Previously On...
Things Already Said
I’m going to link to a previous installment of this newsletter that I think provides pertinent analysis of the moment.
These are excerpts from the final essay in my Fall of the House of U.S. series. One thing I’ll add at this point, now that I know the outcome of the election, is that a few of the problems I identified in the series are going to be solved for us, whether we move on our own to do so. Our attachment to the regulatory state, for example, is going to be resolved by the dismantling of the regulatory state (except where Trumpists find it a useful infrastructure for focusing power on their enemies). There isn’t going to be any point at all trying to litigate or arbitrate towards better outcomes via citing existing regulations. That will either lead to the undoing of the relevant regulation or the judiciary will for the most part simply follow the will of the executive and rule against whomever they judge to be the enemy of its ideology. If your job is today about ensuring compliance with a regulatory apparatus, start looking to redefine your job.
If Trump not only wins but enacts the more coherent, aggressive and unrestrained version of his more fragmented and incompetent moves in his first administration—then we will not be continuing to debate about our counter-strategies and higher ideals out in the open within a public sphere like the one we have today. Our political choices will be about survival. They will be a reaction to the actions of others, mostly made in isolation from one another. We will not be setting the table, nor be invited to sit at it. In reaction, some people will be stupid, some will be brave, some will be stupidly brave. Some will ruefully pin on the badges of loyalty and say the oaths that the new order requires of them, others will sink into mournful silence and tend to their own business, hoping to go unnoticed. Consider all those futures with love and forbearance, and don’t be too certain yet about what you will choose to do if the hammer falls.
One of the old shells we need to shed is a sense of having already embodied and achieved progress and wisdom as a general affect of our social class and our educational attainment. That understanding of self is what feeds the idea of building bridges, rejoining bowling leagues, holding dinner parties for “bravely debating” with people who have different politics. All those exercises are undertaken as performative, deliberative civic virtue….The only kinds of understandings across social, political and ethical divides that have power and meaning are the ones that develop relationally over time, that create standing between people, that aren’t undertaken for the one-sided moral development and social capital of the person making the gesture. Be local as much as possible and in as many ways as can be. Live in place.
The notion of a politics that is instantiated online, coordinated online, realized online, has been a death trap for the liberal-progressive mindset.
Culture needs to stop being made—and judged—as a “weapon in the struggle” even if it often factually is a weapon in the struggle. There is a difference that makes a difference between intent and consequence. We need to stop managing culture and art in order to make it mirror the world as we wish it was, in order to make that world something we can buy as a consumer product.
The main strategic requirement for a liberal-progressive vision is as many people as possible wanting it, joining it, assembling on its behalf. That will not happen through tricks, through nudges, through propaganda, or through the adroit leadership of a favored few who somehow see the secret possibilities that cannot be spoken of until they are heroically achieved via clandestine labor.
All the words and concepts meant to push our way of thinking towards a better understanding of lived specificity—”intersectional”, for example—have quickly become new kinds of models and simplifications that interfere with our understanding of who “we” actually are. We have to give that up: our structures of feeling need to be full of thick descriptions rather than categorical abstractions.
We need to imagine making a society where everyone is materially comfortable and everyone has opportunities that does not rest on a zero-sum reordering, where we imagine how to not just promise but deliver to people the health, security and possibility that every human being deserves as a fundamental right without thinking that has to come from people who own too much and have more possibilities than they need. If it does come from there, it has to come the way that water flows downhill, because it’s the basic topography of our sociopolitical infrastructure, not because of a literal redistributive force is knocking on the door or opening the bank vault. I say this both because I think that’s ethically wise but also because it’s politically lethal to imagine taking things away unless you really hold the whip hand and embrace that conception of power.
In the decayed, dying form of our structure of feeling, many of us are given to imagining change in a way that puts us outside of its transformations. That mindset thinks of doing things to other people via the state, via regulation, via law, via command. It talks rot like the Clintonian vogue for “communalism”, which always meant “well, those other people over there have culture—they’ve got churches, values, rituals, localities—so we should leave them to have more of that and then maybe they’ll vote for us.” The “us” in that construction is in the meantime getting blow jobs from interns and flying to Epstein’s island, putting money into off-shore bank accounts, going to Davos. The “communal” is people with the authenticity of alterity, the “us” in this sort of construction is an invisibly universal subject that sees itself as everywhere and nowhere. It builds affordable housing wherever it isn’t, invests in renewable power anywhere that doesn’t spoil the view, puts warning labels on record albums that it doesn’t listen to. It solves the problem of other people, and never itself…what we need [is] a mindset that puts everyone who holds it into view and into relation, where solving your own problems and making yourself well and whole are always already part of solving our problems and making ourselves well and whole.
Image credit: Statue of an orator? Hellenistic, 3rd-1st Century BCE. Metropolitan Museum of Art.
I think what we have is a society where politics and policy are more or less entirely divorced from each other. They may intersect where policy results in a train wreck that is reflected in politics (e.g. financial deregulation crashing the global economy in 2008, or a doofus wannabe autocrat urging people to, in the throes of a once in a century pandemic, drink bleach), but, day to day, people are not voting for a suite of policy ideas-- they're voting for a sense that someone is "one of them" or "one of the other."
Policy-wise, we'd probably be best off if we handed economic, social and infrastructure policy to a council of Ph.Ds with deep expertise and a long leash. Politics-wise, that would be a train wreck. And the issue in significant part is that atomization is a political winner. Leftists don't do progressive politics any favors yelling about white people needing to apologize, but they're also not a meaningful constituency. The trick is building an inclusive coalition when what resonates on a base level for a lot of people is exclusion. Taxpayer-funded gender reassignment surgeries for prisoners is something Trump and Vance repeated over and over again. To date, there have been two (2) of those. They're a real policy issue for ~0% of the population. These people can't name three transgender female athletes if you spot them Lia Thomas and Caitlyn Jenner. But yelling about those things is probably a political winner because a big chunk of swing voters think transgender people are icky. Same with Haitian immigrants "eating the pets" in Springfield.
What causes me despair is that inclusivity is a losing policy agenda. And even the best set of policies won't reverse that fact. Democrats' best bets electorally seem to be either to run away from protections for marginalized groups if those protections are unpopular or to go scouring far and wide for the next Barack Obama whose force of oratorical brilliance can move voters by itself. It's not very promising.
Professor Burke, extremely specific question, but what do you think is a positive role lawyers can play in this new political reality? A significant aspect of the legal community is focused on regulatory issues and that like you said is going to shrink into irrelevance. On the other hand, perhaps there is more potential for good work in direct client services (ie criminal defense) though even there as you said I fear a judiciary full transformed into a rubber stamp for the regime. Where do you think lawyers or other professionals should look in a world where the opportunities for change are changing?