James, I am intrigued by the "whole ‘nother post", and would be glad to see your argument laid out fully to better understand what, I must confess, seens to me, at most, an american-constitution-only mode of interpretation - full disclosure, i'm a brazilian corporate lawyer who delves a lot into legal hermeneutics as a field of study, but my background is mostly on civil law theories of interpretation. That being said, please don't delay any further the next installment of Letters to a Growing Catholic, I love the other posts but those are the main reason I became a subscriber and eventually joined the paying list.
> That being said, please don't delay any further the next installment of Letters to a Growing Catholic, I love the other posts but those are the main reason I became a subscriber and eventually joined the paying list.
Well this sentence alone changes my plans for the next few weeks, because I thought LtaGC was basically a vanity project that tried everyone else's patience. I'll make a priority!
I am afraid you are right, though I wonder if a war over Taiwan happens first (which I think probably revolutionizes our politics enough to maybe reroute both the passions for hardball and the partisan hatred). Assuming we don't just surrender.
All those things could very much happen! (War in Taiwan, it massively changing our politics, and/or surrender.)
Still... I don't know. By the year 2000, we could all see the growing partisan hatred and the intensifying appetite for hardball. It was nowhere near what it became, but people were starting to openly worry about it. Then 9/11 happened, and that radically changed *everything*. American television programming lived in the shadow of 9/11 from 2001 all the way out to 2015, from 24 to the third season of Star Trek Enterprise at the start to Person of Interest and The Americans at the far end. In the first blush after 9/11, there really were no party divisions, and we thought, maybe, America was going to be united now.
Within two years, we were bitterly divided again, largely along the same lines, the old fissures had started to grow again, and hardball was harder than ever. (The filibuster of Miguel Estrada in 2003 was a massive escalation in the long-simmering judicial wars, for example.)
If 9/11 couldn't bend our course away from this path, would a war in Taiwan, even if everything went the right way? I can imagine it, but I can't be confident in it.
Sorry to be such a pessimist! Like I said in the post, though, God protects fools, little children, and the U.S. of A. I don't know how He might get us out of this one, but I'm not giving up on the possibility!
I don't know what the director INTENDED to say with the movie, but the message I got from it was:
1. War sucks. Civil war, doubly so.
2. Combat Journalists are utterly and completely insane.
It wasn't a movie about America at all. They just used some stock American background shots and geography terms because that's what the audience would be familiar with already. I actually sat and counted.... change ~20 words in the script, and you could easily set the entire movie anywhere else in the world.
And then when you look at what the Combat Journalists have to show for their efforts, in terms of actual photographs, versus everything they just lived through but AREN'T reporting, the answer just keeps coming back.... it wasn't worth it. It was never worth it. They were mercenary adrenaline junkies who thought they were far more important than they really were, and who missed the story for the trees. Any soldier with a helmet-mounted camera could have done what they did, with less interference in the story itself, and fewer double standards.
The reporters would have done better to become written print journalists, and just drop of one reporter at every major scene in the movie to write a story about THAT SCENE. That's the information the rest of the world really needed: highly detailed descriptions about how a broad cross-section of America was slowly falling apart. The President was nobody. A still from a soldier's helmet-camera of the dead president was all anybody needed about him.
Also, the decision for the reporters to be unarmed was utterly insane, and horribly irresponsible. It might have made sense as a policy 50 years ago, but when press gear stopped being unique and important, press pacifism became laughable. They were no different from any other tourists, and a tourist in that situation needed to be ARMED.
Seriously! There were moments when I was, like, "Are we SURE that snorting crack off a park bench ISN'T an option? Cuz it seems a lot saner than *gestures around at scene*."
"and suddenly society no longer knows who has the authority to make and enforce laws."
I could go into a very long rant about why this is why monarchy is a superior form of government, so to make it slightly less very long: the monarch. The monarch has the authority to make laws. The monarch has the authority to enforce laws. The monarch, for that matter, has the authority to then act as judge in the execution of those laws.
The monarch forgoes all of this because the people would, sooner or later, rise up in revolt against any monarch that actually tried to exercise any of these powers in any meaningful way and instead delegates it all to institutions with a greater or lesser degree of democratic legitimacy in order to remain on the throne... but it is still the monarch, without any doubt, without any question, whose authority is being exercised and everyone else only acts on the monarch's behalf and, technically, legally, at the monarch's pleasure. The monarch just always makes sure that his pleasure coincides with what the democratic institutions say.
If you want the roots of American legitimacy crises, as far as I'm concerned, you can look all the way back at 1776 when (for, I fully admit, perfectly good reasons! In 1834 William IV tried to foist a Tory Prime Minister, Robert Peel, upon the country in spite of the large Whig majority in the House of Commons, and was only forced to select the Whig Lord Melbourne some months after an election which saw the Whigs returned with a reduced majority! The passage of the Parliament Act 1911, which entrenched the supremacy of the democratic Commons over the undemocratic Lords, was in part due to George V, having just succeeded Edward VII and wanting an end to the deadlock over Liberal legislation, sticking his fingers onto the constitutional balance of the day to tilt it firmly in favour of the then-Liberal-led Commons by threatening Conservative peers with the appointment of hundreds of Liberal peers who would all pass the Act anyway! Elizabeth II quietly meddled in Scottish politics to secure an exemption for the monarch from a green energy bill in 2021!) a section of the residents of the American colonies declared that the link to the monarchy was severed, but with that so too were the local governments severed from the legal source of their legitimacy.
None of this is to say that the people are not the only true source of governmental legitimacy, but there is a value in severing the legal forms of legitimacy from the actual source of that legitimacy.
In theory, I like a very great deal about this model. I sympathize with much of what you say.
And it does perhaps say something for it that I am having a hard time coming up with a plausible legitimacy crisis in England or Canada. (Maybe something involving federalism, or an abuse of the notwithstanding clause? Must excite strong feelings *and* involve some legal ambiguity.)
Yet I hesitate to commit to it, because, in a true legitimacy crisis, I'm having a hard time seeing how can successfully resolve things, especially given the weakness in the modern monarchy. If, through some ridiculous chain of events, a provincial military or police unit ends up pointing its guns at the Mounties because the province doesn't recognize the legality of a new import tax, both sides will be acting in the name of the Crown. (I assume they would sincerely believe this, although even an insincere person would claim it, because the Crown lends legitimacy.)
What then? Does the Crown step in and say, "The locals got it right. The national government is misapplying the law. Thanks everyone." If it does, does the national government listen, or call it an unconstitutional interference in the operation of the law, disregard it, and disable or abolish the monarchy? Then you're right back where you started, except now one of the two sides of your civil war is associated with the monarch -- which, among other things, is real dangerous for the monarch!
So would this even work, in these days of a weak monarchy?
That's not a rhetorical question. You know so much more about the history of constitutional monarchy than I do, and perhaps you not only have a theory, but an example of the theory working.
The place where you should probably be looking for a legal legitimacy crisis is Australia, but that's also the one with which I'm least familiar of the three I'm about to analyse!
The key is that there can still be a legitimacy crisis. But the crisis is not one of disagreement about what the law truly is, but rather a population frustrated that what they see as the spirit of the law is being routinely violated, even if they concede that legally nothing is wrong.
To analyse the United Kingdom first, it is necessary to remember that for all of its devolved legislatures, it is still a unitary state. The Scottish, Welsh and Northern Irish Parliaments ultimately have only that authority which the Parliament of the United Kingdom sees fit to allow them to exercise, with each Parliament having differing levels of authority. (Scotland has the most, followed by Northern Ireland, and then Wales, with England having no separate assembly; for a time a system was in place requiring that a majority of MPs from England assent to laws affecting only England, but this only lasted from 2015 to 2021.) Some Scottish nationalists were infuriated that during the attempts to effect the withdrawal of the United Kingdom from the European Union, the Conservatives in Westminster decided that certain competencies that would be transferred to the UK from the EU after the withdrawal would be reserved in the national legislature, as said nationalists felt that the terms of devolution should have resulted in said competencies being instead assigned to the Scottish Parliament (and made even angrier because Scotland voted to remain in the EU!)--but legally there was no question that Westminster could reserve those areas to itself.
A legitimacy crisis could arise if the result of an election in some constituency were so close as to make it genuinely uncertain who had actually won, and this was relevant to the balance of power in Parliament, but two factors mitigate against this, the first being that if such a close election did occur with the result being unknowable due to procedural errors, a court can order a by-election, and the second being that if such an election in a single seat were truly sufficient to upset the balance in the Commons, that Commons is so closely contested that it is likely that a new general election would have to be called shortly thereafter anyway. (See, for instance, Israel's string of five elections from April 2019 to November 2022.) You may, of course, recognise this as being akin to what you note is an advantage of voting for electors over voting directly for President: questions about the result of the election are confined to local areas, while in most places the margin of victory is large enough to leave no doubt as to who won.
(This might at first glance seem like a weakness of proportional representation systems that do involve a vote tabulated nationwide, but with those a shift in the vote totals can change one or two seats at most, which leads to the second point of a legislature being so close that a new election is likely anyway. And it's not like this doesn't have a parallel in the US, it's just that it happens with census counts; as I recall some people noted that in the 2020 Census, minute shifts in the ascertained populations of New York and Minnesota could have seen New York retain its 27th seat in the federal House while Minnesota would have seen its 8th seat eliminated, and while I don't know if it ever went to court I know there were rumblings of New York suing the Census Bureau with the claim that the Bureau had undercounted the state's population.)
