Colin Dayan: White Dogs on Track in Trump’s America

“Prejudice sets all logic at defiance.”
—Frederick Douglass

Since Donald Trump has brought Frederick Douglass back among the living—“an example of somebody who’s done an amazing job and is being recognized more and more”—I begin with this epigraph. Trump is illogical. Yes. Trump is prejudiced. Yes. But more than that, he might just be our consummate white supremacist. “Bad logic makes good racism,” as I wrote in The Law is a White Dog.

Trump creates a reality that flies in the face of logic. The most fantastic fictions are put forth as the most natural, the most reasonable thing in the world. These fictions endure today in a lexicon of degradation well honed and reiterated by Trump. They create the stigma that adheres to radical states of non-belonging, summoned by him in names such as “thugs” or “criminals,” “rapists” or “terrorists.” Old inequalities and racial discrimination are repackaged in unexpected forms. But these inventions succeed only because they reflect the visceral approval of Trump’s constituency.

Shock and awe: Trump’s extravagant performance of cruelty, outright racism, and rule by executive decree in apparent defiance of law has been called a “constitutional crisis,” described with such adjectives as “unprecedented,” “un-American,” or “unpatriotic.” But we should not forget that his relentless generalizing operates under cover of excessive legalism. Perhaps excess is key to his success. America has always been excessive—not least in its institutionalization of slavery and its subsequent practices of incarceration, unique in the so-called civilized world.

So let’s take a few steps back. Is his touted ban on Muslims unusual? Not at all. Is his specious argument for torture out of the ordinary? Not at all.

Trump’s ban is brutal, but let’s face it, this country boasts a long, sordid history of evacuation. Blood as menacing taint was used during the forced repatriations of Haitians described as “boat people,” “the new migrants,” the “Haitian stampede.” The forced repatriations of Haitians in 1991–92 and the effects of arguments heard by the Supreme Court in March 1993 concerning those placed in custody at Guantanamo (and later on concerning forced removals, in 1994) were not the first nor would they be the last time the US banned “refugees” from our shores. Let’s not forget that as early as 1824, when Thomas Jefferson reflected on emancipation, he asked how “the getting rid” of “people of color” could best be done? He reckoned that in Haiti one might find fit “receptacles for that race of men.”

We have a heritage in America of torture and exclusion. These practices hide behind a veneer of legitimacy just as an idealized federal Constitution long ago abetted both discrimination and inequality. And though we deplore Trump’s wayward antics as a lapse from our normally high standards of respect for human rights, we need to consider the harm that a broad consensus of this country’s citizens has time and again meted out to those considered disposable, dangerous, or unfit. Again, when we hear that Trump’s executive orders are illegal or beyond the rule of law, we need to look hard and long at this country’s history of abusive treatment and discriminatory actions, especially in its prisons and detention centers.

Trump believes that torture—specifically banned interrogation methods such as waterboarding—works. But can it ever be legal? Let’s recall how George W. Bush attempted through White House lawyers to legalize torture. The infamous “torture memos” redefined the meaning of torture and extended the limits of permissible pain. Yet, and this matters, unprecedented as they appeared at the time, they relied—in their often ingenious legal maneuvers—upon at least 30 years of court decisions which gradually eviscerated the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

Bush needed the so-called “torture memos” (sounds so quaint now) to skirt the rule of law, but this new dispensation needs none of it, since Trump and his cronies have already summoned the sometimes amorphous, always definitive moralistic standards that circumvent the basic tenets of constitutional law. Depending on vague and undefined legal provisos proclaimed by the executive, this regime depends on arbitrary willfulness backed up by police power, or in the case of what Trump calls the “carnage” in Chicago, his tweeted resolve to “send in the Feds.”

Police power is state power, ostensibly activated whenever there is any supposed threat to the health, safety, or welfare of citizens. Since 9/11, the so-called war on terror has widened the net: alleged terrorists, enemy aliens, illegal immigrants, all tarred with the same brush, are easily cast outside the pale of empathy.

Terror and legality go hand in hand. They always have done. Whether we look back to the law of slavery, to the legal fiction of prisoners as slaves of the state, to legalized torture in the “war on terror,” or to the discriminatory profiling and preventive detentions that we characterize as “homeland security,” we see how our society continues to invent the phantasm of criminality, creating a new class of condemned.

