AmCon: Civil War Begins When the Constitutional Order Breaks Down

A good deal continues to be written on the possibility of another civil war in the United States. The Atlantic‘s December issue is entirely devoted to the idea. The article below is from The American Conservative and discusses the irreconcilable visions of American life and why the resolution to such crises always leads to violence. The author is a professor at Johns Hopkins University and has written books and papers on terrorism, insurgency, counterterrorism, and strategic defense.

Civil War Begins When the Constitutional Order Breaks Down

A lithograph cartoon depicting U.S. Rep. Preston Brooks’ attack on Sen. Charles Sumner in the U.S. Senate chamber on May 22, 1856. (J.L. Magee/public domain)

Civil war is, at root, a contest over legitimacy. Legitimacy—literally the right to make law — is shorthand for the consent of the citizens and political parties to abide by the authority of a constitutional order. Civil war begins when this larger political compact breaks down.

Civil War means that there is a functional split within the source of legitimacy between two parties, each of which was formerly part of the old constitutional order. Thus each can claim that it represents the source of new legitimacy, and the right to define a new or reworked constitutional order.

Hence civil war becomes a struggle in which one party must successfully assert a successor legitimate order, and to which the opposing party must eventually submit. This is above all a contest over constitutional authority. Inasmuch as civil war happens after constitutional breakdown, it means that resolution must be reached not only outside of a now-former legal framework, but also unrestrained even by longstanding political customs and norms. Extra-constitutional force is now the deciding factor, which is why these struggles are called civil wars

The character of civil war is existential. The breakdown of the old order forces frightening prospects on society. If constitutions represented a collective source of authority, in its violent replacement are suddenly two opposing and inimical pretenders, each crying for both allegiance and punishment. Moreover, one party’s victory is the inevitable loss of the other’s way of life.

Hence in such conflicts, the entire society must choose sides, and it is an all-or-nothing choice. Moderates and undecided, and those peaceful fence sitters all are forced to join warring factions. In civil war, perhaps the greatest violence, in the heart, is the aggressive coercion to join a warring cause…

American constitutional order has not broken down, yet. Constitutional legitimacy still rules…A daily torrent of unfiltered evidence suggests that our constitutional order is fissuring before our eyes. That we have skirted constitutional crisis for the past quarter century is no reassurance, but rather an alarm of continuing erosion. Each new test is yet more bitterly contested, and still less resolved…

Already, warring sides have hardened their hearts so that they will do almost anything in order to prevail. The great irony is that their mutual drive to win—either to preserve their way of life, or make their way of life the law of the land—means that the battle has already become a perverse alliance. Today they refuse to work together in the rusting carapace of old constitutional order. Yet nonetheless they work shoulder-to-shoulder, together, to overthrow it. For both sides, the old order is the major obstacle to victory. Hence victory is through overthrow…

Click here to read the entire article at The American Conservative.

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