I’ll admit to lazily adopting these takes about Brown and Loving for the last several years. To be sure, I did at least think that Loving shows us a thoughtful and more rigorous approach to individual rights than the usual liberal, history and living tradition method. But I’ve certainly given short shrift to what Brown and Loving teach about equal protection more generally. I now suggest two reasons. On one hand, Brown and Loving succeeded so fully that we cannot really imagine anymore life before them. On the other, later decisions of the Court have taken us so far from Brown and Loving that it’s easier and less painful to pretend there never really was any there there in the first place.

To illustrate the sea change, it’s worth stepping back to an earlier keystone race-discrimination case that I suspect we’ve also been misreading. On its face, Korematsu—when the Supreme Court blessed the rounding up into concentration camps of west-coast Japanese Americans—stands for two propositions: 1) while racial classifications get “strict scrutiny” (quoth Hugo, “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect . . . courts must subject them to the most rigid scrutiny”); 2) often enough, “national security” gets trotted out to justify racism and violation of rights. Obviously Korematsu gets it wrong by our lights; but there’s the rub. We can’t read Korematsu from our perspective; we have to read it from the perspective of the flawed Supreme Court justices learning in real time not only what racial discrimination is but which instances of racial discrimination matter to the Fourteenth Amendment (you know, citizenship, due process, equality)—not to mention learning when the facts make out a plausible case of discrimination.

Recall, “separate but equal” is just the horseshit gloss we put on Plessy to explain Jim Crow segregation. The real legwork in Plessy comes from the Court’s holding that the Fourteenth Amendment does not apply to “social” issues (just as the Civil Rights Cases said about the Thirteenth). That is, the Reconstruction Amendments simply do not care about most instances of racial discrimination. So, as I asked my pre-law students a few weeks back, what case would you cite in Mr. Korematsu’s defense? Strauder v. West Virginia? Can’t exclude Black men from juries. A specific, long-recognized (and enumerated by Civil Rights Act of 1866) issue relating to niche issues of local self-government. Wong Kim Ark? Children born to Asian-American immigrants are citizens? Great, but the Court also accepted without question that Congress could limit the admission of or just totally bar Asian immigrants.

Yick Wo. v. Hopkins? Sure, there the Court recognized that the Equal Protection Clause applied where the City of San Francisco granted nearly all white-applicant laundry building permits and denied all Chinese-American applicants. That is, disparate application of a facially-neutral law could violate equal protection. But that lofty legal recognition runs headlong into a thorny factual question: when lawmakers learn to whisper their racial biases behind closed doors and off the record, we do we have enough proof to conclude—factually—that a law reflect unlawful racial animus? Yick Wo presented a simple case. The City backed the Court into a corner, offering no explanation at all for the total rejection of Chinese-American applicants. The Court had no choice but to conclude, as a matter of fact, that racial animus . . . well . . . animated the decision. It’s not unfair to read Yick Wo less as woke-SCOTUS and more as “lie better” SCOTUS. And notice that Yick Wo is very much not a case about civil or social equality. It’s a case about letting immigrants do service work.

So put yourself into the world before Brown. What did “equal protection” mean for Americans of color by 1944? As a matter of law, not protection from private action. Not protection within the “social sphere,” that is, most of your daily life. Not protection from matters of State or foreign affairs. And as a matter of fact, not protection from discrimination coming under any other guise or explanation.

On this background then, give the haters their due, Brown and Loving do reconstruct the Constitution. With Brown, the Equal Protection Clause starts to mean something. For one, it cuts through the question of whether the Fourteenth Amendment applies. Segregated schools had been the first example Plessy gave us of an (intensely local) social issue laying beyond the reach of the Fourteenth Amendment. In other words, Brown dispenses with Plessy’s (and Civil Rights Cases) central distinction between the civil and the social. Taken seriously, now the Reconstruction Amendments apply potentially to everything the States might do to you.

For another, Brown cuts through the quagmire of proving racial animus as a matter of fact. Sure, in some light, Brown can be viewed as a mealy-mouthed compromise, Chief Justice Warren gathering a unanimous Court at the expense of avoiding discussion of why the States had been in the habit of segregating the schools on the basis of race (white supremacy). That would have been a nice decision. But don’t let that obscure what we got instead:

Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.

. . .

Separate educational facilities are inherently unequal.

Whether or not the States intended segregated schools to deprive Black children of equal educational opportunity is irrelevant to the decision. All that matters is that the children got the message. Oh, you State legislator’s didn’t specifically intend this result? You expected it, but didn’t mean it? Or you didn’t even realize it could play out this way. Irrelevant. It does not matter that the States segregated the schools specifically to subordinate on the basis of race—because the Court neither mentions it nor relies on it (and it hardly mentions the segregation laws either, showing how little role they play). The power of Brown rests in its holding that the legislator’s intent (or lack thereof) plays no role; the decision turns entirely on the law’s impact.

And it gets better. If Brown focused on effect, Loving focused on intent. Virginia justified its antimiscegenation laws (besides appealing to white supremacist propriety and tradition) on the basis that it treated (punished) white and black alike. The Court dismissed that argument out of hand (in a line that Chemerinsky omits from his textbook abridgement of Loving, so perhaps it’s not entirely my fault for missing it until recently):

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

Not effects, or impact, or harms flowing from invidious discrimination—“sources.” Nothing about a law needing some sort of specific wording, or facial racial classification. Intent, racial animus, alone damns a law. Chief Justice Warren makes this even clearer a few paragraphs later, explaining an alternate approach whenever laws differentiated on the basis of race: that “[a]t the very least, the Equal Protection Clause demands that racial classifications . . . be subjected to the most rigid scrutiny.” This, of course, makes sense. The men who had spent the last twelve years demanding racial cognizance for the remedial purpose of integrating schools would necessarily approach bare racial-classifications and racial animus differently. The take-home point still stands though. Explicit or not, laws driven by racial animus could never stand.

If the one-two punch of Brown and Loving—that the Fourteenth Amendment proscribes both 1) racialized impact regardless of intent and 2) racial animus regardless of effect—seems like news to you, it’s not your fault. The moment Chief Justice Warren retired, the Supreme Court got to work pulling back from the joint-promise of Brown and Loving.

In 1971’s Palmer v. Thompson, the Court upheld Jackson’s (Mississippi) decision to close the city pools instead of integrate them. Allegations of racial animus, without disparate impact, Hugo told us, didn’t trigger heightened scrutiny. The other shoe dropped only five years later. Racial disparity without allegation of intent, Byron told us in Washington v. Davis, didn’t trigger heightened scrutiny either. Simply put, racial animus or disparity, each alone sufficient under Brown and Loving to damn a law, no longer warranted a court’s second glance unless accompanied by the other, so long as the law didn’t expressly mention race on its face—as though Brown and Loving would suffer such formalism. Palmer and Davis should not be read, as many law professors now pretend, to clarify some needed distinction between facial and non-facial racial classifications. They substantially overrule Brown and Loving.

And the Court buried them further, upping the required level of intent required alongside a disparate impact. In 1977’s Village of Arlington Heights v. Metropolitan Housing Development Corp., the Court demanded racial animus be a “motivating factor.” Two years later in Personnel Administrator v. Feeney, the Court required that animus (this case actually dealt with gender discrimination) be even more plain:

The appellee’s ultimate argument rests on the presumption, common to the criminal and civil law, that a person intends the natural and foreseeable consequences of his voluntary action.

. . .

“Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.

Simply put, so long as a state legislature acted—on the record of 400 years of human chattel bondage—with no more than the knowledge that its actions would disproportionately impact Americans of color, it could avoid judicial scrutiny by simply employing race-neutral enough language.