The ban and the wall are not exactly new stories. “Give us your tired, your poor, your huddled masses”—unless they’re Mexicans, Central Americans, Haitians, blacks, or other undesirables. As I said, we have a long tradition in this country of excluding people of color. But more recently, we have moved on from mass deportations of illegal immigrants. As a “consequence” (in the parlance of border patrol agents) of entering the United States illegally, many tens of thousands of Latinos are regularly subjected to brutal treatment by US Customs and Border Patrol. Trump’s executive order on January 27th barring immigrants and refugees from seven Muslim-majority countries from entering the United States, supported by nearly 50% of American adults, invites bigotry and its attendant techniques of violence and repression.

Legal rituals give flesh and new life to the remains of lethal codes and penal sanctions. The stigma of slavery—and its legal machinations—has never left us. Its ghosts still haunt our law and hold us in its thrall. The difference now is that Trump incarnates in his person and his words not just prejudice, but bad logic and maleficent law. He is wanton. There’s a lot of history in this word, in its hints of depravity, effeminacy, frivolity, and excess. The term also refers to pitilessness. Glee and malice work together in the abuse of those targeted for humiliation. Trump boasts, blusters, struts, and lies. This lethal affectation is his power.

Colin Dayan is the author of The Law is a White Dog.Dayan

James Q. Whitman: Why the Nazis studied American race laws for inspiration

Hitler's American ModelOn 5 June 1934, about a year and half after Adolf Hitler became Chancellor of the Reich, the leading lawyers of Nazi Germany gathered at a meeting to plan what would become the Nuremberg Laws, the centrepiece anti-Jewish legislation of the Nazi race regime. The meeting was an important one, and a stenographer was present to take down a verbatim transcript, to be preserved by the ever-diligent Nazi bureaucracy as a record of a crucial moment in the creation of the new race regime.

That transcript reveals a startling fact: the meeting involved lengthy discussions of the law of the United States of America. At its very opening, the Minister of Justice presented a memorandum on US race law and, as the meeting progressed, the participants turned to the US example repeatedly. They debated whether they should bring Jim Crow segregation to the Third Reich. They engaged in detailed discussion of the statutes from the 30 US states that criminalised racially mixed marriages. They reviewed how the various US states determined who counted as a ‘Negro’ or a ‘Mongol’, and weighed whether they should adopt US techniques in their own approach to determining who counted as a Jew. Throughout the meeting the most ardent supporters of the US model were the most radical Nazis in the room.

The record of that meeting is only one piece of evidence in an unexamined history that is sure to make Americans cringe. Throughout the early 1930s, the years of the making of the Nuremberg Laws, Nazi policymakers looked to US law for inspiration. Hitler himself, in Mein Kampf (1925), described the US as ‘the one state’ that had made progress toward the creation of a healthy racist society, and after the Nazis seized power in 1933 they continued to cite and ponder US models regularly. They saw many things to despise in US constitutional values, to be sure. But they also saw many things to admire in US white supremacy, and when the Nuremberg Laws were promulgated in 1935, it is almost certainly the case that they reflected direct US influence.

This story might seem incredible. Why would the Nazis have felt the need to take lessons in racism from anybody? Why, most especially, would they have looked to the US? Whatever its failings, after all, the US is the home of a great liberal and democratic tradition. Moreover, the Jews of the US – however many obstacles they might have confronted in the early 20th century – never faced state-sponsored persecution. And, in the end, Americans made immense sacrifices in the struggle to defeat Hitler.

But the reality is that, in the early 20th century, the US, with its vigorous and creative legal culture, led the world in racist lawmaking. That was not only true of the Jim Crow South. It was true on the national level as well. The US had race-based immigration law, admired by racists all over the world; and the Nazis, like their Right-wing European successors today (and so many US voters) were obsessed with the dangers posed by immigration.

The US stood alone in the world for the harshness of its anti-miscegenation laws, which not only prohibited racially mixed marriages, but also threatened mixed-race couples with severe criminal punishment. Again, this was not law confined to the South. It was found all over the US: Nazi lawyers carefully studied the statutes, not only of states such as Virginia, but also states such as Montana. It is true that the US did not persecute the Jews – or at least, as one Nazi lawyer remarked in 1936, it had not persecuted the Jews ‘so far’ – but it had created a host of forms of second-class citizenship for other minority groups, including Chinese, Japanese, Filipinos, Puerto Ricans and Native Americans, scattered all over the Union and its colonies. American forms of second-class citizenship were of great interest to Nazi policymakers as they set out to craft their own forms of second-class citizenship for the German Jewry.

