Legal Civil War
In an era of partisan polarization in which each side sees the other as illegitimate and a threat to the nation and its values, the term “civil war” is often brandished, from state and federal immigration battles to abortion access to election disputes. Civil war, as used in these contexts, does not necessarily raise the specter of armed confrontation between rival armies but does suggest divisions so deep that they threaten the nation’s ability to endure. This Essay introduces the concept of a legal civil war to describe conflicts within a country where rival factions defy the established rule of law and strive to set the terms for a new governing regime. The Essay changes the focus from violence to defiance of the rule of law; and provides a new paradigm for understanding what a rupture in the legal order entails and what reimposition of the rule of law requires. The Essay draws on examples from the fights over slavery and equal rights to illustrate how legal rupture and its repair constitute powerful and recurring themes throughout American history.
To analyze the form a modern American legal civil war might take, we observe that all civil wars, whether violent or not, start with ruptures in the rule of law. Drawing on the law of war, we then define a “legal civil war” as occurring when organized factions refuse to accept the legitimacy of the other’s claim to authority—and where the two sides go beyond rhetoric to active interference with the opponent’s otherwise legitimate actions. The interference, which, in accordance with the law of war, may justify a military response, becomes a legal civil war when both sides defy the other in ways that cannot be resolved within the legal system. The legal civil war, whether or not it ever becomes violent, then ends with the reimposition of a legal system that creates a foundation for future governance of the polity.
Three contemporary issues pose the potential to spark a legal civil war. The first is the possibility that no clear winner emerges from a contested election, and the other side rejects the legitimacy of the person sworn into office and refuses to treat the actions of the declared winner as authoritative. The second involves immigration, which has become an arena for pitting state against federal authority. The third involves abortion: What would happen if states defy a federal law that either bans or requires access to abortion or the state shields an abortion provider for acts that would be considered crimes in a second state?
This Essay, in focusing on the concept of legal civil war, distinguishes ruptures in the established system of governance from disagreements resolved within the legal system. Legal civil wars involve battles between sides, each of which represents a sizeable faction or controls a government entity, and which deny the legitimacy of their opponents’ authority and seek to impose their will on the polity as a whole. Once such a conflict creates a rupture in the established legal order, war will not be waged through legal process, but rather as a conflict where resolution involves the reimposition of a legal system that the country as a whole views as legitimate.
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