The Second American Civil War

Is Not Taking Place

Mark G. E. Kelly

My title both denies and affirms the core claim of the essay by Paul Kahn
beneath which this comment appears. I agree for the most part with Kahn’s
depiction of the actuality of the United States, but I disagree with his over-
arching categorization of this as “civil war.” I do not believe a second U.S.
civil war is sensu stricto either in progress or even in prospect. The polit-
ical situation in the United States is not a war. This is a fact that Kahn
himself is hardly unaware of, although he seeks to avert it through a redef-
inition of the term “war.” I will hence contest this redefinition.
Kahn rightly calls our attention to two distinct and interrelated prob-
lems. One is a crisis of legitimacy in the United States. Many Republicans
regard the Biden administration as illegitimate because they believe his
election was fraudulent. This really amounts to a kind of factual dispute
of the dominant narrative, although one that at its fringes (in particular the
incredible continuation of the QAnon movement) is delusional in a fairly
strict sense. Democrats, by contrast, regard the Republican Party—or at
least its Trumpist wing—as eo ipso illegitimate because it is animated by
concerns that they consider ultimately fascist, racist, sexist, et cetera, and
hence absolutely impermissible. The discourse of the left also involves
some rather extraordinary and contestable factual claims but ultimately
disallows right-wing opposition to its agenda on the basis of values. In all
this, we see the second problem: there is an absence of a terrain of agreed
values or facts that might ground a public sphere in which democratic pol-
itics might take place.
This is all surely shocking and lamentable. However, I believe it is
ultimately not terminal to the United States qua either polity or society and
that they can continue to function indefinitely, albeit not as well as they

Telos 198 (Spring 2022): 149–53 • doi:10.3817/0322198149

© 2022 Telos Press Publishing • ISSN 0090-6514 (print) 1940-459x (online)
www.telospress.com

149
150 Mark G. E. Kelly

might, nor as pleasantly. The situation in the United States seems to me to

be a particular, pernicious, and spiraling case of the problems of the pub-
lic sphere long lamented by Jürgen Habermas. From a Habermasian point
of view, the Western public sphere has never been good enough for our
democracies to function properly as such. However, our states and societ-
ies continue to function because of the mediation provided by the market
and the law. As long as commerce and the rule of law hold, as long as
there remains a baseline of consent to accept money and submit to the law,
a society can cohere. This baseline coherence might indeed be all we are
left with in what Habermas calls our “post-traditional” societies, in which
increasingly many cultures coexist without further normative bases for
mediating their often conflicting claims. I do not invoke Habermas here
because I am a Habermasian (I am not), but rather for the opposite reason
that even from his position, which takes communication to be the sine qua
non of politics, the breakdown of communication across political lines is
not the catastrophe Kahn makes it out to be.
From the point of view of a thinker with whom I am more sympa-
thetic, and who is a reference also for Kahn, Carl Schmitt, I think the
situation in the United States appears to be less dire still. For Schmitt,
politics is always warlike, inasmuch as the political is essentially about
the friend–enemy distinction.1 From this point of view, the United States
is today merely displaying the fundamental condition of the political
more vividly than formerly. We can see this situation as tending toward
civil war, but, for Schmitt, politics always tends toward civil war.2 If one
follows Kahn’s line of argument that war is not about violence but contes-
tation, we will quickly reach the conclusion that all politics is war. This
is a line that is propounded not by Schmitt but by Michel Foucault, in his
famous “inversion” of Clausewitz that politics is “war by other means.”3
Still, Foucault differentiates between the conditions of war and politics,
even if he argues that the two are ultimately different forms of the same
phenomenon, namely, power relations. It is radically unclear on Kahn’s
redefinition of “war,” removing violence as a defining feature of it, what
politics or power could not simply be redescribed as a form of warfare.

1. Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: Univ.
of Chicago Press, 2007), pp. 26, 32–34.
2. Ibid., p. 32.
3. Michel Foucault, “Society Must Be Defended”: Lectures at the Collège de France,
1975–1976, trans. David Macey (New York: Picador, 2003), p. 48.
 The Second American Civil War Is Not Taking Place  151

This is not to say that the situation of a society that is internally riven
and hence poised for civil strife is not entirely trivial from a Schmittian
perspective. However, for Schmitt, we reach such a situation as soon as
politics becomes identified with party politics, which presumably has been
the case in the United States for 150 years at least. The contestation of
sovereignty between political parties is only kept from becoming a war
by the effective exercise of sovereign exception by the party in power
to prevent their rivals disregarding their ascendency. Indeed, Kahn con-
tends that there is a civil war in the United States precisely because of the
absence of “a person or institution capable of reaching a decision for the
entire community.” This is a point on which Kahn is, I think, empirically
incorrect. For all that Biden is a geriatric husk of a president (and his pre-
decessor was a preening buffoon), it seems that there must throughout still
have been a sovereign in the United States inasmuch as decisions have
been made and are being abided by. The losing side has not in practice
disregarded election results or court decisions, no matter how viscerally
each side has decried the other. Trumpists in America today say “Let’s go
Brandon” and then continue in practice tacitly to acknowledge the author-
ity of the institutions as currently constituted. Their non-acceptance of
Biden is deferred till some future reckoning, until the next election per-
haps, but if not then, why not later? They have after all waited throughout
Trump’s presidency for him to do anything, and when he didn’t the great
majority of his voters voted for him again anyway.
Kahn declares that the Supreme Court has become a partisan play-
thing and no longer has the power to decide, but this again seems to me to
be empirically false. It is true that SCOTUS appointments have become
extraordinarily politicized, but not yet that this has reduced the Court to
a mere party organ. The Supreme Court clearly did not side with Trump
in relation to the 2020 presidential election result, despite the majority of
justices having been Republican appointees, by refusing to hear Texas v.
Pennsylvania, with only Justices Alito and Thomas dissenting. Moreover,
its rulings and those of lower courts that did hear various lawsuits in rela-
tion to this election have continually been observed by Trump supporters.
Like many partisans of both sides, if perhaps in a rather different reg-
ister, I believe Kahn is following the general contemporary tendency in
politics and political analysis to conflate discourse, affects, and identity
for politics itself, for power relations, structures, and strategies. Invok-
ing Schmitt’s claim that the political is a sui generis domain, Kahn in fact
152 Mark G. E. Kelly

