Don't Quote Laws to Men With Swords

Our Legitimacy Crisis

A long time ago, there lived a young man. He grew up in a time of upheaval: His childhood and adolescence saw riots and brawling in the streets between rival gangs and political factions, assassinations, soldiers marching through his city, and civil war. As he grew into adulthood, he showed talent, bravery, and a willingness to take risks. He sought out opportunity after opportunity, rising through the political and military ranks and carving out a reputation for himself as a man on the rise. Ambition defined him, and even though things had returned to something more like normalcy since the turbulent and blood-soaked days of his youth, he carried those memories of turmoil with him as he ascended to the highest offices his state had to offer.

But those highest offices still weren’t enough. He cut deals, sought out allies among like-minded people, maneuvered his enemies into unfavorable corners, and spilled gallons of foreigners’ blood in wars for profit and conquest to rise still higher. Finally, he crossed a point of no return, openly seizing power for himself and fundamentally remaking the system that had shaped him and enabled his rise in the first place.

I had Julius Caesar in mind as I was writing this, but the description could easily apply to any number of aristocrats in the dying days of the Roman Republic, would-be medieval dynasts, or modern revolutionaries. It’s a flexible script: The key point is the formative experience of upheaval that shifts the sense of the possible, about what was allowed, for actors within a political system. The end of the Republic was a decades-long process, with each subsequent break leading inexorably to the next. Expectations and norms shifted as violence and institutional breakdown shattered the equilibrium and participants in the political system internalized the new state of affairs. Each break raised subsequent questions about the limits of the possible, about who was in charge, what power really meant, who could wield it, and to what ends.

As Mike Duncan points out toward the end of his lovely book The Storm Before the Storm, the generation that eventually finished off the Roman Republic in the 50s and 40s BC came of age amid the horrors of the Social War and the civil wars between Marius and Sulla. All three members of the First Triumvirate, the trio that came to an informal power-sharing agreement in 60 BC, were deeply shaped by those prior upheavals. Pompey was the adulescens carnifex, Sulla’s “teenaged butcher,” long before he was Magnus. Crassus, the second member of the First Triumvirate, had likewise commanded troops under Sulla prior to becoming the richest man in Rome and ending Spartacus’s rebellion. And Caesar himself - Marius’s nephew - was profoundly shaped by the experience of being on the losing side of a civil war, which left him bereft of his substantial inheritance and his wife’s dowry, and which drove him toward a military career and his eventual political rise.

Even if Sulla’s brutal measures brought an end to open violence and conflict, imposing a series of deeply reactionary reforms designed to re-stabilize the system, the horse had already left the barn. “Stop quoting laws to men with swords,” a young, arrogant, teenaged-butchering Pompey is said to have told a group of civilians when they questioned his legal jurisdiction. Pompey, Crassus, and Caesar - and all the other aristocrats, professional soldiers, and citizens of Rome who had lived through or heard about those bloody years - learned that lesson well. They didn’t forget, and their political system paid the price.

In my first post on this Substack, I made the point that what was happening today wasn’t the end, but the beginning: that seeds were being sown all across the country, in many different places and fashions, that would eventually bear fruit. Current events are molding generations of observers and participants across the political spectrum. The reverse is also true. What’s happening now is the result of decades of deeply rooted processes, not just the immediate trigger of George Floyd’s (and Rayshard Brooks’s, Breonna Taylor’s, and Ahmaud Arbery’s, and…ad infinitum) death. The ways in which people - protesters, police, and elected officials alike - are responding to all this have been profoundly shaped by the political events of the past two decades.

I submit that the best way to understand these past two decades is as a long, drawn-out political crisis. More specifically, we’re in the midst of an ongoing crisis of legitimacy.

Legitimacy is what allows political systems to function without the constant exercise of naked force. The participants in a system have to agree that the cogs in the machine - elected officials in a postmodern democracy, blue-blooded nobles and bailiffs in medieval Europe, Confucian scholar-gentry in imperial China - have the right to fulfill their roles. This supposedly representative body is passing laws, but do I really have to abide by them? Can this functionary really collect my taxes? Do I actually have to listen to this sheriff when he tells me what to do?

In healthy, well-functioning political systems, there’s room for disagreement about these things, even serious debate or violence, but the discord happens within broadly agreed-upon frameworks. Those frameworks vary a great deal. In some places and times (France today, perhaps, or colonial America), a riot can be a sign that things are working correctly, and the system’s equilibrium accommodates even serious displays of public anger and violence; in others, with less tolerance for that kind of display, a riot means either the end of the system is in sight or a violent crackdown is coming (the Arab Spring).

The key to grasping the current upheaval in the United States, and its roots in a legitimacy crisis, is recognizing the framework’s double standard.

