Constitutional law during a carnival of cruelty

Protecting rights when causing pain is the point of policy

At the beginning of The Lion, The Witch and the Wardrobe it is always winter and never Christmas.

In the United States at the moment, as well as in some other places, it seems that it is always a carnival and never Lent.

Here ‘carnival’ is meant as a period where usual norms and rules are disregarded, a time for ‘anything goes’ - which, in US law and policy terms, means anything the federal government can get away with.

And it is not any old carnival, but one where the federal government is be as cruel as possible to those to whom it can be cruel.

It is thereby a carnival - a carnival of cruelty.

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There is a quaint view that human beings need some reason to be cruel.

This is the view associated generally with, say, discussion of the Milgram experiment or the ongoing historiographical debates over the actions of the German reserve police battalion 101, where there is discussion over the motives of those who are cruel - and whether they are being merely obedient to authority.

But human beings often do not need a pretext or a reason, still less a justification, to be cruel to other human beings.

They just need an opportunity.

Some of the commentary about the approach of the Trump presidency emphasises the cruelty:

If this is the case - and the impression conveyed by what is being reported by the news indicates this is the case - then where does that leave law and policy?

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In a modern liberal democracy one fundamental - indeed, absolute - value is that cruelty is wrong.

In the words of Judith Shklar, cruelty is the worst thing we can do.

(Shklar, like Hannah Arendt, is a political philosopher whose work is now more relevant than one would like.)

A liberal democracy thereby often proceeds on the happy assumptions that creulty can be banned and that, left to themselves, those with political or coercive power will not be cruel - and if they are, there will be legal protections for those facing the cruelty.

But what if those with political and coercive power do not care anymore about being cruel - or even being seen as cruel?

And what if those who are supposed to check and balance those with political and coercive power - the legislature or the judiciary - nod-along with the cruelty, and even clap and cheer?

One by one, each of the hallowed constitutional principles of a liberal democracy have been found to be an empty slogan.

A codified constitution has offered no protection - when there is no constitutionalism.

The seperation of powers offers no protection - when those powers are aligned against the individual.

The rule of law offers no protection - when the courts uphold unlawful decrees, and stay or deny all challenges.

The carnival of cruelty continues, and continues - and nothing intrinsic to the polity can bring it to an end.

No polite, uniformed grown-up is going to suddenly turn up on the beach (from their own warship) and bring an end to this lordship of the flies:

This is a two-minute hate which lasts rather longer:

As Adam Serwer set out first in a remarkable essay and then in a book, the cruelty is the point.

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Until and unless there are any elections that mean that the policy will change, there is little that can be done to face this down completely.

But there are things: litigation is still being brought, pressure is still being placed on legislators, and the media are still reporting things (else we would not be aware of various abuses) - and there is still the prospect of elections (though some rightly fear about whether those elections will be free and fair).

The carnival of cruelty has not consumed everyone, and one can still see it from the outside, and there are still parts of the town as yet untouched.

One day the carnival of cruelty may come to an end.

But this is not a good time for law and policy in the United States (and elsewhere).

The institutions and constitutional principles that were there to protect individuals from an illiberal, cruel state have been tested, and they have failed.

And if - if - liberals and progressives are ever back in power, considerable thought needs to be applied to how such a total law and policy failure can be avoided next time.