The Widening Gyre

A post I've been avoiding writing

I’m going to try to keep this short, in the hopes that a short post will be as effective an exorcism as a long one. If it works, I’ll be able to return to productive activity; if it doesn’t I won’t have wasted more time than necessary on the exorcism.

Watching President Biden declare that the Equal Rights Amendment had become part of the Constitution “now, right now,” something snapped in me, something fundamental to my enduring belief, in spite of everything, in the mythology of the republic. I’m not sure why that’s the action that did it, why it didn’t happen to me before or why, if it didn’t happen before, it had to happen then. But something snapped, and I’m not sure I can repair it or even want to.

The fundamental difference between law and arbitrary force is that the law is legible and can be internalized. We can read it, recognize it as such and, if we choose to, position ourselves on the right side thereof to protect ourselves from the violence of the state. The law may be unjust, and we may choose to violate it as a way of expressing our contempt for an unjust law, a way of daring the state to use its force in its defense. But that too is a recognition of what the law is—a recognition that we share even when we dissent from its justice.

An essential characteristic of totalitarian regimes is that they do not have law as traditionally understood. Yes, they have legislatures and judiciaries, and frequently operate according to the forms of law. But the law is no refuge, in no way binds the administrative apparatus of the state. And you cannot position yourself on the right side of it in order to avoid being subject to the violence of the state.

This became clear philosophically before totalitarian regimes even came into being. Hobbes’s grants supreme sovereign power to the Leviathan as the only alternative to the pervasive terror of the state of nature, but supreme sovereign power is above the law, and it can only demonstrate that it is so—that it is not in fact bound by something above it or some foundation on which it rests—by violating the expectation that it will be so bound, in other words: by violating the law. To fully vanquish the fear essential to the state of nature, the state must, in the end, recreate it in another form, by inculcating fear of itself.

The apprehension of impending lawlessness, of a regime that will refuse to be bound by anything and therefore could do anything, has been central to the liberal imagination since Donald Trump first became president eight years ago if not before. The Biden administration’s own violations of norms and laws—like its last-minute pardons of Anthony Fauci and Liz Cheney—have not infrequently been justified precisely on those grounds, as responses (even preemptive ones) to horrors committed or about to be committed by the other side. Even when I have been exceedingly critical of those moves (as I often have been), I have been inclined toward a charitable interpretation of their motives.

That’s what was knocked out from under me, for some reason, by Biden’s “declaration” of the 28th Amendment.

To recap this particular situation for those who haven’t been paying attention: the Equal Rights Amendment was first introduced in 1923, and was passed by Congress in 1972. The amendment was passed with a deadline for ratification by the states, which was not met. The deadline was extended by Congress, but a federal court ruled that the deadline extension was illegal. After the amendment again failed to be ratified by the new deadline, the Supreme Court declared the issue moot, and so has never spoken to the question. Multiple states rescinded their ratification before the deadline expired as well. Nonetheless, several states have ratified the amendment in recent years, such that, if the original deadline (not the extension) were deemed invalid, and if the rescission of their ratification votes by several states were also deemed invalid, then the amendment would have been ratified by enough states to become part of the Constitution. The view of the Biden administration’s Department of Justice had been that the amendment had not met the requirements for ratification, and this was also the view of the national archivist responsible for publishing amendments, who is a Biden appointee. Nonetheless, and despite the fact that the President has no role in the process of amending the Constitution, in one of his last acts as president, Biden declared that the Equal Rights Amendment was now the law of the land.

Now, it seems to me that there are three ways to look at this decision on Biden’s part.

One possibility is that everyone involved knows that this is all theater. Biden knows that he has no power to “declare” the 28th Amendment to have been ratified; his supporters like New York Senator Kirsten Gillibrand know it; the American Bar Association knows it; everyone understands that all Biden was saying, in substance, is that he, an American citizen with a very bully pulpit, believes that the 28th Amendment has been ratified.

A second possibility is that Biden is acting on the philosophy of popular constitutionalism, a philosophy with which I have some sympathy, according to which every branch of government, as well as every state government, is responsible for following the Constitution as they understand it. The Supreme Court has the final word with regard to cases, and the other branches are legally bound to accept their rulings in that regard—and lower courts are obliged to follow them as regard to precedent. But the Supreme Court cannot definitively say what the Constitution says or means, and so, until rebuked by the Court in a specific case, Biden’s declaration can legitimately bind his administration with regard to implementation and enforcement of the Constitution’s requirements.

Finally, the third possibility is that Biden and his supporters actually believe that he, by unilateral declaration, can decide this legal question of whether the Equal Rights Amendment is the law of the land, for all Americans.

Now, let’s consider each of these beliefs in turn, and what their implications are. Let’s take them in reverse order.

If Biden and his supporters believe that he can resolve this question by fiat, then they must grant that his successor can do the same. President Donald Trump has already promised to end birthright citizenship by executive order. If Biden’s statement that the Equal Rights Amendment is the law of the land is to be taken at face value, then so must Trump’s. We’ve been living in a plebiscitary dictatorship all this time, and we just didn’t know it.

If Biden is following a philosophy of popular constitutionalism, then, similarly, Trump will be on strong ground in implementing an executive order eliminating birthright citizenship. The Supreme Court could issue an injunction preventing him from taking specific actions—like deporting the American-born children of unauthorized immigrants—which he would be bound to obey. But I suspect in other ways that don’t lend themselves to clear precedent or injunctive relief he’d be able to treat such individuals as non-citizens and defend his actions by saying he was just following the Constitution as he understands it.

Now, perhaps these potentially troubling precedents would be worth it in order to establish sex discrimination as unconstitutional. Perhaps they are not even precedents; perhaps we can assume that Trump would do and declare whatever he was going to do and declare anyway, that all that matters in rebuking him is raw power, so that really all that Biden has done is advance the cause of equal rights. Except . . . Biden made his declaration in the last hours of his administration’s existence. It will have no time to shape the law in any way, and will immediately be reversed. Which means that, even if Biden and his supporters believe that this is a real exercise of power, in practice it is just theater. And if this is all theater, then what is its purpose?

It is hard for me to imagine that Biden’s declaration could improve the prospects of the Equal Rights Amendment in the courts, or to sway the views of state legislatures that rescinded their ratification. Its most likely effects are, to confuse supporters about the actual status of the Equal Rights Amendment, to confirm his administration’s lawlessness in the eyes of opponents, and to attract derision from observers like myself. In other words, its practical effect will be to undermine popular confidence that there is a consensus about what the law is, and encourage those who believe that law is, in the end, just a matter of power and will.

Maybe that too makes no practical difference. Maybe the belief in a shared understanding of the law is dead already; maybe the gyre was doomed to widen no matter what Biden did or did not do; maybe this was just theater for theater’s sake. But if so, what does it say about the groups and individuals who supported this action that what they wanted most out of their outgoing president was a piece of self-flattering theater, a trip to a congenial fantasyland?

There is no way back to small-r republicanism following this path. None. And, as I contemplate with dread the rough beast that just slouched its way to Washington to be born, I cannot see any point, for anyone who cares about such things, in walking even a step with those who chose to tread it.