For favored groups - the largely White petty bourgeoisie of heavily armed small-businesspeople and recreational vehicle owners - the system tolerates exceptional displays of displeasure. When large crowds gathered in Huntington Beach, California, to protest beach closures (no masks or social distancing measures were followed), mounted police officers monitored the crowd but never seem to have considered tear-gassing them. When protesters bristling with AR-15s and plate carriers entered the Michigan Capitol, screaming in the faces of the law enforcement officers in the process, state troopers didn’t shoot rubber bullets at them. The standoff at the Bundy Ranch never broke out into open violence, despite exceptional threats of armed action from the Bundy supporters. Even an armed takeover of federal property at the Malheur National Wildlife Refuge only produced a single death, when LaVoy Finicum reached into his pocket for a loaded gun after repeatedly challenging federal officers to shoot him. Donald Trump eventually pardoned the two ranchers whose conviction for arson after setting fire to public land had sparked the whole affair.

When Texas governor Greg Abbott drew a distinction between business-owners who were violating stay-at-home orders and “criminals,” as if the former couldn’t possibly be the latter, he was speaking to precisely this dynamic: For the favored group, defined by race, property, and perhaps access to weaponry, their protests are always licit.

Contrast that with the casual displays of force and violence police have used against protesters in recent weeks. As I previously pointed out, this speaks far more to policing as a defense of the social order than one of property, least of all the law, whatever that’s supposed to mean. Their protests, by definition, are a challenge, and therefore at the very least suspect if not subject to immediate force in response no matter how peaceful they might be.

So far, so good; all of this tracks with what we already know. What’s less appreciated is how both of these conceptions of protest, and the response to them, reflect an ongoing legitimacy crisis of the political system.

For the former, favored group, there is no restriction on their freedom - a tricky term, but one with a specific set of meanings in this context - that they can accept as legitimate barring their express consent. Being told to wear a mask in public, shut down a hair salon in the interests of public health, or be subject to a background check for the purchase of a firearm: all of these things are infringements, the actions of an illegitimately constituted authority.

Ideas of this sort have a long history in American political culture on scales large and small, going back to the founding of the country: the Whiskey Rebellion, Nullification, the terrorist violence of Reconstruction, on and on. But they’ve become much more salient since the rise of the Militia Movement in the 1990s, and especially following Obama’s election in 2008.

For many (though not all) of Obama’s vociferous critics, the first black president represented an unmistakeable challenge to the legitimacy of the political system as a whole. That guy can’t be in a position of authority over me; he’s from Kenya and therefore not a Real American, so I don’t have to do what he says; even if he’s not a foreigner, then the authority he embodies must be inherently illegitimate; he cheated to win and his voters shouldn’t have been allowed to cast ballots. This melange of racialized suspicion fed off, and reinforced, an already extant strain of asymmetrical party polarization, anti-government rhetoric, and deep partisan suspicion of Democrats in general.

Seen through this lens, Republican (and further-right extremist) behavior throughout Obama’s eight years in office becomes less a racist temper tantrum or even a nakedly cynical power play than a fundamental assault on the political system as a whole. If we can’t be in charge - if the right kind of person isn’t president - then the whole thing doesn’t deserve our support.

The great irony, of course, is that all of this has continued and even accelerated with Trump in office. His election didn’t solve the legitimacy crisis for these people; very much the opposite. QAnon, “the Deep State,” and the unceasing support for Trump’s undirected authoritarian impulses (at least when directed against the Right Kind of Enemies) all speak to the underlying crisis of legitimacy at the heart of the current order. Even with technical control of a great deal of the apparatus of government, despite winning victory after victory, this particular group of people simply can’t reconcile the raw facts with their belief that the whole thing is rotten.

That’s one side of the legitimacy crisis. Now let’s consider the other.

In theory, our political system offers general rules, the promise that the same legal standards apply to everybody. Race, creed, and socioeconomic status aren’t supposed to matter. We’ve got some constitutional amendments that are pretty clear on that. And yet - as we’ve been continually reminded over the past weeks, months, years, and decades - that promise is a hollow one.

Police are the armed agents of the state, the wielders of power and authority. Their actions are a highly visible symbol of what the state really stands for, of the gap between the claims for general rules and legal equality, and the harsh reality. When a police officer shoots an unarmed man in the back as he’s running away, like Walter Scott; or fires blindly into an apartment while executing a no-knock warrant and hit an unarmed Breonna Taylor eight times, then claim on their official report that she suffered no injuries; or routinely brutalizes people of color in the course of routine interactions; then it’s all of a piece with that larger gap. If the wealthy White owner of a car dealership were found to be stealing hundreds of thousands of dollars of wages from his employees, no police officer would handcuff him, toss him on the ground, and kneel on his neck for eight minutes and forty-six agonizing seconds as he begged for his life. For that malefactor, what happened to George Floyd isn’t even a possibility under our current system, because wage theft usually isn’t even treated as a criminal offense. The assault on Martin Gugino, the elderly Buffalo protester who was shoved to the ground by police and suffered a fractured skull as a result (he’s still in critical condition), stands out mostly because we can’t process him as an acceptable target for police violence.