This post has gone on long enough. So suffice it say the Supreme Court laid the groundwork for Trump v. Hawaii, upholding the Muslim-Travel Ban on “national security” grounds because it didn’t actually say “Muslim,” long ago. But saying things suck today because they’ve always sucked and were always going to suck is cheap and lazy. It’s also just wrong. Brown and Loving had us on the right track. We’ve let ourselves forget how right they were. Can’t blame the Founders for this one folks.

I wish I could say, imagine if planes just started falling out of the sky . . . . But that’s been happening for a while now. So imagine if instead of DEI witch hunts or revelations that Boeing management has abandoned safety in pursuit of profit we learned that our nation’s engineering schools kept producing classes of aerospace engineers who just reject the primacy of safety in air travel? Would we not haul the engineering school deans before Congress? Would we not lose confidence in the system? I sure did the first time a Boeing manager chastised me for finding something wrong with the design work coming across my desk.

In the ten years since I fled Boeing’s increasingly abusive and profit-driven culture, I’ve been surprised and amused by my new profession’s mass delusion—delusions. Ignore the legal profession’s adherence to doctrinal tradition and established theory in the face of American Law’s obvious blame for and failure to remedy nearly everything wrong with American society. Let’s tackle a simpler, institutional problem. Given the credentialism that has promoted and enabled many of the professors, judges, and politicians now seemingly hellbent on aggravating America’s problems, I remain baffled and appalled by my profession’s apparent continued belief that our current “merit” pipeline will produce the lawyers, professors, and judges to solve these problems.

Think of all the heinous morons of the Right that hail from the top law schools. Antonin “the Founders tell me to hate the gays” Scalia. John “I just don’t like black voters” Roberts. Neil “bow to the dictionary” Gorsuch. And Ted “are babies racist?” Cruz. All hailing from the hallowed halls of Harvard. Then there’s Clarence “see Ginni—oh and Harlan Crow’s yacht” Thomas. Sam “stop the steal” Alito. Brett—too many of these to pick just one—Kavanaugh. Josh “insurrection fist!” Hawley. JD “lapdog to fascists” Vance. Vivek “wannabe Elon Musk” Ramaswamy. The cream of Yale. And lest you believe this to be a two horse race, try out the University of Chicago’s Robert “what if the Founders were against Brown v. Board?” Bork, or Stanford’s Bill “what if I was against Brown v. Board?” Rehnquist. This is just the beginning! The list of “elite” garbage grows with every Trump administration appointment.

But these are all Republican political operatives, you might object. Surely the measured and bipartisan halls of legal academia promote the best and the brightest. Wrong again! Let’s take three easy and recent examples found with an appaling lack of effort.

Consider Yale’s notorious sex-pest, Jed Rubenfeld, who a few weeks back weighed in on JD Vance’s deliciously stupid take about Federal judicial authority to check executive misconduct (remember, the take so incredibly dumb that I only had to crack open my baby law textbook to demolish it?):

Don’t fall for Jed’s attempt to confuse matters by bringing in military or prosecutorial discretion. JD was whining about bog standard judicial authority to check executive misconduct. So there you have it. Yale’s best—flubbing basic constitutional law questions in defense of Donald Trump’s recent, wildly unlawful (and wannabe tyrannical) seizures of Congressional authority.

Or how about Minnesota Law’s Ilan Wurman and Georgetown’s Randy Barnett. A few weeks back, no less than the New York Times offered the pair the pulpit to offer some bullshit excuse for Trump’s executive order gutting birthright citizenship. Even before that, Wurman was running his mouth about it on Twitter:

We don’t need to beat the dead horse. Prof. Steve Vladek methodically dismantled the order’s foundations here, and Profs. Melissa Murray, Leah Litman, & Kate Shaw (of the Strict Scrutiny podcast), joined by Prof. Kate Masur, demolished Wurman and Barnett’s reasoning and grasp of history here. Though, for my part, I’m not even sure these buffoons are entitled to such gracious substantive rebuttals. We know why the Trump administration seeks to gut birthright citizenship: anti-Latinx racial animus. And we know the practical results of stratifying the human species: American chattel enslavement. So if we pull our heads out of our asses for just a moment, we’ll see that Wurman and Barnett aren’t engaged in some arcane historical inquiry—they’re justifying subordination. Yet because of their varnished credentials, the Times gave their filth a bullhorn.

And, for good measure, let’s check in on Harvard’s Noah Feldman—he of so, so many wonderfully stupid takes over the years. Who could forget his fawning over notorious moron Brett Kavanaugh: Bad Temperament Alone Shouldn’t Sink Kavanaugh, and Kavanaugh is the Last Hope for Abortion Rights. Now that women are bleeding out in parking lots across the nation, surely Noah might realize the error of his ways? Apparently not. Trump is Testing Our Constitutional System. It’s Doing Fine., he wrote for Bloomberg last month. “The president’s flurry of illegal actions have been stopped by the courts. That’s how it’s supposed to work.” That’s funny. I seem to recall Donald Trump’s captured Federal judiciary gutting the administrative state over the last few years, spending more time shackling Joe Biden’s “misconduct” (cough, student loan forgiveness) than Trump’s, and—oh yeah—exculpating Trump from consequences for a botched coup, and for whatever unlawful action he feels like in the future. Stellar reasoning!

All of these people have pristine credentials: good law degrees, prestigious clerkships, posh firm jobs, cozy DoJ or other Federal gigs. Judging by credentials alone, they’re all eminently qualified for their positions. And that’s the problem. These people range from idiotic to malevolent. The credentials have failed. When will we finally acknowledge that a professional pipeline that spews this garbage is fundamentally broken?

Sure, American law schools also produce good people. Though, it’s not at all clear that’s what they’re designed for. For one, the $240,000 student loan bill does a damn fine job of recruiting students who might have once looked favorably toward the lower pay of public interest into the employ of bougie law firms servicing (ahem) serving the rich and powerful.

For another, law school is first-and-foremost a concentrated brainwashing session in the pontifications of centuries of landed, Anglo-Saxon, Catholic-then-protestant men. And there’s no use pretending law school grades and transcripts separate the wheat from the chaff. You have to be smart enough to get it, but dumb enough so that the entire self-contradictory artifice of the law doesn’t drive you mad. Sure, in mundane cases, we can evaluate law students’ “rational” and “objective” application of various rules. But pretty quickly thereafter, we run into serious problems. It’s not just about female and black and brown students struggling to comprehend the corpus that overtly contradicts their lived realities, although that is certainly part of it. It’s more fundamentally about the impossibility of “rationally” applying irrationality. It’s about trying to figure out how to apply the pleading standard in Federal District Court (how detailed the facts have to be to make out a violation of law) when the rule is that “it’s gotta be plausible” and the Supreme Court’s primary example of implausibility is the most damned plausible thing you’ve ever heard: that FBI Head Bob Muller and Attorney General John Ashcroft were all in on the Federal government’s secret round up and detention of Muslim men in the aftermath of 9/11. It’s about wrapping your head around the fact that the bare desire to harm a group damns a law restricting white hippies from getting food stamps or stripping civil rights protections from LGBTQ folks in Colorado, but it won’t stop Jackson, Mississippi from closing the pools rather than racially integrate them; won’t stop Alabama from executing black men wildly more than they do white; and won’t stop any of Trump’s obviously racially animated measures against Latin American or Muslim immigrants. There’s supposedly a distinguished legal rule in there, but a) it’s stupid, and b) it’s made up by white supremacists. So truly, if you think hard and broad enough about most legal questions, the whole thing falls apart. And unless you realize that, law school grades can’t tell you whether someone is dumb enough to buy it, actually believes the bullshit, or can suppress intelligence for the duration of a three-hour exam.

