America Without Law
Air Date: July 27, 2020
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind at home, and I’m thrilled to welcome to our broadcast today, Jack Jackson. He is the author of this really important book “Law Without Future” by the University of Pennsylvania Press. It’s a terrific book. I urge our listeners and viewers to check it out. I hope you in the greater Northwest are staying safe and well at home.
JACKSON: Trying to. Thank you, Alexander.
HEFFNER: Jack, the title of your book immediately got my attention. And of course there are ample examples that you point to in the body of violating constitutional norms that have been ones we as a nation have adhered to, but 2020 does seem like a test as to whether or not we will have a future with law. And so I wonder now that this has been published and you had been on the road up until COVID talking about this book, what do you say about a future without law? Without the constitution being respected?
JACKSON: I want to pause a little bit on that because part of what I’m trying to do in the book is to pull apart a commitment to constitutional democracy and a commitment to our current constitution. So I have some hesitation about embracing the constitution or thinking the U.S. Constitution is a safe harbor for what we’ll just broadly call political freedom and justice in the present. But looking at 2020 on the one hand I’m not surprised too much by what’s been going on. You know, many people think that what we’re witnessing is somehow Trump specific in 2020, or it’s the current attorney general. And part of what I try to show in the book is that this has actually been a long ongoing process on the political right of a certain kind of deterioration of constitutional practice or a deterioration of a commitment to constitutional norms. You know, when I look at 2020 right now, I must confess, I feel more hopeful than I have in some time. Let me just give you an example and the reason why I feel hopeful right now. With the ongoing uprising of Black Lives Matter against police brutality and the prison industrial complex, I’ve had two sort of maybe say three responses. One is the sort of authoritarian unleashing of violence, which I think you see in the nation’s capital with the president. There’s a second response and this one troubles me actually as much. And you see this with Mayor Keisha Bottoms in Atlanta, who’s now being touted as a possible vice presidential candidate for Joe Biden. She came out, I think this was the second day of the protest and she told the protesters to go home. She said, go home and go vote, as a response to this. A third response has been the protesters, booing her, telling her to go home. You see something similar happening in Minneapolis, where there’s a sort of refusal to simply go home and go vote and play by established rules. And I think there’s something hopeful about that, hopeful about the future of both constitutionalism and some of our most important, constitutional values that is, I think the people in the streets right now our best bet for realizing doctrines or promises of say equal protection under law. So my argument I’m sorry, Alexander.
HEFFNER: No, no, no worries. When they are specific in their demands, these citizen activists are their own best legislators when they can commit to not just espousing those principles in the streets, but actually legislating their goals, tangibly.
JACKSON: Well, yeah, let me say yes and no, on that. And I want to start with the no part first and I’ll just stick with Mayor Bottoms, because again, I think, and I don’t want to pick on the mayor of Atlanta, but I think she’s exemplary of a broader thing here. Her message again, was go home and go vote. Now in the United States right now many of your viewers are probably well aware, we have a variety of states in the union, with felon disenfranchisement laws, that is if you’ve been convicted of a felony, you can be stripped of your right to vote permanently for a long duration of time. This is particularly prominent but not exclusive to, but prominent and states of the old South. And so you have situations where I think I believe it was in 2017, that’s changed a little bit but in 2017 in Florida I believe it was something like one in five African American adults were disenfranchised due to felon disenfranchisement and as authors, such as Michelle Alexander and Angela Davis have pointed out that radically racially disproportionate disenfranchisement is a result of the unequal policing practices that you have a rebellion going on right now in the United States. So you have felon disenfranchisement, you have really radical forms of gerrymandering, which the Supreme Court has signed off on. And you have an Electoral College which allowed twice now in our, in our lifetime a president to lose the vote, but nonetheless come into power. So there’s something I think, fundamentally amiss and problematic for a mayor to come out and say, go home and go vote if 20 percent of the population no longer has the vote, or as we saw in Georgia this week you, you don’t have enough polling places and you basically try to overthrow democracy with fatigue as you have to stand online for three, three to four or five hours. So you know, this, this is part of what my critique is that liberals have said, well, just follow the constitution, but all of these forms of anti-democratic practice, or at least right now with current jurisprudence, perfectly consistent with the U.S. constitution. So if you have this response to the authoritarianism of Trump and you say, just go vote, we just have to get back to the constitution you’re missing the kinds of radical disenfranchisement that are already constitutional. And I think you will miss the importance and vitality of the, of the revolt that we’re seeing in the United States today.
