Rule of Law or Rule of Loyalty? Resisting the Rise of the American Dual State
There’s a lie we tell ourselves in America. That we are a nation of laws. That no one is above them. That the courts and Congress exist to keep power in check. But what happens when those very institutions start protecting the power they were meant to restrain? What happens when the rule of law becomes something conditional, available to some, denied to others?
That’s the moment we’re living through right now. And we need to name it.
This is what political theorists call a dual state. And once you see it, you can’t unsee it.
The House That Looks Like a Democracy
A federal court ruled that Trump could take control of California’s National Guard even though the governor had refused. On the surface it looked like a normal legal process, lawyers making arguments and a judge issuing a decision. But look a little closer and you see what was really going on:
The executive branch ignored a state’s authority. The judiciary nodded along. Congress stayed quiet.
It all played out like some strange, scripted theater where everyone pretended the law was still in charge.
That’s what a dual state looks like. On one level we still have all the usual institutions we were taught to trust. Courts hold hearings, lawmakers give speeches, presidents sign papers. But under that surface is a different system entirely, one that answers to personal power and political loyalty rather than any principle or law.
A dual state is what happens when a government looks like a democracy but doesn’t act like one. It is what happens when the executive branch breaks the rules, the judiciary upholds the violations, and Congress looks the other way. And that is not democracy at all. It is performance.
What Is a Dual State?
The idea of a dual state comes from a German Jewish lawyer named Ernst Fraenkel who had to flee his own country as Nazi power took hold. Fraenkel explained that there are really two systems at work in these kinds of societies. One is what he called the normative state. That is the part of government that follows the usual laws and rules. It is where contracts get honored, courts hold trials, and policies move through proper channels. It is what most people recognize as everyday democracy.
The other is what Fraenkel called the prerogative state. That is the part of government that simply does whatever those in power want, without regard for laws or checks and balances. It is the side of the state that operates in secret, bends procedures, and punishes people for political or personal reasons rather than legal ones. Together these two sides can exist at the same time in one country. The trick is that most people only ever see the polite side.
You can see the dual state clearly when you look at who the law protects and who it punishes:
On one side there is a legal system that hands white-collar criminals light sentences and protects billionaires’ free speech.
On the other side there are immigration raids that tear families apart without due process and political loyalty tests that get civil servants fired.
Courts will uphold one person’s right to spend millions pushing their political agenda while allowing school boards to rip critical books off shelves and punish teachers who dare to speak honestly.
This is not a new concept. Nazi Germany ran on this same duality. There was one set of laws for everyday business and polite society and an entirely separate set of arbitrary rules for anyone seen as an enemy of the state.
Apartheid South Africa and modern authoritarian regimes like Turkey followed a similar pattern. They kept up the appearance of a legitimate state while creating a shadow state that operated through fear, favoritism, and unchecked power.
What we are seeing here looks different on the surface but follows the same dangerous pattern.
The dual state depends on most people believing the fair side is the only one that matters. It depends on our silence. And that is exactly what makes it so hard to fight.
America’s Dual State Has Always Existed. Now It’s Consolidating
This country was built on a dual system from the very beginning. Slavery and the genocide of Indigenous peoples were never just crimes committed outside the law. They were part of a separate legal and political order that decided some people had full rights and others had none.
Even as the Constitution promised liberty and justice, the prerogative state decided who actually got to live under those promises.
That pattern never disappeared. It just evolved. You can see it every day in the way policing looks so different depending on where you live. Wealthy white suburbs tend to have well-funded schools and courteous officers who show up when called. Poorer Black neighborhoods face aggressive surveillance, routine stops, and harsh sentences for minor offenses. One part of the state follows the law, the other operates with its own set of unofficial rules.
The same duality plays out in our elections. Some communities have easy access to mail-in ballots and early voting while other communities face long lines, closed polling places, and strict ID laws designed to discourage them from voting at all. Both kinds of places are supposed to be governed by the same democratic system. But only one side is really encouraged to participate.
