Donald Trump and his allies have announced their agenda. It includes torture, denial of basic human rights, military action that violates the laws of war, racial injustice, misogyny, and xenophobia. What role and responsibility do we have? I am a lawyer, teacher, and writer. So I speak to those in my profession and those preparing to enter it. To repeat: don’t mourn, organize.
Some of my friends are saying, “Well, Trump and Co. will soon calm down, so I don’t think we need to worry. After all, his rhetoric has already improved.” Reminds me of Alexander Pope:
Vice is a monster of so frightful mien
As, to be hated, needs but to be seen;
Yet seen too oft, familiar with her face,
We first endure, then pity, then embrace.
And along with Pope, I think, W.H. Auden:
I smell blood and an era of prominent madmen.
The social currents that swept Donald Trump into office, along with a Congressional majority, are a bit like those forces and social conditions on which the Nazi Party relied in seeking and seizing power in 1932 and 1933. See John Mage’s and my article: “The Reichstag Fire Trial, 1933-2008 : The Production of Law and History” (2009). It is heartening that this is the most-downloaded piece of my work on the Duke Law School website.
For us, the point is that the destruction of all barriers against arbitrary power was made possible by the complacency and complicity of lawyers and judges. The majority of them stood by while the system they inherited was dismantled and even while their colleagues were persecuted. Buy and read Ingo Muller’s masterful book Hitler’s Justice: The Courts of the Third Reich. The American Bar Association has a travelling exhibit about some of these events, called “Lawyers Without Rights.” If it comes to your town, go see it. In our town, we used the exhibit as the basis for a community meeting that drew in African-American and Hispanic communities.
How We Got Here
So lesson number one is: Those who do not understand history are condemned to repeat it, and the lessons grow more severe with each repetition. Over the past 50 years, I have litigated human rights violations. The violators have fought back with an ever-expanding list of legal devices that deny access to judicial review. These devices have been devised and used by every presidential administration of my adult lifetime — Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush I, Clinton, Bush II, Obama.
As we prepare to defend human rights, we already know what our opponent looks like. We have met him again and again. From the cold war ideology that brought us Vietnam through the interventionist policies of the 1980s and 1990s, and now into the perpetual battle for oil and treasure in the Middle East, we have learned what Hedy West taught us: “We’ll be controlled by manipulated fear.”
I have been writing about some of these issues over the years. Much of my writing is on the Duke Law School website, where you can browse and download for free: <law.duke.edu/fac/tigar/bibliography/>. You can find my Monthly Review writing at <monthlyreview.org/author/michaeletigar/>.
In domestic human rights cases, the abusers have claimed that the “political question” doctrine bars judicial examination of unlawful executive action. They also claim that uncovering illegality would compromise “state secrets.” I dispelled these myths, based on law and history, in “The National Security State: the End of Separation of Powers” and “Resisting Wholesale Electronic Invasion of the Fourth Amendment” (keynote speech to the National Association of Criminal Defense Lawyers). See also Law & the Rise of Capitalism (2d ed.).
Our Path Forward
Fortunately, some judges and courts have taken article 3 of the constitution seriously. For a hopeful sign, see Al-Shimari v. CACI, 2016 WL 6135246 (4th Cir. 2016). A short summary of the case and its issues is at <ccrjustice.org/home/what-we-do/our-cases/al-shimari-v-caci-et-al>. Students in the UNROW clinic at Washington College of Law prepared an amicus brief in the case, which my colleague Ali Beydoun and I mentored and signed. The court held that torture by a private contractor was subject to judicial review.
Of course, the courtroom struggle is only one part of the necessary process. We have never been able to depend on the judges to get it right the first time, or all the time, or even sometimes at all. More significantly, what we as lawyers say and do in the courtroom is simply the noise made by banging on an empty pot — unless we enlist our skills in the service of people who decry injustice and unless we come to understand their stories.
In my play Haymarket: Whose Name the Few Still Say with Tears, I imagined conversations between the anarchist leader Lucy Parsons and Clarence Darrow. They were arguing about whether this struggle for human rights really matters. The play ends with this:
Lucy Parsons: But that is the point, Clarence. If some message lives beyond all this brave lawyer speech, what is it? That I should salute the law because although it hanged my husband, some other law begged my pardon? I take nothing away from you, Clarence, nor Altgeld, nor Captain Black. It is history’s judgment that John Brown’s name — and Albert Parsons’ — lives longer than Altgeld’s. Your lawyer’s ego wants you to think you stand at the center of every event by which the world is changed. Your right to stand there is only because some brave soul has risked death or prison in the people’s cause and you are called to defend him — or her. When you put law and lawyers at the center of things, you are only getting in the people’s way, and doing proxy for the image of the law the state wants us to have. The law is a mask that the state puts on when it wants to commit some indecency upon the oppressed.
Darrow: (Angry.) If I believed that, I would still be lawyer for the railroad, and not making do with the fees the union can pay. Lucy, the law is a fence built around the people and their rights.
Lucy Parsons: (Kindly.) What an image! And you, Clarence, are a fierce old dog, set to bark and warn off intruders. Maybe so. I wish it so. We are all on trial in this life we have chosen, Clarence. All we can know is that none of us will live to see the verdict.
Maybe Lucy is right to be skeptical about the limits on our power. But she surely wanted a lawyer when she was arrested. And we as lawyers must take for ourselves the kindly words of Thomas Merton, who warned that overmuch worrying about whether we are going to succeed can paralyze us so that we stop struggling against injustice.
The play’s reference to Altgeld is to Governor John Peter Altgeld, Darrow’s friend and mentor. As I looked back at the play, and thought about the recent election, I turned back to Lindsay’s poem about the election of 1896, in which the progressive movement was set back by the moneyed interests behind McKinley. You will recall that the McKinley administration embarked on a militaristic imperial campaign that swept former Spanish possessions under the American yoke, and which Theodore Roosevelt celebrated with racist rhetoric that will sound familiar to those who have been listening to election cycle speeches. It is not a perfect “fit,” but the poem is worth re-reading: “Bryan, Bryan, Bryan, Bryan.”
In 1989, Justice William Brennan asked me to come to his office at the Supreme Court to help him with a speech he was to give. We spent a good hour and half at work in his office and then he walked me down the little hallway between his office and the reception area where his secretary sat. On the way out, he took my arm and asked earnestly, “Did I do any good up here?” I said yes. The point of this story is that we will all wonder that same thing, but our wondering should not stop us from doing our work.
Michael E. Tigar is Emeritus Professor of Law at Duke University and Emeritus Professor of Law at Washington College of Law. He has been a lawyer working on social change issues for many years. His books include Law and the Rise of Capitalism (Monthly Review Press, second edition, 2000), Fighting Injustice (ABA Press, 2002), and Thinking About Terrorism: The Threat to Civil Liberties in Times of National Emergency (ABA Press, 2007).