Not least, the US was the greatest economic and cultural power in the world after 1918 – dynamic, modern, wealthy. Hitler and other Nazis envied the US, and wanted to learn how the Americans did it; it’s no great surprise that they believed that what had made America great was American racism.

Of course, however ugly American race law might have been, there was no American model for Nazi extermination camps. The Nazis often expressed their admiration for the American conquest of the West, when, as Hitler declared, the settlers had ‘shot down the millions of Redskins to a few hundred thousand’. In any case extermination camps were not the issue during the early 1930s, when the Nuremberg Laws were framed. The Nazis were not yet contemplating mass murder. Their aim at the time was to compel the Jews by whatever means possible to flee Germany, in order to preserve the Third Reich as a pure ‘Aryan’ country.

And here they were indeed convinced that they could identify American models – and some strange American heroes. For a young Nazi lawyer named Heinrich Krieger, for example, who had studied at the University of Arkansas as an exchange student, and whose diligent research on US race law formed the basis for the work of the Nazi Ministry of Justice, the great American heroes were Thomas Jefferson and Abraham Lincoln. Did not Jefferson say, in 1821, that it is certain ‘that the two races, equally free, cannot live in the same government’? Did not Lincoln often declare, before 1864, that the only real hope of America lay in the resettlement of the black population somewhere else? For a Nazi who believed that Germany’s only hope lay in the forced emigration of the Jews, these could seem like shining examples.

None of this is entirely easy to talk about. It is hard to overcome our sense that if we influenced Nazism we have polluted ourselves in ways that can never be cleansed. Nevertheless the evidence is there, and we cannot read it out of either German or American history.Aeon counter – do not remove

James Q. Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School. His books include Harsh Justice, The Origins of Reasonable Doubt, and The Verdict of Battle. He lives in New York City. His forthcoming book, Hitler’s American Model, is out in March from Princeton.

This article was originally published at Aeon and has been republished under Creative Commons.

Leah Wright Rigueur: Black conservatives do not speak for the black majority

Aeon Magazine logo

By Leah Wright Rigueur

Published in association with Aeon Magazine, a Princeton University Press partner.

When black voices rally to validate and defend extremist ideas, political observers should watch with heavy skepticism. In April, the National Diversity Coalition for Donald Trump launched a campaign in support of the controversial presidential candidate. ‘This man is no more racist than Mickey Mouse is on the Moon!’ Bruce LeVell, the coalition’s co-founder and a businessman from Georgia, told The Washington Post. Better yet, what are we to make of the former Republican presidential candidate Ben Carson’s puzzling endorsement of Trump?

At a moment when black Americans, of all ideological persuasions, are deeply concerned with a status quo in the United States that allows racial inequality (and discrimination) to fester, black boosters for the party’s right wing have insisted that the ‘race issue’ is a distraction. Some even claim that black America will benefit from a Trump presidency. This kind of posturing might seem mystifying to some degree, but it is not new; there have always been black people willing to endorse the nation’s most extreme figures. The civil rights activist James Meredith worked for the Republican senator Jesse Helms in 1989, after all.

Employing black ‘surrogates’ or spokespeople for extremist candidates has become a way of validating non-traditional ideas as ‘authentic’, while at the same time invalidating accusations of racism. While the Democratic Party also has employed black voices in this manner (much to the distaste of its critics), the Republican Party’s use of conservative black voices is all the more fascinating because black conservatives’ beliefs are generally at odds with mainstream black opinion.

Egregious contemporary and historical examples abound. Consider the National Black Silent Majority Committee (BSMC), a black conservative organisation launched on 4 July 1970. Founded by Clay Claiborne (a former Republican National Committee staffer acquitted of defrauding black voters in the 1964 presidential election), the BSMC professed a faith in free-market enterprise and two-party competition, and adhered to a strict anti-communist, anti-welfare, anti-busing, pro-‘law and order’ agenda. Unlike other black Republican groups of the era, the BSMC articulated neither public nor private complaints about race and the Republican Party. Instead, the organisation exclusively blamed black people for the country’s problems with race. Upon the group’s founding, the civil rights activist Julian Bond called the BSMC a ‘trick’ to ‘subvert black political hopes on the altar of white supremacy and political expediency’.

