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Andy Schmookler: The Great American Covenant

Andy Schmookler: The Great American Covenant

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The heart of the American nation is this fundamental agreement: We agree to fight our battles over power — how it is obtained, and to what purposes it is put — according to the rules, and then to accept the outcome whether we win or lose.

That is what the Constitution is all about substituting the rule of law for the alternative possibility, some kind of war.

Proof of the centrality of that covenant is that the nation’s founders required everyone to take a solemn oath to defend that covenant to “protect and defend” the Constitution as a requirement for assuming any position that commands any power in the American system.

That agreement being the essence of the American system, there is no greater crime in that system than the violation of that covenant.

Right now, we are witnessing probably the most flagrant violation of that covenant in the nation’s history: the attempt to overturn the results of a legitimate as well as clean, and reasonably decisive election.

A refusal to “accept the outcome,” even when we lose.

We might have seen this coming.

Even before this 2020 and ongoing episode in which one of America’s major political parties acted as accomplices in the attempt to hold onto power that the people through the constitutional process had chosen to give instead to their opponents, that same political party had taken unprecedented actions to undo the results of other elections they had lost:

In three states first North Carolina, and later Wisconsin and Michigan the Republicans in state legislatures sought to strip away powers from the governorships their opponents had just won. There can be nothing legitimate after the citizenry has voted to elect people to hold the offices as they had been defined on Election Day about the losers of the election redefining those offices with reduced powers.

But we can see that same spirit that same unwillingness to respect the legitimate outcome of a constitutional process — still earlier: in the disgraceful history of the Republicans’ dealing with the Affordable Care Act.

If there has ever been a piece of legislation passed through a process more fully in adherence to the constitutional rules than Obamacare, I am unaware of it.

The ACA was the culmination of a long, open, political battle over the future of our nation’s problematic healthcare system, and the Republicans lost it. A major national decision got made. And it was made the way according to the Constitution such decisions should get made.

It concerned an issue on which action was clearly needed, inasmuch as the United States was spending twice as much as other nations with much worse outcomes.

A presidential candidate (Obama) made it his signature campaign issue that if elected he would seek to enact something along the lines of the ACA.

The American people elected that candidate to the Presidency, expressing their will.

The Congress deliberated over the legislation for months, and the ACA ultimately passed (albeit narrowly), thus becoming the law of the land a national decision made.

There was nothing the least bit radical about the law —every other advanced nation goes further — and the law was competently designed.

The enactment of the Affordable Care Act a reasonable decision on a pressing issue exemplified, if anything ever has, how the framers of the Constitution intended for important and necessary decisions to be made about the nation’s path forward.

Therefore, the party that had fought against it had absolutely no legitimate reason not to accept the outcome and move on.

Despite that, in a manner unprecedented in American history after the battle had been fought and an outcome achieved the Republicans continued the fight in every way they could:

making many dozens of theatrical votes to “repeal” that decision,

refusing, in Republican-controlled states, to implement those portions they were in a position to block, and

repeatedly trying to get the Supreme Court to strike the law down.

Unlike with the efforts to overturn a legitimate election, there was nothing illegal or unconstitutional about the Republicans’ never-ending war on the ACA.

But they had no justification either. The problem the ACA addressed was undeniable, and the Republicans never offered any better solution.

The Republicans’ only apparent “reason” for perpetuating the war was that their opponent had won a victory in accordance with the rules. And, as in the 2020 election, the Republicans refused to accept that sometimes you win, and sometimes you lose.

It is in that way that the Republicans’ conduct with Obamacare was an omen of the darkness to come. It manifested a lack of adherence to the Great American Covenant: that the basis of the system our founders gave us is that we all agree to fight our battles according to the rules, and then accept the outcome.

Andy Schmookler is the author of “The Parable of the Tribes: The Problem of Power in Social Evolution.”


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