With Canada, meanwhile, for all that we claim to be federal, very, very technically Canada is unitary. The Constitution Act, 1867 contains a provision that, in effect, permits the federal Parliament to override ("disallow") any provincial legislation it wishes. (See section 90.) In practice, however, this was used primarily by the Conservatives pre-1896 to ensure that the provinces didn't overstep into federal jurisdiction. After the election of Wilfrid Laurier's Liberals, the use of disallowance faded as it was generally considered an undue intrusion on provincial sovereignty, though under Mackenzie King it was used to block a number of banking bills passed by the Social Credit government of Alberta, banking being assigned to the federal Parliament in the Constitution (s. 91(15)), with jurisdictional disputes instead being referred to the courts. (Sound familiar? The national legislature stops asserting what it thinks the Constitution means and leaves that to the courts instead, and now these days we have plenty of intergovernmental arguments about who gets jurisdiction over what with the courts trying to play referee.)
There actually is a brewing crisis over the legitimacy of a tax right now! In References re Greenhouse Gas Pollution Pricing Act (appealed from Saskatchewan and Ontario by those provinces, since their courts construed the law as constitutional, and appealed from Alberta by British Columbia, as an intervener in the Alberta reference, since Alberta's courts had found the law to be unconstitutional) the Supreme Court of Canada found that the law in question is constitutional (over some strong dissents from Justices Brown and Rowe). A little while ago, however, for what I personally think are purely electoral reasons, the Liberal government decided to temporarily exempt certain items from the tax but only in the Atlantic provinces, over protests from opposition parties to broaden the exemption. After that passed, Saskatchewan decided that it simply would refuse to levy the federal tax on the things that had been exempted in the Atlantic provinces. (One need only look at the fact that the Liberals have 24 of the 32 seats in the Atlantic provinces and none of the 14 seats in Saskatchewan to see why I think this was done for electoral reasons.) I admit, however, that I have not followed further proceedings in this matter.
An import tax would be less likely, I think, to spark such a crisis, since, if I'm reading the Constitution Act, 1867 correctly, points of entry into Canada are firmly a matter of federal jurisdiction. There was a dockworkers' strike in my city last summer and it was the federal Parliament, not the provincial legislature, which had the authority to enact back-to-work legislation if it saw fit.
As for the notwithstanding clause, that clause exists specifically to avoid crises of legal legitimacy and deadlock between the executive and judicial branches. Just as disallowance makes it clear that the federal Parliament gets the final say on what the laws are in Canada, the notwithstanding clause makes it clear that, on those matters which it covers, the legislature gets the final say over what laws the executive will enforce, not the judiciary. This can still create the alternate crisis that I mentioned above about the spirit of the law (certainly if the notwithstanding clause is being invoked and you happen to be among that group whose rights are being overridden you are, I think, quite right to think that the spirit of the Charter has been trampled! Pierre Trudeau desperately wanted to get rid of the clause having only accepted it to get most of the provinces to agree to the Constitution Act, 1982 in the first place), but it avoids the crisis about the actual letter.
There was talk, in the wake of Quebec's passage of its religious symbols law in 2019, preemptively invoking the notwithstanding clause to shield the legislation from judicial review (it was simply a blanket exemption from the entirety of what the clause covers and so there was some concern that it might lead to certain unintended consequences related to judicial proceedings over enforcement of the law), of the federal Parliament using disallowance, but the law is popular in Quebec and, likely for electoral reasons, the federal Liberals (who had won 40 of Quebec's 78 seats at the previous election and won 35 at the next two) decided not to intervene, which likely then led to Saskatchewan's decision to use the clause to shield a recent law it passed, though that province's approach has been to use it as a scalpel, declaring the law in question to operate notwithstanding only those provisions of the Charter upon which the courts had based preliminary injunctions. (The federal Liberals would have no electoral considerations restraining them in Saskatchewan itself, of course, as they have no seats in the province, but if they were to disallow the Saskatchewan law in question they would be met with howls of outraged protest from much of the rest of English Canada who were demanding that it be used against Quebec's law over the hypocrisy of only using it when the electoral consequences appeared minimal.)
In both Quebec and Saskatchewan, while there is certainly a good deal of sentiment that the laws have violated the spirit of the Charter, as a legal matter even the laws' staunchest opponents cannot deny that the use of the notwithstanding clause means that the laws will validly operate regardless of the contrary constitutional provisions, and thus the legitimacy crisis over the legality of the acts is averted.
I think the most interesting case, in this hypothetical, would be Australia, which to my knowledge doesn't have a disallowance provision like Canada's allowing the federal Parliament to block state laws, but I am also far less familiar with such things in the Australian context than the Canadian one.
One thing to keep in mind is that the Crown has a weird relationship with federalism, because the Crown is a unitary institution. In my province, Charles is not the King of British Columbia; he is the King in Right of British Columbia. This produces a number of legal oddities that I've never really fully teased out in my own looks into the subject. Given that these days we've decided to leave all these jurisdictional disputes to the courts (which, as I noted previously, exercise the monarch's judicial power on his behalf), in all likelihood the monarch would simply side with whatever the courts said about the matter. This is, I suspect, how it would play out in Australia, and likely how it has to play out, if there is as I suspect no explicit power of disallowance. (Though Australia's federal Parliament has other tools, like section 96.)
On another note entirely, do keep in mind that there were plenty of Southern whites who, whatever their misgivings about Lincoln's policies, accepted the legitimacy of his election and fought for the Union in the Civil War. When General Sherman marched through Georgia in 1864, the unit he chose as his personal escort was the 1st Alabama Cavalry, a unit made up almost entirely of white Southerners who had remained loyal to the Union.
(Substack wouldn't let me post this all in one comment.)
Yeah, Substack comments beat WordPress comments because at least the comments *work*, but they do leave some things to be desired. The threading is uncomfortable and the comment limit is much too short.
But at least it gives me the opportunity to Like your comment twice!
Thank you for some wonderful thinking about this. I did not get NEARLY as far as this (because I am not NEARLY as knowledgeable), but I did run into the same problem you did in trying to generate a true legitimacy crisis. Is this the Crown, though? The way you lay it out, it seems like the thing preventing the crisis is not the monarchy, but the universal acceptance of parliamentary supremacy. The legitimate answer to every disputed question, then, is "ask Parliament." Convenient!
A monarchy definitely *could* fill this role and be the place where all bucks ultimately stop. But, based on your description, it seems like Parliament is currently fulfilling this function. Technically, it's in the name of the crown, but, if you eliminated the Crown, don't all these disputes resolve the same way: in a decision by Parliament?
The U.S., with its notion of three co-equal branches of government, all balanced delicately against one another, has no clear supreme branch. Maybe that makes us less stable, inherently, thus more prone to civil war.
OTOH, I know I've said this before and I know you're sympathetic to it, but I'll repeat it anyway: I don't think any of the Commonwealth nations have reached America's level of partisan hatred and its willingness to play hardball with the rules. This puts a great deal of pressure on our institutions, and exposes weaknesses that we probably wouldn't see (much less worry about) in less divided times. *Perhaps* we might see similar stress points emerge in Canada or the U.K. if people started looking hard enough for them. (But I'm still having a hard time imagining one.)
Except that where does parliamentary supremacy derive from? The monarch.
The thing with a parliamentary monarchy especially is that so much of it is built on convention. Nothing actually compels a government to resign if it loses a confidence vote in the lower house! Governments do because otherwise the monarch would fire his ministers and invite the opposition to form a Cabinet (or even someone else in the government caucus, in days of yore; this is sort of how Churchill replaced Chamberlain in 1940, though there Chamberlain resigned because he did not win a confidence vote by nearly as wide a margin as he should have and Attlee's Labour and Sinclair's Liberals said that they were willing to serve in a national all-party coalition for the war but not under Chamberlain), or call an election if the opposition can't form a government either, and resigning is less embarrassing and shows that in exercising the executive power you still respect the supremacy of the legislature over the executive. And breaking these conventions carries only political sanctions, as noted by the Supreme Court of Canada in Reference re Secession of Quebec (1998) citing the earlier Re: Resolution to amend the Constitution (1981, as a consolidated appeal of multiple provincial references). I still find it crazy that after the Commons found the minority Conservative government to be in contempt of Parliament in 2011 (the first time that had ever happened in any Westminster Parliament ever) we promptly gave the Conservatives a majority. (This was because of vote-splitting in Ontario allowing the Conservatives to win a bunch of ridings that would ordinarily elect Liberal MPs, which was due in part to voters misreading polling, and I could go on but suffice it to say that if any election convinced me we need proportional representation it was that one. 1988 is a close second and I could rant about that, too.)
To the point of what happens if you eliminate the Crown, then you eliminate the legal source from which Parliament derives its supremacy, as I noted. The great advantage of a constitutional monarchy is that the monarch, at least in theory, is someone who has been trained literally since birth to know the rules and conventions that bind the role. (Which is much better now that most monarchies have shifted to absolute rather than agnatic or male-preference primogeniture; I think Spain is still a holdout in using male-preference primogeniture among the democratic monarchies, and the current King has only daughters, so a son could theoretically displace the Princess of Asturias, while he himself has two older sisters, though all were born before Franco died and Juan Carlos took the throne so by the time he was being trained to be monarch it was known that he would be.) You do run the risk of ending up with a crazy person on the throne (see the current King of the Commonwealth realms) or sometimes even worse (see Peter III of Russia for a historical example; of course, I cannot say what he would have done if operating within the strictures of a constitutional monarchy) but in most cases you can't have someone completely untrained to the office and with no suitable background of any description simply waltz in and become head of state just because enough people think he's less bad than the alternative.
(There are, of course, exceptions to this. Most notably Haakon VII of Norway, when he was still Prince Carl, second son of the Crown Prince of Denmark, refused to accept the offer of the throne of the newly independent Norway unless the Norwegian people voted in favour of having him as their monarch, which they did; later in his reign he refused to recognise the legitimacy of Vidkun Quisling's government and instead lived in exile in Great Britain during the Second World War. Juan Carlos I of Spain, after having been declared by Franco to be his successor, later democratically legitimised his reign after Franco's death by having a Constitution creating a parliamentary monarchy drafted and then submitted for the approval of the people in a referendum; in 1950 Belgium held a referendum over the question of Leopold III's return as monarch, which was approved, but public anger over his actions in purporting to surrender to Germany in 1940 against the advice of the government nonetheless forced his abdication in favour of his son Baudouin a year later.)