But set all this aside and pretend that law schools graduate genuinely good people in comparable numbers and with comparable credentials to the reactionary ghouls (& without shackling the good ones to too much debt and without shifting the center of debate too far to the right). For every Sam Alito Yale produces, we also get one Sonia Sotomayor. That still, I submit, isn’t a very good deal!

Don’t get me wrong. Justice Sotomayor rules. But the law isn’t a tit for tat balancing act. Building is a lot harder than tearing down. She can’t clean up all of Alito’s bullshit once it gets out any more than the Strict Scrutiny Podcast can extract Wurman and Barnett’s bullshit from potentially millions of New York Times readers. No one can.

Yet even that’s beside the point. The real damnation of this law-school credentials consensus is that the Sotomayors are being used to launder the credentials of the Alitos. Because some school happened to produce a good lawyer, we have to pretend all the jackasses are qualified. And so, in the name of this unreflecting credentialism, we have to debate the validity and historicity of shackling our understanding of our Constitution to the drivelings of enslavers, whether brown people are allowed to be born in this country, whether insurrection in defense of enslavement was, and whether Donald Trump now wields unconstrained, dictatorial authority—instead of merely discussing and laughing at the sociopathic delusions of these white supremacist reactionaries as the zoological curiosities they are.

Of course I’m bitter. I find myself continually on the wrong side of the credentials line, perennially unemployed no matter how hard I work. Not prestigious enough undergrad. Good, but not good enough, law school. Wrong clerkships, apparently. I couldn’t get a job for fifteen months after clerking at the Federal trial court in San Francisco. Sure, some of this was my fault. Though, by fault, I mean that my last employer (a small, regional law school) sent me packing after I suggested to the conservative snowflakes in my Constitutional Law class that treating their gay classmates with dignity in public and restraining from murdering trans kids in bathrooms was neither: a) an imposition on their religious beliefs, nor b) reverse bigotry. And so now I find myself sitting in a basement in the shitty middle of nowhere wondering why the fuck I bother when, no matter how hard I work, absolute dipshit morons still run not just my profession, but the United States, all while paying off student loans that have kept me employed barely two-thirds of the time.

Should my personal investment temper my contempt? Perhaps. Does it? Absolutely not. Because I’m still an engineer. When the plane falls out of the sky, I don’t get to play pretend, I don’t get to stand there sputtering about sound theory, twiddling my Ti-89. I judge by results. Because every day I look out my window to see misery, poverty, and malingering racial division, violence, and disparity—the abject failure of American law and the profession built on credentialism that elevates good people, squishes, and Confederate-apoligists alike. And mostly, because this January the state forty-five minutes from my former-school passed a resolution calling on the United States Supreme Court to strip my students of their equal dignity. I’ll take my apology cards in the form of a check.

It was a simpler time. Donald Trump hadn’t been Electoral Colleged into the Presidency. The Democratic Party hadn’t yet shot themselves in the foot, crowning Hilary over the obviously superior Bernie Sanders. Barack Obama hadn’t yet nominated all-time liberal squish Merrick Garland to the Supreme Court. For a brief moment, it looked like the first non-absolutely-shitty Supreme Court since Earl Warren retired might be possible. Alas.

Antonin Scalia will be remembered as a champion both of originalism, the delusion that modern America must be shackled to the legal and political conception of long-dead enslavers, and of textualism, the hubris that transforms an individual judge and his preferred copy of Webster’s Dictionary into a king (remarkably ironic for a Catholic). He will be justly damned for railing against black Americans’ voting rights as a “racial entitlement,”1 and mocked for coining the phrase “homosexual agenda.”2 Generations of young, male, and reactionary law students will breathlessly recite in ecstasy his dissent from Morrison v. Olson—that Presidents are above legal investigation.3 Among others, he will be remembered by Justice Harry Blackmun’s notes, recording Scalia’s only appearance as an advocate before the Court: “plump, dark — 85[/100].” I will also remember him for an old law review article, The Doctrine of Standing as an Essential Element of the Separation of Powers, so easy to tear apart that doing so only got me a B in legal philosophy.4

In a broader sense, however, Antonin Scalia will be remembered for ushering in an era of Catholic dominance on the Supreme Court. While neither the first Catholic justice (that honor falls to none other than Chief Justice Roger Brooke Taney), nor even alone to start (joining half of Eisenhower’s (likely apocryphally) self-professed biggest mistake: the legendary liberal Justice William Brennan), Scalia heralded the arrival of Anthony Kennedy and Clarence Thomas shortly thereafter, Sam Alito and John Roberts under Bush, Sonia Sotomayor under Obama, and Brett Kavanaugh and Amy Coney Barrett (not to mention the Catholic raised and high-schooled Neil Gorsuch) under Trump.

Of course, none of this apparent-Catholic influence has proven any good for the United States, from the gutting of voting rights and womens’ bodily autonomy, to the assault on the administrative state and the rule of law more generally. But it does, I guess, highlight the core of Catholic teaching. The mystery of faith lies not in the consubstantiality of God the Father, Son, and Holy Spirit. Nor in the transubstantiation of the Eucharist. Nor of Christ’s death and resurrection. That’s easy. God can do cool God stuff. No, the mystery of faith lies in remembering that hell isn’t real, that despite all the evil he inflicted upon the people of this nation, all will be forgiven, and one day I will meet Antonin Scalia in heaven. I’m still wrapping my head around that one.

In the near term, Roberts deplores an uptick in threats of “violence directed at judges for doing their job,” intimidation, and misinformation. Though, even he can’t airbrush conservatives’ far greater propensity for violence in this nation’s history—who was burning all those crosses on judges’ front porches last century? Nor does he appear cognizant of his own culpability in cultivating this nation’s culture of violence. Why are instances of “doxing” so dangerous; and whose qualified-immunity jurisprudence ensures that Americans’ most visible interactions with the State involve both open threats and regular instances of violence? Who guarantees the wild proliferation of firearms? Whose hostility to labor rights perpetuates the violence (work or starve) underlying wage labor? Atop delusion, the Chief has the gall to flaunt his comfortable insulation from the consequences of his own decisions, thanking Congress for extra funding and the United States Marshals for their increased efforts. And even if we agree with the Chief that protests outside Justices’ homes goes a bridge too far, one might ask Roberts why so many Americans feel so disenfranchised that they would resort to such activity?

More embarrassing, as though the man who told us in Parents Involved, in Shelby County, and in Students for Fair Admission that “racism is over” has any remaining credibility, is the Chief’s consternation about misinformation: “distortion of the factual or legal basis for a ruling can undermine confidence in the court system.” Pay no mind to all the calls coming from inside the house. To Justice Gorsuch’s fan fiction about one misbegotten Coach Kennedy, knelt in silent and lonely prayer on the 50-yard line at Bremerton Island High. Or to American law schools ever propagandizing new generations of lawyers with the sanctity of property and procedure; the delusion of originalism; or the lie that Congress doesn’t have plenary authority to enforce the Reconstruction Amendments. We’re instead supposed to be up in arms about whatever the Chinese government can communicate to our barely literate teens in 5-second increments over social media.

