Editors’ note: Three years after the Jan. 6, 2021, insurrection at the U.S. Capitol, threats of political violence continue to make front-page headlines. In this archival piece, contributor Molly Scudder takes a closer look at claims that the attack on the Capitol that day was within the bounds of “legitimate political discourse.” Her analysis was originally published in the Washington Post in early 2022.
In February 2022, the Republican National Committee censured Reps. Liz Cheney (R-Wyo.) and Adam Kinzinger (R-Ill.) for being on the Jan. 6 House select committee, which is investigating the 2021 insurrection at the U.S. Capitol. The RNC described the committee as a “Democrat-led persecution of ordinary citizens engaged in legitimate political discourse.” This language implied that the Jan. 6, 2021, attack was within the bounds of “legitimate political discourse.”
So what exactly qualifies as legitimate political discourse?
Research in normative political theory — a subfield of political science — on the philosophical foundations of democracy can provide some answers. Since the Enlightenment, Western conceptions of legitimacy have hinged on the idea of democracy. Legitimate laws are democratic laws — or in other words, laws that the people have chosen for themselves. The same goes for representatives. Legitimate representatives are chosen by the people. Of course, the people do not always agree. So to achieve legitimacy in a pluralistic country like the United States, there needs to be some way of making decisions that everyone can accept even when they disagree.
Overt violence and threats may undermine legitimacy
When making political decisions amid disagreement, talking is better than fighting, according to deliberative democratic theory research. Disputes that are resolved through reasoned argument are more legitimate than those that are resolved through violence. When forming political opinions, people should give in only to the “unforced force of the better argument,” as noted political theorist Jürgen Habermas wrote. The overt use of violence by those storming the Capitol would seem to disqualify any claim that they were engaging in legitimate political discourse.
Broader political theory scholarship, however, would suggest that the issue is more complex than just the presence or absence of physical force. When it comes to the legitimacy of the events of Jan. 6, is the disqualifying issue the form or the content of the political message? In other words, would or should we feel different about President Donald Trump supporters’ message if they had not resorted to violence? Or is there something illegitimate about their claims of a stolen election, independent of the form in which these grievances were expressed?
Evaluating the substance of Jan. 6
First, I consider the question of the substance of the Jan. 6 protest that turned into an insurrection. Do the grievances of Trump supporters deserve to be included in legitimate political discourse? Based on my book on the challenge of listening in political discourse, I would argue that the answer here is yes, they do deserve to be heard. In listening to others, we enact democracy by recognizing the moral equality of each person’s voice. While we do not have to agree with, respond to, or even respect everything we hear, democracy does require that we consider each other’s perspectives and grievances. All people should be heard.
Democracy, however, does not guarantee that everyone will get their way.
Democracies should allow for a wide range of political talk. Even political talk that is unruly or offensive can enhance democracy by bringing new issues to light. But what about people who seek to undo our democratic institutions? Does democratic discourse have to facilitate its own destruction by considering all manner of challenges to its electoral system?
Here again, my research shows the value of committed democrats — people who favor democratic governance — listening to even those who seek to destroy democracy. The listening, however, need not go on forever. After fairly considering challenges to the 2020 election, it’s legitimate for those who remain unpersuaded to say, in essence, “We heard you, we reject your claims, and we are moving on.” Had the protesters stuck to nonviolent, discursive forms of political engagement, they would deserve a hearing. Those who care about fostering legitimate political discourse should listen, even if only defensively, to counter or shut down bogus claims of a stolen election.
Evaluating the form of Jan. 6
Now let’s consider the form these protests took. The Jan. 6 insurrectionists — intent on interrupting the counting of the electoral college vote — abandoned discourse altogether. They sought instead to violently resist the government. Is this kind of conflict ever democratically permissible?
In research completed for the book we are working on, “The Two Faces of Democracy,” political theorist Stephen White and I identify two fundamental conceptions of democracy. Specifically, we try to make sense of the tension and incongruence between those two faces of democracy. The first face involves “deliberative democracy.” As we show, however, people have intuitions about democracy that are not captured by the deliberative ideal, with its emphasis on reasoned discourse and cooperation. The second face, captured by the tradition of “agonistic democracy,” makes a priority of contestation, conflict and the need to fight against injustice. This second face involves resistance and fighting and appears in stories about the United States’ revolutionary founding. These two faces, while in tension, are equally valid. Both have a place in a healthy democratic body politic.
The second face of democracy allows for average individuals to challenge and resist perceived injustices. But for these actions to be democratic, they must be undertaken by people who see themselves as embedded in a larger framework of cooperation and justification. While they may believe that resistance is called for today, there must be hope of some cooperation tomorrow, with efforts to make their case to the public. The Jan. 6 events, however, unfolded with a blatant disregard for democratic opinion. Absent from these acts of resistance was any attempt to justify their claims of injustice to the broader citizenry.
Ultimately our research would not support the claim that this episode of violent resistance resembles either face of democracy. The insurrectionists who stormed the Capitol on Jan. 6 were not engaging in legitimate political discourse. Crucially, however, our work shows how we can reach this judgment while still acknowledging the second face of democracy, or the democratic legitimacy of resistance and protest.
Mary F. (Molly) Scudder is assistant professor of political science at Purdue University and author of “Beyond Empathy and Inclusion: The Challenge of Listening in Democratic Deliberation” (Oxford University Press, 2020).