All that is to say that while, yes, Parliament does decide, as a legal matter it has that power to decide because the monarch, by convention, takes Parliament's advice. There's still a fine balance! It may perhaps be even finer in a parliamentary system, and more yet in a monarchy, because so much of it is rooted in convention rather than written law, but in a way, as I've argued elsewhere, this can make it more resilient because the strains become apparent sooner, and the forces causing them can be recognised and alleviated before they calcify and become part of business as usual.
I recall that you noted in your Civil War post from 2020 that if the military were to step in to resolve that election, on its own authority, then that would effectively be the end of civilian government in the United States because all such future disputes would ultimately be resolved by the military acting on its own authority. The experience of Latin America is certainly indicative of that. (To what extent this is due to US interference, in some cases ideologically motivated, requiescat in pace President Salvador Allende, and let's observe that the 2019 overthrow of President Evo Morales was possibly a dry run for what was attempted in 2020-2021 in the US, with the claims made to delegitimise the 2019 election bearing some similarities to those made to delegitimise 2020, is another matter.) The dirty secret of military coups, though, is that they are, all too often, popular when they occur. The precondition is often that there are matters of critical importance where there is general agreement that something must be done and even what specifically must be done, but the institutions of government are enabling those opposed to said measures to impede them despite not enjoying significant popular support. The ambitious military general, the army at his back, deposes the civilian government and promises two things: one, that he will do what needs to be done, and two, that once it's been done he will effect a transition back to civilian rule. The first is dubious at best and the second is all too often an outright lie, but at least at the onset of the coup it means that something will get done where previously nothing was getting done, and a lot of people will prefer, at least in the short term, a military dictatorship that gets something done to a civilian democracy in a constant state of gridlock. They don't support the termination of democratic rule because they want to give up democracy; they support the suspension of a civilian government which has proved completely ineffective, and are then almost invariably betrayed by the dictator. And so a system that bakes in gridlock is., I think, much more prone to those forces than one that does not.
Edited to add:
How could I forget about the succession of George I to the throne of the United Kingdom of Great Britain after Parliament passed the Act of Settlement to limit succession to the throne to the Protestant descendants of Sophia of Hanover, since as I recall the next 50 people in line after Anne were all Catholic? Arguably that's where a lot of the conventions of parliamentary democracy and responsible government started, because George I spent more time in Hanover than in the United Kingdom (so did George II) and left the day-to-day running of the kingdom in the hands of Robert Walpole. By the time George III took more of an interest in the affairs of the United Kingdom than of Hanover, the traditions of monarchical noninterference were sufficiently established that his contraventions of them were most, if not all, of the grievances listed in the United States Declaration of Independence (but the conventions weren't sufficiently well-established for the US to be able to simply import that form of government the way later independence movements would).
Second edit to add further:
Fun exercise! Go through the list of grievances in the Declaration of Independence and see how many of them could be applied verbatim or with only minor modification to the modern Presidency.
Here, I'll get started:
"He has refused his Assent to Laws, the most wholesome and necessary for the public good." -- What do you think the President does with the veto?
"He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people." -- Well the President isn't dissolving them but he sure likes to veto any attempts to override executive orders.
"For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies" -- Depending on your point of view this happened with Guantánamo.
These all seem right to me. But allow me, if you will, to change the question a little: suppose we had a parliamentary democracy somewhere that was *not* the product of a monarchy. Suppose, for example, that a thousand random people get John Carter'd (not Jon Carter'd) to Mars and are forced to form a new society. They all join in assembly and vote unanimously for an Act establishing a supreme Parliament. The act details elections, basic rules of order, credentialing, and so forth. They elect the Parliament without much trouble and get it up and running smoothly. (I am not a Lockean, so I don't think that all this is strictly necessary to establishing a legitimate government, but I do think that a government established this way is unquestionably legitimate.) There's no sovereign behind Parliament and never has been. There is only the Parliament and the principle of its supremacy.
In your view, would this be as stable as a Commonwealth government is today? Or would it lose something important by not having a monarch (even though it never had one to begin with)? You mention having someone at the top who knows all the norms and conventions is good -- but does it matter, at least to a young nation, and do monarchs practically speaking need to know the norms and conventions here in 2024?
I don't think you'll get much argument from the conservative movement as a whole about the sad ironies of the Declaration's grievance list. I've definitely read articles along these lines.
I haven't thought about the myth of Marbury in a while.
I just got back from the movie, and really liked it, but I'm an Alex Garland fan. I don't think "does it make sense" is really the right way to judge Garland's work. I read him as being more interested in visual art than narrative art. Thematically, he's interested in how reality is extremely overwhelmingly and immediately brutal (though sometimes also beautiful) in a way that we are shockingly oblivious to. Alien invasion, androids, quantum simulation, zombies, and even photojournalists are just a means to this end, a way of convincing us to briefly come to our senses and see the world for the nihilistic wasteland that it is.
He is a profoundly visual director. Dredd's slo-mo sequences were *very* striking, especially in the context of the rest of the relentlessly grim aesthetic of that movie.
Worked better for me there. But, hey, I'm glad you liked it! I found the viewing experience perfectly pleasant myself, and begrudge nobody some Garland-enjoying.
James, first of all thanks for taking the hit seeing “Civil War” so the ret of us don’t need to!
Masterful analysis of the cases of the (First) US Civil War, with the emphasis on legitimacy. Your article underscores the critical importance of having a legitimate government, able to resolve legal disputes. When legitimacy is gone, disorder, violence and in the worst case, civil war, result.
So when one candidate for President loses an election, tries to overturn the result, then spreads the falsehood that the election was ‘“stolen” and gets millions of people to believe him, that is a serious blow the the legitimacy of Constitutional government in the US. And that candidate runs again, that justifies voting for that candidate’s opponent, even if that opponent is otherwise unacceptable. Even if that candidate is old, of questionable competency, and (for us as pro-life Christians) favors abortion rights.
Because bad but legitimate government is better than no government.
Aha! I see what you're doing here! A resumption of our previous thread! :)
I continue to agree with you that Trump is exactly the person you describe here, and that voting for him is therefore not justifiable.
But it seems to me that you are still starting from the premise that good people can actively cooperate in extremely evil acts in order to bring about some other good. I don't agree. When we cast a vote for a candidate, helping him to take power, we become complicit in *all* his official acts -- the good ones *and the evil ones*. We should not do that, when the evil actions are tens of thousands of dead children, which we know full well are coming, and which the candidate actively brags about in his campaign messaging.
To take a page from Scripture: Pontius Pilate was justifiably afraid of the consequences of a rebellion in Judea. So, in order to placate the mob, Pilate eventually agreed to sacrifice one man's life to sate their bloodlust, protecting what he recognized as the legitimate government of the province at the time. I think that what Pilate did was a serious sin, and I do not think it matters that he publicly washed his hands of the blood he spilt. He should have done what I kept shouting at the Supreme Court to do in the Trump disqualification suits: "Fīat iūstitia ruat cælum!" Let justice be done, though the heavens fall! We should do the same thing as voters: do justice (by refusing complicity in evil) though the heavens fall. If everyone started doing that, we'd have a much better chance of survival.
To take an example from modern literature: in the book Sophie's Choice, Sophie is a prisoner in a concentration camp. A Nazi guard orders her to choose one of her children to be murdered by the guard. If she refuses to choose, the Nazi says he will kill both children and her. She chooses. The Nazi keeps his word. One of Sophie's children dies, but the experience destroys the lives of both Sophie and her surviving child. She made a mistake. In fact, she never had any real power in this situation. The Nazi always had all the power here. He could have coerced her to choose, then murdered both children anyway. He could have decided to let both live. Either way, Sophie never had any real power. The Nazi only gave her the illusion of power in order to deepen her torment (which he did). Sophie should have refused to choose. She should have said, "You should not do this, and you will be judged before the throne of Almighty God if you do it, but you will not make me complicit in my own child's murder." I understand why the illusion of choice consumed her in the moment -- that's what makes her story so tragic and sympathetic -- but the only winning move here was not to play.
This is a Sophie's Choice election. The only winning move is not to play. You have the illusion of power here, but, by exercising it, the only effect you are likely to have is harming yourself. If you are very, very unlucky and your vote actually matters, the only thing you will have accomplished is choosing the form of the destructor (like the Ghostbusters) (Joe Biden does resemble the Stay Puff'd Marshmallow Man). So I still think you are better off refraining from voting.
But I'm sure we will continue going back and forth on this all the way to election day. I welcome that!
“But it seems to me that you are still starting from the premise that good people can actively cooperate in extremely evil acts in order to bring about some other good”
Nothing could be farther from the truth. What you describe is “formal cooperation with evil” which would apply if, say, I had voted for Ohio’s abortion-rights Issue 1 last November. (Not only did I vote against it but I knocked on something like 500 doors to get out the “No” vote, which failed).
But voting for a politician who favors an evil policy like abortion is only "remote cooperation with evil," at most — provided the voter does so for a reason other than supporting the evil policy.
That’s not just my opinion. An eminent theologian you might have heard of, one Joseph Ratzinger, wrote this:
““A Catholic would be guilty of formal cooperation in evil, and so unworthy to present himself for Holy Communion, if he were to deliberately vote for a candidate precisely because of the candidate’s permissive stand on abortion and/or euthanasia. When a Catholic does not share a candidate’s stand in favor of abortion and/or euthanasia but votes for that candidate for other reasons, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons.”