Moving forward, though, the reader will begin to grasp that Roberts isn’t just whining like a child asking to be told he’s done a good job. Rather, criticism, for John Roberts, isn’t so much a personal matter as a Constitutional one. This first becomes apparent in the second half of his moaning about “intimidation”—complaining, it seems (and as other commentators have noted), about Democrats calling for the impeachment of at least District Judge Aileen Canon (for her laughably biased handling of the Mar a Lago documents case) and perhaps even of Justice Clarence Thomas (for wild corruption). Apparently, instead of the preferred and Constitutionally enumerated method of dealing with judicial misconduct and incompetence, impeachment calls now rank as no more than “[a]ttempts to intimidate judges for their rulings in cases” which “are inappropriate and should be vigorously opposed.” And Roberts closes out his criticism-as-constitutional-affront tour, damning all who would refuse to declare obedience to his mandates in advance. Of course, he can’t point to any recent examples of defiance and instead gestures vaguely toward Massive Resistance—which, to be clear, he blessed and championed by putting the nail in school integration’s coffin in Parents Involved. Nevertheless, he concludes that “[t]hese dangerous suggestions [of disregard for federal court rulings], however sporadic, must be soundly rejected.”

The Chief can’t imagine just limits to or disregard for judicial rulings because he cannot seem to conceive of the judiciary as being in dialogue with two coordinate (one of them theoretically superior) branches of government. For a simple example, Roberts misapprehends the rule of law as merely the procedure of judicial decisionmaking rather than an essential substance of democracy. Tellingly, he dares to quote Justice Ruth Bader Ginsburg—in whose seat he confirmed the present Court no more than an arm of the Republican Party—to proclaim the import of the “rule of law,” that pillar of “[o]ur political system and our economic strength,” which “can be shattered if the society law exists to serve does not take care to assure its preservation” (no mention about what to do when law ceases to serve that society). That “rule of law,” the Chief tells us, “depends…on Article III of the Constitution and judges and justices appointed and confirmed under it.” Sure. But the “rule of law” depends a whole hell of a lot more on Congress and the Presidents’ dedication to evenhanded drafting and execution of the law—to the democratic tenet that those who make law are governed by it just as those who are governed by the law make it (a tenet notably missing from Roberts’ recent proclamation of Presidential impunity). And, more importantly, the rule of law begins with the citizenry’s ethic of reciprocity: our mutual recognition of equal human dignity and covenant to submit ourselves to the votes of others just as they submit themselves to our votes (an ethic disturbingly lacking in Roberts’ various decisions subordinating African Americans and other Americans of color). That, far more than nine decrepit robes, best guarantees that “man can be sure that he may not to-morrow be the victim of a spirit of injustice, by which he may be a gainer today.”

For the more important example, Roberts flat out misses the fundamental justice of democracy. Citing our favorite segregationist, he writes:

Indeed, it is no exaggeration to conclude, as Chief Justice Rehnquist did, that “the creation of an independent constitutional court, with the authority to declare unconstitutional laws passed by state or federal legislatures, is probably the most significant contribution the United States has made to the art of government.”

Not the declaration of human equality; nor the rejection of monarchy in favor of democracy. Not the abolition of slavery; nor enfranchisement of the freedmen, and women. Nor the unbroken tradition of a peaceful transfer of authority after each election (oh wait). No—judicial review by unelected and unaccountable aristocrats (oligarchs, if we’re being honest) is our greatest triumph. Roberts continues, “an independent judiciary must uphold the Constitution against the shifting tides of public opinion.” After all these years, the Nation’s chief judicial officer still thinks the essence of our Constitution lies musty tomes to be divined in conclave by the berobed (but remember—Catholic Nationalism isn’t a problem, right?). Nothing could be further from the truth. Our Constitution, our democracy (as Roberts admits of it), rests on the recognition that there is no just rule but by the consent of the governed, that the “shifting tide[] of public opinion”—the People in Congress—is not, in fact, the rumblings of the great unwashed but rather is both our best and most just form of human decisionmaking. Not the Court, and certainly not John Roberts, but the People, today (not in 1789), in Congress are the best interpreters of their own Constitution and expositors of their own laws. The only substantive boundaries of that communal deliberation, and thus the only possible grounds for judicial review of legislation, are precisely those principles that impart communal decisionmaking with its moral value in the first place: human equality, and its corollaries of consent and reciprocity (principles, curiously enough, largely absent from Roberts’ own jurisprudence). John Roberts castigates those who would disregard his rulings while simultaneously claiming the incontrovertible authority to disregard the People—and he calls it democracy!

In the end, it’s unsurprising that Roberts, so focused on justifying his untouchable office & salary, misses the pretty clear implication in Hamilton’s Federalist 78. Lacking either purse or sword to enforce their will, Federal judicial decisions rest entirely on the force of reasoning to compel either Congress or the President. Roberts makes much of the Court’s ability to discern our constitutive principles from the depths of the Supreme Court Library, but cannot bring himself to recognize that, at bottom, all political decisionmaking lies first, foremost, and ultimately with the People in Congress. Far more important than any Court’s ability to discern those principles is that Court’s ability to convince Congress of them. As Lincoln warned in his First Inaugural Address, when the Supreme Court alone decides Constitutional questions, the People will cease to be their own rulers. John Roberts seems just fine with that.

It’s hard to cling to the belief that the Democratic Party really wanted to win the Presidency. With the popular vote still up in the air (even if she ultimately lost that, too), Kamala leapt to concede the raw Electoral College margin, reifying Democrats’ twenty-four year old tradition of bending over backwards to the broken scheme. Never mind that the Fourteenth Amendment directs us to strip votes from States engaged in voter suppression, or that the Supreme Court directed Congress to address (op. at 13) Trump’s ineligibility for office under the same Amendment. The next day, President Biden inexplicably touted the “the integrity of the American electoral system,” as though any system so stuffed with misinformation and money can be “honest . . . fair, and . . . transparent.” Let’s pretend that Republicans didn’t deliberately distort the Electoral College vote allocation via the facially unlawful bid to include a citizenship question in the 2020 Census (forgot about that, didn’t you?). Are we really supposed to believe, in the ten years since the Supreme Court relegalized voter-suppression in Shelby County v. Holder, and in the various cases approving such attempts since (e.g., Brnovich v. DNC), that Republicans haven’t been suppressing the vote?

Frankly, it’s difficult to believe Democrats didn’t choose to run against Donald Trump again on January 21, 2021. Especially on a seven million vote margin of victory, the botched January 6 coup d’etat granted Democrats a golden opportunity to lock Trump away, expel insurrectionists and their sympathizers from Congress, and wield both the House and Senate supermajorities to dismantle the white nationalist Republican threat for generations in ways that FDR could only have dreamt of. Instead they begged performance artists Kristen Sinema and Joe Manchin to torpedo their legislative efforts, and hemmed and hawed before belatedly appointing Jack Smith knowing full well that an openly-partisan Supreme Court (including three justices who had asked and a fourth who had agreed to steal the 2000 Presidential Election) need only tap the brakes on genuinely novel (if easy) questions of law to push the matter into the next Presidential term (not that Smith waited even that long to drop the charges).

If Democrats had openly abandoned the procedure of democracy, more and more we learned, they had abandoned the substance too. Between their increasing hostility to Latin American immigration and their unrepentant enabling of a genocide seeking to purge all apparently unwelcome according to a mythic Bronze Age land grant, Democrats have not only reinvigorated racial animus in American politics but further granted legitimacy to the notion of America as an ethno- rather than credal-state. Why should anyone believe their eulogies for affirmative action if Democrats do believe some people fit for subjugation and annihilation? And despite grasping the constitutional import of women’s bodily autonomy, they utterly lack a vision of legislative supremacy—either to defend what little remains against an emboldened Court or to take those rights back.

