John Buell

Courts and Constitution as Saviors?

Will the federal courts save our nation from the Trump Administration’s assault on most cherished civil liberties? Though there is reason for initial optimism, that optimism may be premature. The courts and even the Constitution itself have had an ambiguous relation to the evolution of those cherished freedoms. Nor is Trump some unique monster. His policy agenda exacerbates but nonetheless is indebted to some of the actions of his Constitutional scholar predecessor.

Why, for instance, the seven nations that Trump has blacklisted? Glenn Greenwald convincingly rejects simplistic critiques via an emphasis on the historical background: “The suggestion that Trump protected the countries with which he does business is preposterous. The reality is that his highly selective list reflects longstanding US policy: Indeed, Obama restricted visa rights for these same seven countries, and the regimes in Riyadh and Cairo have received special US protection for decades, long before Trump.”

Though the courts have acted in response to Trump’s actions, they have had little role in the events leading up to Trump’s actions. And it remains to be seen even if the courts follow through what will be the consequences for those officials who defied the courts’ orders.” Sex and the City star Cynthia Nixon reminds us that courts do not act in a vacuum: “Seattle Federal Judge James Robart’s ruling yesterday has, for now, shut down Trump’s Muslim ban, at least temporarily. It is a major legal decision in the right direction. For it, we certainly have Judge Robart to thank, but also the thousands and thousands of people who have come out and protested the ban and kept the issue front and center for the last week—in other words, us!”

Brooklyn College professor Cory Robin argues that “far from being a reliable barrier to abuses of power by the state or the corporate sector, the US institutional structure and the Constitution manage to enable or provide cover for the most extreme forms of tyranny. The worst, most terrible things that the United States has done have almost never happened through an assault on American institutions; they’ve always happened through American institutions and practices. These are the elements of the American polity that have offered especially potent tools and instruments of intimidation and coercion: federalism, the separation of powers, social pluralism, and the rule of law.”

Whether these elements will become instruments of rather than barriers to oppression likely depends on the political movements surrounding these events.

Caving in to the most authoritarian impulses is not inevitable. There is a degree of plasticity in core US institutions that would allow for a more felicitous outcome. Brown University political theorist Bonnie Honig argues: “American political culture has within it elements that are both demonological and inclusive, particularist and universalistic, securitarian and willing to take risks … The challenge for activists is how to mobilize the latter in each of these pairings, in order to offset and balance the former, which will never be entirely overcome.”

Historians tell us that in times of crisis or emergency traditional civil liberties are waved. What they don’t say is that crisis or emergency are not self-evident. They are a reflection of political values. If we are concerned about the denial of civil liberties, we need a politics that addresses, counters the declaration or use of the emergency narrative to increase the state’s ability to sustain their inegalitarian status quo. A progressive counternarrative would emphasize the crisis of democracy itself.

In an earlier column I cited the case of Flint’s water supply as an emergency from the framework of commitment to an egalitarian and democratic future. The coup d’état by Michigan’s governor that installed the emergency manager received very little national media attention. The larger background questions remain unasked. What role did the neoliberal political economy play in Flint’s fiscal crisis and where is it written that a democratic government wouldn’t be both more legitimate and better able to cope with the city’s fiscal crisis? And if Flint had been Bloomfield Hills, an affluent suburb of Detroit, would the governor and state legislature have engineered a coup and changed the water supply? What happened in Flint stayed in Flint until the bodies started piling up. The same may be said of the non-college-educated working class men now experiencing mortality rates equivalent to the AIDS epidemic.

Ultimately even despite the current wave of protest and judicial action against Trump’s Executive Orders, a broader movement will be needed even to preserve basic civil liberties. Les Leopold, director of the Labor Institute of New York, argues: “ [W]e should go beyond resistance and advocate a vision for the future ― a common agenda that includes a Robin Hood Tax on Wall Street, free higher education, criminal justice reform, humane immigration policies, Medicare for All, an end to outsourcing, fair trade and a guaranteed job at a living wage for all those willing and able.”

That movement depends on what Leopold calls an attitude adjustment. This involves coalitions where people look for connections among the issues in which they are interested. Nixon correctly argues:” But we must fight just as hard and yell just as loud for Muslims, both those here and those trying to get here. We know now that their struggle is our struggle, because their enemies are our enemies. Whether we are lesbian or gay or transgender or Muslim or Mexican or any one of a number of other categories I could name, we are allies united by our otherness.”

Among the other categories of those demonized I would name the deplorables, those working class white males, some of whom voted for Trump, but many of whom are not racist and suffer from the neglect and contempt of corporate elites. Enactment of a broad universal agenda will depend on and also facilitate greater engagement and respect across these cultural lines. As Cynthia Nixon puts it, “We are all together as others.”

John Buell lives in Southwest Harbor, Maine and writes on labor and environmental issues. His books include Politics, Religion, and Culture in an Anxious Age (Palgrave MacMillan, 2011). Email

From The Progressive Populist, March 15, 2017

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