“Prejudice sets all logic at defiance.”
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.