And you see it in our justice system too. Whistleblowers who expose wrongdoing often end up silenced or in prison while presidents and other powerful figures can incite insurrection, accept pardons, and go right back to wielding influence. Again and again the prerogative state decides who pays a price and who is protected.
That is why Project 2025 is so dangerous. It is an effort to lock the prerogative state into place as a permanent feature of our political landscape. It would purge civil servants who value law over loyalty. It would centralize control of agencies and strip protections from civil rights and the environment. It would give the executive branch a free hand to punish dissent and reward obedience. What once relied on unwritten habits and hidden practices would become a matter of official policy.
We’re already seeing the early stages play out. Anti-trans laws are spreading across states like wildfire. Libraries are being defunded. Immigration raids are getting more aggressive. Climate protections are being scrapped while wildfires and floods grow deadlier. These are not disconnected events. They are the consequence of letting the prerogative state grow without resistance.
This is not some distant or theoretical risk. The dual state has been part of America’s DNA since the beginning. Now those who want to wield power without limits are working to make sure it stays that way forever.
The Role of the Judiciary: From Check to Collaborator
The courts were meant to be a check on runaway power, but too often they have become a quiet partner. Instead of insisting that the executive branch follow the law, judges lean on vague doctrines like the unitary executive or national security to excuse behavior that would never pass muster otherwise. That legal language may sound technical and serious, but it is really just a polite way of granting unchecked authority to those who already have too much of it.
When judges refuse to rule promptly or hide behind procedural excuses, they allow unjust policies to stay in place for months or years at a time. Emergency stays mean that illegal orders can go into effect before they are ever properly reviewed. Civil rights protections and regulatory agencies are undermined bit by bit as the courts chip away at them in decisions that rarely make the evening news.
Think about all the rulings that have let unlawful policies continue simply because the courts decided to take their time. Think about the decisions that have weakened watchdog agencies that keep corporations, polluters, and powerful interests in check. Every one of those choices tilts the balance further toward the prerogative state.
James Madison warned us that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many… may justly be pronounced the very definition of tyranny.” (The Federalist Papers, No. 47, 1788)
What we are seeing now is not an outright collapse of law and order but a slow, sanctioned march toward exactly that. The judiciary has become a collaborator, and unless we recognize it for what it is, we will keep losing the very protections we thought were guaranteed.
Congress: Paralyzed, Complicit, or Captured
Congress is supposed to be the branch closest to the people, the one that writes laws and keeps the president from overreaching. But that is not what is happening. Too many lawmakers are either trapped in gerrymandered districts that make them immune to public pressure or beholden to corporate interests that reward them for looking the other way. A growing faction is openly aligned with authoritarian goals and treats democratic norms like obstacles to their agenda.
That is why Congress so often does nothing even when it could. It has the power to control spending and to investigate abuses of power. It could refuse to fund illegal policies and block executive appointments that put loyalists in charge of critical agencies. It could hold public hearings that expose misconduct and rally public attention. Instead it stays silent or busy with symbolic fights while the executive branch consolidates power and rewrites the rules.
That inaction is not neutral. Every time Congress chooses not to act it makes it easier for an unchecked executive to move forward. Every time a committee chair buries a report or refuses to subpoena a witness it signals that no one will stop the slow slide toward one set of laws for those in power and another set for everyone else. And every time lawmakers make excuses for why they cannot do more they help normalize the very system they once swore to keep in check.
That’s why I support the work of organizations like David Hogg’s Leaders We Deserve. They’re not trying to fix Congress from the inside out. They’re trying to replace the problem entirely.
They’re recruiting and supporting young, principled candidates who actually reflect the people they serve, not corporate donors or far-right power brokers. These are working-class leaders, students, organizers, survivors, and everyday people who understand what’s at stake because they’ve lived it.
If Congress is captured, the solution isn’t begging it to act. It’s building a new generation of lawmakers who are unbought, unafraid, and unapologetically committed to justice. That’s the kind of disruption we need.
What Happens If This Continues?
