The Breakdown of Legitimacy: A Good and Necessary Thing

Image by Jesse Collins.

Last December Supreme Court Justice Sonia Sotomayor questioned whether the Supreme Court would retain its legitimacy if it overturned Roe v. Wade. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked, adding, “I don’t see how it is possible.”

It didn’t get much attention at the time, but yes, a sitting Supreme Court Justice said she didn’t see how it was possible for the institution she has perceived throughout her life, as the rock of legitimacy itself, to sustain legitimacy when the people perceive it—the Court itself—as rotten and stinking to high heaven.

In such exciting times do we live! Having spent much time trying to de-mystify capitalist institutions, I know how hard it can be be to cut through the ideological blinders. These are imposed, after all, by the regular educational process even before kids start descending into their self-selected social media tunnels.

It’s damn hard to remold people’s thought processes, shaped as they are by a mix of reiterated official untruths that they hammer into young minds (beginning with the hysterical untruth that America stands for “freedom and justice for all”) by crude propaganda methods (replicating the worst the Soviet propaganda machine ever had to offer) but also by infinitely subtle techniques that weaponize popular culture.

So it’s preferable that the system do most of the work itself, until its normal evolution so contradicts its own premises that it becomes embarrassingly conspicuous. Then the people start seeing the system as the enemy, which means they are thinking more clearly.

The definition of legitimacy is “conformity to the law or rules.” What happens when those who set the rules break them, or are perceived by the people they judge as rule-breakers? In this case, the ultimate guardians of the system, who lend it its legitimacy, have been exposed as a nest of liars and—all pretensions of political aloofness aside—even involvement with white nationalist groups. Clarence Thomas and his vicious wife had discredited the court before it reversed Roe v. Wade.

Many were deluded by the idea that Roe v. Wade was “constitutionally guaranteed,” meaning that the Supreme Court had ruled that the right to abortion was guaranteed by the Constitution. Somehow, in some way, they thought, it was now the law of the land because judges have ruled it so. And that that was a good thing, because the Constitution is a good thing—or rather, a very, very good thing because the Founding Fathers were so brilliant that they created a document the chief virtue of which is its assumed durability, and presumed positive impact on other people around the world emboldened to write their own constitutions in imitation.

What happens when this unquestioned good, this classic 18th century text, this moral reference point, gets exposed, suddenly and shockingly, as a charade? The Constitution, the presidency it established, the legislature that it legitimated, and the judiciary it created—all exposed, especially in the eyes of youth—as sources not of inspiration but of the stench Sotomayor notes wafting through her office. What happens when people stop holding back the puke?

People in a courtroom are always asked to rise when the judge waddles in. This is to show respect. What if these people have shown they do not deserve that respect, and those feudal gestures of defence? Or—the larger question—will this (legal!) blow to the people become a blow to the system itself? Will this be the spark that undermines the system in the minds of the masses such that they finally break with it, conceptually?

How much provocation is needed before the critical mass abandons the notion that when you receive such a blow as the Supreme Court has inflicted on you, you march again doggedly to the polling booth to (legitimately!) elect better people to make better policy. Eventually. Peacefully of course. The “Long March through the institutions” that Rudi Dutschke advocated in 1968 which at its current pace is expected to succeed during Star Trek’s Shockwave period.

Maybe it occurred to some staffer, in some justice’s office, to leak the court’s decision in advance, precisely to expose, if not the bankruptcy of the whole system, this illegitimacy at the supreme level. Whoever did so has at least been accused—by the system’s loyal adherents—of undermining confidence in the system. But should we not congratulate the anonymous agent of enlightenment?

“Thank you for your service.” Usually that means, “Thank you for being a member of the U.S. military, no matter where you were or what you did, just thank you for defending our freedoms.” Here we mean: “Thank you for exposing the ass of the ruling class’s highest legal body, and giving the masses useful documentation of its illegitimacy. Even if you still believe in the system—or are trying to—you did a good job in giving us warning. Thank you for serving the people.”

It would now be appropriate for the above-mentioned Sotomayor to announce that, rather than serve on a political body designed specifically to legitimate U.S. capitalism—which is to say the rule, at the end of the day, of the one percent of the one percent, made all the more efficient through manageable partisan competition (between capitalist political parties) and the “rule of law” maintained through the state security apparatus which at all levels shares religious-like convictions about Freedom and guns—she will resign in protest.

