In the late 1670s and early 1680s, when John Locke first put pen to paper to work on The Two Treatises of Government, he was grappling with a question unnervingly familiar to contemporary Americans. The king, Charles II, had made clear through his policies and actions that he sought to centralize control by establishing an absolutist state modeled on France. English liberties were threatened. By issuing “declarations of indulgence” removing certain legal handicaps on Catholics and others who did not conform with the Church of England, Charles unilaterally canceled laws passed by Parliament. In towns and counties across the country, Charles removed local officials hostile to his policies and replaced them with his allies, bending the apparatus of the English state to his will. His critics decried these actions but were powerless to stop them. Worse, his brother James, next in line to the throne, threatened to build on Charles’s policies. What could be done?
Locke’s political friends and patrons — who came to be called Whigs — sought to convince Charles to alter the succession. In what is called the Exclusion Crisis, three Parliaments between 1679 and 1681 considered bills changing the succession to exclude James, and each time Charles responded by proroguing Parliament. The King made clear that the English constitution did not permit Parliament to alter the hereditary line.
It was in this context that Locke posed a fundamental question: is there a way to justify resisting authority that comes to power legally but threatens the foundations of the constitution? His answer in The Two Treatises, published in the 1680s after James II had been deposed in England’s “Glorious Revolution,” is perhaps the most important work of political theory in the liberal tradition.
Today, America is roiled with its own Exclusion Crisis. We too face the very real possibility that in this fall’s election a legal succession could bring to power an executive who has demonstrated his willingness to undermine our Constitution. To draw the parallel is not to propose armed resistance but to force us to reckon with the dreadful gravity of this moment: We may be about to hold an election which will render our Constitution invalid.
We should not confuse reasonable differences between the two parties and their policies with threats to the Constitution itself. In a democratic republic, open disagreement is a sign of civic health. Regardless of one’s partisan loyalties and policy preferences, however, the evidence is clear that Donald Trump poses a threat to the republic. Like Locke before us, we must consider how to respond should an empowered political leader unknit our order.
There have been many articles and books examining Trump’s authoritarian tendencies and his admiration for authoritarian leaders around the world. The largest threats he poses to the Constitution are not his policies but his efforts to undermine the rule of law by embracing violence as a political tool. Numerous high-ranking officials from the Trump Administration have made clear that, but for their resistance, as president, Trump would have undermined the Constitution during his first term. He has joked that he’ll be a dictator on the first day of his second term, but there’s nothing funny about it. If re-elected, he has promised to unleash all the force of the United States Justice Department against his political opponents, from Gen. Mark A. Milley to President Biden and Vice President Harris, and to bypass the judicial system by using military tribunals. We should take his word for it.
Trump’s violence — his penchant for it, for inciting it, and valorizing it — should terrify us most of all. He encouraged and then celebrated the efforts of his supporters on January 6 to undermine an election and threaten the safety of America’s elected officials. At the heart of the American system is the freedom of elected legislatures. That freedom itself emerged out of conflicts between Parliament and King — and between colonial assemblies and royal governors — during the 17th and 18th centuries. The consent of the governed depends ultimately on free elections and the capability of the people’s elected representatives to deliberate the public good. Trump is committed to undermining legislative freedom. Both Republican Senator Mitt Romney and former Representative Liz Cheney have revealed that members of Congress were afraid to vote to impeach President Trump — even when they believed that he had committed impeachable offenses — because they worried that his supporters would threaten their families’ safety. When legislators are not free to deliberate and vote, the Constitution is already dead.
Fear kills freedom. Fear is the point.
Trump has also used violence to undermine the judicial branch. He and his allies have rattled faith in America’s judicial system by portraying efforts to hold him accountable to law as political attacks rather than evidence of Trump’s own contempt for the rule of law. He has threatened violence against judges and their families, seeking to do to judges what he has already done to members of Congress. Jurists and other officials have faced threats of violent reprisal, including after the former president was convicted of thirty-four felonies. In the case concerning Trump’s misuse of confidential documents, Prosecutor Jack Smith, concerned about the safety of federal agents, has asked a Florida federal judge to limit Trump’s public statements so that law enforcement agents do not become targets of retribution. Trump’s supporters have threatened violence against state and local officials at their homes, leading many elected officials to hire additional security. Acts of violence against former Speaker of the House Nancy Pelosi’s husband at his home and against judges remind us that Trump’s words inspire action.
The American Constitution is a formal written document, but like the English constitution, it is also governed by norms and precedents. James Madison noted wisely that the Constitution’s protection of our rights are “parchment barriers.” Americans are not used to taking seriously threats to our safety and our democracy. We take for granted the stability of our system. But the call is coming from inside the house.
