A candidate is down in the official count after an election but refuses to concede. He was the victim of massive fraud, he insists. As “stop the steal” becomes a rallying cry, his supporters march on the capital, hoping to install him in office. Eventually, he gains office and triggers a constitutional crisis.
You might think you just read a description of the 2020 and 2024 elections and the beginning of Donald Trump’s second term as president. But, in fact, you learned about Kentucky’s 1899 gubernatorial election. And it gets better. William Goebel, who succeeded in overturning his loss, was assassinated. His opponent, William Taylor, was accused of murder and fled to Indiana. He appealed to the U.S. Supreme Court to recover the office he had lost.
Many observers say we live in unprecedented times. Trump’s refusal for months to obey a court order to facilitate the return of Kilmar Abrego Garcia, who was mistakenly sent to El Salvador’s “Terrorist Confinement Center” (CECOT), and his administration’s suggestion that it will disobey other court orders, have raised fears that we are in a constitutional crisis. In 2020, Trump became the first president in living memory who would not concede that he lost an election. Instead, he maintained that the election had been stolen by shadowy forces and encouraged supporters who attempted to disrupt the peaceful transition of power on Jan. 6, 2021.
Concerned citizens are asking: Where are we going as a country? After several years of studying constitutional crises, I have concluded that we are not headed toward Nazi Germany or even Viktor Orbán’s Hungary, as some commentators have suggested. America in the 2020s resembles America in the 19th century. Revisiting that formative period of American history can help us better understand our moment and give us hope that we can survive our current turmoil.
As I show in my recent book, “Sedition: How America’s Constitutional Order Emerged From Violent Crisis,” the United States can be thought of as an ongoing argument about how to interpret the Declaration of Independence. The most oft-quoted lines from that foundational text are that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” But most people are unaware that the declaration also addresses the question of why government is legitimate and when overthrowing it is permissible:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
In 1776, those were not the most important words in the Declaration. Far more significant were the grievances against Britain — such as imposing taxes without colonial consent and denying colonists their right to trial by jury — which were intended to galvanize American unity. Indeed, the declaration did not claim an exalted place in American life at the founding.
That changed in the 19th century. As the country approached its 50th anniversary in 1826, Americans celebrated the declaration while, at the same time, disagreeing over the questions it posed and whether they were living up to it. What does it really mean to say that everyone is equal? How do we define liberty? How do we avoid tyranny? Who counts as part of the American people? When is violence justified as a tactic to make political and constitutional change? We continue to argue about how to answer those questions today.
Take some of our most polarizing contemporary debates. Does “liberty” include the right to have an abortion? In the case of universal injunctions — through which judges can stop a government policy from being applied nationwide, even against people who are not challenging the policy — is the biggest threat of “tyranny” a president violating the Constitution or unelected judges injecting themselves into political disputes? Was Jan. 6, 2021, a case of the deep state punishing patriotic Americans who were raising legitimate questions about an election, or was it an insurrection that threatened the democratic process and the country’s future? Should children born in the U.S. to undocumented parents have the same rights and responsibilities as everyone else?
Americans of the 19th century might be surprised by these specific disputes, but they would be unsurprised by the broad areas of tension roiling the country. They lived through devastation as the country decided whether to embrace racial equality and what that meant. They witnessed women question rigid gender roles and wrestled with how that would affect their families and communities. They experienced disruptive economic transformations that left them anxious and reverberated throughout their politics. And they knew a thing or two about disputed elections.
What 19th-century Americans went through can put our current moment in perspective and teach us important lessons about how to move forward.
During the past several months, Trump has signed an executive order ending birthright citizenship, welcomed white South African refugees and gone to war against diversity, equity and inclusion (DEI) initiatives. He federalized California’s National Guard without Gov. Gavin Newsom’s consent and deployed active-duty Marines to the state in response to protests over his immigration policies, which he called a “rebellion against the authority of the Government of the United States.” It’s unclear whether these moves will hold up in court. Whatever their ultimate resolution, they have galvanized his supporters and incensed his opponents.
More broadly, we may be living through a major cultural shift. The gender gap in the 2024 election, among younger voters in particular, attracted considerable discussion. Trump’s campaign made special efforts to target male voters, for which it was rewarded. Certain segments of the population are increasingly seeking a return to old-fashioned gender roles — out with girlbosses and in with tradwives. It feels like we are fighting over our national identity, because we are. We are still asking who America is for.