Yes, imagine that. Rather than sit with judges appointed for life by vile presidents, accountable to the most reactionary sectors of the bourgeoisie and hell-bent on turning back such social progress as has occurred since the 1960s, Sotomayer should scornfully acknowledge what many of us have known all along: “It’s all a charade!”

If the Supreme Court is losing legitimacy, excellent! You sometimes hear that, while the presidency has sunk to the lowest depths of the popular perception, and the Congress is the age-old object of universal scorn, the Supreme Court at least, as that collectivity of the Wise who interpret the laws when big issues arise, objectively and fairly. Since this is not at true, not in the real world anyway, it is good that people should cease and desist believing it. If I repeat myself it’s because the truth bears constant repeating.

What do the Democrats—led by a president historically opposed to abortion rights (way up to 2008) —have to say about the expected overturn?

“We are now living in a dystopian nightmare,” says Sen. Elizabeth Warren, adding immediately: “These extremists will not have the final word. Democrats have tools to fight back, from legislation in Congress to executive orders from the President to initiatives at the state and local level – we just need to use them. We are angry – angry and determined. We will not go back. Not now. Not ever.”

Fine. Tools to fight back? Laws, made by lawmakers! So everybody, get out and vote for pro-choice Democrats! Make sure they keep abortion legal in your state! (In other words, go back to square one.)

Or: “Executive orders from the president.” Like what? Executive orders to keep abortion clinics open in states whose legislators, “legitimately” elected (see above), have banned abortion? Executive orders to reeducate the minds of the very units of legitimacy in this society, which in vast part of the country are mired in religious idiocy?

Who is to tell said idiots that no, you are free to believe that a zygote is a human, in the image of the Supreme Being, and so to prevent it from properly hatching is murder; but you can’t ACT on that belief, in your capacity as law-makers, and criminalize it? And what moral authority does the president have to force compliance with his own executive orders?

Didn’t Joe Biden, with his cultivated Irish Catholic working class persona, support the Hyde Amendment banning federal aid for abortions (1976) and even authored the “Biden Amendment” of 1981 outlawing U.S. foreign aid to biomedical research involving aborted fetuses? Biden says some of the right things (a sure sign of persons lacking in principles), but neither projects nor inspires any positive energy. Why encourage people to expect such?

“Initiatives at the state and local level.” Yes. I can imagine some: coordinated transportation from state to state to provide services, requiring a fight against new laws making precisely that illegal. Raising funds for women requiring aid while missing work. Fighting new laws against precisely such fundraising. More politics, more trade-offs. Make sure all Democrats are pro-choice, throw everything into getting them elected. In other words, meet this new challenge like all before it, through the system.

Another option is to celebrate the collapse of legitimacy of the highest judicial institution in the country—never a leader in positive social change, but a retrograde force. The Dred Scott ruling (1854) long preceded the 13th Amendment of 1865, the latter won not by judges’ interminable deliberations but due to a bloody Civil War.

The presidency has long been discredited, for different reasons, among different constituencies, from at least the time of Watergate. So too the Congress, ridden with idiots, opportunists and incompetents who collectively never achieve anything positive. The court system, too, has been exposed repeatedly; the trial of the Chicago Seven was no more outrageous than the trial of Kyle Rittenhouse. Black Lives Matter has emerged as a powerful critic of the whole “justice” system of which racist policing is a crucial part.

But never before has the farcical system been discredited at the highest level. The decision follows revelations about the sick white supremacist associations of his white wife Ginni Thomas (you know, that nasty lady who left a voice mail message for Anita Hill in 2010 to demand she apologize for her 1991 remarks to Congress accusing Thomas of harassment). We now know she was involved with the plot to overturn the election results and that Thomas has already participated in cases from which he should have recused himself. He is illegitimate in his post. The Trump justices who told Congress under oath that Roe v. Wade would remain statutory law lied. They committed perjury. They are illegitimate.

The message that more of the same—the same concession of legitimacy to existing institutions, and the same reliance on age-old habits of ritualistic protest that the system is happy to allow as safety-valves and testaments to the persistence of U.S. “democracy”—will somehow produce a different result. It reminds me of the ancient Chinese philosopher Hanfeizi’s stump-watcher,

Writing around 220 BCE, in the state of Qin, Hanfeizi criticized those in his day who relied on the old Confucian models and ideology, resisting the revolutionary changes brought by Qin Shihuang (the “first emperor of China”). He compares them to a peasant in whose field there “was a stump. One day a rabbit, racing across the field, bumped into the stump, broke its neck, and died. Thereupon the farmer laid aside his plow and took up watch beside the stump, hoping that he would get another rabbit in the same way. But he got no more rabbits, and instead became the laughingstock of Song. Those who think they can take the ways of the ancient kings and use them to govern the people of today all belong in the category of stump‑watchers!”