So I stand by my position that voting for Joe Biden, not for his pro-abortion policy, but to defend the Constitution (that is, for legitimate government) is morally defensible.
And given the gravity of the need for legitimate government, I would argue every Catholic, every American, has the duty to at least consider such a vote. That is necessary because of the implicit obligation of every American citizen (made explicit by the loyalty oaths taken by naturalized citizens, military service members and government officials and workers at every level) to defend the Constitution -- again, legitimate government.
No doubt we will continue this discussion. Cheers!
Well, I am very relieved to hear that you were not holding the silly position I thought you were holding! That complicates my reply, but it's good news on the whole! I am also always happy to have +Ratzinger's Worthiness to Receive Communion guidelines cited here! He's a brilliant mind, and it carries weight based on that alone.
On the other hand, I think the reason I didn't cite this document in "Chris Christie May No Longer Receive Communion" <https://www.jamesjheaney.com/2016/02/04/chris-christie-may-no-longer-receive-communion/> is because it is (as Catholic.com notes) a confidential document written by an advanced theologian to another advanced theologian (+McCarrick, who of course used his knowledge for evil, in the abortion arena as in many others). The document is *correct*, but lacks both public magisterial authority and the nuances and caveats that you would expect in a document written for a general lay audience. The footnote is an odd aside, and it's not surprising that it is sometimes misinterpreted.
For example, you say that voting for Biden without explicitly supporting his abortion policies is "at most" remote material cooperation. I disagree. It is *at least* remote material cooperation. Ratzinger does not mince words about that: when you vote for a pro-abort, you are materially cooperating with abortion. Labels like "proximate" and "remote" do not denote separate categories; rather, they represent different points on a sliding spectrum of material cooperation. Because of our material cooperation, *we are complicit* in the evils we foresee as a result of our vote. I stand by what I said about complicity. If any presidential candidate I've ever voted for had actually won (sigh), I would have been complicit in the evil acts he committed in office, especially the evils he promised to commit on the campaign trail, especially the ones that were at the top of his platform.
In the case of George W. Bush (the last winning President I would have voted for, if I'd been old enough), I would have been especially complicit in the manifold failures of the Iraq and Afghanistan Wars and the neoconservative beliefs I shared with Bush <https://www.youtube.com/watch?v=I9YCNqtQLSo> as well as the evils of standardized testing, which aren't super-evil but are probably the most evil thing on Dubya's campaign priorities list <https://web.archive.org/web/20041102035616/http://www.georgewbush.com/Agenda/> . If I voted for Joe Biden, I would be especially complicit in *his* biggest campaign priorities... namely mass-murdering innocent children across the nation, even against the will of the states that recognize their human rights. <https://www.youtube.com/watch?v=GgtPkQtEb_k>
No matter how you slice it, these are not the same. Post-Roe, voting for Biden involves complicity in evils much more serious, and much more direct, than anything we've ever faced before, even from the Democratic camp.
Now, as Ratzinger correctly points out, complicity in serious evil CAN be permitted under certain circumstances. You're right about that. As he says, we can be complicit in a foreseen (but undesired) serious evil in order to achieve a proportionately great good.
However, as we delve into other Catholic teaching on cooperation with evil (which Ratzinger omitted from this document, because McCarrick didn't need a refresher on it) we find that there are some pretty important limits on this. The good to be achieved must indeed be proportionate. We must be very confident in the good to be achieved -- at least as confident as we are in the evil to be avoided. Finally, the less remote our cooperation, the greater the proportionate good must be to be justified. At the extreme end of the spectrum, *immediate* material cooperation, there is *no* proportionate good that justifies cooperation, and cooperation is absolutely excluded. (Even if an abortionist is holding a gun to your head ordering you to man the ultrasound machine during the abortion, you must refuse, even if you have six kids at home, and even if they'll replace you with somebody else anyway.) Voting is considerably more remote than that, but still proximate enough that the justification needs to be pretty strong.
It is important to remember, too, the sort of elections Ratzinger was almost certainly thinking about: European parliamentary elections in countries where there were no anti-abortion parties at all (so all votes involved roughly equal complicity in this vast evil), and certainly no electoral college. With this in mind, we can ask: does a vote for Biden satisfy these rather exacting moral standards? Can we justify complicity in Biden's bloodthirsty approach to the unborn based on the proportionate good of constitutional government?
I don't think so. First, because most of our votes don't matter most of the time. (Given the moral weight of presidential voting, I am very grateful for this.) If Biden is ahead by 10 points on Election Day, either nationally or in a particular state, nothing we personally do is going to help him win or lose. We will be making ourselves complicit in his evil acts for *absolutely no reason*. Likewise if he is losing by a wide margin. Only in swing states is there even a shadow of a justification for voting for one of the two evil major candidates, and really only the probable tipping-point states: Michigan, Pennsylvania, Wisconsin, Arizona, mayyyyyyybe Minnesota if you squint. If you don't live in one of those states, then discussion over: there's no proportionate reason to dirty your hands with a vote for a bad guy if your vote has no actual effect *other than* making your hands dirty.
Second, because many of the evils Biden will accomplish on his abortion agenda are pretty much certainties, and many others are very likely. The future evils Trump will do against "legitimate government," on the other hand, seem less likely and less clear. You could even make the case that Trump is MORE likely to attack our democracy if he LOSES than if he wins, so the better consequentialist outcome would be for Trump to win, so he can be gently term-limited out of U.S. presidential politics after '28. Meanwhile, Biden *himself* is no constitutional paragon, and routinely violates it for fun and political profit. Either way, if the proportionate good you are trying to avoid is "avoiding civil war and protecting the Constitution," it seems impossible to be completely confident that a vote for Biden would actually obtain that good better than a vote for Trump would -- but it *would* almost certainly obtain a lotta dead kids.
Third, because, even if we WERE confident that a vote for Biden would save democracy, it is not obvious that an attack on legitimate government would actually be worse than our current abortion regime. Abortion is a slavery-level evil. With the 20/20 hindsight of history, we can see that it was actually well worth fighting a civil war to end slavery. That outcome was a little bit miraculous, and I would never *willingly* roll the dice on it again. But my point is that there are lots of ways a Trump-provoked legitimacy crisis could end. Many of them don't even involve civil war, such as quick defeat and arrest, or peaceful national divorce. On the other hand, there is really only one way the Biden Administration's aggressive and illegal distribution of abortion pills can end: lots of child murder. I think Americans should be way more terrified of the possibility of civil war, and I think they should work much harder to avoid it, but not to the point of actually helping the child-killers kill the children. Not even as an indirect consequence.
For these reasons, you can't just go, "If Biden wins, a million babies die in abortions, but, if Trump wins, thirty million people die in civil war, so Biden is the lesser evil." It's a lot fuzzier than that, and fuzziness makes complicity *very hard* to justify.
Fourth and finally, I think you should be skeptical of your own argument because it is open to a pretty straightforward attack that I have not made here (because I don't agree with it): a pro-life Trump supporter could take all your points, flip them around, and conclude that "every Catholic, every American, has the duty to at least consider" a vote for Trump. After all, the implicit obligation of every American to the Constitution is real, but the Constitution (however great) is mere human law. Our obligation to the natural law, the law of conscience written on the hearts of every human, is higher than our obligation to *any* human law that dares to directly contravene it. As Chuck suggested in his reply, *no Oath whatsoever* can supersede the *divinely-imposed* obligation to defend innocent life. If "every Catholic, every American, has the duty to at least consider" a vote for Biden in order to stop Trump's attack on the Constitution, then every Catholic, every American has at least an equal duty to at least consider a vote for Trump in order to stop Biden's attack on our God-given right to life. Either way, though, you violate a binding obligation, whether to the Constitution or to your unborn fellow-Americans.
I say no. There's a really easy way to follow ALL our binding obligations in this election: don't vote for president. I'm glad you recognize that making Sophie's Choice is inexcusable, but remote material cooperation with Sophie's Choice is not all that much better. No matter what choice America makes in this, the worst election in U.S. history, America is on a collision course with catastrophe. There are too many uncertainties to clearly predict which one will be worse. (I think the evidence tilts against Biden here, but I have nothing like the certainty I would need to cast an anti-Biden vote for Trump.) Therefore, the least bad thing we can do right now is nothing. When the catastrophe arrives, it is going to need some people with clean hands to come in and help fix things up. Better to be one of them than to throw an almost-certainly useless vote at a bad guy.
Probably still haven't changed your view on this, but, iron sharpens iron! I appreciate going another round on this.
"If any presidential candidate I've ever voted for had actually won (sigh), I would have been complicit in the evil acts he committed in office, especially the evils he promised to commit on the campaign trail, especially the ones that were at the top of his platform." -- In 2016, Trump won without my state's electoral votes, despite my vote for him to win. In that scenario, was I morally on the hook for things Trump did?
In my opinion, yes. If you point a gun at somebody's head and pull the trigger, you're still responsible for the result because you willed it, even if he happens to be killed by a freak aneurysm at the same instant you pull the trigger. But, this is one of those things moral philosophers agonize over at incredible length.
To be fair, though, Trump ended up not doing any of the most evil things he promised to do (we did not actually murder the families of suspected terrorists, we did not start torturing prisoners, and he did not put his pro-abort sister on SCOTUS). Meanwhile, some of the most evil things he did end up doing (attempted coup) were not part of his original campaign platform (although they were arguably foreseeable). It seems tricky to say that you've remotely materially cooperated in an evil that never actually happened.
James, I am intrigued by the "whole ‘nother post", and would be glad to see your argument laid out fully to better understand what, I must confess, seens to me, at most, an american-constitution-only mode of interpretation - full disclosure, i'm a brazilian corporate lawyer who delves a lot into legal hermeneutics as a field of study, but my background is mostly on civil law theories of interpretation. That being said, please don't delay any further the next installment of Letters to a Growing Catholic, I love the other posts but those are the main reason I became a subscriber and eventually joined the paying list.
