Legal Civil War: Elections and the Rule of Law

Abstract

Suddenly, the term “civil war” is everywhere, from state and federal immigration battles to abortion access to environmental regulation to election results. This Essay introduces the concept of a legal civil war, which changes the focus from violence to assaults on the rule of law and provides a new paradigm for understanding what reimposition of the rule of law requires.

We argue that all civil wars, whether violent or not, start with ruptures in the rule of law. This happens 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 legitimate actions of the other side. Because legal civil wars begin with a rupture of the legal system, they ultimately end with the reimposition of a legal system that creates a foundation for future governance of the polity.

The most immediate prospects for a legal civil war today center on crises in the legitimacy of the state. Three pending issues pose the potential to spark a legal civil war. The first is the possibility that no clear winner emerges from the 2024 presidential election or that one side rejects the legitimacy of the person inaugurated in 2025. The second involves control of the border, 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 refuse to extradite 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 that the legal system routinely resolves. Legal civil wars involve wars – battles between two sides who deny the legitimacy of the other and who seek to impose their will on the polity as a whole. Once such a conflict creates a rupture in the established legal order, the war will not be waged through the legal process, but rather as a conflict where winning involves discrediting the legitimacy of the other side and defeating their claims to rule. Only then, with the reassertion of duly constituted governing authority, will the rule of law again prevail.

Keywords: “civil war”; “rule of law”; legitimacy; “Supreme Court”; abortion; conflict; election; immigration; authoritarian