Fascism's "Legal Phase" is Here, and the Threat is Real

When Republicans blocked the John Lewis Voting Rights Advancement Act on January 19, 2022, they removed the last safety net preventing the U.S.’s plummet toward authoritarianism. As a result, we are at this moment in a state of free-fall, the culmination of a state-level legislative and enforcement landscape that directly mirrors Jim Crow — or as fascism scholar Jason Stanley recently put it, “America is now in fascism’s legal phase.” Although we do have ways of fighting back, the situation is dire.

We often hear that the U.S.’s founding documents, courts and institutions make it immune to despotism, but this claim is simply false and erases our country’s troubling history with white supremacy — one the GOP is poised to reinvigorate. During Reconstruction, for example, Louisiana experienced dozens of coups and massacres at both the local and state levels. These escalated after white supremacists refused to concede defeat in the state election of 1872, opting instead to set up a shadow government under losing candidate John McEnery. The paramilitary arm of the shadow government — the White League — tried (and failed) to oust the legitimate governor and his allies in the “Battle of the Cabildo” in 1873. Instead of arresting and prosecuting the conspirators, state and federal officials allowed them to plan their next coup, which successfully toppled the state government in the “Battle of Liberty Place” in 1874.

Failing to prosecute the white vigilantes and the insurrectionists of Reconstruction, the U.S.’s first attempt at multiracial democracy, all but ensured their eventual success. This pattern played out across the South as the old enslaving class spread racist fears of nonexistent Black insurrections to successfully promote a frenzy of racist violence in a bid for power. Perhaps we might tell ourselves that white vigilantism is “unconstitutional” and would never survive the courts, but the unfortunate truth is that the Supreme Court has historically condoned these tactics. In the 1876 Cruikshank ruling, the justices decided that the white paramilitaries who murdered roughly 150 Black Louisianans in 1873 did not violate their civil rights because the Bill of Rights only applied to states, not to private individuals. White conservatives understood the ruling as granting them immunity from prosecution for murdering Black Americans and enacted a wave of racist violence months later in the election of 1876 that formally ended Reconstruction.

We sit at just such a juncture, where Donald Trump and members of his administration tried repeatedly to overturn the results of the 2020 election. We now know that Trump officials, lawyers and campaign staff explored a variety of strategies designed to overturn the election results, including a mid-December unsigned executive order directing the recently installed Secretary of Defense Christopher C. Miller to seize voting machines. Trump allies, meanwhile, met with Republican senators two days before the mob attack on the Capitol to discuss the now-notorious coup PowerPoint detailing how Republicans might install Trump on January 6 and then declare martial law. Mark Meadows, Trump’s chief of staff, texted at least one member of Congress, “I love it” regarding the planned coup. While it is true that some of Trump’s foot soldiers who staged the Capitol breach have faced repercussions, its architects continue to hold meaningful power and influence and are successfully removing the guardrails that staved off their last coup attempt.