understands it quite differently than Schmitt, which is to say, not as essen-

tially about the friend–enemy distinction but as a matter of the constitution
of identity. Kahn thus adduces verbal dehiscence and failures of collective
identity and subjectivity as evincing a condition of civil war.
Perversely, Kahn also adduces actual violence today as indicative of
the state of civil war, in the form of a novel propensity for violence to
break out in various venues in society based on political affiliation. I char-
acterize this as perverse because it is unclear how this can count as evi-
dence for the civil war thesis if war does not require violence. In any case,
even allowing that war is actually about violence, as I do, I do not think
the existence of potential for violence among citizens based on political
ideology amounts to civil war. Once again, I follow Schmitt in under-
standing this to be an omnipresent tendency of the political as such. Kahn
does not realize this, because, contra Schmitt, he understands the political
to be about fusion rather than fission.
It is certainly true that the United States is fractured at the level of
its identity, and thus most of what Kahn says in this regard is surely cor-
rect, but he overstates the uniqueness and dangerousness of this situation.
Something similar obtained also after the actual Civil War. The victory of
the Union in the Civil War did not confer legitimacy on the federal gov-
ernment in the eyes of the defeated. Rather, the South continued en masse
to resent the Union and to regard it as a foreign occupying force, with
good reason. But this lack of cohesiveness to the United States of Amer-
ica, which I would suggest lasted for most of the nineteenth century and
in many ways well into the twentieth, did not for most of that time mean
that there was a civil war going on. The Civil War was rather a discrete
and decisive episode in this North–South dehiscence. During Reconstruc-
tion, it was not the subjective feelings of the South that had changed, but
the structure of power, and that’s what made it the Reconstruction and not
the Civil War. The Southern cause, though it continued to exist for a cen-
tury or more as a sociopolitical formation, nonetheless understood itself
essentially as a “lost cause”: there was a general understanding that the
South could not actively challenge Northern supremacy at the level of
national sovereignty, but only attempt to seek to maintain a white suprem-
acist social order via Jim Crow in the Southern states.
Allegations of civil strife in twenty-first-century America depend
not on an actual comparison with the conditions of the historical Amer-
ican Civil War but on a contrast between the twenty-first century and
 The Second American Civil War Is Not Taking Place  153

the relative cohesiveness of the mid-to-late twentieth century, when the

United States was largely united in its response to the Second World War
and then the Cold War. Even during the civil rights struggle of the mid-
twentieth century, which pitted North against South in an echo of the Civil
War, the unity of the country was not threatened anew in the same way it
had been in the mid-nineteenth century because of the unifying factor of
the external threat of communism, the lack of an economic investment
in segregation equivalent to the one there had been in slavery, and the
fact that, having tried secession once and failed catastrophically, the South
understood that this was not a viable stratagem. When segregation was
dismantled by the federal state, the Southern states submitted, as those
Southern states that remain bulwarks of conservatism continue to do in the
cases of various contemporary right–left shibboleths, such as abortion and
more recently COVID mandates.
Of course, it is impossible for me to preclude the possibility of a civil
war ever occurring within the United States of America again. Who knows
what issues may arise and conditions may prevail in future decades? The
two years of pandemic we have just endured are a salutary lesson in this
regard. I am merely asserting that the current issues it faces do not in and of
themselves amount to it. They might produce a civil war when combined
with some new dimension added to the mix, say a disastrous, large-scale
foreign conflict with Russia and/or China, some massive natural disaster,
a fresh pandemic, or an economic collapse, any of which might indeed be
in the imminent offing. Yes, Kahn is right that U.S. democracy is in a par-
lous state, and that this is an alarming situation, in part because it means
America lacks the national resolve needed to tackle such contingencies,
but declaring this actually to be a civil war is hyperbole, depending on a
modish reading of politics as essentially affective.

Mark G. E. Kelly is Associate Professor in Philosophy at Western Sydney Uni-

versity. He is the author of three books on the thought of Michel Foucault, as well
as more recently of Biopolitical Imperialism (Zero Books, 2015) and For Fou-
cault: Against Normative Political Theory (State Univ. of New York Press, 2018).
 Critical Theory for Practical Problems

Civilizational States and Liberal Empire—Bound to Collide?

The 2022 Annual Telos-Paul Piccone Institute Conference
April 1–3, 2022 ◆ New York, NY
Keynote Speakers: Christopher Coker, London School of Economics
Miles Yu, U.S. Naval Academy
Civilization seems to be the new pivot of international relations. Brexit, Trump, and
the resurgence of Russia and China have put culture and civilizational identity at the
heart of both domestic politics and foreign policy. From the identity politics that is
sweeping much of the West to the pushback against the supposed universalism of
the West’s liberal empire in much of the non-Western world, civilizational norms
are as important as military might and economic prosperity. At a time of heightened
tensions between great powers that view themselves as guarantors of civilizational
identity, are civilizational states and the Western liberal empire bound to collide? This
conference aims to bring greater conceptual clarity to current debates by examining
some of the key terms, notably the relationship between “culture” and “civilization”
and between “values” and “norms,” as well as by exploring practical ways for civiliza-
tions to enter into a meaningful dialogue with one another.
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