In describing the congressional debate leading up to this week’s shutdown of the federal government, Senator Tom Harkin (D-Iowa) argued that the United States has arrived at “one of the most dangerous points in our history.” The situation, Harkin said, is “every bit as dangerous as the break-up of the Union before the Civil War.”
That, of course, is hyperbole. When southern states seceded from the Union, the result was four years of armed conflict. Fortunately, there is no indication that the government shutdown will lead to war. However, Harkin is on to something with his reference to history.
When Abraham Lincoln delivered a written message to Congress on July 4, 1861, that was intended to justify and place in context unilateral action he had taken earlier that year, Lincoln explained that the Civil War was a test of the American constitutional system and, ultimately, of democracy itself.
Lincoln declared that the war “embraces more than the fate of these United States. ... It presents the question whether discontented individuals, too few in numbers to control administration according to organic law in any case, can always, upon the pretenses made in this case, or on any other pretenses, or arbitrarily without any pretense, break up their government, and thus practically put an end to free government upon the earth.”
In other words, Lincoln observed, the seceding southern states had left the Union because they did not accept the results of the 1860 election. In a democracy, elections will produce winners and losers. In order for a constitutional democracy to last, those who lose legitimate elections must accept the result.
That is exactly what Senator John McCain (R-Arizona) meant when he recently observed that “elections have consequences.”
McCain, in a speech on the Senate floor, made clear that he had hoped Barack Obama would lose the 2012 election, but “the people spoke … much to [McCain’s] dismay … and they re-elected the president of the United States.”
In the American system, people do not have to humbly submit to election results. Those who lose elections, and their supporters, are not a vanquished people.
They may, and should, continue to advocate for their preferred policies and they may, and should, seek to win the next election. But they must recognize the legitimacy of the process. When their candidate loses, they cannot blow up the system, seeking to effectively invalidate election results.
It is clear that some of President Obama’s political opponents have never accepted his election as legitimate.
In particular, some have objected to the Affordable Care Act, or Obamacare, the 2010 health care law designed to, among other things, make health insurance accessible to people with pre-existing conditions and others who could not previously afford health insurance.
Opponents of Obamacare fought hard to prevent the bill from becoming law, but they lost. The ACA was signed into law by President Obama.
Opponents of Obamacare argued that the law was unconstitutional and they took their case to the Supreme Court. They lost there as well, in the spring of 2012.
In the 2012 national election, Mitt Romney, the Republican party’s standard bearer, made clear that if he were elected president, Romney would seek to repeal Obamacare (presumably with the help of Congress). Romney lost.
None of this means that opponents of Obamacare must be silenced. They have every right to continue fighting, to continue arguing that Obamacare is a bad idea, even that Obamacare is unconstitutional.
The Supreme Court is quite capable of making mistakes, and the fact that the Court upheld the law does not mean that political or constitutional debate over Obamacare must come to an end.
Opponents of Obamacare can seek its repeal through the legislative process. They can seek to amend the law. They can organize future election campaigns around the principle of repealing or amending Obamacare.
Instead of these legitimate strategies, some Republicans in Congress have decided that they will attempt to win through legislative bullying what they could not win at the ballot box.
They have made clear that they will not pass legislation needed to keep the federal government operating unless Obamacare is either repealed or delayed. In Lincoln’s words, these Republicans are “discontented individuals, too few in numbers to control administration according to organic law.”
Unable to win the ACA debate in the legislative or electoral process, a minority has decided to shut down the federal government unless they get their way.
If the Republicans are successful, we will not have a civil war on our hands, as Lincoln did. We will, however, see the breakdown of constitutional democracy.
If opponents of Obamacare are able to achieve their goal, they will have set a dangerous precedent.
Every election produces winners and losers. There will come a time when the Democratic party will lose a national election. They might decide to adopt the Republican party’s tactics, to refuse to authorize spending needed to run the federal government unless their own demands are met.
A minority could prevent a majority from governing. Laws could be undone at the whim of a determined faction.
In a properly functioning democratic system, elections have consequences. In 2013, that proposition is being tested. If it is shattered, we will be in a new age.
Fortunately, the outcome will not depend on what happens on battlefields, as it did during the Civil War. But the question remains essentially the same as the one Lincoln posed to Congress on July 4, 1861, foreshadowing the more famous address he gave at Gettysburg more than two years later: “whether a constitutional republic, or democracy—a government of the people by the same people—can or can not [survive].”
Chris Edelson is an assistant professor of government in American University’s School of Public Affairs, where he teaches classes on the U.S. Constitution and presidential power. His book, "Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror," will be published by the University of Wisconsin Press later this month.
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