HEFFNER: Citizen-legislator though, and citizen-lobbyist is different from citizen-voter in the sense that you point out not only about felon disenfranchisement, but the fact that in Wisconsin and Georgia and elsewhere, there were nurses who were working 20 hour shifts, who couldn’t vote and they couldn’t vote because polling places were removed and there was a subjugation of democratic norms, decency and franchise in the, not just the inner limit, the inner communities of sort of urban life, but, but expansively into the suburbs of Atlanta. So you’re absolutely right to point to the fact that that voting can’t necessarily uphold whatever constitutional values we find to be absent under Trump or aspire to better in a future administration. But I do wonder in the case of municipalities and states where immediate legislative goals can be achieved, if at least that civic activity on the ground legislating with some reforms can then galvanize the voting constituencies. It might be, the point is it might be easier right now to affect legislative outcomes than voting outcomes.
JACKSON: I think you’re right. But again, I just want to reemphasize again without overly belaboring the point. If protesters on day two in Atlanta or other, other cities, Seattle, Minneapolis, and they had listened to their, I just think this is important, their liberal, democratic mayors and said go home, again, that’s not, that’s not the message of Trump now that the Trump authoritarianism is its own set of problems. But part of what I’m arguing in the book is that kind of authoritarian erosion or assault on constitutional practice has actually been aided and abetted by a certain kind of liberal hostility to civil unrest, but even more broadly, just a hostility to politics, this desire that if we can just depoliticize public life in general and depoliticize the law more specifically, that somehow we will have again, just stick with political freedom and justice broadly conceived, and so I think there’s a certain kind of rather, you know, we often think of this as resistance that there’s resistance to the Trump administration by the liberal mayors. But part of what I think you see is a certain kind of complimentary vision that’s actually lurking behind the apparent antagonisms that we often talk about when we talk about daily politics on the surface.
HEFFNER: I mean, your book points out the day-to-day deviousness of those who would violate democratic values, but it also raises this point of the fact that there have been anti-constitutional politicians that have posed as the arbiters of constitutionality for some time. I mean, often the anti-constitutional politics are masked in fidelity to the constitution, right? So up the whole up is down, left is right of our politics today. Those who are advocating for the constitution are wanting to realize a constitution as it was practiced before Roe v. Wade, before Brown v. board,
JACKSON: Perhaps even before the 13th, 14th, 15th Amendments…
HEFFNER: Before, before Plessy, before Marbury v. Madison, you know, but that’s the point, which is that the deviousness was somewhat closeted. And now under Trump it’s become more explicit in its manifestations, for instance, the president of the United States saying he doesn’t trust the veracity of a jury’s decision in a trial involving a former aide who he will likely pardon, right? So there are things that we’ve seen that go to checks and balances that really haven’t been adjudicated for some time, this question of how the constitution is prepared to realize our pluralistic societal advancement. I’m just going to put that to the side for a second, to talk about the basic fiber of the constitution that’s in jeopardy right now that that has more to do with checks and balances and rule of law, in a larger overview. And I wanted you to expound on that.