Well said! Hanfeizi should be required reading in our high schools.

But there’s Rev. William J. Barber, of the Poor People’s Campaign, on CNN: “You gotta think about the long game…” Seven years my junior, he sounds like Dutschke over 50 years ago. Let us prod on, marching through the muddy tunnel of the institutions, assured of light at the end of it! All those who don’t drop in the interim will see it!

The most legitimate figure of all, Joe Biden—Leader of the Free World hence the very locus and repository of PLANETARY legitimacy—is as always “clear and unambiguous.” He now preaches: “The only way we can secure a women’s right to choose, [and restore?] the balance that existed, is for Congress to restore the protections of Roe v. Wade as federal law. No executive action from the president can do that.”

In other words: Biden’s “administration will use all of its appropriate lawful powers” to help but hey, it’s not up to him. So everybody, get your friends to vote Democrat!

Planned Parenthood in Texas is vowing to do “everything within the law” to help women needing abortions. One would expect nothing less. But why not vow to reject and ignore all laws issued by illegitimate courts? Shouldn’t the point be to expose the illegitimacy and promote mass rejection? What? Planned Parenthood is not in the business of making revolution? What then? Working within the law to provide what the law, in its mystical holiness, now denies?

I’m in no position to advocate the strategy of resistance to this latest, massive, attack. Strategy will emerge from a great many people, applying much thought to what is to be done, now, in the wake of the court’s decision. But strategy is determined by principles. Those applied to date (on “the left”) have almost invariably included the principles of working within the law, maintaining the peace, and restricting “illegal” actions to ritualistic actions in which selected persons get arrested for violating some law (such that one can invoke Thoreau and Gandhi is favor of their actions).

Thus Warren and the Poor People’s Campaign and Planned Parents, representing the “progressive” movement generally have nothing other to offer for the moment than more of the same. A revolutionary movement would distinguish itself by rejecting worn out principles and ritualistic civil disobedience, or at least dependence on such tactics, in favor of a systematic assault on the premises of the system itself, including the notion that the Constitution is a sacred text that must always guide the U.S., which is to say, the U.S. ruling class.

Until we disabuse ourselves of the concept that the Constitution “under threat” is anything other than an eighteenth century document, a product of the Enlightenment, like Montesquieu’s Spirit of the Laws and John Locke’s Two Treatises on Government—we will operate with blinders on. The decision by the (illegitimate) Supreme Court to strike down an earlier (illegitimate) Supreme Court’s decision to permit abortion has nothing to do with the Constitution authored by slaveowners in the 1780s.

That document makes no allusion to the termination of pregnancy. While the “Founding Fathers” likely opposed abortion on religious grounds, their opinions only matter today among those inclined to religious reverence for those slaveowners and misogynists as the creators of American Exceptionalism. The whole case for “constitution literalism” rests on the assumption that the nation is best governed when observed through the imagined mind of George Washington, or at least through the lens of the 1780s.

We need a new constitution, not reverence for the existing one, nor mourning rituals over the Court’s imagined attack on a sacred document. We need new institutions, appropriate to the system that replaces the rot that have, that our children will surely inherit unless there’s a revolution that builds on mass disillusionment and loss of legitimacy. But before talking about how that’s to be done, we should break with those who cannot and do not want to lead real change, and whose inevitable response to every attack is to urge the victims to redouble efforts to elect more Democrats.

***

So the legitimacy of the courts is shot, for all with the good sense to see this. Meanwhile something we already knew—that the institution of the presidency, and the process of electing one, are farcical—is on the one hand augmented daily by the Jan. 6 hearings, and challenged by lawmakers who depict Trump’s actions as somehow a departure from the democratic norm. And on this rock of American Exceptionalist Democracy we are taught to rely, there being no alternative but hovering forces of fascism or chaos in the streets.

Thus the circle of debate is closed. The hearings—“dramatic” not so much to those who’ve been paying attention, but to the Trump loonies who will not watch—are not presented to damn the system (although the hearings do that) but to depict Trump and the Republican Party in general as THREATS to the “democracy” the lawmakers continue to peddle, oblivious to the above-mentioned stench.