All of this brings us back to the big questions. Is a system that treats its citizens in this fashion and ignores its principles really legitimate? Do its agents - police or otherwise - actually have the right to tell people what to do? If the police response to people asking those questions in public is violent force, then the questions have already answered themselves.

Viewed in this light, calls for reforming, defunding, or abolishing the police - and the upheaval and confrontations that have gone along with those calls - are about a great deal more than the police themselves.

None of this is all that new. Black writers have been pointing to this yawning gap between ideal and reality since before the abolition of slavery, and have repeatedly done so in the decades and centuries since. The Civil Rights movement was predicated on making the gap unavoidably visible to outside observers, generating enough pressure to induce genuine change. James Baldwin put it succinctly in No Name in the Street: “[A]sk the wretched how they fare in the halls of justice, and then you will know, not whether or not the country is just, but whether or not it has any love for justice, or any concept of it.”

So what’s new now? I would argue that the crisis is what’s different, and the ways in which it has molded and shaped the mostly young protesters who are out in the streets demanding change.

For the past two decades, the American political system has taken blow after blow, slow cut after slow cut. In hindsight, it’s a miracle that Bush v. Gore didn’t turn into a major constitutional crisis back in 2000. Immediately after that came 9/11, the massive expansion of the security state, and the beginnings of the War on Terror. Then came the push to invade Iraq and the associated outright lies, half-truths, and delusions of imperial grandeur. The Great Recession, the unfulfilled promise of the Obama presidency, Sandy Hook, the Tea Party, Ferguson, Donald Trump, and the last four chaotic years have all reinforced the same basic message: The political system is creaking, clattering, and it has failed time after time.

These incidents and processes, not the prosperous 1990s, much less the Reagan era, Watergate, Vietnam, or the turbulence of the 1960s, are what have fundamentally shaped younger Americans’ expectations and understandings of their political system. No thriving middle class is waiting to welcome the indebted, under-employed, overeducated Millennials and emerging Zoomers through the doors of an affordable single-family home; instead, the winners take all, and those winners seem increasingly predetermined. There is a history to the past two decades, a history of slow-burning disasters both political and economic, and very little about it inspires confidence in the system’s ability to accommodate necessary, broadly supported changes and move forward. Why would someone in their early 30s, facing the second major economic disruption of their adult life and watching their friends and acquaintances get tear-gassed by police at peaceful protests, feel much investment in the system that produces those outcomes?

That’s a legitimacy crisis. If systems don’t live up to their values, if they can’t deliver on their promises of prosperity, peace, and justice, then the participants lose faith. As norms break down and the understanding of the possible shifts, so too do the actions of those participants. In differing ways and to differing degrees, wide swathes of the American public have lost faith in what the political system has to offer. Tax revolts, armed protests, the refusal to follow simple public health instructions, and protests against police violence all share that lack of faith in common.

And this is what brings us all the way back around to the end of the Roman Republic. “Stop quoting laws to men with swords,” a young Pompey said. Soldiers ruled, not the niceties of the legal system or the institutional traditions of the Roman state, and the young men molded by the first round of conflict - like Pompey and Caesar - carried its lessons with them forever.

The present-day explosion of unrest has deep roots, and its impact will last for a very long time. The protesters and those of their age and persuasion watching them, already shaped by the events of the past two decades and now on the cusp of becoming the largest blocs of voters in the United States, will be around for election cycle after election cycle. Arkansas Senator Tom Cotton, who inspired an incredible media kerfluffle by using the New York Times to call for the military to put down protests, is likewise a product of this recent history. Cotton is a young politician with a deeply and dangerously authoritarian bent, and he’s surely taking notes on what he sees around him now.

How many other potential leaders, perhaps ones less savvy and more openly brutal than Cotton, are making the same calculations? How many young protesters experiencing the wrong end of a police truncheon or a rubber bullet are now thinking about responding in kind? And what about our vast domestic supply of weaponry and our reservoirs of military veterans with overseas service in failed imperial wars? How will our already strained system respond to the next challenges it faces? That’s a volatile mixture.

For entire generations of younger, but not young, Americans, their formative political experiences now include rows of police in riot gear, protesters armed with long guns at state capitols, and the nation’s paper of record broadcasting calls for military intervention in American cities. That’s the culmination of a decades-long crisis, and the beginning of another. At the heart of those crises are basic questions about what the system has to offer, for whom, and whether it’s capable of delivering on its promises. Those are questions of legitimacy, of whether we have to do what we’re asked and why. If there are no good answers to be found, there’s no guarantee that the system will survive unscathed.

In fact, there’s no guarantee the system will survive at all. Any stabilizing response to our ongoing crises has to depend on addressing why, exactly, so many people have lost faith, and finding ways to restore it.

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