JACKSON: I have I have a certain resistance, you know, so much of resistance is resistance to Trump. My resistance I think intellectually and politically as a certain kind of resistance to a Trump-centered analysis of what you’re talking about or what we’re witnessing here. So let me give you an example that I think speaks to what you’re talking about, but doesn’t involve Trump and in fact, proceeds Trump, and this was I discussed this in the book. It was the Republican led Senate after Justice Scalia died. And your viewers will recall this, President Obama nominated judge Merrick Garland to fill Justice Scalia’s seat. And the Republicans in the United States Senate effectively strip the president of a basic constitutional power that the president has the power to appoint justices. Now, the Senate does have advised and consent power but they also actually negated that because what they said is we’re not going to advise and consent, or our one moment of advise and consent is to blow that up. And we’re going to send this to the people. The people will decide in 2016 who gets to have Justice Scalia’s seat. And what are you in the book is that this is actually incompatible with constitutional practice, but, and this maybe gets to your point, it’s fundamentally incompatible with anyone who has a commitment to traditionalism and originalism. That is the nomination process for Supreme Court justices explicitly excludes the House of Representatives, those closest to the people. So you had at the same time Senator Republican senators coming out and saying, we want to honor the legacy of Justice Scalia, who’s an originalist, and then engage in a kind of popular, populous anti-constitutional move to throw the nomination process to the people. Now, I actually think that’s a provocative idea that’s worthy of discussion. Perhaps the Senate shouldn’t be involved, but what made this gambit anti-constitutional is that when it looked like, you can go back, there were many interviews, when it looked like a Hillary Rodham Clinton would be president in those final weeks leading up to the election in 2016 these same people, figures and think tanks, Republicans in the United Senate, the same people who had said the people should be deciding, started to lay the groundwork that if Clinton becomes president, we are going to negate her capacity to fill this seat. Or, and this was the so-called moderate position. We’re going to confirm Judge Garland immediately before she has the chance to nominate someone, which is also indication of the newfound principle that the people should decide. So that kind of checks and balances that you’re talking about was already set ablaze in the Senate with the case of Judge Garland and laying the groundwork for us even negating that principle, isn’t the terminology I’m using, part of what makes it anti-constitutional and income incompatible with constitutional government and it proceeded the election of Trump. I can’t emphasize that enough.
HEFFNER: Yeah. I know Jack, you are a symptom guy. Trump is a symptom. I know you are firmly in that camp and I’m pushing you on this, even though I agree with your point. And that was one of the most astute comments in the book, which is to comment on the abdication of normal, constitutional order, that is Chuck Grassley would not even convene a hearing or consider the merit and in doing so, it wasn’t just a selective originalism, it was a dereliction of duty and a dereliction of the constitution,
JACKSON: Or I should, I should, I just want to pause for one second. I do think that one could come forward with a certain kind of constitutional principle and practice that might actually have justification and applicability and future instances, right? So you could imagine a situation in which we develop a certain kind of constitutional practice and tradition in which presidents don’t get to appoint Supreme Court justices in the, in the final year of their term. But if that’s a constitutional practice and principle, it surely wouldn’t apply in the first year of Hillary Clinton’s presidency. And it would apply during the last year of President Trump’s presidency,
JACKSON: Senator Lindsey Graham, but don’t pull me on that who came forward and said, well, of course we would not hold the same principle applied to judge Garland, if a seat became available during, Trump’s not just final year, but perhaps final months. So it’s not just that they broke with originalism. I’m not an originalist. That’s fine. Nor am I saying that the constitutional practices disallow for innovation and new practices to emerge. What I’m arguing is that this invention of a constitutional principle that applies only on Tuesday to a particular candidate, and not, and not beyond that, that’s incompatible with constitutional practices and principles.
HEFFNER: Well, you say you’re not an originalist and you know, that we’ve both spoken and written extensively about what could be described as a new originalism or a new constitutionalism. So, you know I think one of the bright spots of the current moment is an acknowledgement of that selective constitutionalism or the hypocrisy in so many of the decisions. And we may well see an opportunity for the Republicans to reveal themselves again, with an opening on the court and the waiting months of a Trump presidency and a Republican controlled Senate that may or may not transpire, but how would you assess the effectiveness of the Democrats at this point or the Lincoln Project and the groups that have emerged to combat the unconstitutional or anti-constitutional rhetoric and principles, or guidance in these, in these months of the campaign now we’ve heard more explicit attacks on the unconstitutional undemocratic governance of this administration.
JACKSON: It’s difficult to speak of the Democrats collectively. There are real divisions in the party, and there are members who I think have been on this on this, addressing this issue early. I still think they’re very much a minority of the democratic caucus. And let me give you an example here. One of the cases I discuss in the book was president Trump’s, I believe it was his very first pardon, and this was the pardon of Sheriff, Arpaio, and this actually, I think, relates to what we’re seeing in the streets today. For your viewers who don’t remember Sheriff Arpaio was a sheriff in Arizona and had for years abused Latino citizens with racial profiling, abusive behavior had been held in contempt of federal court for violating the equal protection clause of the 14th amendment. And before he could be sentenced by the court Trump pardoned him and critically President Trump did not just pardon Joe Arpaio, but came out and explicitly celebrated Arpaio’s violation of the equal protection rights of disenfranchised minorities and said, I am pardoning him precisely because he violated this fundamental constitutional principle. In my opinion, he should have been impeached the day after, or at least impeachment hearing should have been up and running. You don’t get impeachment until very, very late. And then it’s tethered to the, at least apparently to the Biden campaign, or what is he doing to elite Democrats? So you have no impeachment when the president’s dismantling fundamental constitutional principles as it applies to those who are disenfranchised and excluded, but when he engages in behavior that touches on elite Democrats, suddenly it’s time to seriously consider impeachment. And I think that’s revelatory, and I don’t think it’s lost on protesters in the streets. I don’t think they think Democrats have their not only Democrats are not standing up, but our, in many instances, are the authors of the kind of violence that rebellion is against.