The BMSC used Richard Nixon’s rhetoric of a forgotten class of Americans, claiming to speak for a majority of silent black Americans, ‘sick and tired of the agitation, shouting, burning and subversion carried out in their name by self-styled militant groups’. The organisation assembled a high-profile group of black men and women willing to endorse conservative values, including the national president of the Negro Elks fraternal order, the founders and publishers of the black newspapers the Atlanta Daily World and the Arizona Tribune (now The Informant), and dozens of black ministers from around the country. Black women also took on prominent roles as BSMC surrogates – an unusual occurrence, as black women were, and still are, the least likely of any demographic to support the Republican Party.

In 1972, for example, Mary Parrish was the star speaker of the BSMC’s 52-city ‘Black Youth Voter Crusade’. Parrish, a black Democrat-turned-Republican (who started her career campaigning for Congresswoman Shirley Chisholm) used her pulpit to claim that liberals had ‘politically enslaved’ black people, especially black women; the Republican Party, she insisted, without providing tangible examples, represented the best hope for the ‘continued advancement of black people’. Parrish’s unusual turn as the ‘face’ of the BSMC is not an isolated event. Today, black women are among the most high-profile of the Trump campaign’s spokespeople.

But such minority endorsements are sporadic, and rarely translate into partisan support. When the BSMC launched in 1970, more than 72 per cent of black Americans held unfavourable views of President Nixon. Currently, about 80 per cent of black people hold unfavourable views of Trump. For both the BSMC and Trump’s black surrogates, this disconnect is consistent with their resolute dismissal of issues related to racial and social inequality, and their harsh criticism of black people who reject the Republican nominee.

Back in the 1970s, the BSMC readily admitted that the vast majority of its supporters were white. As the historian Matt Lassiter has suggested, the Nixon White House ‘orchestrated’ the creation of the BSMC to provide a counter-narrative to black moderate, and militant, voices, which also appealed to ‘white voters who believed that the civil rights and antiwar movements had gone too far’.

My own research shows that the all-white National Republican Congressional Committee (NRCC) was also a heavy financial backer of the BSMC from the start, providing start-up funds, financing the group’s cross-country ‘Patriotism’ and ‘Anti-Busing’ crusades, regularly highlighting the BSMC’s adventures to the public, and arranging private meetings with influential white officials.

In an unintentionally ironic moment in 1970, the then South Carolina senator Strom Thurmond, a vocal cheerleader for the BSMC, declared that the organisation’s existence proved that plenty of black radicals were attempting to ‘speak for groups which they do not actually represent’. Indeed, by the mid-1970s, politicians actively used the BSMC to elicit broader political support for right-wing agendas largely rejected by black audiences, by suggesting that the group spoke for a black majority. The BSMC also provided a buffer against charges of racism, with white politicians arguing that their own policies couldn’t possibly be racist or discriminatory, since the BSMC endorsed them. In this way, the BSMC reassured white conservative voters uncomfortable with the social taboo of racism.

The BSMC is just one example of many organisations (and individuals) to emerge in the past few decades in support of ideas on the fringes of black political thought. As a result, black Republicans critical of their party’s position on race saw their influence within the party dwindle, as groups such as the BSMC saw their stock rise among the Republican Party’s right wing. New quantitative research suggests that little has changed; Republican politicians are more interested in championing right-wing black Republicans whose views on race fall outside mainstream black political thought than those whose race-conscious messages are more closely aligned with the attitudes of black people at large. For most black Republicans within the party, this sends a clear and troubling message – power for the party’s minorities often comes by way of endorsing right-wing extremism.

Thus Trump’s turn to minority (especially black) spokespeople should come as little surprise. But while race lends an air of legitimacy to extremist candidates, it rarely presents an accurate picture of black political opinion. If anything, when the extremists play the ‘race card’, genuine concern for racial issues are likely to be buried.

Leah Wright Rigueur The Loneliness of the Black Republicanis an assistant professor of public policy at the Harvard Kennedy School of Government. She is the author of The Loneliness of the Black Republican: Pragmatic Politics and the Pursuit of Power (2015).