Instead of offering a straightforward plan to improve people’s lives, Democrats opt to berate voters, dismissing their material concerns—the costs of housing, living, and healthcare—as secondary to the trimmings of modern liberal democracy. But abortion rights for those who cannot afford food or housing, let alone healthcare, mean little more than freedom of speech means to the enslaved. This is not merely the pragmatic recognition that a politician must take the voters as she finds them; that just as fearful people vote fearfully, so too desperate people vote desperately. It is the foundation of democracy: communal self-government is inseparable from personal self-government. The equal dignity that entitles one to freedom from enslavement also entitles one to order her own affairs. No one can dictate whether another is hungry, is happy, is scared or not—whether she should be or why is beside the point. To dismiss voters’ concerns about the cost of living is to rule them as one dismisses a dog’s pleas for second breakfast. Freedom means little to the starving. Democracy inheres in the simple dignity of each to vote based on whether they can put food on the table. Plainly, voters are entitled to vote their stomachs.

None of this excuses or justifies many voters’ racism and misogyny. But it doesn’t have to. If Democrats want to play good guy, then they don’t get to simply point to a worse alternative. They have to actually do good: improve people’s material conditions. Until they propose to do so, they have no right to win. Instead of recognizing and working with the material difficulties facing most, Democrats purport to dictate what voters should want. The real takeaway seems to be that Democrats don’t just lack a vision of democracy worth fighting for; they lack one altogether.

By the time I woke up Wednesday morning, every one of my news feeds had rushed to declare the election for Trump. Sure, democrats underperformed (we’ll have plenty of time to discuss why). As of now, though, just glancing at the 2020 election results, something like fifteen million votes have yet to be counted. There’s no electoral mandate. We don’t even know the popular vote yet. So why the rush to conclusions and concessions?

Consider how insane one would sound explaining this to an outside observer—Oh no! Kamala lost! So Trump won the vote? Actually we don’t know yet. Ok? But, but, Kamala lost the Electoral College. Is that one of those guardrails that ensure majority rulemaking? No, it was just a pro-slavery concession. Well is the College perhaps a better way of divining the majority will? No, recently, it regularly rules in favor of minority-vote presidents. Okay, so what grants this College legitimacy? Because it’s written down in the Constitution. Oh. What else does the Constitution say about the Electoral College? Well Section 2 of the Fourteenth Amendment does say that States should be stripped of representation in proportion to their suppression of eligible voters. When do you have to do that by? January 6 or so. Have you canvassed voter suppression policies to rebalance Electoral Votes yet? No. Plan to? Uhhhh . . . Okay . . . And also, since Section 2 only generally mentions “representation” and not the College specifically, it’s doubtful the slave-power roots of the College would survive mature reads of the either the Thirteenth Amendment or the Fourteenth Amendment’s guarantee of equal citizenship. Wow . . . any others? Yeah . . . and the Fifteenth Amendment just says States don’t get to engage in racialized voter suppression, implying a more categorical prohibition and punishment than mere proportional representation stripping. Same deadline? Yep. Started yet? Nope. [exasperation] What else? Um . . . well . . . Section 3 of the Fourteenth Amendment pretty clearly disqualifies Trump from office. Really? “No person shall  . . .  hold any office, civil or military, under the United States . . . who, having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” January 6? Yes, and yes. So you’re going to follow the numerous provisions that reject this insane Electoral College thing? What? No. We already conceded.—What collective psychosis drives us to pick and choose the rules to lose by? Do we prefer self-righteousness in defeat to the responsibility of victory?

But, I hear the voices clamor, custom and tradition point us to the Electoral College over the popular vote. Utterly false. Twenty four years of Democratic Party defeat-fetishism—predicated on one of the stupidest Supreme Court decisions of our nation’s brief and sorry history—tells you to follow the Electoral College over the popular vote. Before that? Clinton ’92: won the popular vote. Bush ’88: won the popular vote. Reagan ’80: popular vote. Carter ’76: popular vote. Nixon ’68: tight, but popular vote. Johnson ’64: popular vote. Kennedy ’60: tight, but popular vote. Eisenhower ’52: popular vote. Truman ’48: popular vote. Roosevelt ’32: popular vote. Hoover ’28: popular vote. Coolidge ’24: popular vote. Harding ’20: popular vote. Wilson ’12: popular vote. Taft ’08: popular vote. Roosevelt ’04: popular vote. And, hell, let’s keep going. McKinley ’96: popular vote. Cleveland ’92: popular vote. We have to go back to Benjamin Harrison’s election in 1888 to reach the last time a candidate won the popular vote and the nation said: sure, whatever, give it to the other guy. And it’s pretty hard to call that election a shining beacon of democracy when black men and all women couldn’t vote. When you toss the popular vote for the Electoral College, you’re bending over backward for a “tradition” that can’t even rent a goddam car.

The first rule in democratic decisionmaking is to ask which candidate or measure won the popular vote. There may be practical reasons to demand supermajorities for some measures (though I tend to doubt it). But there’s got to be a good reason to just ignore a majority vote. Lincoln thought the incompatibility of slavery and democracy was one of those reasons—though, ironically, he ran for office on it. The Electoral College isn’t one of those reasons. It has no inherent moral validity. Honestly, it doesn’t even have any pragmatic validity. NATO isn’t going to invade to enforce the Electoral College. More realistically, we’d cite another unsuspecting nation’s adoption of similar procedure as casus belli to gallivant off in search of oil or lithium or copper. Right now, the only thing that can be said for the Electoral College is that it’s written down in a deeply-flawed document whose most important amendments vary between heavily amending to scrapping it entirely and which also quite clearly disqualify the “victorious” candidate from the office. If our concept of democracy so casually abandons genuine majority rule for unquestioning adherence to the last line we plucked without context from an old rule book, I guess that’s fine. But then don’t tell me “democracy is on the line.” Nothing of the sort.

If the endless threats, smattered across my social media feeds, not to vote this election are any indication, the American Left spends too much time reading obtuse theorists who’ve never won meaningful democratic majorities—an odd conundrum for adherents to an ideology whose entire political validity rests on its appeal to and material provision for the majority. I’d like to think that somewhere, perhaps in the works of an aging and disillusioned Engels, or at least in Luxemburg—once the apostles recognized that salvation lay beyond their personal horizons—someone sent some time figuring out: now that we have a political program, how do we win durable electoral majorities to implement that vision long term? But right now, I don’t care. The example the men who refounded this nation should be plenty.

We downplay Abraham Lincoln’s accomplishment when we teach that he ended slavery via the Civil War (spare me for a moment the Thirteenth Amendment’s big exception). To get there, Lincoln had to win election preaching the moral wrongness of human chattel enslavement, and the task had only gotten more difficult over his career.

When Lincoln started out in Illinois politics, the cause of abolition (look, we don’t have time to get into the contours of abolition versus emancipation) didn’t look too shabby. Jefferson had prophesied the end to enslavement in his Notes on the State of Virginia (a complicated work, at best, but I think we can take this part sincerely, if not all its reasoning). Both the Northwest Ordinance, passed by the First Congress, and the Missouri Compromise of 1820 excluded slavery’s expansion North. The United States border confined it South. And Congress had outlawed the import of the enslaved on January 1, 1808—the first date permitted by the Constitution. Then, the United States invaded Mexico to conquer a vast new southern territory for slavery. The Compromise of 1850’s Fugitive Slave Act invited Southerners to wield Federal power (Federal officials duly incentivized to help) to re-enslave people across the North. The Kansas-Nebraska Act of 1854 repealed the Missouri Compromise, opening all Federal territory to enslavement. And in 1857, the Supreme Court declared that Congress lacked authority to prohibit slavery in the territories, plainly opening the door to next declaring that States also lacked authority to prohibit slavery within their jurisdictions. Upon Lincoln’s 1858 return to politics, shit was fucked. By 1868, slavery was abolished and every freed man, woman, and child made a citizen of the United States. Yes, we really goofed things up after that and still have never actually accomplished the multiracial democracy promised. But Lincoln accomplished nothing short of a revolution.