> That being said, please don't delay any further the next installment of Letters to a Growing Catholic, I love the other posts but those are the main reason I became a subscriber and eventually joined the paying list.
Well this sentence alone changes my plans for the next few weeks, because I thought LtaGC was basically a vanity project that tried everyone else's patience. I'll make a priority!
I am afraid you are right, though I wonder if a war over Taiwan happens first (which I think probably revolutionizes our politics enough to maybe reroute both the passions for hardball and the partisan hatred). Assuming we don't just surrender.
All those things could very much happen! (War in Taiwan, it massively changing our politics, and/or surrender.)
Still... I don't know. By the year 2000, we could all see the growing partisan hatred and the intensifying appetite for hardball. It was nowhere near what it became, but people were starting to openly worry about it. Then 9/11 happened, and that radically changed *everything*. American television programming lived in the shadow of 9/11 from 2001 all the way out to 2015, from 24 to the third season of Star Trek Enterprise at the start to Person of Interest and The Americans at the far end. In the first blush after 9/11, there really were no party divisions, and we thought, maybe, America was going to be united now.
Within two years, we were bitterly divided again, largely along the same lines, the old fissures had started to grow again, and hardball was harder than ever. (The filibuster of Miguel Estrada in 2003 was a massive escalation in the long-simmering judicial wars, for example.)
If 9/11 couldn't bend our course away from this path, would a war in Taiwan, even if everything went the right way? I can imagine it, but I can't be confident in it.
Sorry to be such a pessimist! Like I said in the post, though, God protects fools, little children, and the U.S. of A. I don't know how He might get us out of this one, but I'm not giving up on the possibility!
I don't know what the director INTENDED to say with the movie, but the message I got from it was:
1. War sucks. Civil war, doubly so.
2. Combat Journalists are utterly and completely insane.
It wasn't a movie about America at all. They just used some stock American background shots and geography terms because that's what the audience would be familiar with already. I actually sat and counted.... change ~20 words in the script, and you could easily set the entire movie anywhere else in the world.
And then when you look at what the Combat Journalists have to show for their efforts, in terms of actual photographs, versus everything they just lived through but AREN'T reporting, the answer just keeps coming back.... it wasn't worth it. It was never worth it. They were mercenary adrenaline junkies who thought they were far more important than they really were, and who missed the story for the trees. Any soldier with a helmet-mounted camera could have done what they did, with less interference in the story itself, and fewer double standards.
The reporters would have done better to become written print journalists, and just drop of one reporter at every major scene in the movie to write a story about THAT SCENE. That's the information the rest of the world really needed: highly detailed descriptions about how a broad cross-section of America was slowly falling apart. The President was nobody. A still from a soldier's helmet-camera of the dead president was all anybody needed about him.
Also, the decision for the reporters to be unarmed was utterly insane, and horribly irresponsible. It might have made sense as a policy 50 years ago, but when press gear stopped being unique and important, press pacifism became laughable. They were no different from any other tourists, and a tourist in that situation needed to be ARMED.
Seriously! There were moments when I was, like, "Are we SURE that snorting crack off a park bench ISN'T an option? Cuz it seems a lot saner than *gestures around at scene*."
"and suddenly society no longer knows who has the authority to make and enforce laws."
I could go into a very long rant about why this is why monarchy is a superior form of government, so to make it slightly less very long: the monarch. The monarch has the authority to make laws. The monarch has the authority to enforce laws. The monarch, for that matter, has the authority to then act as judge in the execution of those laws.
The monarch forgoes all of this because the people would, sooner or later, rise up in revolt against any monarch that actually tried to exercise any of these powers in any meaningful way and instead delegates it all to institutions with a greater or lesser degree of democratic legitimacy in order to remain on the throne... but it is still the monarch, without any doubt, without any question, whose authority is being exercised and everyone else only acts on the monarch's behalf and, technically, legally, at the monarch's pleasure. The monarch just always makes sure that his pleasure coincides with what the democratic institutions say.
If you want the roots of American legitimacy crises, as far as I'm concerned, you can look all the way back at 1776 when (for, I fully admit, perfectly good reasons! In 1834 William IV tried to foist a Tory Prime Minister, Robert Peel, upon the country in spite of the large Whig majority in the House of Commons, and was only forced to select the Whig Lord Melbourne some months after an election which saw the Whigs returned with a reduced majority! The passage of the Parliament Act 1911, which entrenched the supremacy of the democratic Commons over the undemocratic Lords, was in part due to George V, having just succeeded Edward VII and wanting an end to the deadlock over Liberal legislation, sticking his fingers onto the constitutional balance of the day to tilt it firmly in favour of the then-Liberal-led Commons by threatening Conservative peers with the appointment of hundreds of Liberal peers who would all pass the Act anyway! Elizabeth II quietly meddled in Scottish politics to secure an exemption for the monarch from a green energy bill in 2021!) a section of the residents of the American colonies declared that the link to the monarchy was severed, but with that so too were the local governments severed from the legal source of their legitimacy.
None of this is to say that the people are not the only true source of governmental legitimacy, but there is a value in severing the legal forms of legitimacy from the actual source of that legitimacy.
In theory, I like a very great deal about this model. I sympathize with much of what you say.
And it does perhaps say something for it that I am having a hard time coming up with a plausible legitimacy crisis in England or Canada. (Maybe something involving federalism, or an abuse of the notwithstanding clause? Must excite strong feelings *and* involve some legal ambiguity.)
Yet I hesitate to commit to it, because, in a true legitimacy crisis, I'm having a hard time seeing how can successfully resolve things, especially given the weakness in the modern monarchy. If, through some ridiculous chain of events, a provincial military or police unit ends up pointing its guns at the Mounties because the province doesn't recognize the legality of a new import tax, both sides will be acting in the name of the Crown. (I assume they would sincerely believe this, although even an insincere person would claim it, because the Crown lends legitimacy.)
What then? Does the Crown step in and say, "The locals got it right. The national government is misapplying the law. Thanks everyone." If it does, does the national government listen, or call it an unconstitutional interference in the operation of the law, disregard it, and disable or abolish the monarchy? Then you're right back where you started, except now one of the two sides of your civil war is associated with the monarch -- which, among other things, is real dangerous for the monarch!
So would this even work, in these days of a weak monarchy?
That's not a rhetorical question. You know so much more about the history of constitutional monarchy than I do, and perhaps you not only have a theory, but an example of the theory working.
The place where you should probably be looking for a legal legitimacy crisis is Australia, but that's also the one with which I'm least familiar of the three I'm about to analyse!
The key is that there can still be a legitimacy crisis. But the crisis is not one of disagreement about what the law truly is, but rather a population frustrated that what they see as the spirit of the law is being routinely violated, even if they concede that legally nothing is wrong.
To analyse the United Kingdom first, it is necessary to remember that for all of its devolved legislatures, it is still a unitary state. The Scottish, Welsh and Northern Irish Parliaments ultimately have only that authority which the Parliament of the United Kingdom sees fit to allow them to exercise, with each Parliament having differing levels of authority. (Scotland has the most, followed by Northern Ireland, and then Wales, with England having no separate assembly; for a time a system was in place requiring that a majority of MPs from England assent to laws affecting only England, but this only lasted from 2015 to 2021.) Some Scottish nationalists were infuriated that during the attempts to effect the withdrawal of the United Kingdom from the European Union, the Conservatives in Westminster decided that certain competencies that would be transferred to the UK from the EU after the withdrawal would be reserved in the national legislature, as said nationalists felt that the terms of devolution should have resulted in said competencies being instead assigned to the Scottish Parliament (and made even angrier because Scotland voted to remain in the EU!)--but legally there was no question that Westminster could reserve those areas to itself.
A legitimacy crisis could arise if the result of an election in some constituency were so close as to make it genuinely uncertain who had actually won, and this was relevant to the balance of power in Parliament, but two factors mitigate against this, the first being that if such a close election did occur with the result being unknowable due to procedural errors, a court can order a by-election, and the second being that if such an election in a single seat were truly sufficient to upset the balance in the Commons, that Commons is so closely contested that it is likely that a new general election would have to be called shortly thereafter anyway. (See, for instance, Israel's string of five elections from April 2019 to November 2022.) You may, of course, recognise this as being akin to what you note is an advantage of voting for electors over voting directly for President: questions about the result of the election are confined to local areas, while in most places the margin of victory is large enough to leave no doubt as to who won.
(This might at first glance seem like a weakness of proportional representation systems that do involve a vote tabulated nationwide, but with those a shift in the vote totals can change one or two seats at most, which leads to the second point of a legislature being so close that a new election is likely anyway. And it's not like this doesn't have a parallel in the US, it's just that it happens with census counts; as I recall some people noted that in the 2020 Census, minute shifts in the ascertained populations of New York and Minnesota could have seen New York retain its 27th seat in the federal House while Minnesota would have seen its 8th seat eliminated, and while I don't know if it ever went to court I know there were rumblings of New York suing the Census Bureau with the claim that the Bureau had undercounted the state's population.)
With Canada, meanwhile, for all that we claim to be federal, very, very technically Canada is unitary. The Constitution Act, 1867 contains a provision that, in effect, permits the federal Parliament to override ("disallow") any provincial legislation it wishes. (See section 90.) In practice, however, this was used primarily by the Conservatives pre-1896 to ensure that the provinces didn't overstep into federal jurisdiction. After the election of Wilfrid Laurier's Liberals, the use of disallowance faded as it was generally considered an undue intrusion on provincial sovereignty, though under Mackenzie King it was used to block a number of banking bills passed by the Social Credit government of Alberta, banking being assigned to the federal Parliament in the Constitution (s. 91(15)), with jurisdictional disputes instead being referred to the courts. (Sound familiar? The national legislature stops asserting what it thinks the Constitution means and leaves that to the courts instead, and now these days we have plenty of intergovernmental arguments about who gets jurisdiction over what with the courts trying to play referee.)
