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Law without Future: Anti-Constitutional Politics and the American Right, Jack Jackson

Reviewed by Kathleen Tipler

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The years of the Donald J. Trump administration have been unusually chaotic. Amid this chaos, the political left has bemoaned Trump’s disregard for constitutional norms. In these criticisms of the Trump administration, the left has become—consciously or not—a vocal defender of law and the Constitution. Jack Jackson aims to provoke a careful examination of this situation: of how the political right developed what Jackson argues is an anti-constitutional politics, and of the implications of the left’s recent embrace of constitutionalism.

Jackson makes many claims in this short book. One of his central claims is that the current administration’s approach to the Constitution is not a departure for the contemporary political right. In the first substantive chapter of the book, Jackson argues that while criticisms of the right’s apparent anti-constitutionalism appeared widely after September 11 and the war on terror, the right’s anti-constitutionalism emerged well before then. Jackson makes this argument with an analysis of Bush v. Gore, which has been widely criticized as a “political” opinion (as opposed to a well-crafted and principled “legal” opinion). Jackson argues that the problem with Bush v. Gore is not so much that it is “political” but that, in its focus on a particular moment and electoral outcome, the Supreme Court disconnects itself from both past and future precedent.

As he more thoroughly argues in Chapters 3 and 4, Jackson believes constitutionalism requires “futurism,” that is, a jurisprudence that attends to future consequences and a vision of the future republic. It is in the absence of such futurism—apparent, most notably, in decisions that focus on particular moments and individuals—that Jackson locates the anti-constitutionalism of the contemporary right. Jackson argues that this anti-constitutionalism has also been present in Congress, highlighting the case of Terri Schiavo as exemplar in Chapter 3. Here, as with the Supreme Court in Bush v. Gore, Jackson criticizes the “singularity” of the law that Congress passed to aid Schiavo’s parents in their efforts to keep their vegetative daughter on life support (p. 78).

In Chapter 4, Jackson turns to the political thought of the Revolutionary War period, excavating arguments for futurism as constitutionalism in thinkers such as Edmund Burke and James Madison. I thought this effort particularly intriguing and worthy of more detailed and focused analysis. A critic might extend my desire to hear more to the entire book. Such a critic could argue that Jackson moves too quickly between different claims, not allowing each idea to be developed as thoroughly as it could be or supported as extensively as needed to persuade the reader.

Another provocative and compelling idea about which I would have happily read more—it could easily be the subject of its own book—is Jackson’s concern that the left is embracing constitutionalism without thinking through the implications of that embrace. As Jackson points out, legal institutions are not purely progressive, and there is much wrong with the legal system in the United States and the U.S. Constitution. Jackson rightly, and importantly, argues that the political left should not just advocate for an abstract “return to the rule of law” but think carefully and critically about the sort of constitutional and legal norms it wishes to advocate. Jackson emphasizes that he is not trying to “set forth a rule or defend a doctrine” (p. 15) but rather promote critical judgment; Jackson succeeds in this short, thought-provoking book.

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