Saturday, November 12, 2016

Theorizing Illiberal Democracy

Mark Tushnet

1. The hate mail responses to my prior posting had tapered off, but have renewed a bit since Tuesday. Just for the record -- I received the following e-mail this morning, which I suppose the writer thinks is cleverly satirical:

Your report date at the EASTERN UNITED STATES Re-education Camp is:
NOVEMBER 15, 2016
Bring a toothbrush.
Trump Transition Team
Ross Douthat's column in the New York Times today has the title, "You Must Serve Trump," where the "must" appears to be a normative imperative (though I'm not sure that the person who gave it the title intended to introduce the ambiguity that's there). As I've been noting the rather wide range of people who have taken that or similar positions, the following question has arisen in my mind: Cutting directly to the chase of Godwin's law, assume that N (less than one) is the probability that Trump turns out to be the contemporary equivalent of Hitler. How large does N have to be for the advice to work for Trump so as to temper his excesses morally mistaken? My own estimate places N below .5 (but above .001). For me, the "fact" that N is not zero makes working for Trump morally hazardous.

2. I'm sure that the prior stuff will attract more attention than what follows, but I do have to figure out how I'm going to manage my professional life over the few years I have before retirement, and maybe the project should be theorizing how the U.S. Constitution is or became adaptable to a system of illiberal constitutionalism. ("The Future of Illiberal Constitutionalism" as a title, anyone?) Parts are relatively easy -- presidential administration in a world with an acquiescent Congress (and judiciary), adjusting the interpretation of the First Amendment to accommodate modifications in the law of libel against public officials. What other parts of the project might there be? And, on the "how it became adaptable," I'm reasonably sure that the acceptance of the (I have to say, true) insights of Legal Realism would play a role.

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