They know there is no reason, no reason, no argument, no logic to justify flipping your position 180 degrees and calling it some kind of principle,” Senator Chuck Schumer of New York said on the Senate floor Monday.
McConnell didn’t have a response as much as an ad hoc justification. The Biden rule, he claimed, was about partisan control in an election year, not the fact of an election itself. Anyone could watch the tape from 2016 and see this was false, a make-do condition for a made-up rule. But that didn’t matter. Then, as now, McConnell is playing for keeps, and he won’t let rules or norms or civility get in the way. Under the Constitution, the Senate says who sits on the bench, even if it can’t directly nominate a judge or justice. With a Republican majority behind him, McConnell could block a moderate liberal nominee chosen by a Democratic president, so he did. Now he can confirm a conservative nominee chosen by a Republican president, so he will.
A fight over the fate of the Supreme Court is weighty enough, but beneath the surface of this conflict is an even fiercer struggle about what the Constitution means, one taking place in the context of minority rule and incipient democratic failure.
At no point has a majority ever voted for long-term conservative control of the Supreme Court. The president, and the Republican Senate, represent an electoral minority. Their power rests on a constitutional structure that weights the interests of their voters over those of their opponents’ voters. It is very possible that next year Trump and the Republican Party will hold power in Washington again, despite losing the popular vote by millions. This, it’s true, is procedurally meaningless. But Americans tabulate the national popular vote — and have for nearly 200 years — because victory on that front confers legitimacy and defeat signals weakness and grounds for political contestation.
Many democratic political systems allow for minority-led governments, although they often force parties to build majority coalitions to achieve them. That’s because minority government becomes an unacceptably bitter pill when the winning party rejects compromise and consensus in favor of factionalism and unilateral action. The problem comes when a political system allows for minority winners but doesn’t require coalition government. Stability is possible, but it depends on forbearance and good faith from all sides. You can play political and constitutional hardball, but it might bring conflict out into the open that you can’t ultimately control, and it will raise questions about your mandate to govern.
Trump, McConnell and the Republican Party have embraced a kind of political total war. Democrats and their liberal allies say this violates the democratic principles against which we judge the fairness of our institutions. In response, Republicans say the Constitution is what counts. Whether or not an action violates some abstract principle, if it’s in the rules, it’s in the rules.
The argument, in other words, is over the nature of American democracy. Is it expressed solely in the Constitution, so that a constitutional action is inherently democratic? Or is the Constitution only a tool for realizing the principles of American democracy as they develop over time? If it’s the second, then an action can be both constitutional and undemocratic, which ought to take it off the table as a legitimate move in political combat.
There’s no umpire to resolve this conflict — no case to take to the Supreme Court. Similar to the Missouri controversy, there’s no “rule of law” with which to settle the dispute. And it’s clear, already, that the conflict has real world implications far beyond the vacancy on the court.
Writing for The Atlantic magazine, Barton Gellman notes that in anticipation of narrow margins and contested ballots, the Trump re-election campaign has developed a plan for winning the electoral vote in Pennsylvania and other key swing states. According to Gellman’s sources in the Republican Party at both state and national levels, Trump’s campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly.
This would be an attack on the democratic process itself, an attempt to nullify the election to secure a fraudulent victory. It would also be legal and in full accordance with the Constitution, which gives state Legislatures the authority to choose and allocate electors. There is, in truth, a constellation of actions a president could take that violate the principles of democratic government but are lawful under the Constitution, for the simple reason that no constitution could ever cover all possibilities.
Constitutional government depends on good faith adherence to the spirit as well as the letter of the law. Discard the former, and there’s nothing in the latter to keep a democracy (or if you prefer, a republic) from falling into unenlightened despotism.
The Missouri controversy was, of course, settled with a compromise. Missouri would enter the Union as a slave state, and Maine would enter as a free state, but Congress would prohibit slavery in all land of the Louisiana Purchase north of the 36° 30’ parallel. This defused the fight over the territory, but could not resolve the conflict over the Union. This was legislation, a good faith agreement between two irreconcilable sides, not a permanent addition to the constitutional framework.
Nor could it be permanent in a country where sectionalism made it impossible to meet the supermajority requirement for amending the Constitution. There would be no neutral ground for mediating sectional conflicts over slavery. Instead, Americans would try as much as possible to suppress disputes through a careful balance of power and territory. It was the only option in a society where both sides, North and South, feared domination should one side win the upper hand. Or, as Van Cleve writes,
they believed that under the Constitution long-term capture of the federal government by one section or the other was entirely possible, and that no reciprocity in governing would then be required, so that the losing side would be exploited by the victors in a zero-sum game.
Our conflict isn’t the same, but the dynamic — fear on both sides of long-term defeat and permanent domination — feels familiar. Liberals fear suppression at the hands of a narrow political minority, its power amplified by courts and counter-majoritarian institutions; conservatives fear the same at the hands of a progressive coalition, its power amplified through the organs of cultural influence.
The election in November will shape the future of this dynamic — either strengthening conservatives and freeing them to act without restraint or giving liberals a chance to make political, economic and judicial reform a reality — but it won’t resolve the conflict. The divides are too deep, tied to fundamental questions of ideology and both national and personal identity. We need a compromise, an agreement for the sake of democracy and constitutional government, but it’s not clear we can forge one. And even if we could come to a truce this year or the next, it’s also true that nothing lasts forever.
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