So far as I can tell today, though, many American Leftists would have damned Lincoln every step of the way. He’d supported the emigration (expulsion) of freedmen back to Africa. He’d embraced the racist tropes of day, called his hypothetical enslaved man “Sambo,” recoiled at the notion of interracial marriage, and disavowed any intent to extend political or social equality to black Americans. He wrote to Salmon Chase, asking him to remove opposition to the Fugitive Slave Act from a Republican election platform. He professed the Constitutionality of enslavement; that he had no power—nor desire—as President to interfere with it where extant; that even Congress had no power to abolish it (a lie widely accepted across the legal profession to this day!). When the war started, Lincoln initially stopped his generals from freeing the enslaved. He then proposed compensated emancipation—implying the validity of asserted property right—before moving on to emancipation by military necessity, but only in Confederate territory.

As Lincoln’s detractors gleefully remind us, stepped into the unsavory at every step! But of course he did. He argued black emancipation to white supremacists. If I should like to cross the street, shall I nevertheless stand there like a moron because every step—taken as the ultimate goal—would get me killed? Politics is the art of defining your goal, determining what is immediately possible, and doing that without compromising the next step. And every step enables new ones. Lincoln’s political moderation did not compromise his ultimate principles; it illustrated them. However racist, the public will embodied the democratic consent of the governed that Lincoln thought undercut by enslavement. He could no more ignore the voters than oppose enslavement. That does not mean that, a la Douglas, the voters were always right. They weren’t. But he had to work with them—guide them, even. Lincoln’s political empathy directed him to meet voters where they were. If that meant stepping into the shit with them; so be it. White supremacist rural Illinoisians weren’t going to suddenly embrace interracial egalitarianism. So he offered a race-neutral argument against slavery rooted in his voters’ patriotism and self-interest. Jefferson’s Declaration that “all men are created equal” means that no man is good enough to rule another without his consent—black slavery justified white slavery; slavery would tend to degrade white workers’ conditions; fulfill the Founding Fathers’ promise. He disclaimed any intent to “force” black Americans’ social and political equality on his voters while preaching a political proposition of their equality. Lincoln compromised at every step, all the way to his goal, and laid the groundwork for the Fourteenth and Fifteenth Amendments.

Returning to the present, Leftists have to work with Democrats. We don’t have to be friends. We don’t even have to like them. But our immediate agendas—democracy, gender equality, racial equality, preserving the environment, basic healthcare and working conditions—overlap. Sure, Democrats hold shallow views of each. But a crappy democracy is better than none; vestiges of Jim Crow are easier to work with than fully fledged; interspersed States of female equality-ish are better than none. And I’d rather argue to lawmakers whose supposed values oppose genocide than lawmakers whose ideology openly embraces it. Because if historical materialism means making lives better, rather than just stewing in the opioid of self-aggrandizing moralism, then we have to take those first few steps together from really shitty to slightly less really shitty.

Look, I can’t stand Democrats. I used to believe the Left had a permanent home there and railed against what I saw as Democratic incompetence. Now, I worry that the “incompetence” is deliberate, as the Democrats seek to stitch together the fundamental contradictions of capitalism and multiracial democracy. They’ve known about the Right’s, and more specifically Chief Justice John Roberts’, vendetta against voting rights for decades and done nothing. They continually cede ground to the Right, be it economics, healthcare, or immigration. While admirably staffing the lower courts, they have refused to take the Supreme Court seriously and women have paid the price. They refused to wield the blessing of the botched January 6 coup—casting away a golden opportunity to exclude the insurrectionists from Congress just as the Reconstruction Congress did; impeach and disqualify Donald Trump from future office; and wield a supermajority in both Houses of Congress to rid us of the Electoral College, entrench meaningful voting rights, and reclaim Congress’ rightful role as expositor and guarantor of individual rights—and instead have walked themselves into a contested election! And if that were not enough, they openly support Israel’s maniacal genocide in Gaza based on racial animus thinly veiled by a mythic Bronze Age land grant.

Whatever it once was and could someday possibly be, now and for the foreseeable future, the Democratic Party seems bent toward maintaining a collapsing capitalist mode of production by means of labor and racial- and gender-egalitarian concessions. And yet, against the background of our openly divergent goals, Leftists still debate on Twitter which course of action will make Democrats like us more, or hate us less. If you keep losing, give your interlocutor some credit. If you don’t view Democrats as friends, guess how they feel? Democrats know we are not their friends. They know we’re just allies of convenience at best. So why should they like us? Just accept that they’ll vilify us as the culprit if they lose and ignore us as radicals if they win. But no! Schrodinger’s Leftist wants to be simultaneously the morally superior scourge of neoliberal Democrats while also enjoy their love and support!

What poison let you believe politics to be a cozy business? If it be your lot to die climbing Missionary Ridge that one starving and enslaved child might go free, then it is your duty. If it be your lot to be beaten senseless on the Edmund Pettis bridge that one black child might drink at the same water fountain as a white child, then it is your duty! So then if it be your lot to be ridiculed by plush liberals as we fight for union rights and universal healthcare—then it is your duty. And if it is your lot to cast a ballot for a callous ex-cop tolerating a genocide so that her opponent will not assuredly complete it—then it too is your duty. Let me be clear: My rebuke is not to Muslim and Palestinian Americans, especially those directly impacted by the genocide. I understand completely that one may not be able to bring herself to be electorally complicit in the deaths of family and friends. But for the rest of us, blessedly insulated from the madness, we have a job to do: grasping the best, however poor, chance to end the genocide. Shall I burn the last loaf because to give it to a child condemns the rest to starve? Not voting guarantees worse atrocities to come.

Complain not of the Master’s tools. Those who cast off effective tools for want of perfect ones do his work better than he. Or have you already forgotten that Abraham Lincoln argued, and within seven years won, emancipation for those whom his voters would have expelled from the Continent! To wield a viable political party we must first run viable individual candidates; to run viable individual candidates we must wield influence in a viable party not of our making; and to wield influence within a viable party not of our making we must win that party votes. We make votes for just causes possible tomorrow by voting for the lesser of two evils today. The votes we win for viable Democratic causes today can be converted into votes for our viable platform in future elections.

Despite Joe Biden’s generational work for labor and union rights, the rest of American politics—Dobbs, Bruen, the gutting of the administrative state, slashing of voting rights, the failure of student-loan relief, and the genocide we fund daily—seems like a rear-guard action, and this election like a moment of harm reduction, not of hope. But what selfishness drives one to abandon the world they cannot save within their own lifetime? We have no right to give up, not while a single life can be improved.

Despite my amenability to the Left’s project and introduction to it through various podcasts and friends, I (admittedly) find myself still remarkably unread in the realm of Marxist scholarship—who’s got the time? So Paul Le Blanc’s (by no means recent) reader, From Marx to Gramsci, proved a generally enjoyable and informative read. 

In an era of rambling academic tracts and judicial opinions, one cannot take for granted the Professor’s wisdom to distill the project’s tenets right up front. But the book contains more than mere introduction to the materialist view, tracing all aspects of society back to its fundamental economic form, or continued explanations of how managers squeeze ever more value from workers. Le Blanc introduces also some primary debates carrying Marxism to the present as its early adherents watched the Promised Land dissolve into the future, grappled with the eternal question of baby steps or decisive steps (yes), realized that the first major venture (the Soviet Union) had gone horribly wrong (blame Stalin?), and watched fascism animate the working classes in the complete opposite direction. 

Obviously, don’t count me an educated commenter yet. But two notes do leap out to me. 

