The Gruel of Law
By Darryl Li (University of Chicago)
This entry in our “De-Provincializing Development” series examines SDG #16: Peace, Justice, and Strong Institutions.
The United States is “becoming a Third World country”—this refrain is shared by the current occupant of the White House and the agonized liberals who will likely admonish him all the way into a second term. For the former, the idea connotes carnage wrought by uncontrolled migration and an unruly nonwhiteness. For the latter, it is a vague sense of no longer living under good government and instead transmogrifying into a “banana republic.”
The metrics, as expected, may at first appear to support the liberal version of events at first. Take, for example, United Nations Sustainable Development Goal #16—on “Peace, Justice, and Strong Institutions”—and its various benchmarks. Promoting the rule of law? The POTUSian tweet stream screams a different story. Ending child abuse? Tell that to the border police who have kidnapped thousands of migrant children. Significantly reducing all forms of violence? This is a country that doesn’t even bother compiling official statistics on killings by police officers.
Hopes and fears, as aggregated by Google.
Bipartisan anxiety over American decline and the SDGs are both powered by a subversive juxtaposition. In the rhetoric of multilateral institutions devoted to projects of “development,” the SDGs were hailed as a breakthrough. Unlike earlier development benchmarks, they were applied to all countries, not just poor ones. As the anthropologist Henrietta Moore put it, “we’re all developing countries now.” It’s not only the usual suspects who can be judged wanting by global development standards, but even the wealthiest of nations. As the other contributions in this series illustrate, the structural condition of many marginalized populations in the United States is comparable to those in poorer countries, a situation once theorized as internal colonialism (to say nothing of formal colonies, such as Puerto Rico). Accusers and accused can trade places, even if only fleetingly.
But this move of inverting a dominant perspective according to its own standards is also exactly the kind of critique with which anthropologists are most comfortable, as it allows signaling wokeness without accountability to any specific politics. Instead of de-exceptionalizing the United States, let us take American exceptionalism at its word and apply a critical eye to one of its most hallowed values: the rule of law.
The rule of law is a notoriously slippery concept, one that SDG #16 curiously reduces to the rate of reporting violent crime and the proportion of prisoners not yet sentenced for a crime. Such metrics miss the crucial ways in which legal institutions in the United States remain as rigid, anachronistic, and reactionary as ever, notwithstanding the rise of Trumpism—much to the detriment and peril of the poor, Black, or Brown, both inside and outside its borders.
American elites take pride in having the oldest constitution still in use today, especially when telling other countries how to (re)write their own constitutions. Bequeathed by slaveowners and génocidaires, this document is nevertheless venerated by liberals as the ultimate embodiment of justice. Yet constitutional skepticism was a widespread feature of public life that was gradually snuffed out by the emergence of the national security state from World War I onwards. In particular, radicals in many different times have attacked the constitution’s antidemocratic institutional features. Most notorious are the Senate and the electoral college, which effectively empower rural white populations in small states. As a result, the average Republican senator now represents 2.8 million people, while the average Democratic senator represents 3.7 million people. In the past quarter century, the Republicans have won the popular vote in a presidential election exactly once—yet they have captured the White House three times.
Moreover, the constitution’s silence on crucial questions around democratic governance and voting effectively empowers reactionary forces at the state level. Thanks to widespread gerrymandering, Democratic candidates could collectively win millions more votes in the next Congressional elections and still not capture a majority in the House of Representatives. And this is all before getting to the raft of underhanded measures meant to prevent or discourage voters, including felony disenfranchisement laws that affect more than six million US citizens—a quarter of them in the presidential “battleground state” of Florida. Abolishing these constraints is not about helping the Democratic party win elections, but about expanding and reconfiguring the field of political possibilities in this country.
Yet this institutional monstrosity is virtually impossible to address due in part to the requirement that three-quarters of the states must approve any constitutional amendment. This has kept the formal text of the constitution—and some of the hardwired rules of the electoral system—beyond the reach of popular politics for nearly a century, while turning the idea of the constitution into a sacred yet abstract ideal.
This state of affairs has given the nine Supreme Court justices, insulated by lifetime appointments, inordinate power over constitutional matters. In perhaps no other country have judges been accorded demigod status, whose every firing of a synapse must be gleaned for higher meaning, whose every heartbeat could determine the fate of the republic. Hence the liberal panic over the likelihood of the court moving even further to the right with Brett Kavanaugh’s lifetime appointment to the bench. This reaction is understandable, and the urgency is absolutely real. But it is also important to keep some history in mind and to recalibrate long-term expectations around the reality that in order to be meaningful, rights must not only exist in law books but also be vigorously defended by popular forces.
The notion that courts are the last bulwark protecting the marginalized stems from an impoverished notion of politics: elect the right officials who will then appoint smart judges so that we can sit back and wait for them to decide on our rights. The historical myth of the judiciary as protector of the weak is a relatively recent one, dating mostly from the 1960s onward. More relevant are the extraordinarily undemocratic structures at work, which after the Kavanaugh hearings stand more exposed than ever: a spectacle retraumatizing millions of victims of gender-based violence, abuse, and harassment across the country was ultimately decided upon by four senators whose combined per capita constituencies were less than the population of New York City.
Going forward, more and more people will be forced to confront the truth that the judiciary is not only a false savior: it is also in many ways an enemy. Its weapons include a First Amendment jurisprudence strong enough to strike down nearly any attempts to regulate capital or conservative Christian forces as an impermissible attack on “free speech,” yet supple enough to give away at the first invocation of “national security”; a notion of color-blindness that will only see race in affirmative action and nowhere else; and a judicial philosophy that will constantly push critics to justify their position in terms of the words and thoughts of centuries-dead slave-owners and Indian-killers.
The elevation of a second accused sexual abuser to the highest court of the land—himself appointed by a confessed sexual predator—is only a reminder that even if the legitimacy of these institutions may be in free-fall, the weight will come down more heavily on some more than others. The wounded, self-pitying white masculine rage exhibited by Kavanaugh and his defenders is a sign of the arrogance that was always there and which will be unleashed with even more fearful vengefulness in the years to come.
The consistency with which legal structures, from the constitution to the judiciary, repress popular forces is one that is overlooked all too often, both in the popular imagery of “being like a Third World country” and in more technocratic imaginaries like the SDGs. An important first step in developing an alternative is rejecting the notion that the US constitution uniquely embodies some kind of higher uncontestable good. To borrow a phrase from E. P. Thompson, these are days in which the law must be hated, but it must also be despised.
Darryl Li is an assistant professor of anthropology at the University of Chicago and an attorney.