A Lawyer's Guide to Lawless Action

Jack Jackson has written a powerful and memorable book about the precursors to and implications of the anti-constitutionalism championed by the Right; he acutely identifies legal phenomena many of us have been thinking about but have not been able to put into words. Drawing on the cases of Bush. v. Gore, the Torture Memos, and Terri Schiavo to understand legally justifiable decisions that are meant to offer no precedent, he writes, "Anti-constitutionalism rules without producing a new juridical norm or legal order but instead generates a show and shadow of legality that becomes the claimed basis of authority—law thus governs at the precise moment it withdraws. In this withdrawal, the temporal underpinnings of constitutional politics disappear: futurity evaporates (11)." With erudition and style, Jackson shows how Trump's legal interventions are a continuation of the long-standing strategy on the Right to ground politically expedient decisions in the law in unusual ways while circumventing much of what precedent and constitutional protections would require. Just as Mitch McConnell feared no reprisal from Democrats or his constituency when he refused to grant a hearing to Supreme Court nominee Merrick Garland, the proponents of the anti-constitutionalism Jackson describes have no fear of being accused of hypocrisy or irresponsibility. The weakening of the law, norms, and precedent are of ultimately no concern to them when so much is at stake in terms of political power in the present. Anti-constitutionalism emerges as the dialectical result of the forces of legal realism and political nihilism and it finds its apotheosis in a legally codified apocalyptic vision.

In Chapter Two on the Torture Memos (a chapter that I am eager to share with my students for the concise way it combines history and theory), Jack-son chronicles the futile effort of the left's appeal to the law in reaction to the regime of terror inflicted on detainees at Abu Ghraib, Guantanamo and other sites with an appeal to the law, including appeals to domestic law and international human rights law. The irony of the situation, Jackson notes, is how much legal attention was already being paid to the matter—there were, literally and metaphorically, planes full of lawyers spending time at the sites and constructing a legal foundation for the regime. Ignoring the reality of the legal care that went into the Torture Memos distorts our understanding in two ways: (1) we remain blind to the legally sanctioned conditions of prisoners in the US prior to and existing after the Global War on Terror, and (2) we fail to see how the legal action in the case furthers the idea of the "constitutional zero," Jackson's term for a decision that is written in a way that both thwarts precedent and is not meant to generate precedent. Of the torture memo of August 1, 2002, he writes, "the spaces opened up and the practices set into motion by the memo tear asunder the constitutive bonds holding together the practice of law, but they are no means 'outlaw': They rule as law through the institutional from which they emerge (the OLC), the professional credentials of the authors (the elite sector of the profession), the form through which they communicate (the genre of the legal memorandum), and the power that they confer (the immunity they bestow upon the interrogators)." (52) His analysis is compelling and the reader experiences a feeling of satisfaction in making sense of a seemingly chaotic and distressing sequence of recent events. At the same time, the apocalyptic horizon of a "law without future" comes sharply into focus. His analysis also prompts the perennial question about the nature of justice as a struggle between the routinized and the exceptional case. While he does not grapple with it directly, the underlying thesis of the book is that there is a value to certain types of predictability, order, and promise-keeping in the law, but how can this be weighed against the value of the contextual...