Nobody likes to lose. But constitutional democracy produces winners and losers all the time — in elections, judicial rulings and legislative debates. The side that loses should not be seen as a vanquished foe forced to surrender (as long as that side plays by the rules and does not resort to violence). But, as President Lincoln pointed out at the start of the Civil War, it is essential for the losing side to accept the outcome when it is the result of a legitimate process. Over the past two weeks, we have been reminded why losing gracefully is essential to constitutional democracy — and why it is dangerous when those who don’t get their way baselessly question the integrity of the system.
{mosads}In a democracy, political outcomes are “tentative and reversible,” as noted by Louis Fisher of the Congressional Research Service. If you lose an election, you can try again next time. If you lose a court decision, you can (in most cases) seek legislative change (in the rare cases where that is not possible, other avenues are available, including the constitutional amendment process and reversal by a future court). If a law passes that you do not like, you can seek its repeal. If you are unable to pass a law that you support, you can try again in the future (the healthcare law itself is evidence of that).
What you cannot do is reject the process itself by refusing to accept the legitimacy of an outcome produced by a constitutional democracy. We were reminded of that when a white supremacist murdered nine African-Americans in Charleston, S.C., declaring that they (African-Americans) were “taking over the country.” African-Americans have achieved political change legitimately — through the legislative process, elections and judicial rulings. The killings were, like the Civil War itself, an attempt to achieve political change illegitimately, through violence (the killer hoped, among other things, to incite a race war).
The fact that elected officials who once supported display of the Confederate flag now realize it must be removed from public spaces is a hopeful sign. They understand that the flag stands for white supremacy and the dangerous principle that violence is a legitimate response to disappointing political results — in the case of the Civil War, an effort to defend slavery by the use of force when legitimate political outcomes seemed to threaten it.
After 150 years, it is finally becoming possible to see the Civil War and its aftermath for what it was: not a noble cause, but an attempt (and a successful one at that in the years after the war) to achieve political change through violence. This is an important historical lesson, but it is essential to apply it to current events that may be even more difficult for us to place in context as we live through them.
In the aftermath of the Supreme Court’s decisions on the Affordable Care Act (ACA) and marriage rights for same-sex couples, elected officials and candidates for president are speaking in militant terms. Of the marriage decision, former Arkansas governor and current presidential candidate Mike Huckabee (R) declared that “some cowardly politicians will wave the white flag” but he refused “to acquiesce to an imperial court any more than our founders acquiesced to an imperial British monarch.” Huckabee similarly called the ACA decision “an out-of-control act of judicial tyranny.” Sen. Ted Cruz (R-Texas), another presidential candidate, called the marriage decision “lawless,” said the day of the decision was “one of the darkest [days] in our nation’s history” and suggested states not directly involved in the case could simply ignore the court’s ruling. Louisiana Gov. Bobby Jindal (R), yet another presidential hopeful, wrote that “Marriage between a man and a woman was established by God, and no earthly court can alter that. … If we want to save some money let[‘s] just get rid of the court.”
It may be tempting to dismiss such comments as overheated rhetoric. But it is essential to recognize what is going on here, and to take into account additional context. Right-wing culture warriors are using extraordinary language in responding to the court’s decisions. Former Rep. Allen West (R-Fla.) bluntly argued that “the Supreme Court’s ruling on gay marriage could lead to civil war.” West writes that “there is no place for men and women of faith to retreat — they will make a stand. This ain’t first century Rome.” Tim Wildmon of the American Family Association called the court’s marriage ruling “a spiritual 9/11” and Bill Muehlenberg of BarbWire charged that “This is a declaration of war by five judges who have spat in the face of their Creator, of marriage, of biology, and freedom. Now a major proper response for Christians and others is massive civil disobedience and defiance of this homo-fascist decision.”
No one has to agree with the court’s decisions on marriage or the ACA. It is perfectly legitimate to advocate for legislative, constitutional or electoral change as a remedy (indeed, Huckabee and other presidential candidates have also called for such actions, in addition to the more radical rhetoric he, Cruz and Jindal used). But some who are unhappy with these judicial decisions simply refuse to accept the decisions as legitimate, and describe a justice who wrote one of the opinions as a “traitor.” Elected officials and presidential candidates have a responsibility not to play to this crowd. Sen. Marco Rubio (R-Fla.) got it right when he said that “While I disagree with this [marriage] decision, we live in a republic and must abide by the law. As we look ahead, it must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.” Rubio and others who disagree with the Supreme Court have the right to argue for change within the system. Those who question the legitimacy of the court are playing a dangerous game, as President Lincoln understood in 1861 when he was dealing with the worst-case scenario of what it means when those who don’t get their way refuse to accept an outcome as legitimate.
Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.