There actually is a brewing crisis over the legitimacy of a tax right now! In References re Greenhouse Gas Pollution Pricing Act (appealed from Saskatchewan and Ontario by those provinces, since their courts construed the law as constitutional, and appealed from Alberta by British Columbia, as an intervener in the Alberta reference, since Alberta's courts had found the law to be unconstitutional) the Supreme Court of Canada found that the law in question is constitutional (over some strong dissents from Justices Brown and Rowe). A little while ago, however, for what I personally think are purely electoral reasons, the Liberal government decided to temporarily exempt certain items from the tax but only in the Atlantic provinces, over protests from opposition parties to broaden the exemption. After that passed, Saskatchewan decided that it simply would refuse to levy the federal tax on the things that had been exempted in the Atlantic provinces. (One need only look at the fact that the Liberals have 24 of the 32 seats in the Atlantic provinces and none of the 14 seats in Saskatchewan to see why I think this was done for electoral reasons.) I admit, however, that I have not followed further proceedings in this matter.
An import tax would be less likely, I think, to spark such a crisis, since, if I'm reading the Constitution Act, 1867 correctly, points of entry into Canada are firmly a matter of federal jurisdiction. There was a dockworkers' strike in my city last summer and it was the federal Parliament, not the provincial legislature, which had the authority to enact back-to-work legislation if it saw fit.
As for the notwithstanding clause, that clause exists specifically to avoid crises of legal legitimacy and deadlock between the executive and judicial branches. Just as disallowance makes it clear that the federal Parliament gets the final say on what the laws are in Canada, the notwithstanding clause makes it clear that, on those matters which it covers, the legislature gets the final say over what laws the executive will enforce, not the judiciary. This can still create the alternate crisis that I mentioned above about the spirit of the law (certainly if the notwithstanding clause is being invoked and you happen to be among that group whose rights are being overridden you are, I think, quite right to think that the spirit of the Charter has been trampled! Pierre Trudeau desperately wanted to get rid of the clause having only accepted it to get most of the provinces to agree to the Constitution Act, 1982 in the first place), but it avoids the crisis about the actual letter.
There was talk, in the wake of Quebec's passage of its religious symbols law in 2019, preemptively invoking the notwithstanding clause to shield the legislation from judicial review (it was simply a blanket exemption from the entirety of what the clause covers and so there was some concern that it might lead to certain unintended consequences related to judicial proceedings over enforcement of the law), of the federal Parliament using disallowance, but the law is popular in Quebec and, likely for electoral reasons, the federal Liberals (who had won 40 of Quebec's 78 seats at the previous election and won 35 at the next two) decided not to intervene, which likely then led to Saskatchewan's decision to use the clause to shield a recent law it passed, though that province's approach has been to use it as a scalpel, declaring the law in question to operate notwithstanding only those provisions of the Charter upon which the courts had based preliminary injunctions. (The federal Liberals would have no electoral considerations restraining them in Saskatchewan itself, of course, as they have no seats in the province, but if they were to disallow the Saskatchewan law in question they would be met with howls of outraged protest from much of the rest of English Canada who were demanding that it be used against Quebec's law over the hypocrisy of only using it when the electoral consequences appeared minimal.)
In both Quebec and Saskatchewan, while there is certainly a good deal of sentiment that the laws have violated the spirit of the Charter, as a legal matter even the laws' staunchest opponents cannot deny that the use of the notwithstanding clause means that the laws will validly operate regardless of the contrary constitutional provisions, and thus the legitimacy crisis over the legality of the acts is averted.
I think the most interesting case, in this hypothetical, would be Australia, which to my knowledge doesn't have a disallowance provision like Canada's allowing the federal Parliament to block state laws, but I am also far less familiar with such things in the Australian context than the Canadian one.
One thing to keep in mind is that the Crown has a weird relationship with federalism, because the Crown is a unitary institution. In my province, Charles is not the King of British Columbia; he is the King in Right of British Columbia. This produces a number of legal oddities that I've never really fully teased out in my own looks into the subject. Given that these days we've decided to leave all these jurisdictional disputes to the courts (which, as I noted previously, exercise the monarch's judicial power on his behalf), in all likelihood the monarch would simply side with whatever the courts said about the matter. This is, I suspect, how it would play out in Australia, and likely how it has to play out, if there is as I suspect no explicit power of disallowance. (Though Australia's federal Parliament has other tools, like section 96.)
On another note entirely, do keep in mind that there were plenty of Southern whites who, whatever their misgivings about Lincoln's policies, accepted the legitimacy of his election and fought for the Union in the Civil War. When General Sherman marched through Georgia in 1864, the unit he chose as his personal escort was the 1st Alabama Cavalry, a unit made up almost entirely of white Southerners who had remained loyal to the Union.
(Substack wouldn't let me post this all in one comment.)
Yeah, Substack comments beat WordPress comments because at least the comments *work*, but they do leave some things to be desired. The threading is uncomfortable and the comment limit is much too short.
But at least it gives me the opportunity to Like your comment twice!
Thank you for some wonderful thinking about this. I did not get NEARLY as far as this (because I am not NEARLY as knowledgeable), but I did run into the same problem you did in trying to generate a true legitimacy crisis. Is this the Crown, though? The way you lay it out, it seems like the thing preventing the crisis is not the monarchy, but the universal acceptance of parliamentary supremacy. The legitimate answer to every disputed question, then, is "ask Parliament." Convenient!
A monarchy definitely *could* fill this role and be the place where all bucks ultimately stop. But, based on your description, it seems like Parliament is currently fulfilling this function. Technically, it's in the name of the crown, but, if you eliminated the Crown, don't all these disputes resolve the same way: in a decision by Parliament?
The U.S., with its notion of three co-equal branches of government, all balanced delicately against one another, has no clear supreme branch. Maybe that makes us less stable, inherently, thus more prone to civil war.
OTOH, I know I've said this before and I know you're sympathetic to it, but I'll repeat it anyway: I don't think any of the Commonwealth nations have reached America's level of partisan hatred and its willingness to play hardball with the rules. This puts a great deal of pressure on our institutions, and exposes weaknesses that we probably wouldn't see (much less worry about) in less divided times. *Perhaps* we might see similar stress points emerge in Canada or the U.K. if people started looking hard enough for them. (But I'm still having a hard time imagining one.)
Except that where does parliamentary supremacy derive from? The monarch.
The thing with a parliamentary monarchy especially is that so much of it is built on convention. Nothing actually compels a government to resign if it loses a confidence vote in the lower house! Governments do because otherwise the monarch would fire his ministers and invite the opposition to form a Cabinet (or even someone else in the government caucus, in days of yore; this is sort of how Churchill replaced Chamberlain in 1940, though there Chamberlain resigned because he did not win a confidence vote by nearly as wide a margin as he should have and Attlee's Labour and Sinclair's Liberals said that they were willing to serve in a national all-party coalition for the war but not under Chamberlain), or call an election if the opposition can't form a government either, and resigning is less embarrassing and shows that in exercising the executive power you still respect the supremacy of the legislature over the executive. And breaking these conventions carries only political sanctions, as noted by the Supreme Court of Canada in Reference re Secession of Quebec (1998) citing the earlier Re: Resolution to amend the Constitution (1981, as a consolidated appeal of multiple provincial references). I still find it crazy that after the Commons found the minority Conservative government to be in contempt of Parliament in 2011 (the first time that had ever happened in any Westminster Parliament ever) we promptly gave the Conservatives a majority. (This was because of vote-splitting in Ontario allowing the Conservatives to win a bunch of ridings that would ordinarily elect Liberal MPs, which was due in part to voters misreading polling, and I could go on but suffice it to say that if any election convinced me we need proportional representation it was that one. 1988 is a close second and I could rant about that, too.)
To the point of what happens if you eliminate the Crown, then you eliminate the legal source from which Parliament derives its supremacy, as I noted. The great advantage of a constitutional monarchy is that the monarch, at least in theory, is someone who has been trained literally since birth to know the rules and conventions that bind the role. (Which is much better now that most monarchies have shifted to absolute rather than agnatic or male-preference primogeniture; I think Spain is still a holdout in using male-preference primogeniture among the democratic monarchies, and the current King has only daughters, so a son could theoretically displace the Princess of Asturias, while he himself has two older sisters, though all were born before Franco died and Juan Carlos took the throne so by the time he was being trained to be monarch it was known that he would be.) You do run the risk of ending up with a crazy person on the throne (see the current King of the Commonwealth realms) or sometimes even worse (see Peter III of Russia for a historical example; of course, I cannot say what he would have done if operating within the strictures of a constitutional monarchy) but in most cases you can't have someone completely untrained to the office and with no suitable background of any description simply waltz in and become head of state just because enough people think he's less bad than the alternative.
(There are, of course, exceptions to this. Most notably Haakon VII of Norway, when he was still Prince Carl, second son of the Crown Prince of Denmark, refused to accept the offer of the throne of the newly independent Norway unless the Norwegian people voted in favour of having him as their monarch, which they did; later in his reign he refused to recognise the legitimacy of Vidkun Quisling's government and instead lived in exile in Great Britain during the Second World War. Juan Carlos I of Spain, after having been declared by Franco to be his successor, later democratically legitimised his reign after Franco's death by having a Constitution creating a parliamentary monarchy drafted and then submitted for the approval of the people in a referendum; in 1950 Belgium held a referendum over the question of Leopold III's return as monarch, which was approved, but public anger over his actions in purporting to surrender to Germany in 1940 against the advice of the government nonetheless forced his abdication in favour of his son Baudouin a year later.)
