On the menu today: A long, deep look at why so many Americans no longer believe that those who politically disagree have any “legitimacy.”
The Collapse of the Consensus Understanding of Legitimacy
At the root of a lot of our most intense political divisions is an irrational and stubborn refusal to recognize that the opposition ever legitimately wins a dispute.
Before we go any further, let’s make sure we’re all clear on the definition of “legitimate.” In this circumstance, we mean, “accordant with law or with established legal forms and requirements” or “conforming to recognized principles or accepted rules and standards” — not necessarily “good” or “popular.” Lots of actions can be legitimate and also a bad idea. Prohibition was legitimate, in the sense that it was enacted within the existing rules under the U.S. Constitution. As you may have heard, it did not turn out well.
Far too many people cannot distinguish between “this is legitimate” and “I like this.” The words “illegal” and “bad” are also frequently used interchangeably, even though they have distinct and different meanings. I spent too much time yesterday arguing with a guy who believed, in the context of the IRS leaks, that it was acceptable to commit a literal crime to expose or critique what he perceived as a metaphorical crime.
Democrats will point to Republican intransigence toward Bill Clinton and Barack Obama, birtherism and other fringe conspiracy theories, and denying Merrick Garland a confirmation hearing as Republican actions that undermined the consensus of legitimacy in American political life.
And that’s a fair enough accusation as far as it goes, but it is, at most, half the story, and probably considerably less than half. Maybe the average Democrat doesn’t think that every move the Republican Party has made since, oh, 1996 or so has been illegitimate. But quite a few of the diehard progressive activists do.
In 1998, some Democrats contended that the impeachment of Bill Clinton was not merely unjustified or foolhardy but illegitimate “political warfare,” because public polling did not support the move. Senator Barbara Boxer, a California Democrat, argued that the final Senate vote tally proved that “this was an illegitimate process from the start.” The fact that Clinton had lied under oath and encouraged others to do the same was not in dispute; the only question was whether those actions warranted impeachment and removal from office. Every part of that impeachment was within the constitutional rules. You can fairly argue that impeaching Bill Clinton was a bad idea, but you cannot fairly argue that the process was illegitimate.
Two years later, the country was subjected to a lot of Democrats arguing that President George W. Bush was “selected, not elected” because of the split in the popular- and electoral-vote winners or the Supreme Court decision regarding the Florida recount or both. This was despite the fact that the official count, recount, and unofficial post-inauguration attempts to recount any missed ballots. Ask CNN, no fan of Bush: “Recount studies show Bush would have most likely won the Florida statewide hand recount of all undervotes. The studies also show that Gore likely would have won a statewide recount of all undervotes and overvotes, which are ballots that included multiple votes for president and were thus not counted at all. However, his legal team never pursued this action.”
Representative John Lewis of Georgia refused to attend Bush’s inauguration, declaring that “he doesn’t believe Bush is the true elected president.” (Lewis would do the same for Donald Trump in January 2017, and erroneously claim it was the first time he had ever declined to attend an inauguration.)
In 2001, polling found that more than a third of Democrats and more than half of African Americans believed Bush had “stolen the election.” Hillary Clinton repeatedly said that Bush was “selected, not elected” or other variations of asserting that Bush was not a legitimately elected president. The new second-time Democratic gubernatorial nominee in Virginia said Democrats and Gore “won that election.” Terry McAuliffe is now attacking GOP gubernatorial nominee Mark Youngkin for “parroting Trump’s conspiracy theories about the 2020 election,” even though Youngkin has said Biden was “legitimately elected our president.”
Many Democrats saw Bush as even beyond illegitimate, an existential threat to the country who would bring about the end of democratic elections. It was not difficult to find grassroots Democrats referring to George W. Bush as “Bushitler.” Democrats kept comparing their political opponents to Nazis. Keith Ellison, (D., Minn.) referred to 9/11 as the “the Reichstag fire.” “George W. Bush has become the first true American dictator. And we’re all equally guilty for allowing it to happen right under our fat, apathetic noses,” wrote the Huffington Post.
More than a few Democrats contended that George W. Bush was not just someone they disagreed with, but a genuinely evil mass-murderer of American citizens, who either deliberately chose to not stop the 9/11 attacks, or who worked in league with the al-Qaeda terrorists. In 2003, presidential candidate Howard Dean declared in an NPR interview, “The most interesting theory that I have heard so far is that [Bush] was warned ahead of time by the Saudis.”
Back in 2006, Scripps-Howard asked in a survey, “How likely is it that people in the federal government either assisted in the 9/11 attacks or took no action to stop the attacks because they wanted the United States to go to war in the Middle East?” More than half of the Democratic respondents said yes — 22.6 percent of Democrats said it was “very likely” and another 28.2 percent called it “somewhat likely.” A year later, a Rasmussen survey found that “Democrats in America are evenly divided on the question of whether George W. Bush knew about the 9/11 terrorist attacks in advance. Thirty-five percent of Democrats believe he did know, 39% say he did not know and 26% are not sure.”
