What to do about the Coup? Pt. 2: Rule of Law
Two people are seized in the courthouse in Charlottesville.
Meanwhile at the courthouse…
My aunt recently passed away. She asked me to share my opinions about what we can do in response to the events cascading around us. I don’t have a lot of hope for this sort of thing. I’m just adding more opinions to a world of opinions, but my aunt asked. I was expecting to finish the second part today, when something yesterday interrupted.
According to Hawes Spencer’s report in the Daily Progress three guys who claimed to be employees of ICE (They didn’t show any identification, wear badges, or wear uniforms.) came inside the county courthouse yesterday and without a warrant approached two people, handcuffed them, and put them into vans without any word of where they were going or why. The link to the Progress story includes a video of one of the victims.
My daughter was also downtown at Court Square yesterday on a school field trip, which included a guide pointing out the eponymous courthouse. I’m imagining the guide describing it somewhat like I did in a post about the founding of Charlottesville in 1762.
The lots were laid out by one of the leading planters, Dr Thomas Walker, setting aside a square for a future courthouse. With public money the courthouse with its jail, pillory, and a whipping post—the basics of frontier justice—went up quickly. The lots sold out rapidly too, but actual building was slower.
Charlottesville built the courthouse before they did about anything else.1
Imagine what a lesson my daughter would have gotten in law and courts if the school’s tour had been a hour later. Back in the day those frontier pillories and whipping posts required warrants, judges, and trials. Now some dudes with a van can drive up with no warrant, no visit to a judge, no identifying information.
ICE is like everything about Trump, his administration, and his MAGA supporters. The law is whatever they want it to be. The DOGE office is unconstitutional; the executive branch setting tariffs is unconstitutional; treating executive orders as laws is unconstitutional; ignoring court orders is unconstitutional. Trump is not only the latest in a long line of presidential lawlessness, including the Bush administration’s warrantless eavesdropping, extraordinary rendition, and torture, and going back through innumerable Democratic and Republican presidents countless acts of war without a formal Congressional declaration, but he’s taking it to a new level.
The Rule of Law and its Discontents
I feel that most Americans across the political spectrum have long since abandoned the rule of law.2 We hope those in power are doing the right thing or fear they are doing the wrong thing, but we seldom try to judge whether they are doing the legal thing. Put the cause of this where you will: Side effect of the creeping lawlessness of empires? The expansion of secretive intelligence agencies? The counter-culture of the 1960s rejecting laws that required young men to be drafted to serve in an undeclared war in Vietnam? Libertarians rejecting the rule of law to smoke pot? The religious right never accepting the secular origin of our constitutional order?
Probably mostly it’s how little hands-on experience most of us have with any actual democratic self-government.3 It just doesn’t feel like law is something that belongs to us, so that those trampling it don’t seem to be trampling us.
In the last few decades the left has largely justified abandoning the rule of law by pointing out all the terrible things that have been legal. What good is a courthouse when it’s used for barbaric whippings and hangings? Why respect a constitution that allowed slavery, segregation, and voter suppression? Isn’t the Constitution just settler colonialism and white supremacy?
This has been a terrible mistake. Previous generations of Americans were able to end slavery, segregation, and voter suppression because those institutions were based on laws.4 Laws can be altered or repealed (Often by being broken as in the case of segregation). Without the rule of law there is no way for ordinary people to control the government. Trying to effect change in a lawless world of norms and values is like trying to build a wall with quicksand. All that’s left for opponents of government policy today is protests and activism, and these have limited efficacy if they aren’t directed for or against specific laws. Like the “Color Revolutions” of the former Soviet Bloc countries, no matter how many citizens take to the streets, sooner or later they go home again, and when they do the government—if not bound by law—will go back to doing what it did before.56
Mass protests can work well at bringing down a rigid, orderly hierarchical system, but I can’t think of a case where they did much against anarchy, and that’s where we’re headed.
I vividly remember watching BBC International on TV in a Czech town where I was teaching English a few years after the fall of the Soviet empire when a story came on of men in balaclavas jumping out of a government van to grab someone on a street with no warrant or explanation. This was under the direction of then Slovak Prime Minister Vladimír Mečiar, one of a dozen post-Soviet figures Trump resembles far more than Putin or Hitler. While many look for similarities between America today and the European fascist regimes of the interwar years, or to white supremacist regimes of the Southern states in the 1890s and 1900s, or to the strongmen and juntas of Latin American history, America today in my opinion resembles Russia and Eastern Europe after the fall of the Soviet Union. That’s where we see the mix of anarchy and authoritarianism.
So what’s going to happen?
If I’m right and events play out along this post-Soviet model, what’s going to happen?
Immigrants, legal or illegal, will avoid courts. Grabbing immigrants in a courthouse guarantees immigrants will stop going to courts. If someone you love is ever the victim of a crime, you’d better hope an immigrant isn’t a witness because they won’t dare come forward. No immigrant will testify or give tips regarding the gangs that ICE is allegedly concerned about. Immigrants (including legal immigrants) will largely go underground. ICE raids drive them into the arms of gangs. Immigrants will come to depend on illegal networks for travel, resolving disputes, and protection.
Many law enforcement agencies will start copying ICE. It’s depressing but it will happen. Law enforcement agencies are highly localized in the U.S., and some may well stand up to ICE, fulfilling their obligations to serve and protect by requiring ICE to present identification, warrants, and so on.7 But others will think ICE looks cool. Masks, no warrant, no ID, just going Dirty Harry on America’s scum will seem pretty sexy, and when a few non-scum get swept up by mistake, hey, how could they have known? As SWAT tactics spread in the 1980s War on Drugs and the militarization of police spread in the early 2000s War on Terror, so get ready for the ICE-ification of America.
