Under The Law - Part Two

by Associate Professor Jeremiah Ho

In summer 2017, I wrote on this blog site that “our national narrative is being shifted away from cultural pluralism and democracy toward nationalism, subordination, and authoritarianism.” In particular, I noted how the narrative-shifting occurs:

The plot-line for narrative shifting is usually three-fold:  First, those perpetuating the narrative change find a base or a critical mass of followers on a particular issue to whom they begin to foster a sense of frustration and alienation by striking up anger and hatred for that issue.  (Think for instance: illegal immigration as an existing hot button topic with already incendiary reactions prior to the 2016 elections.)   Then as anger and frustration is reignited, those perpetuating the narrative shifting start to exaggerate the dangers of that issue.  (Think: fake news articles, false statistics of illegal immigration, and stereotypical sentiments echoed nationally that illegals are criminals and rapists.)  And then once sentiments have been ramped up to a frenzy, the narrative shifting breaks into the offering of a drastic solution to appease that base.  (“Let’s build a wall and make Mexico pay for it.”) 

This was not a strategy I made up; others in the media had pointed this out.  In 2016 and 2017, Donald Trump employed this strategy to deepen the existing hatred and xenophobia, and to justify his border wall project.  In 2020, Donald Trump repeated this strategy first with the coronavirus as a hoax and then with the U.S. Presidential Elections.  First, he reached out to his base before and after the election.  He primed them with falsehoods such as possible voter fraud with mail-in ballots and he got his base ready for anger if there was a November defeat at the ballot box.  Second, once he lost the election, he continued to gaslight their anger with false information (and lawsuits!) about fraud with the election process—stoking the “Stop the Steal” rhetoric while the nation was undergoing a severe spike in coronavirus cases.  Finally, at the end of the electoral process last week, once emotions had been stoked to a massive, burnished fury, he offered a drastic solution:  “Now it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you. . . . We are going to the Capitol, and we are going to try and give—the Democrats are hopeless, they are never voting for anything, not even one vote, but we are going to try—give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re try—going to try and give them the kind of pride and boldness that they need to take back our country.”

Trump emboldened them as free citizens who felt they could rise above the law.  We all know what happened next.  I can’t get out my mind the image of the red fire extinguisher hurled at Capitol Police Officer Brian Sicknick, who later died from resultant injuries.  I can’t unsee that video of the defiant mob trying to enter the Senate chambers while another Capitol Police Officer, Eugene Goodman, bravely lured them away in a ruse that he was playing at the expense of his own personal safety.  And it’s hard not to see Zip Tie Man in full black tactical gear, climbing over railings in the Senate galley, in what seems like a pre-determined attempt to impose harm on congressional members. 

In the aftermath of the insurrection (I can’t believe I’m f*cking writing this word!), Trump needs to be held accountable to truth—whether that’s impeachment, through the 14^th amendment, prosecution, or something else.  Words matter.  Actions have consequences.  Even a grade-schooler can give you this lesson. 

Then, in this aftermath, our dedication to truthfulness and civility must be reaffirmed—the truth about climate change and inequality, the truth about the failings of our antidiscrimination laws in contrast to the lived experiences of discrimination and hierarchy, the truth about being free citizens that has to be under the law and not above it, the truth about who we really are and how we ought to aspire to be. 

What I wrote further about truth in that blog from 2017 haunts me now because in this crazy, exhausting 12-months, I’ve forgotten it: 

From Black Lives Matter to sexual identity and orientation discrimination, from health care to economic inequality, from immigration bans to gender pay discrepancies—as long as those issues are being debated, there will be those who will dislocate “abstract notions of human rights” in each and every one of those issues in order to spin the rhetoric to a viewpoint that serves their hegemony and marginalize not just democracy—but people.  For every intriguing and complex articulation of a new or continuing thought regarding human dignity that can appear in each one of these aforementioned issues, there is another nuanced strategy on the theme of the Other that can detract from the truth about human rights.      

More than ever before, we have an obligation in the academy—especially in law schools and universities—to teach students the truth that our freedoms are not absolute and that they extend directly from law.  That relationship is at the core of a democratic polity committed to a contemporary liberal project that is supposed to benefit all of us.  Recently after last week’s events, articles have appeared in major outlets, including one from Brian Rosenberg in The Chronicle of Higher Education, that have criticized higher education’s indirect complicity or responsibility in not stressing enough to our students to be able to think critically and value truthfulness.  I concur that part of the rebuilding from the Trump presidency is for us, university and law school professors, to point out the exaggeration in the narrative change to our own students—to repeatedly uncover the truth through our capacity to teach and to engage in extramural utterances in our research.  In part, as mentors and thinkers, we have a role to challenge the exaggeration and veer away from disinformation.  I think back to my grade-school teacher and her utterance “under the law, of course,” as a guiding point.  I urge others to do similarly.  We have to build back better.