Many people laugh and sneer at the absurd and unsupported claims of Trump supporters, contending that voting machines changed votes to reelect Trump into votes for Joe Biden. But that’s the same claim made by quite a few Democrats after the 2004 election, contending that they voted for John Kerry and the machine somehow changed their votes into ones for Bush. Representative Jerrold Nadler, Democrat of New York, wrote to the General Accounting Office, “The House Judiciary Committee Democratic staff has received numerous reports from Youngstown, Ohio that voters who attempted to cast a vote for John Kerry on electronic voting machines saw that their votes were instead recorded as votes for George W. Bush. In South Florida, Congressman Wexler’s staff received numerous reports from voters in Palm Beach, Broward and Dade Counties that they attempted to select John Kerry but George Bush appeared on the screen.”
(People, particularly senior citizens, hit the wrong spot on the touch screen, and become convinced they hit the right spot and that the machine changed their input.)
Even the subsequent Republican majorities in Congress were deemed illegitimate in the eyes of some of their foes. Gerrymandering, a longstanding bipartisan tradition of attempting to maximize political advantage, was deemed a menace by progressives once Republicans won the House. And more than a few Democrats who had enjoyed the advantages of gerrymandering suddenly decried it as fundamentally unfair and illegitimate once the other side started enjoying it.
The New Yorker, 2012: “A few years later, Illinois Democrats, after toiling in the minority in the Senate, gerrymandered the state to produce a Democratic majority. While drafting the new political map, Obama helped redraw his own district northward to include some of Chicago’s wealthiest citizens, making the district a powerful financial and political base that he used to win his U.S. Senate seat, a few years later.” [Emphasis added.]
Obama in an NPR interview in 2015: “I think that there are real problems with how we are electing our representatives. I think political gerrymandering has resulted in a situation in which — with 80 percent Democratic districts or 80 percent Republican districts and no competition, that that leads to more and more polarization in Congress, and it gets harder and harder to get things done.”
Because you can’t gerrymander a Senate seat, progressives needed another argument to undermine the perceived legitimacy of a Republican Senate majority. They concluded that the constitutionally decreed format of the Senate and the state lines themselves were illegitimate.
In 2018, Ian Milhiser of Think Progress contended that, “The U.S. Senate is facing a legitimacy crisis. . . . The United States Senate is an immoral, anti-democratic institution where a person from Wyoming counts as over 68 Californians.” Each state has had two senators since the founding of the country and was deliberately designed to ensure that less populous states could have the same say as more populous states. It’s not a bug, it’s a feature.
Many progressives demonstrated their ability to turn on a dime, suddenly denouncing long-accepted provisions and features of the American political system. All kinds of longstanding constitutional provisions, laws, rules, and standards that had always been part of a bipartisan consensus “rules of the road” were suddenly decried as fundamentally unjust and no longer legitimate. Of course, none of them were “illegitimate” in the sense of “not accordant with law or with established legal forms and requirements.” They meant “illegitimate” in the sense that progressives perceived them as a disadvantage and thus unfair.
Unsurprisingly, this full-spectrum, rapid-fire accusation of illegitimacy reached the Supreme Court as well. During the Brett Kavanaugh confirmation hearings, Vox warned that, “The Supreme Court’s legitimacy crisis is here.” In 2020, after President Trump nominated Amy Coney Barrett, Senate Democrats warned of a “Dangerous And Illegitimate Supreme Court Hearing.” Nancy Pelosi called Barrett “an illegitimate Supreme Court Justice.” The Harvard Law Review remarked in 2019, “it is striking how many commentators — including prominent constitutional scholars, a former Attorney General, and current members of Congress — have recently questioned the legitimacy of the United States Supreme Court.”
In 2017, the website Daily Kos proposed impeaching Neil Gorsuch. In 2018, New York magazine called for the impeachment of Clarence Thomas; Salon did the same in 2020. In 2019, House Democrats introduced a resolution calling for the impeachment of Kavanaugh. In 2020, PBS host Alexander Heffner called for impeaching Barrett, while the magazine The Progressive merely lamented, “If [Justice Samuel] Alito were still sitting on a lower court, his unhinged commentary could be grounds for disqualification.”
Do I even need to get into the widespread belief among progressives that Donald Trump was not legitimately elected? By November 2018, 67 percent of Democrats believed it was “definitely true” or “probably true” that “Russia tampered with vote tallies in order to get Donald Trump elected.” There is no evidence that Russia altered any votes or vote totals in 2016. And yet, in 2019, Hillary Clinton asserted that Trump “knows he’s an illegitimate president.”
So yes, it is very bad that earlier this year, a Monmouth survey found 65 percent of Republicans believe that Biden’s win was solely the result of voter fraud. But that is just one more step on a very long road that is, at minimum, a quarter-century in the making.
ADDENDUM: The knee-jerk dismissal of any criticism as “hating” is another powerful force promoting unaccountability in American life.
Then again, maybe as a culture we prefer it this way.
The Weed Agency, page 227:
Every Middle East envoy Is told to go make peace out there, and they come back empty-handed. CEOs get golden parachutes, actors and directors turn out dreck, the press gets things wrong all the time, nothing works the way it’s supposed to, and that’s the way it’s always been!” shouted an inebriated Wilkins.
‘Unaccountability!’ the now-tipsy Humphrey roared. ‘It’s the American way!’