The interval between U.S. presidential elections and inaugurations is usually a mundane, nearly invisible series of procedural steps. The last stage is a joint session of the U.S. House and Senate to routinely count the Electoral College votes and declare the results.
That was true for nearly 150 years, until Jan. 6, when President Donald Trump brought his apocalyptic mob to the nation's Capitol.
Already angry that Vice President Mike Pence had refused to use the joint session to swing the election to him, Trump decided to use extralegal means. Just as the congressional session was convening, Trump was busy inciting his loyalist troops to riot: "And we are going to have to fight much harder," Trump exhorted the crowd. "Let's walk down Pennsylvania Avenue … I'll be there with you. We're never going to take back our country with weakness. You have to show strength and you have to be strong."
Within an hour, the violent insurrectionists had stormed the Capitol buildings, overwhelming the undermanned police, smashing windows and doors, and occupying the House and Senate chambers. The coup attempt left five dead and senators and representatives huddled together in secure lockdowns.
Brute force had trumped legal procedures.
In 1951, Supreme Court Justice William O. Douglas wrote this sentence in a concurring opinion to a majority opinion in Goldberg v. Kelly: "It is procedure that spells much of the difference between rule of law and rule by whim or caprice."
Since early adulthood, I have been a man of the left. For a half-century, my first-order commitment has been to substantive policies and programs that limit the power, resources and privilege of the "haves" and, consequently, increase the social status of those Saul Alinsky called the "have-a-little, want mores" and the "have-nots."
Incrementally since 2017, that social justice agenda has become a second-order priority for me.
I have always known that the American system was rigged in favor of our rulers, the wealthy and elites who dominate our society. It was just a given that we social justice warriors had to find workarounds to achieve our reforms. But something has dramatically changed during the past four years. I have become an institutionalist.
Whatever their historical shortcomings, American legal and political institutions have become the last bulwark, to paraphrase Thomas Hobbes, against life becoming nasty, brutish and short.
In 1996-97, Stuart Hampshire, an eminent moral philosopher, gave the Tanner Lecture on Human Values at Harvard University. In 2000, he expanded the lectures into a book, "Justice is Conflict," in which he wrote: "Procedural justice tends of its nature to be imperfect and not ideal, being the untidy outcome of past political compromises. What emerges from a fair political contest will often be described by those who are intent on a specific form of substantive justice as 'a shabby compromise.' "
When I first read Hampshire, I saw only a case for a minimalist democratic republic, while I sought a maximalist democracy. I rejected his argument as a fainthearted liberalism, a fearful rationale that unwittingly justified a conservative neoliberalism in America and Britain. I was demanding nothing less than substantive justice.
Fast-forward 20 years.
Here are some of President Trump's and the GOP's violations of procedural justice: trashing constitutional limits, undermining free and fair elections, partisan redistricting in state after state, denying voting rights, obstructing congressional and governmental oversight of wrongdoing, turning the Department of Justice into a partisan weapon for the president, encouraging armed militias and corrupting pardon powers. For four years, President Trump and the GOP have trashed one institutional rule or norm after another.
For far too long, a substantial majority of Americans have taken procedural justice at face value — few improprieties to see here. In just one presidential term, we came dangerously close to becoming a pseudo-autocracy. The illusion of the essential fairness — warts and all — of our legal and political institutions was suddenly vulnerable to becoming an illiberal democracy like Hungary, Turkey and Poland.
Since Joe Biden's election and Trump's thrashing about like a drowning dictator, I have been reflecting on our public institutions. Despite some egregious cases in our pre-Trump history, some of us were utterly mistaken about the essential resilience of our political and legal institutions.
After the 2000 election, other citizens lost trust in institutions and started doubting the legitimacy of the electoral process. I now believe that it was just the first stage of failure for the foundational trust in the whole constitutional system. The Supreme Court's questionable handing of the election to George W. Bush should have been an oracular sign that the right's ruthless desire to remain in power for power's sake would eventually lead to a worse-case scenario like Trump.
Even if we make it to Jan. 20, our institutional guardrails remain in precarious disrepair, in need of reconstruction. In the words of Thornton Wilder, we may yet escape by "The Skin of Our Teeth." Nevertheless, without radical reforms and restored trust, the next time a demagogue arises our republic is likely to fall.
I recently reread "Justice is Conflict." What I had so smugly dismissed now seems prescient; what I had written off as wrongheaded is, in truth, wise counsel as a guiding principle for Biden's first term (and early indications suggest that it is already embedded in his political moxie):
"There is everywhere a well-recognized need for procedures of conflict resolution, which can replace brute force and domination and tyranny. … What do I do when a rival conception of the good leaves no place for procedural justice, and when it will not recognize fairness in the settlement of disputes as a virtue?"
I wonder if a sense of trust needs to be restored to get these changes made. How do we create a process that convinces most citizens to trust these changes? It is a chicken-or-egg dilemma, something between trusting the process to reform institutions and reforming institutions to build trust.
I now have new first-order preferences: Three cheers for procedural justice and trust. Then there will be time enough and a public sphere secure enough to pursue substantive social justice.
Monte Bute teaches sociology at Metropolitan State University in St. Paul.