If racial conflict has become a war of words, we should recognize that it was a cause of actual war earlier in our history. In his “Notes on the State of Virginia,” Thomas Jefferson attempted to persuade his compatriots to abolish slavery. If they didn’t, he feared that “Deep rooted prejudices entertained by the whites; ten thousand recollections, by the blacks, of the injuries they have sustained; new provocations; the real distinctions which nature has made; and many other circumstances, will divide us into parties, and produce convulsions which will probably never end but in the extermination of the one or the other race.” At the Constitutional Convention in Philadelphia in 1787, the founders fought over race. One delegate, Gouverneur Morris, called slavery “a curse of Heaven” and argued for making Blacks citizens and permitting them to vote. Some states followed his lead while others wrote state constitutions specifically designed to promote white supremacy.
The 19th century saw racial conflict lead to constitutional instability. As the national conflict over slavery escalated, U.S. Sen. Stephen Douglas proposed popular sovereignty as the solution. States would decide whether to permit slavery by popular vote of residents. The result was the violent confrontation known as “Bleeding Kansas.” Pro-slavery Missourians poured into Kansas, rigged an election and took control of the government to protect slavery. Antislavery Kansans responded by forming their own government, complete with its own constitution and militia. Between 1854 and 1859, pro- and antislavery militias fought pitched battles that left dozens dead. The bloodshed and failure to achieve consensus on slavery and the place of Black Americans meant it took Kansas four attempts to adopt a constitution.
That was a prelude to the worst constitutional crisis in American history: the Civil War. When Southern states seceded, the primary motivating factor was protecting slavery and white supremacy. Mississippi claimed that “Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world.” Texas justified secession because Northerners were demanding “the recognition of political equality between the white and the negro races.” Over 600,000 Americans died in the effort to define the country’s racial identity.
The conflict continued during the Reconstruction period (1865-77). Southerners initially resisted racial equality. They grudgingly abolished slavery but tried to reestablish it as a practical matter by adopting what were known as “black codes,” which placed stringent fetters on former slaves, such as limiting the jobs they could hold. Angered by such laws, Congress required Southern states to draft new constitutions and allow Black men to participate in drafting and ratifying them.
Black men formed a majority of South Carolina’s 1868 constitutional convention and played active roles in several other conventions. The resulting constitutions were therefore premised on Black equality. That made them targets for white Southerners determined to keep Blacks subjugated as they had been before the Civil War. As white South Carolinians warned, “the white people of our State will never quietly submit to negro rule.” They made good on their promise. Over the next several years, white supremacists started two violent organizations — the Red Shirts and the Ku Klux Klan — and launched coordinated campaigns to overthrow duly elected governments.
Media campaigns to arouse opposition to Republican governments played on long-standing sexual fears and dabbled in “great replacement” theories. North Carolina’s white supremacists urged whites to oppose the ratification of a new constitution guaranteeing Black participation in politics and public schools for all residents because it would force a 17-year-old white girl to “recite with negro boys of twenty” who could “make love to her, and call her pet names.” Thirty years later, just before the Wilmington Insurrection of 1898, white supremacists reported “a plot to turn North Carolina into a Negro state forever.” Blacks planned to “get control of the state, and force the whites to flee for life.” The result would be that “the Africans pour in as the locusts overran Egypt in the time of Moses, the commonwealth will be despoiled, plucked, and ruined,” while whites fled to South Africa.
By the end of the 19th century, coups against state governments responsive to Black Southerners succeeded. To give just one example, South Carolina whites formed the Red Shirts as part of their effort to replace a Republican government. The group was organized in military fashion and paraded through South Carolina to scare Black voters away from the polls. A key leader admonished members that “Every Democrat must feel honor bound to control the vote of at least one Negro, by intimidation, purchase, keeping him away or as each individual may determine, how he may best accomplish it.” They succeeded in suppressing enough Black votes to eventually win a disputed election.
To keep Blacks out of political life, white officials also administered tests asking arcane civics questions: If a state is a party to a case, do you know which court has original jurisdiction? Could you define “original jurisdiction”? Black voters were routinely disenfranchised for not knowing the answers, while white voters were given a pass.
For many Americans, the 19th century was a time of democratic expansion. White men without property and Black men outside the South gained the right to vote, as did women in some Western states. For Black Southerners, the end of the 19th century was a time of democratic erosion. They experienced the total collapse of democracy. There is no need to look to Nazi Germany or the Soviet Union to see examples of democracy failing. We can look to our own history.
