Procedure Is Getting Us Through — For Now

By Kevin D. Williamson

Wednesday, December 16, 2020

 

One of the key insights of conservatism is that habit matters. Call it culture or tradition, or call it manners as National Review does, the corpus of informal rules, norms, and expectations that quietly governs 90 percent of life in a free society is, in most situations and conditions, much more extensive in its influence than the formal rules and procedures that govern the other 10 percent of life.

 

This is why we cannot simply bomb the backward corners of this unhappy world with copies of the Constitution and expect them to build liberal republics with no further input. In the long term, the law will not save you.

 

In the short term, it may.

 

In spite of Donald Trump’s mad insistence that he somehow won the presidential election he lost, there never has been any serious prospect of his remaining in office, even if the idea of his forcibly extending his presidency excites the fever swamps of the Democratic Left and the Trumpian Right. (What you hear on talk radio and read on social media is not political discourse; it is a role-playing game, Dungeons & Dragons for the soul-sick people who foam at cable-news personalities — call it Kornackis & Bonginos.) The usual cretins are making a black-list and checking it twice, quantifying who’s naughty and nice with an eye toward vengeance: It took Mitch McConnell six weeks to congratulate Joe Biden on his election! Angels and ministers of grace defend us!

 

And it did take Senator McConnell six weeks after Election Night to congratulate Biden. He did so immediately after the real election, which happened in the Electoral College on Monday. One of the helpful features of the Electoral College is that it offers few footholds for motivated ambiguity. Of course, McConnell should have congratulated Biden earlier, rather than going along, even passively, with the charade of a double-secret Trump victory. But McConnell, like other relatively responsible Republicans, eventually was pushed to act by the relentless march of procedure.

 

Some conceded when enough states were called for Biden that his Electoral College win was assured; some waited for recounts; some came around when the states officially certified their votes. More will come around when a joint session of Congress goes through the motions of certifying the Electoral College vote in January. Others will come around on or before January 20.

 

And some won’t. Donald Trump probably will be among those who refuse to engage with reality, which has long been his habit. He is a salesman of fantasies, and a very successful one, but he is also a Kulturkampf drug-dealer who has long been high on his own supply. And some conservatives will follow him, many because there is money and power to be had by doing so, others because they are emotionally incontinent, their hatred having overcome their reason.

 

For now, the cultural slurry pond of mad Trumpism — the spectrum of delusion that runs from Sean Hannity to QAnon — has been contained by procedure, even as Trump et al. attempted, in their daft and incompetent way, to manipulate the rules to their own ends.  But our procedures are not self-executing. Our systemic stability has relied upon the patriotism and prudence of state and local officials, state courts, the federal courts, and the Supreme Court, including the three justices appointed by Trump, none of whom would take up his fantastical nonsense.

 

Republicans are not alone in this. The Democrats’ effort to impeach Trump, a project that preceded its pretext, was very much of a piece with Trump’s refusal to concede his defeat. The formal rules allowed for the Democrats to do what they did, but their actions were destructive, cynical, and self-serving nonetheless. That mad crusade, too, ultimately was contained by constitutional process.

 

Three big cheers for procedural regularity.

 

We complain about it, but we should be gladdened every time a criminal gets off “on a technicality.” Our freedom resides in those technicalities. From the rules of trial procedure to the building code, stable and generally agreed-upon sets of rules — necessarily imperfect rules — are the foundation for the credibility and legitimacy of our institutions.

 

But it is difficult to imagine that a society as intellectually democratic and committed to informality as our own will long be stabilized by formalities. It only takes a little metastasis for the rot in the culture to seriously muck up the machinery of formal power, and we have seen it happen from time to time in the politicization of agencies such as the IRS and the NLRB, and, more to the point here, in Texas attorney general Ken Paxton’s foolish and morally corrupt effort to overturn the election on Trump’s behalf.

 

In the end, it will be impossible to maintain a rules-based civil order if Americans do not believe the rules to be legitimate or feel bound by them. We are in need of refreshing the habits of citizenship, without which we will in the end cease being citizens and become subjects.