If this path goes unchecked the law will matter only when it is used against people who dare to dissent. Prosecutors will chase down protestors and whistleblowers while powerful figures are shielded by technicalities and quiet pardons. Public dissent will not just be ignored, it will be treated as a threat to national security and criminalized by new laws that leave entire movements in handcuffs.
Courts and agencies will become loyalty tests. Judges will be chosen for their willingness to look the other way. Agencies that once served the public will be rebuilt to serve those in power and to punish everyone else. Civil rights will continue to be rolled back. Books will be banned. Health care and voting access will shrink. Our inaction on climate change will grow even more dangerous as protections for air, water, and land are stripped away.
And when elections come they will look like elections on the surface but they will not work like they should. Ballot access will be manipulated. Districts will be gerrymandered into safe seats. Opponents and their families will face — and have faced in 2025! — legal, financial, and even physical threats that make serious campaigns impossible. Election nights will pass as mere formalities because the outcome will have been decided long before a single vote is cast.
That is the point where we stop being a democracy in crisis and become an authoritarian system with voting booths. The process will still look familiar. The rhetoric will still invoke freedom. But the reality will be one where decisions are made by a small circle at the top and everyone else is left to pretend they still have a say. It is not the loud collapse people imagine when they picture the end of democracy. It is the slow quiet death of self-government.
What Can Still Be Done?
There is still time to stop this. But it’s going to take all of us. We can’t sit around waiting for someone else to fix it. The people with the most power to change things are the ones who refuse to play along.
State and Local Resistance
Local governments still have choices. Cities, counties, school districts, and state agencies don’t have to follow federal orders that go against people’s rights or safety.
Some already refuse to help ICE. These sanctuary cities show how local leaders can protect immigrant communities from raids and detention. The same is true for school boards and libraries. They don’t have to give in to book bans or lies in the classroom. They can push back by keeping the truth on the shelves and in the curriculum.
When enough local governments say no, the federal government loses its grip. One city rejecting injustice might be dismissed. But a hundred cities refusing to participate? That slows the whole machine.
Civil Servant and Union Resistance
If you work for the government, even in a small role, you are not powerless.
You can insist on doing things by the book. You can refuse to rush unethical orders. You can document abuses. You can share what you know with people who can stop it. Small delays inside big systems add up fast.
The CIA once told resistance fighters to slow authoritarian regimes by “forgetting” meetings, repeating work, misfiling documents, or insisting on unnecessary approvals. In other words, be annoying in strategic ways. Buy time. Create friction. Make injustice hard to implement.
If you’re in a union, use it. Public employee unions can demand accountability, slow bad policies, or even refuse to cooperate entirely. Unions give workers strength in numbers. And when enough people drag their heels at the same time, it becomes very hard to move anything forward.
Mass Mobilization and Narrative Power
Protests matter. Strikes matter. Direct action still works. It doesn’t have to be perfect. It just has to be impossible to ignore.
When people take to the streets or shut things down, they show the country and the world that not everyone is playing along. The louder we get, the harder it becomes for power to hide behind polite lies.
What also matters is the way we talk about it. Speak in terms people understand, and speak tonight will affect them personally. Don’t just say “civil rights are under threat.” Say they want to take your kid’s teacher away. Say they want to steal your vote. Say they want you sick, silenced, and scared.
Tell the truth in plain words. Show people what they stand to lose. Health care. Clean water. A job. A home. A future. Make it personal, and people will pay attention.
Strategic Nonviolence Isn’t Passive. It’s Organized Disruption.
Nonviolent resistance isn’t just about holding signs or marching in the street. It’s about forcing power to respond. It’s about creating pressure, unpredictability, and visibility in ways that shift the cost-benefit calculation for those enforcing unjust policies.
Movements that succeed don’t just protest. They plan. They map out power structures, identify weak points, and act where it hurts the regime most: public opinion, financial support, international reputation, the loyalty of workers or police.
You don’t need a million people. You need a plan.
Some of the most effective tactics are small, repeatable, and hard to punish.
Things like:
• Wearing the same color on a specific day.
