Susan Walsh/AP Photo
Senate Majority Leader Mitch McConnell after the weekly Republican policy luncheon on Capitol Hill in Washington, June 9, 2020.
The Open Mind explores the world of ideas across politics, media, science, technology, and the arts. The American Prospect is republishing this edited excerpt.
Alexander Heffner: What do you say about a future without law? Without the Constitution being respected?
Jack 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. 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.
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 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. There’s something hopeful about that, hopeful about the future of both constitutionalism and some of our most important, constitutional values, that is, the people in the streets right now our best bet for realizing doctrines or promises of, say, equal protection under law.
Authoritarian erosion or assault on constitutional practice has actually been aided and abetted by a certain kind of liberal hostility to civil unrest.
Heffner: 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: Let me say yes and no, on that. I want to start with the no part first and I’ll just stick with Mayor Bottoms, because again, 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 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 in states of the old South. So you have situations where, 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 the radically racially disproportionate disenfranchisement as a result of the unequal policing practices is the reason 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. 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.
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, are perfectly consistent with the U.S. Constitution. 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. You will miss the importance and vitality 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 communities of urban life, but, but expansively into the suburbs of Atlanta.
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. 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 political freedom and justice broadly conceived. There’s a certain kind of 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: Your book points out the day-to-day deviousness of those who would violate democratic values, but it also raises the fact that there have been anti-constitutional politicians that have posed as the arbiters of constitutionality for some time.
Jackson: 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. Let me give you an example that speaks to what you’re talking about, but doesn’t involve Trump and in fact, precedes Trump.
It was the Republican-led Senate after Justice Scalia died. President Obama nominated Judge Merrick Garland to fill Justice Scalia’s seat. 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 advise-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. We’re going to send this to the people. The people will decide in 2016 who gets to have Justice Scalia’s seat.
This is actually incompatible with constitutional practice, and 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.
