Republicans return to Antebellum era theories to justify Trump’s civil war push

Back in 2019, when then-candidate Joe Biden was campaigning on the promise of restoring “normalcy” to American politics after three years of almost daily scandal and chaos in the White House, he made a prediction that would regularly come back to haunt him after becoming president. “The thing that will fundamentally change things,” said the former vice president at a campaign event in New Hampshire, “is with Donald Trump out of the White House. You will see an epiphany occur among many of my Republican friends.” 

This was a remarkable statement coming from the man who had served eight years as vice president under President Barack Obama, whose administration faced unprecedented levels of Republican obstructionism throughout most of his two terms. But it was also consistent with the former veep’s lifelong faith in bipartisan cooperation. Biden’s view of politics had been shaped by the nearly four decades he spent in the Senate, where he frequently worked with his Republican colleagues on bipartisan legislation (for better or worse). As a creature of the world's “greatest deliberative body,” Biden had always seen politics as an art of the possible, with compromise — not conflict — extolled as the highest principle. As journalist Franklin Foer elaborates in his acclaimed book on Biden’s presidency, The Last Politician, politics for Biden is the “means by which a society mediates its difference of opinion, allowing for peaceful coexistence.” By this definition, it is an “ethos that requires tolerance of competing truth” and a “set of rules whereby the side that fails to prevail in democratic decision-making accepts its defeat.” 

One could hardly find a more antithetical vision of Biden’s politics than the one currently held by most Republicans, who — contra to Biden’s prediction — have yet to rediscover their long-lost commitment to bipartisan compromise. Indeed, if the past three years have shown us anything, it is that Republicans hardly need Donald Trump in the White House to push them towards anti-democratic extremes. 

For Republicans in the age of Trump, politics has degraded to something akin to war. It is a matter of “friends” and “enemies,” to borrow the famous distinction made a century ago by the “crown jurist” of Nazi Germany, Carl Schmitt. According to that notorious critic of liberalism, who many on the so-called “New Right” have come to embrace in recent years, the political represents “the most intense and extreme antagonism” between adversaries who seek to “negate” each other’s “way of life.” In the Schmittian view of politics, then, there is no way to forestall a “decisive bloody battle” (despite the efforts of liberals to transform politics into “everlasting discussion”). Post-Trump Republicans have effectively adopted Schmitt’s “friend-enemy” distinction as their own, while abandoning any previous commitments — tenuous as they were — to democratic compromise. 

The attempt by Trump and his allies to overturn the 2020 election was the clearest example yet that a growing number of Republicans no longer grant any legitimacy to their political opponents or to America’s electoral system. After January 6, some anticipated a reckoning inside the GOP. In the days that followed the capital riot it was widely assumed that Trump and his allies had finally gone too far and would now face real consequences for their actions — in this case a concerted attempt to block the peaceful transfer of power. But the subsequent normalization and trivialization of January 6 on the right shows that there is no going back to how things were before Trump. Indeed, the practical coronation of the former president as the 2024 Republican candidate confirms that Republicans have gone all in on Trump and his personal crusade against American democracy.

The sheer degree to which Trump has captured the Republican Party became all the more clear earlier this month when Republicans torpedoed a bipartisan deal on border security that had been negotiated in the Senate for months. That deal, which was tied to Ukraine funding, represented major concessions from Biden to the right on immigration — concessions that angered many of those to Biden’s left. The border deal would have vastly increased funding for immigration enforcement, reduced the number of accepted asylum seekers from already low levels, and expedited the deportation process. But in the end, it was the right that blew up their own deal when it was effectively vetoed by their presumptive nominee in a flagrant attempt to keep chaos at the border alive. 

“A Border Deal now would be another Gift to the Radical Left Democrats,” declared Trump, acknowledging that prolonging the border crisis was a winning strategy for his campaign. Rather than voting for a bill that would have dramatically cracked down on the border and increased the number of agents, House Republicans instead chose to impeach the Secretary of Homeland Security, Alejandro Mayorkas, in a political stunt that marked the first time a Cabinet member has been impeached since 1876. 

The collapse of the border deal came against the backdrop of an unfolding crisis in Texas, where state officials have refused to allow federal immigration agents access to a section of the border along the Rio Grande. After the Supreme Court ruled that Texas had to give federal border agents access in late January, the Lone Star state’s governor Greg Abbott issued a defiant statement in which he invoked long-discredited constitutional theories employed by Southern secessionists in the lead up to the Civil War. Declaring that the federal government had “broken the compact” between the states by failing to protect them from “invasion” — in this case, illegal immigration — the right-wing governor proclaimed that Texas had “supreme” authority that “supersedes any federal statutes to the contrary,” putting forward a modern spin on the concept of nullification. As Stephen Vladeck, a legal scholar at the University of Texas School of Law, observed in the Houston Chronicle, Abbott’s argument has “eerie parallels” to the Antebellum-era idea that “states have the right to ‘nullify’ federal laws that they believe are unconstitutional, whether or not the courts agree with them.” It also rests on a blatant misinterpretation of the Constitution. To justify his claims of “supreme” power, the governor cited an obscure clause that was actually intended to limit state powers, while offering a specious definition of “invasion” that was refuted by James Madison over two centuries ago.

Abbott’s embrace of Antebellum-era constitutional theories might have once earned him universal condemnation, but in 2024 it earned him almost unanimous praise from his fellow Republicans. In a joint statement issued shortly after Abbot’s, 25 Republican governors expressed their support for his defiance of both the Biden administration and the Supreme Court. Echoing their Texas counterpart, the governors accused the Biden administration of abdicating its “constitutional compact duties to the states.” Multiple governors have even sent some of their own troops and personnel to support the Texas governor in his standoff with the feds, which is currently ongoing. 

The crisis alongside the Texas border is just the latest instance of Republicans looking back to the Antebellum era for precedents to justify their increasingly atavistic behavior. Back in November, for example, Republican Senator Markwayne Mullin cited the notorious 1856 caning of the Republican abolitionist Charles Sumner in the senate chamber as a precedent for him challenging Teamsters president Sean O’Brien to a fistfight during a committee hearing. “Well, we looked into the rules, and you know, you used to be able to cane,” remarked the Oklahoma senator, who also pointed approvingly to the numerous duels of former president Andrew Jackson. “Maybe we should bring some of that back,” he mused. The vicious assault of Sumner by a slave-owning congressman — which nearly killed the Massachusetts senator — was not, in fact, deemed acceptable at the time, and triggered a national firestorm. But it was  largely supported by the slave-defending Southern Democrats who would lead an insurrection just a few years later. 

With this kind of embrace of violence in the highest legislative body in the land, it is no wonder that political violence has surged over the past decade. Since 2016, the United States has undergone the “biggest and most sustained increase in political violence since the 1970s,” with the overwhelming majority of deadly attacks coming from far-right extremists. Both acts and threats of violence soared after the 2020 election, and with the Republican presidential candidate openly running on a campaign of “retribution,” one can expect more violence in the year ahead. 

For some Americans, the 2024 election has come to represent a “final battle,” as the former president has ominously framed it. When politics devolves into an existential struggle between two warring sides, it is only a matter of time before things become violent — and no democratic system can long withstand the strains of political violence. The great danger in 2024 is not that it will be the “final battle,” however, but the first of many more devastating conflicts to come. The latest confrontation between Republican-led states and the Democratic-led executive branch shows that we have entered a new — though hardly unprecedented — chapter in the country’s history. Three years into his presidency, Joe Biden’s “friends” in the Republican Party are nowhere to be found.