Thousands of National Guard troops patrol the nation's capital as I write, hoping to ensure that the scheduled transition of power from one president to the next comes off without renewed violence. That sight—unusual for the United States—underlines the fact that millions of Americans no longer support the political system or believe it derives its powers "from the consent of the governed" (as the Declaration of Independence puts it). It also strongly suggests that it's time to try something new if the government under which we live is to be anything better than a resented force at war with much of the population it rules.
The militarization of Washington, D.C., comes after the January 6 storming of the Capitol —a shocking event with as-yet to be determined repercussions that was actually supported by a fifth of voters and 45 percent of Republicans, according to post-riot polling. Perhaps that's not as surprising as it should be; well before the ginned-up controversy over the presidential election results, only 24 percent of voters believed the government had the consent of the governed (53 percent disagreed), as reported by a 2018 survey. Maybe the real marvel is that we avoided a January 6-style event for so long.
We've built toward this point for years. While the Trumpists' storming of the Capitol was an unprecedented rejection of the established procedures for transferring power, it built on trends. From the contested, but peaceful, 2000 election, to the boycotting of Trump's 2016 victory by dozens of Democratic members of Congress as other opponents rioted blocks away, Americans have moved toward belief in the legitimacy of elections only if their side wins. At some point, we were going to see an outright refusal to accept a loss, which is what occurred on January 6.
And there's no reason to expect that people will lose their distaste for political defeat in future political contests.
How could Americans be accepting of electoral losses when many view their opponents as immoral and unpatriotic and see them as enemies of the country—to the point that the major factions are defined by their hatreds? "Democrats and Republicans … have grown more contemptuous of opposing partisans for decades, and at similar rates," notes a November 2020 paper on political sectarianism. "Only recently, however, has this aversion exceeded their affection for copartisans."
To a large extent this is because politics has become combat, with election victors using their control of government agencies to torment losers.
"It is more and more dangerous to lose an election," economist John Cochrane, a senior fellow of the Hoover Institution and an adjunct scholar of the Cato Institute, wrote in September. "The vanishing ability to lose an election and not be crushed is the core reason for increased partisan vitriol and astounding violation of basic norms on both sides of our political divide."
No sane people would consent to a political system that works as a weapon against them; they would try to escape its power. One of the virtues of the original decentralized American republic and its federalism was that if you didn't like the laws and rulers where you lived, you could go elsewhere.
"Foot voting is still underrated as a tool for enhancing political freedom: the ability of the people to choose the political regime under which they wish to live," George Mason University law professor Ilya Somin wrote in a 2012 paper since expanded into a book. "When people are able to choose their governments, political leaders have stronger incentives to adopt policies that benefit the people, or at least avoid harming them. And the people themselves are able to select the policies they prefer."
The "people" Somin references aren't the amorphous masses discussed in Social Studies classes as marching to the polls to jam the alleged will of the winners down the throats of the losers. He means individuals turning their backs on governing systems they dislike and picking those that better suit them.
But, as Chapman University law professor Tom Bell—another advocate of political choice—points out in his 2018 book Your Next Government?, "the United States has in recent decades failed to take states' rights seriously, making federal law supreme even in minutely local matters."
Moving does little good when the laws and "vanishing ability to lose an election and not be crushed" (as Cochrane put it) follow you.
Even reviving federalism would accomplish little when many states have larger populations than the whole country did at its founding and the major political divides run not between states or regions, but between urban and rural areas. Within localities are many people who feel trapped by circumstances in "enemy territory," subject to hostile rulers and laws they despise.
How do we make more palatable a political system that functions as a death match between mutually loathing factions who believe themselves—with reason—to be in peril when their enemies win control?
"If every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man, then he is free to drop connection with the state—to relinquish its protection and to refuse paying toward its support," Herbert Spencer famously argued in 1851. Fundamentally, Spencer wanted the right to exit that Somin favors, but without the physical migration of foot voting, as a means of making political arrangements more widely acceptable and considerate of liberty.
But Somin not only favors radical decentralization to minimize the costs of migration, he also discusses arrangements whereby "individual citizens can change government service-providers without a physical move." Bell, too, believes that "for the same reason that nation states should and generally do allow the unhappy residents to emigrate, more consent-rich governing services would doubtless guarantee the freedom of citizen-customers to exit to other legal systems" without moving their locations.
In 2001, Swiss economist Bruno Frey proposed what he called functional, overlapping, competing jurisdictions—basically, governments that people choose among as if picking club memberships.
Frey echoed Belgian economist Paul Emile de Puydt who, in the 1860 article "Panarchy," advocated a system of non-territorial federalism under which people could freely register their support for, or withdrawal from, any political associations that gain sufficient support. "I hope we can all go on living together wherever we are, or elsewhere, if one likes, but without discord, like brothers, each freely holding his opinions and submitting only to a power personally chosen and accepted," de Puydt wrote.
These proposals expand on Spencer's "right to ignore the state" in empowering people to join with the like-minded not just to reject officials and laws that don't suit them, but to construct systems that do.
Their advocates emphasize existing precedents for choice in government. "People choose between governments every time they choose to live in a new city, state, or country," writes Bell. "Businesses and others are often able to choose for themselves which state's law will govern their dealings with each other, even if they do not actually reside in the state in question," points out Somin.
What if Americans could choose governing systems rather than having them jammed down their throats? They could embrace rules as limited or restrictive as they please, programs and policies that suit their tastes, and officials who resist treating election to office as opportunities to punish enemies. If dissatisfied, they could exit one system and choose another—just as they can now, but without having to shoulder the hassle and expense of loading a rental truck and driving across a border. Tensions might ease and violence become less likely if people who hold each other's values and lifestyles in contempt didn't have to fear government as a bludgeon in the hands of their enemies.
True, American politics has been moving away from allowing exit in recent years, centralizing power so that people can't escape and even attempting to continue taxing those who flee, as California lawmakers propose. But the result has been battles between rebellious localities and higher authorities. And now troops patrol the streets of the nation's capital because nobody is willing to lose elections.
We can have a future of increasing conflict between Americans who hate each other. Or we can make it easier for people to peacefully escape each other's control.
The Rattler is a weekly newsletter from J.D. Tuccille. If you care about government overreach and tangible threats to everyday liberty, this is for you.