The evidence has long been clear that Donald Trump encouraged his followers to reject the election results, operating on the traditional practice in U.S. politics of lying straight up to get a job done. (If you, for example, want to invade Iraq, you tell your people Iraq threatens to explode a nuclear device over New York City. People are gullible, and it works fine, and the liars are never culpable. George W. Bush, the president who ordered the slaughter of half a million people based on lies and should be imprisoned for life as a war criminal, gets treated by respect by the U.S. bourgeois media. So yes, lying is par for the course, and Trump’s behavior, while unusually reckless and stupid, was quite normative in its basic mendacity.)

It’s also clear that, if Biden didn’t steal the election from Trump, he did steal it from Bernie Sanders. Or rather the dominant Wall Street faction in the Democratic Party, which controls the DNC, stole it from Sanders awarding it to what had been the least promising Democratic candidate. And now these stalwart defenders of (bogus) democracy-under-attack, who never thought to push for a federal law ensuring the right to an abortion, demand that their sheep stay in the fold.

The alternative, they repeat, is a second Trump term, or the election of a comparable “threat to our democracy.”

The Jan. 6 hearings establish firmly enough that there were elements of conspiracy in the “uprising.” That is, they’ve been able to establish more definitely what many had already construed: that there was some degree of coordination between White House aides including Meadows, Trump’s lawyers including Giuliani, Republican members of Congress, and white nationalist and supremacist militias to stage the riot Jan. 6, in order to force the House of Representatives to reject the vote or somehow prevent the transition of power.

Major conspirators included wacko vampire and beloved 9/11 hero Rudy Giuliani; the power-hungry, amoral, entirely stupid Mike Meadows; the ragingly insane and deeply angry General Mike Flynn; cuddly pillow salesman Mike Lindell; the leaders of the Proud Boys, Oath Keepers, and Three Percenters and a few others I’m leaving out. A rogues’ gallery of ass-kissers that hardly compensates for the lack of a disciplined executive core capable of pulling off a “fascist” coup.

It was an uncoordinated, undisciplined event, most of the mob in the building leaving peacefully, proud of what they’d done by late afternoon. The stupidity of those taking selfies in the Capitol and posting them on social media has resulted in hundreds of prosecutions and, inevitably, confessions and accusations against Trump for misleading them.

Jan. 6 was not a coup that “almost succeeded” as some Democrats are saying. That is an exaggeration intended to frighten the masses into supporting—to the end of time—the system of warped bourgeois democracy that only works well for the mainstream of the ruling class. We’re supposed to be upset, not by the nature of the window-smashers so much as window-smashing in itself.

But it has no doubt occurred to the DNC that at some point the Capitol might be stormed again, not by a chaotic mob of white nationalist cultists desperately attempting to keep a vile president in power, but by altogether decent and reasonable people with values to fight for, including gender and racial equality, separation of church and state, and the destruction of the stranglehold the One Percent of the One Percent exercise over economic life. There are precedents—inspiring, heroic ones, like the storming of the Bastille, or Winter Palace. Don’t let the Trump mob give storming a bad name.

***

Actual revolutions happen, when people are unable to accept the status quo, the status quo is weak and crisis-ridden, and there is enough leadership to point the anger in the right direction—as opposed to merely “thinking about the long game” of peaceful demos, petitions, lobbying campaigns, and deployment of all the (narrow) range of options Warren offers.

The most recent mass shootings top the news, almost welcome relief from the ceaseless regurgitation of Cold War propaganda and imperialist apologetics that surround coverage of the inter-imperialist proxy war in Ukraine. Whatever’s going on in the heads of the shooters, it must seem to much of the world that this hopelessly mendacious and morally bankrupt country— which throughout living memory has postured as the paragon of Democracy—is in the process of committing slow mass suicide, even as it imposes further suffering on people asked to wait a little longer for what’s been taken away.

May such outside observers then proceed to curtail ties with what’s now exposed as a sham, and especially to drop membership in NATO, the heart of the self-destructing empire’s war machine. The breakdown of U.S. legitimacy is a good and needed thing, the premise for a mass revolutionary moment yet to be born.

Gary Leupp is Professor of History at Tufts University, and holds a secondary appointment in the Department of Religion. He is the author of Servants, Shophands and Laborers in in the Cities of Tokugawa JapanMale Colors: The Construction of Homosexuality in Tokugawa Japan; and Interracial Intimacy in Japan: Western Men and Japanese Women, 1543-1900 and coeditor of The Tokugawa World (Routledge, 2021). He is a contributor to Hopeless: Barack Obama and the Politics of Illusion, (AK Press). He can be reached at: gleupp@tufts.edu