• Creating “laughter protests” or humorous disruptions that expose how absurd authoritarian rules really are.
• Turning everyday tools into symbols of resistance. A flower, a song, a flashlight.
• Refusing to cooperate with unjust laws or orders.
• Jamming up the system with bureaucracy, paperwork, or slowness.
• Occupying physical space in ways that are hard to ignore but peaceful to the core.
These tactics disarm propaganda because they are hard to villainize. They draw people in. They create a sense of momentum and shared purpose.
Movements that win are movements that build unity, maintain discipline, and keep showing up. When repression comes, they adapt. When leadership is jailed or exiled, new leaders step up. When the media won’t cover the truth, they become their own media (Follow and support independent journalists!)
What makes nonviolent resistance powerful is NOT its politeness. It’s that it forces a choice. Enforcers must either back down or escalate in ways that turn public opinion against them. Every authoritarian state depends on two things: fear and silence. Movements that use strategic nonviolence make both of those harder to maintain.
Legal Action and Watchdog Pressure
The courts are not going to save us, but they can still slow things down.
Lawsuits matter. Delays matter. Public pressure matters. When people expose corrupt judges or agencies, it becomes harder for them to do their work in secret. And that means more time for the rest of us to organize, prepare, and push back.
Even small legal wins can create bigger ripple effects. One blocked policy might protect thousands of people. One brave lawyer or journalist can pull back the curtain just enough for others to act.
Long-Term Culture Shift and Movement Building
The most powerful thing we can do is build something better, even while everything feels like it’s falling apart.
Start close to home. Find ways to support the most vulnerable in your community. Join or support local organizing. Build mutual aid networks that help people survive when systems fail. Share food, rides, child care, or medical supplies. Turn your home into a place of safety. Teach others what you know. Trade skills. Pool resources. Create your own systems.
Build what the government won’t. Independent schools. Community-run news. Art spaces that tell the truth. Mental health groups that meet in backyards. Places to learn, rest, laugh, and remember who we are.
Support the people who refuse to stop telling the truth. Journalists. Artists. Elders. Educators. Survivors. Young people. Anyone holding a flashlight in the dark.
This kind of culture change doesn’t happen overnight. It takes patience and courage. But it’s what keeps movements alive. It’s what keeps people from giving up. And it’s what reminds us that we are still here, still breathing, still choosing each other.
When history tells the story of how the dual state was challenged, let it include us.
Let it say we didn’t stay quiet.
Let it say we made it hard.
Let it say we built something better.
No One Is Coming to Save Us. But We’re Not Powerless
This is the part most people would rather not look at too closely. The courts may continue to excuse executive overreach. Congress may keep looking the other way. Institutions we thought would protect us may instead help normalize a dual state that serves the few at the expense of the many. But that is not the end of the story. The people, especially when we come together, still have the most transformative power there is.
“Democracy doesn’t die in darkness. It dies in silence.” —Judge Damon Keith
Every time we speak the truth, every time we refuse to comply, every time we put our bodies and our voices in the way of injustice, we make it harder for tyranny to thrive.
No one is going to do this for us. The path ahead will demand more than voting every few years. It will demand that we speak up and show up. That we disrupt business as usual and protect one another when the cost of resistance rises. That we hold onto our shared humanity and never stop imagining what is possible beyond this.
And that is where our power lies. We can choose each other. We can choose to fight back. And we can choose to believe that a different future is still within our reach. The system may not save us, but together we can.
Start by having this conversation with one other person. Then another. Then ask what you can build together.
RESOURCES:
If you’re ready to take action but don’t know where to start, I’ve put together a short resource list here:
Mutual Aid: https://www.mutualaidhub.org/
How to organize locally: https://commonslibrary.org/organising-start-here/
Whistleblower Support: https://thesignalsnetwork.org/
Know your rights: https://www.aclu.org/know-your-rights
Blueprint for Revolution: How to Use Rice Pudding, Lego Men, and Other Nonviolent Techniques to Galvanize Communities, Overthrow Dictators, or Simply Change the World: https://amzn.to/4lk58w4
