Procedure is central to American public legal discourse. From the soaring rhetoric of the Declaration of Independence to the Due Process Clause of the Fourteenth Amendment, the American legal tradition rests on the principle that law must be both derived and applied according to fair process. Consider that in the 2020 election the Trump Administration resorted to fervent and false allegations of widespread voter fraud—that the election process was fundamentally unfair—in order to weaponize Republican voters’ ostensible commitments to fairness against what was, objectively, one of the least procedurally unfair elections in history. Yet the four-year period of the Trump Administration (2017–2021) also saw the rise of overt and deliberate racist politics and mounting evidence that a universal commitment by all to fairness for all across the United States is a mythical framing of the American creed. One can look from the apparent lack of justice for unarmed Black civilians killed by police officers to a sitting President’s affirmative support for white supremacist groups to observe the doublespeak associated with fascist regimes: claiming to be restoring law and order while backing away from commitments to due process and equal protection. And yet, simultaneously, we have also seen the mainstreaming of a successful oppositional politics, including Black Lives Matter, which in June 2020 enjoyed a peak 67 percent approval rating among American adults in a national survey. Even as white nationalism flourished under the Trump Administration, polls indicate that increasing numbers of Americans acknowledge that our society is unfair to racial minorities. As Americans stand at the perpetual racial crossroads of the twenty-first century, how much does the legitimacy that they accord their government depend on the procedural justice it delivers to all?
Benjamin Justice & Tracey L. Meares,
The Wolf We Feed: Democracy, Caste, and Legitimacy,
Mich. L. Rev. Online
Available at: https://repository.law.umich.edu/mlr_online/vol119/iss1/8