HEFFNER: Look, I mean, you can embody the politics of, you know, that are treasonous in your abusive domestic, as well as foreign actors and that you’re betrayal of equal protection under the law, just as much as your betrayal of our sovereignty.
JACKSON: So I’m clear that I’m not saying that he, that the impeachment, I, I signed on a letter,
HEFFNER: No I know.
JACKSON: the impeachment at that moment, and I don’t disagree with the impeachment. What I’m noting is what triggers it and what does not,
HEFFNER: No I think it’s a point well made.
JACKSON: What are Democrats okay with and what are they not okay with? And that I think is a revelatory.
HEFFNER: Right? And, and I do wonder, and I’d have to think about this more if both aspects of that anti constitutionalism are, that are germane in the case of Trump, if they are both symptoms or if the foreign aspect of it is more specific to Trump, to Russia, to his business enterprise, the whole Manchurian candidate, president piece of this puzzle. But, but I want to just close by giving you a chance to talk about the way in which Republicans still to this day will try to reinvent a constitutional standard that that was either abolished or set back significantly by the Warren court. And they are, are disguising themselves in a constitutionalism, which you and I would say is anti-constitutional or unconstitutional, that betrays a lot of the, of the values of the pre Rehnquist and Roberts court. And so where does that leave us with my first question, a future without constitution; future without the dictates of the Warren court, the jurisprudence of the Warren court that has been so decisive and preserving, or at least attempting to achieve civil society in this country?
JACKSON: Maybe I’ll try to t make a distinction here. I think there are constitutional doctrines, which the court may adopt in the months and years ahead, which I fundamentally disagree with. So let me just give you an example. If there are now five votes on the Supreme Court to overturn Roe v Wade, or maybe more precisely Casey versus Planned Parenthood and so there was no longer a constitutional right to abortion, and they adopt a very a very narrow reading of due process liberty. And so some members of the court would say there’s just no such thing as due process liberty. Now I would be opposed to that, but I would still at least recognize it as a constitutional doctrine. Now it’s a constitutional doctrine which would impoverish our sense of liberty and more importantly, I think, contribute to a radical subordination of women’s equality in the society, but I still think it would be a constitutional doctrine. So this is, again, another reason why it’s simply because something is constitutional answer for me. So, that is one thing I think that we have to keep an eye on. There’s also something different. So the case, I will go back to Arpaio, where the president is using a constitutional power, the power to pardon, to fundamentally sort of disorganize and dissolve basic constitutional practices. It’s the latter that I’m calling anti-constitutional. So …
HEFFNER: Right. Or, or the defiance that we’re running at a time, Jack, if you can believe it, but the defiance of subpoenas, again, going back to the rule of law, pardons that on their face should not have merit in that they violate the core tenets that you describe, but, in the seconds we have left, you do seem more hopeful today that it will not be Donald Trump and Roy Moore and we should include Mitch McConnell, of course, who, who define what, what American constitutionalism will mean in the future. You, you do seem more hopeful than not at this juncture, that that may be the case.
JACKSON: I have to say the ongoing protest in the United States leaves me more hopeful than I’ve been in a very, very long time. And I think that the young people in the streets are really compelling us to reconceptualize basic constitutional principles and are demanding really a new constitutional vision. And for that I’m quite hopeful and also very thankful
HEFFNER: A new constitutional vision. We appreciate your insight; encourage all of our listeners to think about both dimensions of the constitution and to pick up your book. Jack Jackson, thank you so much for your time today.
JACKSON: Alexander, it’s been a real pleasure and I hope we get to meet in person.
HEFFNER: Yes, me too.
JACKSON: Okay, take good care.
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