The South tried to break away twice. Once was in 1861, once was in the late 1950s and early 1960s. In both cases, they were thwarted in large measure by the willingness of the Federal government to use force to stand up for the principle that where a conflict arises, the national government supersedes the state government. Since then, the South – mostly in the form of the Republican Party, which by 1994 was a party under the direction of the South if not wholly of the South – has attempted to win back the power to do what it pleases. Now we are seeing the fruits of two decades of strategy – a strategy which began with massive resistance to the legitimate election of Barack Obama and came to a conclusion in 2021, and one which betrays the utter cynicism of a party bent on one ideal and one only: that no one but them should ever wield power.
The plan was twofold. The first part entailed stuffing the judiciary full of political hacks who would in all things defer to their ideology, with no regard for precedent or law, and to get as many seated as possible without regard for two hundred years of prior practice. They stymied so many lower court nominations that the then-Senate majority leader carved out a clumsy exemption to the filibuster (rather than killing it outright as he should have done), which was then used for the trumpet call that the rules were being bent by Democrats and therefore any amount of rule-breaking was not only moral but necessary. Culminating, of course, in a logic that said that Antonin Scalia’s seat must be held open for a year to get a Republican President [sic] to fill it, yet Ruth Bader Ginsburg’s must be fulled in a month lest a Democrat be allowed to fill it. With the result that we have had thirty years of a conservative-majority court. Never mind Ford or Nixon: three Reagan appointees, four Bush appointees between the two of therm, and three more Trump appointees, as against four total for Democrats since 1976 – despite 20 years of Democratic Presidency and 24 years of Republican, they have almost triple the seats. The Court is broken, possibly beyond repair.
But that’s only half the plan. The other half is simply to have no policy whatsoever at the federal level, other than to thwart Democrats. In four years under Donald Trump, the GOP’s great policy initiative was to confirm judges and throw out Obamacare – the latter of which they couldn’t even find fifty of their own votes in the Senate for – and nothing else, to the point that they literally had no platform for the 2020 Presidential election. Democrats can do nothing at the federal level, the Republicans will do nothing, and the courts will defend the Republican point of view.
And so we reach the soft secession we have now. Rather than break away from the United States, the South and its fellow travelers will merely make one outrageous decision after another at the state level, confident that the machinery of the Federal judiciary will not touch them as it did sixty years ago – and confident that it can stop any federal agency from intervening, either through the judicial shield during a Democratic administration or their own indifference during a Republican one. Florida can throw out public health altogether, Tennessee can tiptoe up to the line of burning books, Texas can create a vigilante mechanism for attacking women seeking abortion care, and the federal government is stymied in any attempt to intervene, while the Neo-Confederates waltz away with their “low-regulation low-tax” paradise paid for with federal money leeched from California and New York.
Set against this, why even bother to secede by force of arms? Just brazenly ignore any number of norms and unwritten rules, get your tame Federalist Society judges to rip up any judicial precedent with language that would get a 1L laughed out of the classroom, and do whatever you want without let or hinderance – or consequences, to this point.
The only thing that is going to throttle this is an aggressive and comprehensive attack on Trumpism by everyone else, including Republicans who have supposedly disavowed Trump yet still want to reap the benefits of his ill-gotten power. Not allowed. Either you are on his side or you will do everything to remove them from political life, and if it means your Reaganite dreams are deferred for a generation, that’s the price of your folly. And there may come a day when the economic engines of America have to start giving serious thought to how their wealth can be diverted away from underwriting the very people who want to transform America into a new Confederacy.
Whatever it takes.