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For almost a year I’ve been thinking through an idea that now seems especially timely and relevant in the last six weeks. I think of it as a form of civic sede vacantism. The reference is, ironically, to a strain of hyper-traditionalist Catholic thought which held (still holds) that none of Vatican II canons or the successive Popes counted because they were heretical and heretics. A bit more complicated than that. But details of that really aren’t relevant for us. I just found the defining metaphor or concept helpful. The key is their idea that the papal throne was empty. That’s the meaning of the Latin phrase, sede vacante. My interest and concern with this grew out of my belief that civic democrats in the US have far too great an essentialism about the law and constitutional jurisprudence, especially under the corrupted federal judiciary as it now exists. It breeds a kind of fatalism and passivity which casts a pall over thought and political action.
I know I’ve thrown around a lot of big and perhaps obscure ideas. So let me get down to concrete specifics. In Trump v. United States last year the Supreme Court claimed that Presidents have wide immunity from criminal law after they leave the presidency. For many people this was an ‘everything changed’ moment. It did in effect end Trump’s prosecution. But now that’s the law, as so many people I know put it. Only it’s not. This isn’t a decision I disagree with. It’s simply wrong. I’m not going to rehearse all the arguments. To me, among all the other areas of flawed and disingenuous reasoning, we have the simple fact that the authors of the constitution knew precisely how to confer immunity on public officials. They did it with Congress. But again, I’m not trying to rehearse the specific arguments. Others have already made them on the particulars better than I can. I’m saying that we must disengage from the idea that this is what the law is. It’s not. These are fraudulent decisions.
Now, as a practical matter we are in a situation in which I think we comply with them. The alternative is the abyss. But it’s a practical decision.
Now, here is the point where people ask me, what’s the difference? You’re saying this isn’t actually the law or the constitution. But we still comply with it as though it were the law. What’s the point of that? Whatever this distinction is, who cares? That doesn’t matter.
But I think it does matter. We are living in a moment in which the system of legal, interpretive legitimacy has fatally broken down. It’s been in its death throes for a decade. Now it’s no longer operating at all. That throne is empty of anything that commands our allegiance or claims to legitimacy. If the Supreme Court decides in a few months that people born on American soil are not citizens it will have disastrous and immediate effects on many of our fellow citizens. It won’t mean that the plain and always understood meaning of the 14th Amendment changed. It will mean that the people who currently hold power have opted to rule outside the Constitution.
If the court says the President can, in fact, dismantle Department after Department, which Congress created, because the President holds some kind of indivisible sovereign power cribbed from an inter-war German far-right ideologue, that won’t make it so. It will remind us that we are in this period of interregnum in which we are grappling with a renegade, corrupt court operating outside the constitutional order as well as a renegade and lawless president.
Again, you may say this is some weird semantic distinction that has no real meaning. We’ve got bigger fish to fry. I respect that response. It’s a subtle distinction. But some semantic distinctions are important. We only understand the world through language. That is a profound reality about human cognition. The language we use in the present shapes how we understand the present reality and what possibilities we can see within it. We need to open up the cognitive space to understand the situation we are in and which our country is in. Fundamentally, it means grappling with the corruption rather than living within it, living within its ideas and ground assumptions and perforce being softly governed by them.
As I said, I’ve been mulling this for months. But I decided to write it out after I heard an account of a townhall meeting with Maryland’s senators, Van Hollen and Alsobrooks. As it was recounted to me they said many of the right things. But a key part of their message was we need to let the legal cases play out.
This is precisely the wrong message, the wrong understanding of the situation we’re in.
As we’ve seen over the last few weeks, the courts — even in their current degraded state — play a key, important role. But they’re just a tool in a larger contest that is fundamentally about public opinion. There are good odds the final decisions in the courts will themselves be corrupt and unconstitutional, at least in part. So it’s not that courts don’t matter. They do. A lot. But we shouldn’t be thinking we’re going to wait on what any court decides. That’s only a half step from waiting to hear what Donald Trump decides. I keep hearing right minded or semi-right minded people say, well we’re going to see if this stuff is constitutional. I reject the assumption. At the margins there are questions about what’s constitutional. We’re way past the margins. The fact that we’re operating way outside the express text and logic of the Constitution, and no president in history has thought any of this stuff was possible, is plenty to answer the question. We’re waiting to see if the courts will follow the Constitution. And there’s a good chance they won’t.
I’ve said this a number of times. We’re embarked on a vast battle over the future of the American Republic, in which the executive and much of the judiciary is acting outside the constitutional order. That battle is fundamentally over public opinion. We’re in a constitutional interregnum and we are trying to restore constitutional government. The courts are a tool. Federalism is a big, big tool, the significance and importance of which is getting too little discussion. But it’s really about public opinion. And that means it’s about politics. The American people will decide this. That’s what this is all about. Waiting on the courts is just a basic misunderstanding of the whole situation.