Bend, but Never Break
Reasonable Efforts #1 / the week before Friday, January 8, 2021
Welcome to the Reasonable Efforts newsletter, where we explore the week’s news through the art of argument.
We all — as individuals, as a people — have a history, a thread of logic and rationale that connects us to the arguments of our ancestors about what *all this* is, and what it should be. For the lawyers in the audience, you know this is what legal argument in the Anglo-American tradition is all about: making the case that these particular facts, in light of our shared history of resolving these types of conflicts, morally demands this particular result.
These threads of logic and rationale weave together in unexpected and beautiful ways. It’s hard to see that, sometimes, especially when blood is spilled inside the United States Capitol.
But it’s there, if you know where to look.
My friend’s father has taken up carpentry during his retirement. Their cars now permanently parked on the driveway, the garage has been repurposed into a high-end woodworking studio.
I’ve seen people rediscover art in retirement, but this is the first time I’ve seen someone rediscover engineering. Many become artists, he’s become an artisan. The man is simply obsessed with structural design. Words like “miter joint” and “load-bearing” drift into casual conversation. He’s become judgmental of shoddy construction, which he can apparently identify with a quick and dismissive glance as he drives by. And he becomes as giddy as a child when he comes across elegant, sturdy craftsmanship.
I’ve noticed something familiar in the way he talks about his craft: its the same geeky way I talk about the legal documents I draft, about the regulations and laws and legal opinions I read.
There’s an art and a craft to the law. Legal text is more than mere words — it’s code, for meatspace instead of cyberspace. Well-written code works in harmony with the machine it runs on and the people that use it, and well-crafted law does the same with the culture and relationships in which it operates.
So, when it became clear after the tragic and horrifying events of January 6th that Congress would resume its business and certify that Joe Biden received the majority of the votes of the Electoral College, I was giddy. That Constitution of ours, that’s some damn fine craftsmanship.
We need to do a bit more than drive by to see it, though. We need to clearly understand tremendous forces were applied to the Constitution with the explicit goal of trying to break it, and how they failed.
So let’s be clear:
On January 6th, 2021, the sitting President of the United States — the most powerful human being on the planet, with access to more power and more resources than any other single person in history — incited several thousand followers to march on the Capitol to “fight like hell” in an attempt to violently intimidate an opposing branch of government, the Congress of the United States, and coerce them into surrendering their power to him. His followers then did what they were told, overwhelming police and spilling blood within the same building where his political opponents cowered in fear.
And he failed.
He didn’t even come close to succeeding. All that, and absolutely nothing changed.
I repeat: a man with all the powers of his office, and the popular support of over 70 million people, attempted to assert his authority over that of the old rulebook we call the Constitution, and all he was able to do was delay regularly scheduled proceedings by a few hours. The day ended exactly as it would have had the President been golfing.
Consider for a moment, in the scheme of human history and violent power struggles, how fucking wild that is.
We might be able to imagine other, simpler systems that might prevent an autocrat from ever taking power. But one that prevents a popular autocrat, legitimately elected, still with the powers of his office, that literally orders an attack on his political rivals in order to seize their power? Can you imagine a system that can handle that?
Our system did. It handled that without requiring any extra-Constitutional actions, without anyone needing to break any laws, without compromising democratic norms or civil liberties.
Every Constitutional officer involved (besides the President) simply acted as the rulebook commanded, and the legal machinery hummed along as though nothing even happened. Four years after Trump legitimately won his election, We the People changed our minds and decided we didn’t want him in power anymore, and he insisted that he stay. He tried, he failed. He was constrained not by physical force but by words on a page, by normal operation of law, by officers empowered to completely ignore him.
Wild.
The history of our species is one of long and violent power struggles, of might-makes-right, of would-be monarchs like Trump dispensing with all the norms and niceties demanded by the meat-space code and insisting that the only laws that count are physics and biology. “I’m bigger and stronger than you, so you will do what I say and give me what I want.”
In much of the world, this is still exactly how this works, with extra steps. In Russia or in China, such an insurrection would be put down with tremendous force, as in Tiananmen Square. Thousands would be disappeared and murdered. In America, by contrast, thousands retired to their hotel rooms as the press and the police began identifying them for their eventual arrest and trial in accordance with that well-crafted rulebook.
Consider why Russia and China would treat this differently. They would treat it differently because they have to, because of course they would have to. Insurrection like that is a fundamental threat to all other systems of government, to the powers that govern a society, as it has been to every single human society before ours. An insurrection like that actually has a chance of succeeding, of breaking the spell on the populace that holds them in obedience to the those in power. If they want to keep and hold power, history is clear: they have to put it down by force.
We don’t have to do that.
That’s remarkable.
Most of us understand “federalism” or the “separation of powers” as abstract concepts, but yesterday they became very real. They showed that by separating and stratifying power, we’ve successfully decentralized power. There’s no one building, no one body, no one government, no One Ring to Rule Them All that anyone can seize. You’d need to seize at least thirty of them, including the federal one that an incredibly popular and singularly motivated man just tried and failed to seize. This makes us unique not just from China or Russia, but from other non-federal parliamentary democracies as well. We’ve developed an incredibly powerful civil immune system, one that can endure tremendous abuse from a monster inside the house.
Remember when we were worried that Trump would simply stay put and not leave the White House? It’s obvious now that that doesn’t matter. He doesn’t need to leave the office — the office will leave him, not by edict of some other person more powerful, but by simple function of a set of sacred, old rules. Power will transfer on January 20th, as it always has.
We’ve done a lot of work since 1860. It turns out, a house divided against itself can stand.
For whatever else it is — however successfully (or not) it upholds its stated values, however limited it is in solving social problems, however imperfect the Union it holds together — one thing is inescapably true:
That is some elegant, sturdy craftsmanship.
I hope you enjoyed this inaugural newsletter! I look forward to sending one of these into your mailbox every week, sometimes with one long piece (like this one) and sometimes with several smaller blurbs.
I’ll also resume writing 1-2 essays per month on more timeless topics, but still with the same themes of moral philosophy and legal argumentation.
Thanks again for reading, and see you next week!
LOVE,
MIKE