All that is to say that while, yes, Parliament does decide, as a legal matter it has that power to decide because the monarch, by convention, takes Parliament's advice. There's still a fine balance! It may perhaps be even finer in a parliamentary system, and more yet in a monarchy, because so much of it is rooted in convention rather than written law, but in a way, as I've argued elsewhere, this can make it more resilient because the strains become apparent sooner, and the forces causing them can be recognised and alleviated before they calcify and become part of business as usual.
I recall that you noted in your Civil War post from 2020 that if the military were to step in to resolve that election, on its own authority, then that would effectively be the end of civilian government in the United States because all such future disputes would ultimately be resolved by the military acting on its own authority. The experience of Latin America is certainly indicative of that. (To what extent this is due to US interference, in some cases ideologically motivated, requiescat in pace President Salvador Allende, and let's observe that the 2019 overthrow of President Evo Morales was possibly a dry run for what was attempted in 2020-2021 in the US, with the claims made to delegitimise the 2019 election bearing some similarities to those made to delegitimise 2020, is another matter.) The dirty secret of military coups, though, is that they are, all too often, popular when they occur. The precondition is often that there are matters of critical importance where there is general agreement that something must be done and even what specifically must be done, but the institutions of government are enabling those opposed to said measures to impede them despite not enjoying significant popular support. The ambitious military general, the army at his back, deposes the civilian government and promises two things: one, that he will do what needs to be done, and two, that once it's been done he will effect a transition back to civilian rule. The first is dubious at best and the second is all too often an outright lie, but at least at the onset of the coup it means that something will get done where previously nothing was getting done, and a lot of people will prefer, at least in the short term, a military dictatorship that gets something done to a civilian democracy in a constant state of gridlock. They don't support the termination of democratic rule because they want to give up democracy; they support the suspension of a civilian government which has proved completely ineffective, and are then almost invariably betrayed by the dictator. And so a system that bakes in gridlock is., I think, much more prone to those forces than one that does not.
Edited to add:
How could I forget about the succession of George I to the throne of the United Kingdom of Great Britain after Parliament passed the Act of Settlement to limit succession to the throne to the Protestant descendants of Sophia of Hanover, since as I recall the next 50 people in line after Anne were all Catholic? Arguably that's where a lot of the conventions of parliamentary democracy and responsible government started, because George I spent more time in Hanover than in the United Kingdom (so did George II) and left the day-to-day running of the kingdom in the hands of Robert Walpole. By the time George III took more of an interest in the affairs of the United Kingdom than of Hanover, the traditions of monarchical noninterference were sufficiently established that his contraventions of them were most, if not all, of the grievances listed in the United States Declaration of Independence (but the conventions weren't sufficiently well-established for the US to be able to simply import that form of government the way later independence movements would).
Second edit to add further:
Fun exercise! Go through the list of grievances in the Declaration of Independence and see how many of them could be applied verbatim or with only minor modification to the modern Presidency.
Here, I'll get started:
"He has refused his Assent to Laws, the most wholesome and necessary for the public good." -- What do you think the President does with the veto?
"He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people." -- Well the President isn't dissolving them but he sure likes to veto any attempts to override executive orders.
"For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies" -- Depending on your point of view this happened with Guantánamo.
These all seem right to me. But allow me, if you will, to change the question a little: suppose we had a parliamentary democracy somewhere that was *not* the product of a monarchy. Suppose, for example, that a thousand random people get John Carter'd (not Jon Carter'd) to Mars and are forced to form a new society. They all join in assembly and vote unanimously for an Act establishing a supreme Parliament. The act details elections, basic rules of order, credentialing, and so forth. They elect the Parliament without much trouble and get it up and running smoothly. (I am not a Lockean, so I don't think that all this is strictly necessary to establishing a legitimate government, but I do think that a government established this way is unquestionably legitimate.) There's no sovereign behind Parliament and never has been. There is only the Parliament and the principle of its supremacy.
In your view, would this be as stable as a Commonwealth government is today? Or would it lose something important by not having a monarch (even though it never had one to begin with)? You mention having someone at the top who knows all the norms and conventions is good -- but does it matter, at least to a young nation, and do monarchs practically speaking need to know the norms and conventions here in 2024?
Oh, hang on, I didn't refresh the page for a few hours and thus missed the edits. I have to read those now.
Nope, double-checked! I'm all good.
I don't think you'll get much argument from the conservative movement as a whole about the sad ironies of the Declaration's grievance list. I've definitely read articles along these lines.
I haven't thought about the myth of Marbury in a while.
I just got back from the movie, and really liked it, but I'm an Alex Garland fan. I don't think "does it make sense" is really the right way to judge Garland's work. I read him as being more interested in visual art than narrative art. Thematically, he's interested in how reality is extremely overwhelmingly and immediately brutal (though sometimes also beautiful) in a way that we are shockingly oblivious to. Alien invasion, androids, quantum simulation, zombies, and even photojournalists are just a means to this end, a way of convincing us to briefly come to our senses and see the world for the nihilistic wasteland that it is.
He is a profoundly visual director. Dredd's slo-mo sequences were *very* striking, especially in the context of the rest of the relentlessly grim aesthetic of that movie.
Worked better for me there. But, hey, I'm glad you liked it! I found the viewing experience perfectly pleasant myself, and begrudge nobody some Garland-enjoying.
James, first of all thanks for taking the hit seeing “Civil War” so the ret of us don’t need to!
Masterful analysis of the cases of the (First) US Civil War, with the emphasis on legitimacy. Your article underscores the critical importance of having a legitimate government, able to resolve legal disputes. When legitimacy is gone, disorder, violence and in the worst case, civil war, result.
So when one candidate for President loses an election, tries to overturn the result, then spreads the falsehood that the election was ‘“stolen” and gets millions of people to believe him, that is a serious blow the the legitimacy of Constitutional government in the US. And that candidate runs again, that justifies voting for that candidate’s opponent, even if that opponent is otherwise unacceptable. Even if that candidate is old, of questionable competency, and (for us as pro-life Christians) favors abortion rights.
Because bad but legitimate government is better than no government.
Aha! I see what you're doing here! A resumption of our previous thread! :)
I continue to agree with you that Trump is exactly the person you describe here, and that voting for him is therefore not justifiable.
But it seems to me that you are still starting from the premise that good people can actively cooperate in extremely evil acts in order to bring about some other good. I don't agree. When we cast a vote for a candidate, helping him to take power, we become complicit in *all* his official acts -- the good ones *and the evil ones*. We should not do that, when the evil actions are tens of thousands of dead children, which we know full well are coming, and which the candidate actively brags about in his campaign messaging.
To take a page from Scripture: Pontius Pilate was justifiably afraid of the consequences of a rebellion in Judea. So, in order to placate the mob, Pilate eventually agreed to sacrifice one man's life to sate their bloodlust, protecting what he recognized as the legitimate government of the province at the time. I think that what Pilate did was a serious sin, and I do not think it matters that he publicly washed his hands of the blood he spilt. He should have done what I kept shouting at the Supreme Court to do in the Trump disqualification suits: "Fīat iūstitia ruat cælum!" Let justice be done, though the heavens fall! We should do the same thing as voters: do justice (by refusing complicity in evil) though the heavens fall. If everyone started doing that, we'd have a much better chance of survival.
To take an example from modern literature: in the book Sophie's Choice, Sophie is a prisoner in a concentration camp. A Nazi guard orders her to choose one of her children to be murdered by the guard. If she refuses to choose, the Nazi says he will kill both children and her. She chooses. The Nazi keeps his word. One of Sophie's children dies, but the experience destroys the lives of both Sophie and her surviving child. She made a mistake. In fact, she never had any real power in this situation. The Nazi always had all the power here. He could have coerced her to choose, then murdered both children anyway. He could have decided to let both live. Either way, Sophie never had any real power. The Nazi only gave her the illusion of power in order to deepen her torment (which he did). Sophie should have refused to choose. She should have said, "You should not do this, and you will be judged before the throne of Almighty God if you do it, but you will not make me complicit in my own child's murder." I understand why the illusion of choice consumed her in the moment -- that's what makes her story so tragic and sympathetic -- but the only winning move here was not to play.
This is a Sophie's Choice election. The only winning move is not to play. You have the illusion of power here, but, by exercising it, the only effect you are likely to have is harming yourself. If you are very, very unlucky and your vote actually matters, the only thing you will have accomplished is choosing the form of the destructor (like the Ghostbusters) (Joe Biden does resemble the Stay Puff'd Marshmallow Man). So I still think you are better off refraining from voting.
But I'm sure we will continue going back and forth on this all the way to election day. I welcome that!
“But it seems to me that you are still starting from the premise that good people can actively cooperate in extremely evil acts in order to bring about some other good”
Nothing could be farther from the truth. What you describe is “formal cooperation with evil” which would apply if, say, I had voted for Ohio’s abortion-rights Issue 1 last November. (Not only did I vote against it but I knocked on something like 500 doors to get out the “No” vote, which failed).
But voting for a politician who favors an evil policy like abortion is only "remote cooperation with evil," at most — provided the voter does so for a reason other than supporting the evil policy.
That’s not just my opinion. An eminent theologian you might have heard of, one Joseph Ratzinger, wrote this:
““A Catholic would be guilty of formal cooperation in evil, and so unworthy to present himself for Holy Communion, if he were to deliberately vote for a candidate precisely because of the candidate’s permissive stand on abortion and/or euthanasia. When a Catholic does not share a candidate’s stand in favor of abortion and/or euthanasia but votes for that candidate for other reasons, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons.”
So I stand by my position that voting for Joe Biden, not for his pro-abortion policy, but to defend the Constitution (that is, for legitimate government) is morally defensible.
