“Justice for me

but not for thee”

In Ernst Fraenkel’s dual state model of authoritarian governance (which I posted about last month), regimes tend to develop two coexisting, parallel systems: a normative state and a prerogative state.

For many, maybe even most of the people, life under the regime doesn’t differ much from their life before it came to power. They continue to enjoy due process, they continue to have access to civic, economic, and legal resources. They might not even realize they’re living under authoritarianism. The normative state is the state as these people experience it—the continuing functioning of pre-descent laws, regulations, and norms.

The prerogative state, on the other hand, is the zone in which the old rules don’t apply, in which arbitrary violence is visited upon those unfortunate enough to fall into it.

It seems extremely clear that Justice Ketanji Brown Jackson is familiar with this model and fears it is happening here in America; consider her dissent (pp. 98–119) in Trump v. CASA. Here’s Chris Geidner quoting from it:

The majority, Jackson wrote authorized a zone of lawlessness with its ruling. In one zone, she wrote, law reigns through court rulings protecting named plaintiffs. In the second zone, however, the executive can enforce unconstitutional actions against those who lack the wherewithal or ability to go to court — a reality that will disproportionately impact the poor, the uneducated, and the unpopular.

So, three questions:

Who gets to enjoy life under the normative state?
Who gets subjected to the terror of the prerogative state?
And why is conservatism, among all of the modern mainstream political traditions, especially susceptible to degenerating into authoritarianism?

I’m sure you’ve heard this quip from Frank Wilhoit (this Frank Wilhoit, not the more famous one):

Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

His throwaway comment captures more truth in thirty words than most insightful op-eds manage to do in hundreds. This really is the core of 21^st century American conservatism.

so who makes up the

in-groups

whom the law protects but does not bind

The American Führerprinzip: He who saves his Country does not violate any Law.

It is a crime to deprive someone of their rights under color of law.

and who’s in the

out-groups

whom the law binds but does not protect

A coup is underway, against Americans as possessors of human rights and dignities, and against Americans as citizens of a democratic republic. Each hour this goes unrecognized makes the success of the coup more likely.

— Of course it’s a coup, by Timothy Snyder

the moral panic is about me

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Jim Crow for trans people