Arguing the Anticanon:  Populist Signaling and Constitutional Transgression

 

For decades, a set of cases have been universally acknowledged – across the ideological spectrum – as the antithesis of American constitutional norms.  But we are experiencing a cultural moment in which the very act of transgression appeals to a sizable portion of voters.  In those circumstances, we are seeing a resurgence of argument related to the constitutional Anticanon – not argument deploying the Anticanon as it is normally deployed, but arguing that it shouldn’t be the Anticanon at all.  This post argues that this argument fits into the larger transgressive moment, and is in fact a signaling device through which politicians can demonstrate transgressive bona fides.

1. Populism and Transgression

Transgression is enjoying a star turn.  Like never before, politicians in both America and Britain are gaining ground and capital solely on the basis of transgressing the boundaries set by cultural elites – with very little, if any, attention paid to whether those transgressions are constructive or not.  Both the Brexit and the Trump candidacy have strong transgressive elements – that is, their very selling point to their supporters is that they violate boundaries and norms.

Trump’s nomination in particular is roiling the American political landscape, and through traditional ideological frames, it seems inexplicable.  Pundits have exhaustively covered Trump’s divergence from anything that once resembled Republican orthodoxy – his campaign is centered around the squelching of free trade, no one actually believes that he is Christian or socially conservative, and his foreign policy fits into neither the conservative nor neoconservative wings of the GOP.

But the candidacy’s transgressive nature explains its appeal.  As the New York Times reported reported, Trump supporters even identify the phenomenon themselves (in so many words).  “‘It’s a collective middle finger to the establishment,’ a Trump supporter told the Atlantic’s Conor Friedersdorf. ‘Trump has never lied to me whereas all of the other Republican politicians (like McConnell & Boehner) have,’ wrote another reader, who added, ‘Nobody fights for my side. Trump fights. Trump wins. I want an Alpha Male who is going to take it to the enemy.’ A third Trump loyalist wrote: ‘This is a guy who isn’t afraid to abuse the abuser. He has and will continue to humiliate the establishment politicians who try to stand up to him by exposing them for who they are.’”

Will Cohen, a professor at the University of Scranton, has further noted the phenomenon in a social/religious context:  “Although there are, as many commentators have observed, social and economic factors at play, a perhaps more significant key to understanding the popularity of Donald Trump’s campaign is its sheer transgressive quality.”

In short, transgression itself is now a desirable political trait – the act itself, not just the results a politician can allegedly obtain through transgression.  It pays to be bad.

2. The Anticanon

The Anticanon, as described by many scholars but particularly by Jamal Green in his eponymous Harvard Law Review article, is the collection of anti-decisions that were, for a long while, universally reviled in American constitutional law.  See Jamal Green, The Anticanon, 125 Harv. L. Rev. 379 (2011).   Green identifies four anticanonical decisions – Dred Scott v. Sanford (mandating slavery); Plessy v. Ferguson (upholding racial segregation); Lochner v. New York (striking down state efforts to enforce health and safety standards for workers); and Korematsu v. United States (sanctioning Japanese internment).

Importantly, though, these cases are not anticanonical purely because they are wrong – far from it.  The cases include flawed reasoning that has been upended by social evolution, and critically, an ability for all sides to argue that the case is wrong in a way that benefits their current agendaKorematsu (Japanese internment) can be used by liberals (Justice Marshall arguing against compulsory drug testing because Korematsu cautions against “allowing fundamental freedoms to be sacrificed in the name of real or perceived exigency”), and also by conservatives (Justice O’Conner holding Korematsu cautions against “race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict”).  See Green, 125 Harv. L. Rev. at 459.  Likewise, Dred Scott can be invoked against judicial activism by the political right, and against racism by the political left.  Id.

But the point is, the right, the left, and everyone in between is still arguing against these cases.  Political actors invoke their singular power only in one direction – against the policy they oppose.  The truly transgressive act is not re-appropriating the cases, but supporting them.

3. Defense of the Anticanon

These cases have recently experienced an unusual feeling – love and warmth.  It started with prominent libertarians endorsing Lochner, which argued that parties’ freedom to contract under the Due Process Clause outweighed any state interest in protecting health and safety.  Lochner support has become downright fashionable in libertarian legal and political circles – Randy Barnett has expressed a nuanced view of the opinion, and Rand Paul is a self-avowed “judicial activist when it comes to Lochner.”  Lochner, though, offers a practical benefit for libertarians – fewer laws.  If it were only Lochner, the phenomenon would sound in substance, not in fury.

But the Anticanon reunion tour doesn’t stop at Lochner.  Trump has now reintroduced Korematsu into the debate, fully embracing the case.  He has invoked  Korematsu as a positive precedent that supports his proposal to end the immigration of Muslims to America.  Indeed, it is hard not to interpret his invocation of Korematsu as a signal to his supporters – “don’t worry, we’ll go further than simply banning new immigration.” The Korematsu invocation was the signal, at least to me, that argument of the Anticanon may have transcended the substantive and entered the realm of signaling.

Two down, two to go.  Will any candidate embrace Plessy or Dred Scott?  It’s unclear, as of now, but it is not hard to imagine a candidate nodding to at least Plessy.  An independent Congressional candidate in Tennessee came under fire came under fire for erecting “Make America White Again” billboards, embracing at least the central thrust of Plessy.  The next few months will shed light on whether any elements of the right will bat for the cycle in arguing the Anticanon.

4.  Signaling and Populism

I don’t think that these arguments are purely substantive.  Rather, arguing the Anticanon has become a signaling mechanism that lets right-leaning voters who crave transgression know just how transgressive a candidate can be.  Some talk is cheap – coded racism or slights will only carry so far, now that the top of the GOP ticket makes a habit of these traits.  Candidates seeking to signal transgression may need more drugs to get the same high (so to speak).  But Anticanonical talk accomplishes two things – it signals transgression to a highly-educated subset of voters, and it does so by touching a genuine third rail of American political thought.

Look for further arguments in support of Lochner and Korematsu, and look for ginger head-fakes towards Plessy and Dred Scott.  Who knows, politicians may need to demonstrate just how transgressive they can really be.

Arguing the Anticanon:  Populist Signaling and Constitutional Transgression