What happens when lawyers and judges become mere politicians in robes governed by a perverse irrational political theory?

Hitler's American Model: The United States and the Making of Nazi Race LawHitler's American Model: The United States and the Making of Nazi Race Law by James Q. Whitman
My rating: 5 of 5 stars

Coming to this book I was already startled by the idea that the United States had "influenced" or "inspired" Nazi German policies during the rise of Hitler's Third Reich. Too simplistic in light of the author's conclusion which discusses the USA's common-law tradition and how it was that which the German lawyers sought to emulate even more. This is particularly disturbing as that common law tradition, for all the good it has contributed to American society and culture, has also been weaponized to rationalize the irrational and legalize the unlawful. Germany's lawyers operating under the Nazi regime discovered in America's philosophy of law the means to foment their version of legal realism towards a racist state which they were convinced the United States was destined to become but was being held back by liberal as well as formalistic legal appreciations.

Despite America's appeal to its founding documents the Constitution in amendments like the 14th, the Nazi lawyers keenly observed contradictory existence of a legal philosophical "loophole" the allowed politics and ideology to influence the creation and execution of racist laws that would allow for the creation of a "legal" second class citizenry (e.g. blacks, Puerto Ricans, Native Americans, etc.). Granted, as James Whitman emphasizes, this American legal tradition paved the way for social democracy to finally take root in American politics in the form of the New Deal and the civil rights movements but it was also used by racist political leaders to institutionalize racism. As Whitman warns in his conclusion, "...to have a common law system like that of America is to have a system in which the traditions of the law do indeed have little power to ride herd on the demands of the politicians, and when the politics is bad, the law can be very bad indeed."

Among a host of other things, Nazi Germany is a lesson of what happens when lawyers and judges become mere politicians in robes governed by a perverse irrational political theory that will stop at nothing to support heinous and cruel policies. Whitman correctly points to a current example in the USA: our criminal justice system. One of the most punitive in the democratic world that is negatively influenced by individuals --judges and prosecutors-- yielding primarily to ideological and political considerations that trump lawfulness while denying a reasonable path towards restorative justice. Even today, the American legal system remains vulnerable to the political headwinds that allow for racial injustice and the unequal treatment of "undesirables" to continue. This should put fear in the hearts of those concerned about the direction of American politics and how it will impact our courts, and our lives, for generations to come.

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Democracy dies in degrees

I have refrained from going political on my blog but the times are uncontrollably shifting under our feet. I wonder of the bliss of ignorance as I ponder back to my teen years in which I cared little to nothing about current events, history, and the comings and goings of the world. I did not understand that everything is politics; that in the end, those decisions made by others I completely ignored had the very real potential to affect my livelihood and that of my future nonetheless.

So, in the spirit of encouraging some of you to become more politically aware, if current events haven’t already done so, I leave you with a humble review of my most recent read of a book written by an author whose political views I don’t necessarily agree with but who appears to share my love and concern for the nation —and the democratic ideals it has long aspired to— I call home.

Our democracy is dying in degrees, observes Frum. His intent: to scrutinize what he calls Trump's "rulership", his "power", how it came to be, how it has been used, and why his actions have gone unchecked. He draws on reporting of his own and a variety of other media sources to explore the Trump machine that enables and supports the current administration. The system is rigged alright, but not like Trump sees it; it's rigged in his favor as the GOP move ahead with voter suppression efforts, gerrymandering, and the constant assault on the truth, and the dismantling of the guardrails designed to help safeguard our democracy against our worst impulses and persistent unaddressed cultural tensions.

I am no fan of Frum's political leanings but he had much to say that I found myself agreeing with. However, in the first chapter where he goes into the events that lead up to Trump, he seems to have willfully ignored the trend towards zero-sum game politics that was nurtured primarily in the right by folks like Newt Gingrich. The upset to the rules-based political order our country has enjoyed for over two centuries started were evident over 40 years ago and not 1992 as Frum claims. I admit there was a level of arbitrariness from Democrats in recent decades, but the right began to take on the view that compromise was a losing proposition and historical events back this. No mention of McCain who, by appealing to Tea Party sentiments in the person of Sarah Palin, was also responsible for shifting the center of the GOP further to the fringe paving the way for a Trump post-fact future.

Striking how Frum seems to contradict (by the in the last chapter of the book) his initial assessment that Trump is but a symptom of a disease in the American polity; an illness that --Frum notes-- is enabled by a conservative entertainment complex, the GOP party, Trump surrogates, Trump's advisors, and many of his defenders controlling the pace and status of the news cycle furthering the cause of what might be the most, corrupt, erratic and unprincipled administration in modern American history.

Trump has ushered in a culture of impunity ravaged by corruption that is despoiling America of the values of our American Creed. Instead of emptying the swamp as he promised, Trump has fomented "a repressive kleptocracy, led by rulers motivated by greed rather than by the deranged idealism of Hitler or Stalin, or Mao." Trump is not to anyone but himself. He has publicly and privately betrayed members of his cabinet and all those who trusted he would fulfill his campaign promises. Trump's model of governance rests "not on deregulation but on nonregulation, not on deconstructing the state but on breaking the state in order to plunder the state."

Not only is Trumpocracy furthered by Trumps closest allies and friends; even worse, his power also comes from his control over an increasing number of Americans, especially on the right, who support his hatred of a free, skeptical, and cantankerous press. Through his vile and deceitful rhetoric, Trump has successfully managed to wall in his supporters in an alternate information universe by dehumanizing the press, designating it an enemy of the people while siding with a Russian autocrat bent on undermining the legitimacy of all Western democracies. By accusing millions of fraudulent voting, he has also managed to further efforts to restrict. Trumpocracy is an autoimmune disorder evidenced by an unprecedented level of dysfunctionality and corruption we witness mostly in banana republic territory. America is not immune and it's time we wake to this reality. Sadly, this book will be read mostly by those already familiar --and in agreement-- with much of what Frum has to provide in this brief and crisp piece of prose. I am more afraid of how far the GOP is willing to go to maintain its grip on power. Frum makes the frightening observation that GOP will abandon democracy before ever abandoning their brand of conservatism. So how can we build a space for consensus? Frum words no balm for those weary with the current state of polarization nor a solution to the susceptible tensions Trump capitalized on to further white resentment. Frum argues there is still room for hope and lists some pretty convincing reasons. But will these be enough to pull us back from the precipice? Perhaps.

After all of Frum's analysis, I was surprised in his unwillingness to admit the level of responsibility the Republican Party holds. The party has been paving the way for the Trump presidency and the party's demeanor under Obama, as well as the Bush Jr. years, made this very evident. Frum says Trump "imprinted upon his party his own prejudices, corruption, and ignorance" but from where I stand there is sufficient reason of public record to conclude that Trump is a symptom that reflects the absence of the values that shaped and served as foundations of our American creed and which the Republican Party outspokenly chose to reject. Trump is an example of what happens when some unprincipled men of power and an ignorant poorly informed polity, put party and tribe over the best interests of a nation founded on the enlightenment ideals we call the American democratic experiment.