First, these early Marxists desperately needed good editors. It’s no wonder they accomplished so little for so long: no one could understand them—which proves debilitating when the entire project revolves around organizing and animating normal people. The old line (was it Verdi?) about Wagner describes perfectly most of LeBlanc’s selections from Marx & Engels, Luxemburg, Lenin, Trotsky, and Gramsci: minutes of brilliance; quarter hours of miserable boredom. 

Second, for a program aimed at attaining and wielding constitutive political power—that is, not merely governing but fundamentally restructuring a nation or society—I discerned precious little attention to the practical questions of constitutional law: sketching effective forms of government. To be sure, all echo Marx and Engel’s demand for democracy (p. 172). And I (mostly) believe they mean it. Marx’s oppressed wage laborers are the electoral majority after all. Democracy plainly offers a solution.

But we’re all materialists now! And democracy means many things. What does this idyllic call for democracy mean on the ground? What forms of government best enable the transition to socialism? Must we reject over two thousand years of political theory as bourgeois?

So far as I can tell, Marx and Engels themselves pointed to the Paris Commune as a model, but LeBlanc reports little more than vague and fantastical descriptions of “municipal councillors, chosen by universal suffrage in the various wards of the town” wielding “executive and legislative [power] at the same time” (p. 104). Surely Polybius and Montesquieu turn not on bourgeois sensibilities alone. Show me voting districts and I’ll show you a gerrymander. Proclaim universal suffrage and then please remind me of your voter registration requirements. Who gets to vote runs awfully close to the question of why people ought to vote in the first place. And perhaps I overread hints of localized popular sovereignty in the venture—but an American can never be too careful with the notion. An introductory reader this may be, but I consider these introductory questions. 

Lenin’s dismissal of democratic self-rule as “merely a form…which does not change the real state of affairs” and “Once capital exists…no franchise can change its nature”—to justify dissolving the Constituent Assembly—proves more distressing. Setting aside his laughable empirical proof of democratic-futility, describing the early 1900s United States as “[o]ne of the most democratic republics in the world,” one might more seriously ask how Lenin intended to divine the common workers’ will without regular election (p. 262) (at least Gramsci appears to grasp reality here (p. 361)).

The somber takeaway seems to be that, just like the Right, Leftists also forget why democracy matters—except that totalitarians can afford to.  We cannot.  If all men are created equal, then not only may one not rule over another without his consent, but all might partake in the communal self-government. Put differently, the recognition of equal human dignity that forbids both chattel slavery and wage exploitation also founds, even justifies, our submission to the votes of others—especially when we lose. Democracy doesn’t just pragmatically align with Marx’s appeal to the masses. The two go hand in hand. 

2. Spare me the liberal condemnation of violence in all its forms. Must the slave willingly die under the lash? Must the prisoner accept without question the gas chamber? Must the child starve silently? Die quietly and without protest. Must we mistake resistance for oppression? When feasible alternatives have been exhausted, self defense and the defense of others is no vice.   

3. Yes, we should strive for nonviolence—but not naïveté. Excising political violence from American society must mean more than eschewing assassination. Political violence founded this nation, not just at Yorktown and Gettysburg, but also at Mount Hope, on the Trail of Tears, and Wounded Knee (don’t even get me started on our overseas empire). Political violence constitutes this nation even today. Set aside police violence and the disparities in life expectancy, wealth, health, and maternal mortality that flow directly from racial chattel slavery through Jim Crow to the present. Look to any major intersection, underpass, or park. Homelessness is no quirk in our political economy, but a reminder of the slow death from hunger, thirst, extreme temperatures, or disease that await any who fail to economically justify their existence within our borders. 

4. Make no mistake, from the militia movement, to glorified police violence, ritualized gun proliferation, and constant threats of civil war if they don’t get their way, the Right openly embraced political violence long ago. Of course, I neither need nor want Democrats to match Republican violence tit for tat. I don’t want some lone idiot to shoot Donald Trump; I don’t need some lone idiot to shoot Donald Trump. I need Joe Biden to wield his lawful monopoly of force to decisively quash the Right’s embrace of overt (read bourgeois cognizable) political violence before it escalates further. The state’s monopoly on the lawful use of force imposes upon it a concurrent duty to maintain that monopoly by preventing unlawful violence. Biden’s milquetoast reaction to the botched January 6 coup taught Republicans the opposite lesson: try again. 

Grow up and play the ballgame you find yourself in—not the one you wished for. 

In Crisis of the House Divided,[1] political theorist Harry Jaffa asks and answers what possessed the unlikely-contender and on-again-off-again politician Abraham Lincoln to contest the 1858 Senate election against the titan of American politics, Stephen A. Douglas, and—both ultimately and more importantly—to shatter the Union’s political consensus.  Every American grade school history touches on the Lincoln-Douglas debates, but beyond the cursory mention of “popular sovereignty,” it seems (if my experience carries any weight) few of us grasped the import.  At ground level, the two clashed over slavery’s potential expansion into the territories, namely what would become Kansas and Nebraska, and presumably also the land in between and north of those future states and California.  More seriously, the two debated slavery’s fundamental compatibility—or not—with self-government.  The weight of the question bears a fulsome retelling. 

Perhaps to the reader’s surprise, Jaffa dedicates the first portion of his text to a favorable distillation of Douglas’ position, to the point where one might fairly wonder what tree the mad-Kentuckian was barking up.  In this telling, Douglas’ apparent indifference to slavery masked not a broken moral compass, but instead rested upon the Senator’s utter devotion to the principle of “popular sovereignty”—to local rule, even regarding the most important questions.  True, at times Douglas’ immediate actions appeared to conflict with this principle.  He supported the various Federal interpositions on the matter, namely the Missouri and 1850 Compromises.  But those merely served, first, to preserve the Union and, second, largely vindicated local opinion (as, for that matter, he believed the old Northwest Ordinance of 1789 did).  So viewed, in the contingency of circumstance, Douglas remained true to his principle: the sanctity and competence of local rule. 

And, indeed, if one really abhorred slavery, what empirical quarrel could be had with the Senator?  The cotton plantation had reached its natural territorial limits.  Who, after all, would populate our Manifest Destiny if not the teaming recent immigrants of the Northeast—all wary of competition from enslaved labor.  Already, Northwest Ordinance or no, the old Northwestern settlers had decided in favor of Free Soil.  So too, recently, California.  So too, likely, Nebraskans (for that matter, Kansans were headed in that direction too—Lecompton affair notwithstanding).  Why manufacture sectional controversy when slavery seemed ready to resolve itself? 

But, of course, Lincoln via Jaffa replies, the matter would not have resolved itself.  Aside from the fact slavery had not, in actuality (as Jaffa later notes), reached any “natural” boundaries.  Politically, Douglas owed his success in resisting the Lecompton fraud (where pro-slavery voters, including many Missourians, stuffed Kansas ballot boxes to establish a slave-constitution) to the Republicans who categorically opposed the expansion of slavery.  And legally, atop the Fugitive Slave Act (part of the Compromise of 1850), the infamous Dred Scott decision, nullifying Congress’s power to prohibit slavery in the territories, offered an easy springboard for the Supreme Court to soon declare that states too could not prohibit slavery within their jurisdiction.  Practically speaking then, there was nothing local about it—the cancer was not content to remain a regional quirk in the American system.

More fundamentally, though, Douglas erred not simply in a naïve attempt to stitch consensus between a North whose abolitionists rejected one possible end of popular rule and a South whose Calhounian tradition denied its means, but in his unadulterated adherence to the popular will.  That the popular will often, if not usually, led to right, Lincoln did not dispute.  Their dispute lay in why the popular will mattered. 

