For citizens of global democracies, it is a time of doom scrolling. The attacks on the rule of law and democratic freedoms continue to unfold, promoting aggressive authoritarian themes and variations.

But democracy imperiled does not mean democracy defeated. Freedom and the rule of law have also demonstrated the ability of democracies to stand up to authoritarian assertions in unexpected ways. It’s crucial to understand that a constitutional democratic order is a compact supporting both freedom and community. This is manifested by decisions made by elected representatives, supported by law and an independent judiciary, and by millions of citizens raising their voices and, if necessary, taking to the streets to support democracy.

The importance of an independent judiciary should not be overlooked. An independent judiciary must be able to apply the law to the most powerful. That’s ultimately the difference between the cynical anarchist definition of law simply as “obey the rich." Democratic reality means that the law is ultimately guided by years of struggle and mass action that reshapes ever-imperfect legal structures. Years of democratic ferment, in fact, outlawed slavery, expanded the franchise, supported human rights, limited monopoly power, and much more. That struggle is democracy in action.

Law and justice are not determined by the high-minded drawing room conversations of wealthy citizens and intellectuals deciding what is fair and just, in the manner of John Rawls in his book A Theory of Justice. What stands out to me is that community is absent from the detailed index of A Theory of Justice. Democracy rises and falls on its success in dealing with the ever-present imperative to embrace and balance both freedom and community. Without freedom, democracy becomes autocracy. Without community, democracy becomes kleptocracy and the rule of the rich. Freedom and community are always contested terrain, always in flux. This is the essential characteristic of a functioning democracy that transcends the clever work of legal minds.

For example, in France, the Yellow Vest Protests (Mouvement des gilets jaunes) arose after the Macron administration hiked fuel prices in the name of technocratic wisdom. The Gilets Jaunes demanded a rollback of price hikes and the imposition of wealth taxes on the rich as a fair way to raise income. Macron quickly rolled back the fuel price hikes in response to citizen outrage. But a wealth tax that threatened the glories and powers of wealth was resisted. Macron had abolished the existing French wealth tax and did not institute another.

In China, President Xi has worked very hard to establish a legal order that makes decisions free from endemic influence peddling and corruption. But Xi’s reforms have one clear difference from an independent judiciary. All decisions ultimately rest in Xi’s hands and are subject to his decisions.

The authoritarian moment

Central to any authoritarian takeover is undermining the rule of law and making any decision by the leader permissible. Without crippling the rule of law, authoritarianism is sharply limited or stopped in its tracks. Disabled by law and legislative action, the authoritarian must turn to violence, attempted coups, and civil war to seize power.

For example, U.S. judges, including three Trump-appointed Supreme Court Justices, rejected 40 Trump lawsuits, claiming he somehow won the 2020 election in which he was soundly defeated. It would also not be a surprise if the conservative judiciary decides that Trump, the insurrectionist, will be disqualified under Article 3 of the 14th Amendment and prevented from holding office. The conservative majority on the Supreme Court will, I suggest, have little interest in ceding their power, which may last for a generation, to Donald Trump.

Trump has not been subtle by announcing plans to gain dictatorial power. As dictator, on his first day, he will close the southern border and “drill drill drill” for fossil fuels. He plans to deport millions, replace the civil service with his loyal flunkies, execute the former Chair of the Joint Chief of Staff, and wield all elements of his power to take revenge against his critics and opponents. Essentially, Trump is daring the judiciary to respond.

There is a litany of attempted and sometimes successful authoritarian programs. There has been attempts by Netanyahu in Israel and Trump in the United States to escape prison for their crimes, as both embrace the language of toxic nationalism and bigotry. Erdoğan, well entrenched in Turkey, attacks democratic norms as well as human rights protections. Orban in Hungary, according to the European Parliament, now leads a “hybrid regime of electoral autocracy," that is, a constitutional system where elections occur but respect for democratic norms and fair results are absent. Geert Wilders in the Netherlands leads the Party of Freedom, an anti-immigration, Islamophobic, and anti-European Union party with the largest number of parliamentary seats. And there are more...

U.S. state constitutions and protecting democracy

If Donald Trump returns to power in 2024 and proceeds upon his revenge tour against all who dare not praise him, it is quite likely that a combination of congressional and legal opposition, along with citizen and state action, will interfere with Trump’s authoritarian dreams.

It may not be as easy as he thinks to round up 10 million people for deportation, to jail political opponents, to end the free press, to stock the government from top to bottom with his lackeys, and to have the US military war on millions of Americans' protesting and resisting the violent and illegal imposition of Trumpism. After losing in 2020, Trump threatened to suspend the constitution in order to maintain power. Sooner, rather than later, if Trump comes to power without a sufficiently compliant Congress, he will pursue his fever dreams by attempting to suspend the constitution and be in a position to rule by decree.

Succeeding in suspending the constitution will have a number of unexpected consequences.

