Virginia’s Next Governor and the Threat of a Constitutional Crisis

State governors command the National Guard. That means more now than it has in a long time.

A black-and-white diptych of photos of the Virginia gubernatorial candidates Glenn Youngkin and Terry McAuliffe
Virginia gubernatorial candidates Terry McAuliffe and Glenn Youngkin. (Win McNamee / Getty; Anna Moneymaker / Getty; The Atlantic)

About the author: Michael Tolhurst is the senior director of strategic partnerships at the Institute for Humane Studies.

Gubernatorial races can quickly become proxies for nationwide grievances and allegiances, and Tuesday’s neck-and-neck election between the Republican Glenn Youngkin and the Democrat Terry McAuliffe for the governorship of Virginia is no exception. But in addition to the substantive policy disagreements or politics as pastime, people across America should be monitoring the outcome of this race for another reason: Governors command the National Guard, and after the January 6 riot, the country saw the National Guard defend our constitutional order.

I’m a resident of Virginia and a longtime proponent of the values of classical liberalism—individual freedom, limited government, and rule of law—first as a college instructor and later at an educational nonprofit. These values were on my mind over the weekend, when my wife and I drove the two hours from our home in Alexandria, Virginia, to visit Gettysburg National Military Park, where state regiments take pride of place in commemoration of the battle. The largest memorial on the battlefield honors the more than 23,000 Pennsylvania soldiers who fought for the Union Army on those July days in 1863. At the time, the Union and the Confederacy did not have much in the way of national armies but instead relied on units raised by state governors—the equivalent of today’s National Guard.

Indeed, at the outbreak of the Civil War, the prompt arrival of the 6th Regiment Massachusetts Volunteer Militia in Washington, D.C., in April 1861 helped secure a capital precariously close to the battlefront. Later forces arrived, building up the defenses around the city in the Northern Virginia towns of Arlington and Alexandria. This included, a century and a half before I came to live in the area, Connecticut’s 22nd Regiment, in which my many-greats-grandfather Edwin Tolhurst served. (His military experience was unromantic—he dug ditches in the red mud of Northern Virginia for nine months, caught consumption, and died shortly after he was discharged.)

We’re not, of course, in a civil war. But law professors and public intellectuals have seriously discussed the possibility of secession or a “national divorce.” A recent University of Virginia study revealed that 41 percent of people who voted for Joe Biden in 2020 and 52 percent of Donald Trump voters “at least somewhat agree that it’s time to split the country.” The same study revealed that significant numbers on both sides wish their preferred president wouldn’t have to be constrained by Congress or the courts.

Given this tinderbox, we unfortunately have to revisit the question of what role the present-day state militias—the National Guard—and the governors who command them might play in a constitutional crisis. As the writer Andrew Sullivan put it, there is an “increasingly nihilist cult on the right among the GOP” that has shown an “increasingly menacing contempt for electoral integrity and a stable democracy.” Will all elected governors rush to the defense of the constitutional order when necessary, as did the 6th Massachusetts and the 22nd Connecticut? Or will they fight for a separatist movement? This is not a happy thought, but as even previously respectable institutions are being coy about the possibility of such a conflict, it must be considered.

Personal good character alone cannot be a sure guide here, as any look at the past will show us. Setting aside the justifiable dents his reputation has taken with later generations, Robert E. Lee was widely esteemed by his peers both north and south of the Mason-Dixon Line. At least some people thought his loyalty to his country would surpass that of a faction: General Winfield Scott offered Lee command of the primary Union army on the eve of the war, the highest compliment to both Lee’s military acumen and his honor. But he refused the offer and left to eventually command the Confederate Army of Northern Virginia.

In the aftermath of the January 6 riot, National Guard troops from across the country came to the capital, where, thankfully, no further violence ensued. Several Republican governors have sent, or stated an intention to send, guardsmen out of their states to the southern border—suggesting an increasing willingness to use state forces outside of state borders, independently from national leadership.

Given the polarized climate, the talk of civil war, and the exercising of gubernatorial power to command state-guard units, it is not unreasonable for citizens to seek continual reassurances from state leaders, or would-be leaders, that they have a fundamental loyalty to the Union, and not to a faction. Would they direct the military units under their command to uphold the constitutional order? Although such units ultimately by law must answer to the federal government, as well as the conscience of individual guardsmen, the specter of these units receiving contradictory orders from state and federal officials—in a climate of extreme polarization, in the midst of a constitutional crisis—is a nightmare.

This question stands apart from a governor’s personal character or party. A scoundrel may be loyal, and a gentleman may be a traitor. One can have widely divergent policy views from the current president or be at odds with the cultural sensibilities of “coastal elites,” yet still affirm a commitment to the constitutional order. (Both McAuliffe and Youngkin, for the record, have reputations as decent men, and Youngkin has admirably and expressly condemned the violence of January 6.) Yet, as Lee found, it can be difficult to resist the tides of popular enthusiasm.

Whoever wins the Virginia governor’s race will be asked to “solemnly swear” that he will “support the Constitution of the United States” to the best of his ability. The oath has become rote and ceremonial, but unfortunately, at this moment in the country’s history, we can’t take the answer for granted.