And given the gravity of the need for legitimate government, I would argue every Catholic, every American, has the duty to at least consider such a vote. That is necessary because of the implicit obligation of every American citizen (made explicit by the loyalty oaths taken by naturalized citizens, military service members and government officials and workers at every level) to defend the Constitution -- again, legitimate government.
No doubt we will continue this discussion. Cheers!
Source: https://www.catholic.com/magazine/print-edition/explaining-ratzingers-proportionate-reasons
I wonder whether an Oath, of any kind, can supersede the obligation to defend innocent Life.
Well, I am very relieved to hear that you were not holding the silly position I thought you were holding! That complicates my reply, but it's good news on the whole! I am also always happy to have +Ratzinger's Worthiness to Receive Communion guidelines cited here! He's a brilliant mind, and it carries weight based on that alone.
On the other hand, I think the reason I didn't cite this document in "Chris Christie May No Longer Receive Communion" <https://www.jamesjheaney.com/2016/02/04/chris-christie-may-no-longer-receive-communion/> is because it is (as Catholic.com notes) a confidential document written by an advanced theologian to another advanced theologian (+McCarrick, who of course used his knowledge for evil, in the abortion arena as in many others). The document is *correct*, but lacks both public magisterial authority and the nuances and caveats that you would expect in a document written for a general lay audience. The footnote is an odd aside, and it's not surprising that it is sometimes misinterpreted.
For example, you say that voting for Biden without explicitly supporting his abortion policies is "at most" remote material cooperation. I disagree. It is *at least* remote material cooperation. Ratzinger does not mince words about that: when you vote for a pro-abort, you are materially cooperating with abortion. Labels like "proximate" and "remote" do not denote separate categories; rather, they represent different points on a sliding spectrum of material cooperation. Because of our material cooperation, *we are complicit* in the evils we foresee as a result of our vote. I stand by what I said about complicity. If any presidential candidate I've ever voted for had actually won (sigh), I would have been complicit in the evil acts he committed in office, especially the evils he promised to commit on the campaign trail, especially the ones that were at the top of his platform.
In the case of George W. Bush (the last winning President I would have voted for, if I'd been old enough), I would have been especially complicit in the manifold failures of the Iraq and Afghanistan Wars and the neoconservative beliefs I shared with Bush <https://www.youtube.com/watch?v=I9YCNqtQLSo> as well as the evils of standardized testing, which aren't super-evil but are probably the most evil thing on Dubya's campaign priorities list <https://web.archive.org/web/20041102035616/http://www.georgewbush.com/Agenda/> . If I voted for Joe Biden, I would be especially complicit in *his* biggest campaign priorities... namely mass-murdering innocent children across the nation, even against the will of the states that recognize their human rights. <https://www.youtube.com/watch?v=GgtPkQtEb_k>
No matter how you slice it, these are not the same. Post-Roe, voting for Biden involves complicity in evils much more serious, and much more direct, than anything we've ever faced before, even from the Democratic camp.
Now, as Ratzinger correctly points out, complicity in serious evil CAN be permitted under certain circumstances. You're right about that. As he says, we can be complicit in a foreseen (but undesired) serious evil in order to achieve a proportionately great good.
However, as we delve into other Catholic teaching on cooperation with evil (which Ratzinger omitted from this document, because McCarrick didn't need a refresher on it) we find that there are some pretty important limits on this. The good to be achieved must indeed be proportionate. We must be very confident in the good to be achieved -- at least as confident as we are in the evil to be avoided. Finally, the less remote our cooperation, the greater the proportionate good must be to be justified. At the extreme end of the spectrum, *immediate* material cooperation, there is *no* proportionate good that justifies cooperation, and cooperation is absolutely excluded. (Even if an abortionist is holding a gun to your head ordering you to man the ultrasound machine during the abortion, you must refuse, even if you have six kids at home, and even if they'll replace you with somebody else anyway.) Voting is considerably more remote than that, but still proximate enough that the justification needs to be pretty strong.
It is important to remember, too, the sort of elections Ratzinger was almost certainly thinking about: European parliamentary elections in countries where there were no anti-abortion parties at all (so all votes involved roughly equal complicity in this vast evil), and certainly no electoral college. With this in mind, we can ask: does a vote for Biden satisfy these rather exacting moral standards? Can we justify complicity in Biden's bloodthirsty approach to the unborn based on the proportionate good of constitutional government?
[CONTINUED BELOW]
[CONTINUED FROM ABOVE]
I don't think so. First, because most of our votes don't matter most of the time. (Given the moral weight of presidential voting, I am very grateful for this.) If Biden is ahead by 10 points on Election Day, either nationally or in a particular state, nothing we personally do is going to help him win or lose. We will be making ourselves complicit in his evil acts for *absolutely no reason*. Likewise if he is losing by a wide margin. Only in swing states is there even a shadow of a justification for voting for one of the two evil major candidates, and really only the probable tipping-point states: Michigan, Pennsylvania, Wisconsin, Arizona, mayyyyyyybe Minnesota if you squint. If you don't live in one of those states, then discussion over: there's no proportionate reason to dirty your hands with a vote for a bad guy if your vote has no actual effect *other than* making your hands dirty.
Second, because many of the evils Biden will accomplish on his abortion agenda are pretty much certainties, and many others are very likely. The future evils Trump will do against "legitimate government," on the other hand, seem less likely and less clear. You could even make the case that Trump is MORE likely to attack our democracy if he LOSES than if he wins, so the better consequentialist outcome would be for Trump to win, so he can be gently term-limited out of U.S. presidential politics after '28. Meanwhile, Biden *himself* is no constitutional paragon, and routinely violates it for fun and political profit. Either way, if the proportionate good you are trying to avoid is "avoiding civil war and protecting the Constitution," it seems impossible to be completely confident that a vote for Biden would actually obtain that good better than a vote for Trump would -- but it *would* almost certainly obtain a lotta dead kids.
Third, because, even if we WERE confident that a vote for Biden would save democracy, it is not obvious that an attack on legitimate government would actually be worse than our current abortion regime. Abortion is a slavery-level evil. With the 20/20 hindsight of history, we can see that it was actually well worth fighting a civil war to end slavery. That outcome was a little bit miraculous, and I would never *willingly* roll the dice on it again. But my point is that there are lots of ways a Trump-provoked legitimacy crisis could end. Many of them don't even involve civil war, such as quick defeat and arrest, or peaceful national divorce. On the other hand, there is really only one way the Biden Administration's aggressive and illegal distribution of abortion pills can end: lots of child murder. I think Americans should be way more terrified of the possibility of civil war, and I think they should work much harder to avoid it, but not to the point of actually helping the child-killers kill the children. Not even as an indirect consequence.
For these reasons, you can't just go, "If Biden wins, a million babies die in abortions, but, if Trump wins, thirty million people die in civil war, so Biden is the lesser evil." It's a lot fuzzier than that, and fuzziness makes complicity *very hard* to justify.
Fourth and finally, I think you should be skeptical of your own argument because it is open to a pretty straightforward attack that I have not made here (because I don't agree with it): a pro-life Trump supporter could take all your points, flip them around, and conclude that "every Catholic, every American, has the duty to at least consider" a vote for Trump. After all, the implicit obligation of every American to the Constitution is real, but the Constitution (however great) is mere human law. Our obligation to the natural law, the law of conscience written on the hearts of every human, is higher than our obligation to *any* human law that dares to directly contravene it. As Chuck suggested in his reply, *no Oath whatsoever* can supersede the *divinely-imposed* obligation to defend innocent life. If "every Catholic, every American, has the duty to at least consider" a vote for Biden in order to stop Trump's attack on the Constitution, then every Catholic, every American has at least an equal duty to at least consider a vote for Trump in order to stop Biden's attack on our God-given right to life. Either way, though, you violate a binding obligation, whether to the Constitution or to your unborn fellow-Americans.
I say no. There's a really easy way to follow ALL our binding obligations in this election: don't vote for president. I'm glad you recognize that making Sophie's Choice is inexcusable, but remote material cooperation with Sophie's Choice is not all that much better. No matter what choice America makes in this, the worst election in U.S. history, America is on a collision course with catastrophe. There are too many uncertainties to clearly predict which one will be worse. (I think the evidence tilts against Biden here, but I have nothing like the certainty I would need to cast an anti-Biden vote for Trump.) Therefore, the least bad thing we can do right now is nothing. When the catastrophe arrives, it is going to need some people with clean hands to come in and help fix things up. Better to be one of them than to throw an almost-certainly useless vote at a bad guy.
Probably still haven't changed your view on this, but, iron sharpens iron! I appreciate going another round on this.
"If any presidential candidate I've ever voted for had actually won (sigh), I would have been complicit in the evil acts he committed in office, especially the evils he promised to commit on the campaign trail, especially the ones that were at the top of his platform." -- In 2016, Trump won without my state's electoral votes, despite my vote for him to win. In that scenario, was I morally on the hook for things Trump did?
In my opinion, yes. If you point a gun at somebody's head and pull the trigger, you're still responsible for the result because you willed it, even if he happens to be killed by a freak aneurysm at the same instant you pull the trigger. But, this is one of those things moral philosophers agonize over at incredible length.
To be fair, though, Trump ended up not doing any of the most evil things he promised to do (we did not actually murder the families of suspected terrorists, we did not start torturing prisoners, and he did not put his pro-abort sister on SCOTUS). Meanwhile, some of the most evil things he did end up doing (attempted coup) were not part of his original campaign platform (although they were arguably foreseeable). It seems tricky to say that you've remotely materially cooperated in an evil that never actually happened.
EDIT: My pre-2016 indictment of Trump did not age very well: https://www.jamesjheaney.com/2016/11/07/for-the-record-trump-is-evil/
I would argue that, with yesterday's verdict in New York, the legitimacy of government (particularly the courts) has already been destroyed.