Reading the state constitutions, predating the 1787 U.S. constitution, like those in NH and MA, is very interesting. Both the NH and MA constitutions begin with an extensive Bill of Rights.

A couple of articles in NH’s 1783 Constitution's Bill of Rights are particularly important:

  • [Art.] 7. [State Sovereignty.] The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right pertaining thereto, which is not, or may not hereafter be, expressly delegated to the United States of America in Congress assembled.

  • [Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old or establish a new government. The doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

Articles 7 and 10 reflect NH’s motto. “Live Free or Die." I lived in NH for many years and cherish the NH independent spirit and NH’s particular tolerance for the unconventional and skepticism about undue assertions of government power. The legislature is part-time paying reps $200 a year. Not a suitable venue to obey orders from a Trump dictatorship.

The MA constitution of 1780 also begins with Bill of Rights that includes:

  • IV. The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent state, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right that is not, or may not hereafter be, expressly delegated to the United States of America by them in Congress assembled.

  • VI. No man, or corporation, or association of men, has any other title to obtain advantages or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public. And this title being in nature neither hereditary nor transmissible to children, descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge is absurd and unnatural.

MA citizens sparked the American revolution on April 19, 1775. The Battle Green stands in the middle of Lexington and nearby the site of greater bloodshed over the bridge in Concord, where Ralph Waldo Emerson of Concord wrote to remind every American patriot, “Here once the embattled farmers stood, and fired the shot heard round the world.” Orders from Donald Trump freed of constitutional limits are unlikely to ever be obeyed.

Consequences of suspending the constitution

Suspending the constitution means that many states will follow their own constitutional imperatives and separate themselves from the imposition on states by the lawless Trump administration. Large industrial states may direct their citizens to refuse to pay taxes to the IRS. Industrial states already pay much more than they receive from Washington. States will rely on their existing state governmental systems adapted to deal with the interruption of constitutional democracy. The federal system means that states are substantially self-governing. States have comprehensive systems including legal, electoral, governmental, educational, ecological, economic development, tax, regulatory, housing, public health, welfare, police, and National Guard.

State refusal to cooperate with the destruction of democracy and the ready reliance upon existing state structures represent, in effect, the expression of a general strike.

States will easily reach out to their neighbors and other likeminded states to cooperate formally or informally on a regional and national basis if the Trump dictatorship remains in power. Logical groupings of blue states in the Northeast, Mid-Atlantic, West Coast, and others would establish a variety of cooperative measures. Over time, these would develop into relationships that are more formal.

States with large populations and strong economies have enormous economic power. The U.S. GDP in 2023 was about $27 trillion. New England's GDP is 1.4 trillion. The Mid East states, which include NY, New Jersey, and Pennsylvania, have 4.6 trillion. The Far West counting only California at $3.8 trillion, Washington at $0.8 trillion, and Oregon at $0.3 trillion. Add Illinois to the Great Lakes with $1.1 trillion. These states alone represent $12 trillion, or 44% of GDP.

The great dictator will quickly find himself on the horns of a dilemma. The ability of a lawless Trump regime to be able to dispatch the military to force the states to obey and cooperate with one-man rule is highly unlikely. The military culture is not to obey illegal orders.

But if Trump were unable to suspend the constitution, he’d be limited by Congress and the courts. His intention to destroy the press, political opponents, unfriendly corporations, and citizen groups will face strong legal, legislative, and civil society pushbacks. Tumps actions will be destructive and cause great harm, but they will not end well for the MAGA movement.

Citizen resistance

If Trump suspends the constitution and declares himself dictator, the situation is likely to be roughly similar to that of Russian communist attempts to seize power in August 1991 from Gorbachev and recently elected President Boris Yeltsin. Communist hardliners of the GKCHP succeeded in detaining Gorbachev. GKChP members signed GKChP Resolution No. 1, proclaiming a 6-month state of emergency, prohibiting rallies, demonstrations, and strikes, and suspending political parties, public organizations, and mass movements.

But resistance by Yeltsin and anti-authoritarian protestors fought the coup. The planned attack on the Russian White House was resisted by some soldiers and many civilians. After three defenders—Dmitry Komar, a 22-year-old Afghan war veteran, Vladimir Usov, a 37-year-old economist, and Ilya Krichevsky, a 28-year-old architect—were killed, the attacking soldiers withdrew unwilling to spill any more blood, and the coup collapsed. A small number of people fighting for democracy made the difference. Resistance to a Trump-declared dictatorship will be a path to escalating crisis, resistance, and collapse of MAGA.

Conclusion: post constitutional order

The consequences of a Trump a post-constitutional order will likely result in the reestablishment of constitutional norms leading to substantive changes and constitutional reforms. These include the abolition of the Electoral College, majority votes for President, campaign finance limiting and eliminating corporations’ status as people, mandates for ecological conduct, the pursuit of sustainability as a fundamental principle, redirecting the capital spent on the U.S. war machine toward human needs at home and abroad.