Americans of a certain age are used to election day proceeding in a particular way. The process of casting a vote is peaceful. A winner is revealed that night or the next day. The loser concedes. The past 25 years have been an anomaly, whether it was the 2000 election taking a month to resolve or Trump refusing to concede in 2020.
But if you look at the 19th century, our recent experience is closer to the general rule. The century began with the disputed 1800 election. Aaron Burr and Jefferson tied in the Electoral College. Throughout the 36 rounds of voting it took to resolve the deadlock, rumors swirled that two state militias would intervene on Jefferson’s side. Voter intimidation, suppression and coercion were staples of 19th-century elections. Throughout the century, many Americans voted orally in front of their parents, spouses, bosses and friends. Employers and landlords threatened to retaliate against dependents if they voted contrary to their wishes. Partisans routinely went to polling places with guns and threatened political opponents who tried to vote. Ballot-stuffing was commonplace.
These shenanigans had profound consequences for American history in the 1876 election. That year, a dispute arose over electoral votes from Florida, South Carolina, Oregon and Louisiana. In South Carolina, some white supremacists bragged about voting 20 times in the election, while others donned red shirts and physically blocked Republicans from voting. Benjamin Tillman (known as “Pitchfork Ben”), who served as governor of South Carolina and later as a U.S. senator, bluntly explained that this was the only way white supremacy could triumph because of the state’s Black majority. “How did we recover our liberty?” he asked. “By fraud and violence. We tried to overcome the 30,000 majority by honest methods, which was a mathematical impossibility.”
Historians have long suspected that Republicans and Democrats struck a deal in 1876 to give Rutherford Hayes the presidency in exchange for ending Reconstruction in the South. What would have happened in an honest vote? How might American history have unfolded differently if the election of 1876 had been conducted fairly? We’ll never know.
The 19th century’s polarized media climate made elections even more of a rollercoaster. Some Americans yearn for the days when the news anchor Walter Cronkite commanded respect across the political spectrum and lament how many Americans now get their news from partisan outlets or, increasingly, social media. But 19th-century Americans would feel right at home. It was common for newspapers to be affiliated with political parties — they had names like the “Morning Republican” and the “Wautaga Democrat” — and to devote as much space to expressing opinions as to reporting the news. The chief justice of the Arkansas Supreme Court was the co-owner of his state’s Republican newspaper and wrote articles attacking political opponents in its pages.
The inability of the media to agree on basic facts contributed to plenty of election disputes. In Pennsylvania’s 1838 Buckshot War, a pro-Whig Party newspaper and a pro-Democratic Party newspaper each predicted that their respective candidates for governor would win commanding victories — and reported different vote tallies. Pennsylvanians hearing competing perspectives about who won were more receptive to conspiracy theories about the election than they would have been otherwise. The result was that neither candidate for governor conceded. Both Democrats and Whigs claimed to have won majorities in the state House of Representatives and both sides elected speakers. Mobs poured into Harrisburg, threatening to murder political opponents, and Whigs appealed to the federal government for help before the incumbent governor called out the state militia to preserve order.
The events of Jan. 6, 2021, were merely a 21st-century version of the Buckshot War. “Stop the steal” could just as easily have been the rallying cry of Pennsylvanians ready to forcefully claim power. My book “Sedition” documents many similar incidents, but the Buckshot War is particularly relevant.
If 19th-century America provides a scary portrait of where we are headed, it should also give us hope. America’s constitutional order survived a century of turmoil that became far worse than anything we are enduring now. If we could survive a cataclysmic Civil War and reverse democratic erosion — which we finally did in the 1960s, with the passage of the Voting Rights Act and related efforts — we can emerge from this moment’s constitutional turmoil. America has been resilient.
And yet, this historical perspective should not make us complacent. The American constitutional experiment almost ended in the 19th century. It’s possible to imagine an alternate universe where the House of Representatives refused to elevate Jefferson to the presidency in 1800 and state militias began fighting each other. And it’s possible to envision the Confederate Army winning the Battle of Gettysburg and the Civil War thus ending with slavery still intact and the U.S. Constitution dissolved. The truth is, America has also been lucky.
And it may not always be in the future. That’s why it would be a mistake to see Trump as an aberrant threat to the liberal democracy so many Americans died to secure, and to think everything will be fine once he leaves office. America’s constitutional system has always confronted grave threats and been under severe strain. There will be other leaders with authoritarian impulses who disregard the Constitution and basic norms. The best thing those concerned about the long-term health of our republic can do is to keep working to improve it.
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