Crime will increase. As I said above, violent government anarchy drives immigrants to the gangs. In a chain of cause-and-effect surprising to no one outside the far right, the do-as-I-say-not-as-I-do theory of law enforcement increases the power and income of illegal networks.
Conservatives and 2nd-Amendment defenders will cave like a cheap tent. 95% of those gun people stocking up to fight autocratic government will do nothing now that we have an actual autocratic government. 95% of those professional conservatives who wrote thoughtful essays about the evils of cancel culture, wokeness, and too much government will become excuse-machines for Trump, themselves, and conservatism itself. 85% of the fools who voted for Trump to do things completely differently than he’s doing them will manage to change their worldview completely like a Fox News memo. It’s exciting to see action, to see preferred policy goals implemented forcefully, to see the liberals whine.
ICE will be used and discarded. If they succeed in destroying the rule of law as they did in Russia the ICE-type people will be supplanted by far-scummier, far-greedier cadres who will step on them to become a new crew of oligarchs. Fifteen years from now the ICE people will be miserable alcoholics who beat their spouses and children and complain about how they never got their share. If ICE fails to destroy the rule of law, as their counterparts failed in Poland and the Czech Republic, these tactics will be publicly scorned. Fifteen years from now these guys will be miserable alcoholics who beat their wives and children and bury their past in the next drink, pretending they were never part of these raids or only went on one or two.
Persecutions and harassment will spread. The popular part of this for the MAGA base is targeting illegal immigrants and “DEI” but as the Trump administration has made clear they have a far broader agenda. Some of the first “arrests” were legal, peaceful critics of Israel—not something MAGA cares about—and much of Trump’s harassment of colleges is to squash public criticisms of Israel.
Why do people go along with this?
It’s rare for people who are doing wrong to realize it.8 All those points above about the precedents ICE is setting are not on the radar of the far right. They see a Dirty Harry world of hero and villain. They are the heroes doing the hard stuff the rest of us are too squeamish to do or naive to understand the need for. When we object to their actions they assume we’re feeling sorry for the criminals. Why don’t the rest of us understand that the criminals gave up their rights or don’t have rights? That the rest of us can easily see the precedent ICE is setting, the slippery slope ICE has pushed the boulder onto, the dark places where this all leads, the far right is blind to.9 They have no testing impulse. They don’t compare approaches to illegal immigration to see what works or approaches to law enforcement to see what works. Their gut impulses are all that needs be considered for the understanding of crime, law, or humanity.
So they will not stop. Maybe the feckless Democratic leadership or the “moderate” Republicans and independents will put up a fuss, but if the former Soviet bloc is any guide, don’t hold your breath. It will be oligarchs all the way down and none of them understand or care about you.
The best local response—and you will think I’m insane—is for the city to radically expand city council, create a separate office of elected mayor with real power, and rent lots of commercial property on long-term leases to convert to housing. The more citizens we have the more power we have. The more citizens in office the more experience we gain. And an elected mayor gives us a spokesperson and leader.
Maybe someday school children will visit a building where our 20-person city assembly first met.
As far as a federal response, I’ll finish my aunt’s request as soon as I can. But I don’t expect much improvement on a federal level for a long time.
Next: Cut the thing that actually ruins the budget.
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I think the Swan Tavern was the seccond building erected.
The right historically is never concerned about the government breaking the law. Because of the importance the right assigns to hierarchies the law is what maintains those hierarchies, and therefore they’ll fulminate against immigrants breaking the law, or minorities breaking the law, but not against governments or cops breaking the law, provided the governments and cops are breaking the law to shore up the hierarchy.
Membership in civic organizations plummeted during the Reagan-Clinton era, many democratic organizations like college fraternities and sororities are ridiculed by the left, and local government has largely been professionalized in much of the U.S.
Slavery was indeed legal since it predated the legal acknowledgment of rights, but segregation and voter suppression really weren’t imposed by a legal process. See here and here. White supremacists first tried to suppress blacks during Reconstruction but were driven to ground by the federal government. It wasn’t until the 1890s and 1900s that the conservative Democrats (who had opposed white supremacy in the 1870s) made common cause with white supremacy in order to impose one-party Democratic rule on the states of the former Confederacy. That’s why voter suppression was first on the agenda and racial segregation followed more sporadically.
That’s what happened during the first Trump administration basically. From those pink-hat inauguration protests through the anti-fascist protests and Black Lives Matter protests, the masses did their job in opposing Trump. Then Biden was elected and the Democrats went back to business as usual.
Of course having laws doesn’t mean governments will obey them. We have plenty of laws our presidents were breaking long before Trump. How do we get governments to obey their own laws? That requires thinking about checks and balances, including federalism, separation of powers, judicial review, constitutionalism, etc.
It’s illegal in the Commonwealth of Virginia to wear balaclavas, yet one of the supposed ICE agents was allowed to enter the courthouse wearing one.
Well, sometimes they do.
Elle Reeve’s Black Pill is a good and sympathetic introduction to the far right.
Your analysis of the way right wingers think is thoroughly on target. I should know. I grew up surrounded by it. They're poorly informed and dont care. They prefer their opinions over the facts. It's a very self-serving way to think and live but it makes them feel more secure.