Trump threatens many of our basic political norms. He has challenged the peaceful passing of power, something that, with the exception of 1861, Americans have taken for granted since 1800, when the election between John Adams and Thomas Jefferson was thrown into the House. Members of the Federalist party pursued various tactics to prevent Jefferson from being selected, but ultimately determined to defer to the Constitution and the Electoral College and to hand over power to someone that they despised. The 1790s and 1800s also saw Americans struggle to accept the legitimacy of political parties and the benefits of peaceful organized opposition. Trump has instead painted his partisan opponents as “human scum.” Dehumanizing one’s political opponents is the first step to authorizing violence against them. Too many of his own party have been willing to support his words and deeds, turning large segments of the Republican party into a dangerous conspiracy.
Perhaps Republican officials are falling in line behind Trump because they fear for their own safety. Or maybe they think it’s their only route to power. But political leadership comes with responsibilities and if they are not prepared to stand up to despotism they should step down instead of selling our collective safety for theirs.
How can Americans respond to our Exclusion Crisis?
The Constitution addresses exclusion in two places. The impeachment clauses make clear that a president convicted by the Senate shall never again “hold and enjoy any Office of honor, Trust or Profit under the United States,” but Congress did not convict him while president. The Fourteenth Amendment, passed by Republicans following the Civil War, states that no person can hold office if they have sworn an oath to the United States and subsequently “engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.” Scholars from across the political spectrum have argued that the 14th amendment applies to and should disqualify Trump. Several state top election officials determined that Trump had indeed engaged in insurrection and should be barred from the ballot, but the US Supreme Court determined that states could not remove Trump from the ballot without threatening the federal government’s sovereignty. These attempts to protect the republic from Trump’s re-election are similar to Parliament’s 1670s exclusion bills. They are lawmakers’ efforts to find legal solutions to a dangerous succession.
If Trump wins the election, Americans will face questions similar to those faced by the English in the 1670s. Like Americans today, Locke observed the failure of legislative efforts to stop a dangerous succession. He struggled to find a response that was legitimate — in other words, a response that would not permit arbitrary violence or resistance to constituted authority. Locke also knew that the most likely response among people was acquiescence, so long as threats to their liberty remained minor: “people are not so easily got out of old Forms, as some are apt to suggest,” Locke wrote. Thomas Jefferson echoed Locke’s point in the Declaration of Independence, writing, “experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” (We should also remember that we will not all suffer equally—the most vulnerable amongst us will likely suffer the most.)
For Locke, however, there had to be something else, something that people could lawfully do to save themselves when they knew their liberties were threatened. Locke famously argued that governments exist through a contract made by people in the state of nature in order to protect their “Life, Liberty, and Estate.” In the state of nature, Locke wrote, we are bound by natural law, but there is no way to protect our rights against thieves and marauders. This leads to a state of war. To remove ourselves from a state of war, individuals agree to form a government. That government exists to serve the ends that the people have agreed upon. When the government threatens the rule of law, then the government is no longer legitimate, and the people must act to protect their liberties by resisting arbitrary power.
Locke’s remedy was a risky one. The bloody and destabilizing English Civil Wars were still a recent memory for most English, and so Locke and other English people knew that resisting the King imposed real hardship and danger. No one sought that. Locke himself wrote that “Revolutions happen not upon every little Mismanagement in public affairs.” Nonetheless, people must look out for “a long train of Abuses…all tending the same way.” In such cases, when it becomes clear that the nation’s leadership has violated the terms of the social contract, “the People are at liberty to provide for themselves…by the change of Persons, or Form [of government], or both, as they shall find it most for their Safety and Good.”
But when to act? Some might say we must wait until government becomes fully oppressive. To this, Locke responded, “the state of Mankind is not so miserable that they are not capable of using this Remedy, till it be too late to look for any.” Indeed, Locke added, people must act in time to save themselves from having their liberties usurped. To tell people to wait until it’s too late, Locke wrote, “is in effect no more, than to bid them first be Slaves, and then to take care of their Liberty; and when their Chains are on, tell them, they may act like Freemen.”
All decent people abhor violence and fear disorder. The polls which suggest that one in five American adults think political violence is warranted to achieve their goals should terrify us. We should not give into the intoxicating hatred of either side. We must value one another as fellow Americans despite (indeed because of) our legitimate differences. Yet it would be foolish to behave as if what we face is just another ordinary election. The parallels between our times and Locke’s are simply too real. When faced with a situation similar to ours, Locke wrote one of the founding documents of our political tradition. We must recognize, albeit soberly: this election may transform us. If it does we will no longer be free. And it’s not clear what we’re supposed to do next.