To Lincoln, the Declaration’s recognition that “all men are created equal” supplied the answer: No man is good enough to rule another without his consent.  This necessary consent of the governed—embodied in, among others, the popular will—marks the foundation of self-government (without which the Constitution could not have been framed).  Democracy thus consists not in the mere form of democratic decisionmaking but in the continuing maintenance (even renewal) of the substantive principles supporting the self-government—prime among them: human equality.  In upholding the majority will to whatever end, Douglas would have voters reject their own governing mandate.  

In both theory and practice, then, slavery fundamentally contradicts democratic self-government.  Lincoln included black Americans in the proclamation of equality—whether the Founders intended that or not (though both Jaffa and Lincoln argue they did, at least in part), they simply discovered more than they appreciated.  And so, on principle, in denying equality, human enslavement necessarily denies the consent of the governed, and thus contradicts democracy.  Equally so in fact, Lincoln argued.  Any justification of black enslavement justifies white.  Permitting each community to pick and choose among their basic principles inexorably leads to nullification and disunion.  Majorities subjugate minorities until only minority remains.  Popular sovereignty by necessity devours itself.

Lincoln’s problem, and ours, was that the Founders compromised all of this by instantiating slavery in the Constitution.  The Reconstruction Amendments remedied that.  But the importance of Lincoln’s reasoning lies not just in his transformation of (as conservatives then and now often argue) an otherwise personal moral issue into a salient political one, but in recognizing its fundamental constitutional import.  The Thirteenth Amendment no more made slavery wrong than the Fourteenth Amendment made racial animus wrong.  Both merely corrected errors which threatened our entire democratic project.

[1] Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (3d 1982). 

Why (if you’ll indulge me) the fuck not?  This isn’t kindergarten; it’s graduate school.  Professional grad school.  Find me law practice that pays well and doesn’t involve copious swearing.  Find me that elysian pasture where Federal trial judges invite counsel to explain “what the hell is this case doing in my court?” more kindly than a law professor—who’s spent the entire semester cultivating a good-natured and compassionate ethos—chuckles “what the fuck is this case doing in Federal court?”  But set aside the practical training and focus on the substance.  What decorum do we owe the law? 

Certainly, some baseline decorum is required for business to proceed and to cultivate basic civic adherence to the rule of law.  I won’t pretend to know where the line is, but I submit it lies quite a bit lower than you think.  Because decorum isn’t an objective standard.  Those in power determine which conduct crosses the line.  All too often in American law, decorum devolves to dismissal of eminently reasonable moral outrage as (usually racial or gendered) hysteria.  And the only acceptable response to such outrage seems to be to sit their quietly and take it. 

Perhaps no better example exists than our discussions of a (democratic) Supreme Court nominee’s “judicial temperament”—that is, her silent, resigned acceptance of public verbal abuse.  (And no dismissing this as mere politics.  We make law in judicial nominations just as much as we do in Congress.) 

Take the unquestionably qualified esteemed judge, former Federal defender, and somehow only the first black-woman nominee, Justice Jackson’s recent experience, sitting through Senator Marsha Blackburn’s accusations of her “hidden agenda . . . to let violent criminals, cop killers and child predators back to the streets?”  Through Senator Ted Cruz’s interrogation about racist babies?  And even through Senator Josh Hawley’s (and others’) deranged lies about then-District Judge Jackson’s criminal sentencing record.  All while Democrats on the Judiciary Committee (Senator Booker notably excepted) just watched, meekly praising her “judicial temperament.”

To what end?  Last I checked, judges read law, hear cases, resolve controversies, and, well, judge.  I must have missed my judge’s daily silent and unprotested crucifixion (sure, we clerks suffered daily indignity, but that’s a different issue).  And even forget for a moment the bad-faith tantrums about judicial methodology or sensitive criminal sentencing.  I forget exactly when we left racial dog whistles aside (assuming they ever were just dog whistles), but Republicans’ continual swipes at Justice Jackson on the topic of “critical race theory” stood waist deep in the “we’re calling you to account for all black people” side of the pool (a pool which, coincidentally, Republicans then proceeded to close rather than integrate). 

Which raises the question: How far must Republicans go to exceed the bounds of “oh we’re just testing her judicial temperament?”  Must Ted question the validity of her interracial marriage?  Must Lindsey just admit that “me and my constituents just don’t want a black woman on the Supreme Court?”  Must Marsha call her a “[racial-slur] judge?”  How far before we expect Senate Democrats to shut down the hearings?  Before Justice Jackson becomes entitled to “respectfully decline to answer your asinine question?” Before she gets to tell racist Republican senators to take their views back to the 1950s, or to the Jim Crow South.  And if you protest that Republicans would surely never cross this line, let me introduce you to Adeel Abdullah Mangi, President Biden’s nominee to be the (again) somehow-only-the-first Muslim-American Federal appellate judge, who spent several hearings in the last few months refuting Republican Senators’ charges that he must support Islamic terrorism or celebrate 9/11.  How much racist vitriol must the next Justice Jackson endure before the thoughtful and reasonable response would be to remind Republican Senators that their despicable views very much justified Sherman burning Georgia to the ground?  If our concept of “judicial temperament” answers with “never,” then, I submit, we have already lost. 

To be sure, temperament, like decorum, plays its part.  Much of our common law aims to constrain individual judicial preferences (although the extent of its efficacy remains debatable).  But these restraints seek to elevate judicial decisionmaking above individual human frailties—not excise humanity altogether.    

We must reject the notion that the law stands opposed to emotion. 

Put aside the misogynist undertones inherent in any disparagement of emotion in the law.  Many instances of reasoned lawmaking require passion precisely because the reasonable response is the passionate one.  As I hope I have already hinted, the reasonable and thoughtful response to stumbling across an American chattel-slave plantation, the charred remnants of a “battle” between the U.S. Army and indigenous peoples, or a concentration camp of caged child refugees on the border would be to cry something akin to “my God, my God, why have you abandoned [us]?”

True enough, these horrifying examples represent extreme cases.  Yet many ordinary applications of the law reveal a desperate need for human passion.  Tort law, for a prime example, explicitly reduces the value of human life to a dollar value to simplify the calculation of damages where we cannot remedy in kind.  In that light, perhaps a necessary abstraction.  Immediately, though, such commodification results not just in treating harm as a cost of doing business, instead of striving as a matter of human dignity to avoid it.  And before long, given businesses’ cost-minimization tendencies let alone our national history of devaluing certain groups, such reasoning places environmental hazards near poorer and darker skinned communities and, ultimately, drives our gender and racial wage gaps.  One would have hoped this nation, built on chattel slavery, would have better learned to recognize and abhor the commodification of human bodies and instead craft solutions with a focus on human dignity. 

At bottom, history more than demonstrates the regular failure of legal reason and the necessity of human emotions like compassion and empathy to correct our course.  Calls for dispassionate engagement seek to justify a legal system which has already justified slavery and white supremacy, poverty, denial of housing, healthcare, and education to millions, and the catastrophe of climate change.  We have no obligation to engage on this hostile terrain. 

So damn “judicial temperament.”  We should demand unabashedly compassionate and empathetic judges—judges who zealously embrace justice, cherish our right to vote, and abhor poverty more than Sam and Clarence love free yacht rides; who publicly call out their colleagues’ discrimination and harassment; who take charge of Senate confirmation hearings and reject hateful questions; and, ultimately, who inspire us and scare the hell out of racists and apologists for poverty and climate disaster and all their accompanying sins. 

And fuck decorum.  Because if you expect me to stand up in front of a class full of law students and pretend that American constitutional law is anything other than a shitstorm of the deranged pontifications of centuries of mush-for-brains enslavers and their apologists, we are, again, already lost.

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