As Rose Parfitt explains in her essay Mob Constitutionalism: The Riot in the Rights, the siege on the U.S. Capitol building on 6 January 2021 appears to represent a contradiction: “as soon as we look closely at the motivations of these ‘domestic terrorists’ a certain dissonance arises, as though two supposedly opposite ideological poles – law/democracy/good on the one hand; violence/fascism/evil on the other – had somehow got mixed up together and jammed in one another’s gears”. And yet, as her essay helps us understand, that contradiction only persists on a superficial level. Calls for a particular version of “liberty” and the practices & logics of colonialism, conquest, resource exploitation, and racism remain powerful co-conspirators in a sense, collapsing the poles of the contradiction.
The exhortations from former President Trump and his supporters for “the people” to “stop the steal” translates that dissonant logic into immediate action, immediate fervour. The question of whether something is “lawful”/ “unlawful” persists in that framing, while the substance of what kind of law/ whose law is left unaddressed.
Caught in the headlights of January 6, “lawful” and “unlawful” are made to look obvious, not even warranting any definition, because their sheer oppositionality serves as such – definition and self-fulfilling prophecy. Moreover, the mutually exclusive framing of lawful/ unlawful threatens to suck the air out of the room and wreak havoc as fighting words in a discursive culture in which every analysis is fed into the binary processor of good/bad, right/wrong. However, the evocation of “law” and “non-law” only makes sense against a background of an ongoing, actually functioning, democratic engagement with and the well-intended management of the open-endedness of these terms, their very fragility, and their ultimately aspirational nature. As Nancy MacLean has shown however, it is that (relatively) functioning democratic system of governance which has been under a careful and long-planned attack in the United States.
In this already-suffocating climate, what still remains unanswered is the question of what different people – defending and attacking democracy, the constitution, free speech – actually mean by “law” and what is required for law to serve a society. Of course, it is ironic that, in order to facilitate this very discussion, we have elections and constitutional rights to speak, to assemble and to – yes – vote. We have nothing, however, once we allow ourselves to be dragged outside of this reference system of daily – and proceduralised – plebiscite. But, it’s on this outside where the right now wants to wage their battles, not only to operate in lawless spaces but also to ridicule and disarm the claim that to step outside the legal system is the actual attack on democracy – not the other way around.
Dr. Parfitt’s essay eloquently exposes the schizophrenia of the Trump Right’s invisibilisation of the incessant attacks on law over the past four years, on the one hand, and the half ashamed, half proud (!) reactions to what happened on January 6th, once the “march on the capitol” escalated into a planned, jubilant violence, on the other. She also convincingly captures the treacherous quicksand in which self-proclaimed “people” selectively claim extra-legal freedoms in an alleged defence of the freedom that ideally and existentially rests on the rule of law. In purporting the “right” (sic!) to get away with just about anything, the “protesters” and those who defend them claim to be the last bastion of a democratic system which they claim is theirs’ to defend. The joke, tragically, is on the left, seemingly endlessly pointing the finger at themselves, exclaiming, “no, no, it is us, we believe in elections, and in democracy.”
The dissonance that Dr. Parfitt traces can be deeply felt in the numerous quotes, footage, and photographs of the exuberant participants in the siege as contrasted with the solemnity of images of maintenance crews (mostly POC) and Congressman Andy Kim cleaning the Capitol grounds just several hours later. (In the disproportionate emphasis on interviewing the “mob” rather than Black/ POC members of the National Guard, Capitol Police, or Congressional staff, we also see here a continuation of the similar media focus on the dispirited Trump voter post 2016.)
And, what does the fact that it was this incident that brought many lawmakers to condemn the former president mean for a collective imagined America? Does it pierce the illusion or the contradictions inherent in the project all along? (Nothing ever seems to, as Richard Falk once commented, America retains a perpetual idea of its own innocence.) Rather instead, one already witnesses how the logic of dissonance lives on in the use of the siege rhetorically, a logic that continues to contort itself to avoid confrontation with its contradiction.
Sarah Huckabee Sanders, the longest-standing Press Secretary in the Trump Administration, released a video on 25 January announcing her candidacy for governor of Arkansas. The nearly eight-minute-long monologue begins with footage and a nostalgic narrative about a trip to American troops in Iraq made by then-President Trump accompanied by Huckabee Sanders, and then pivots to a celebration of America’s purported support for freedom and “freedom at home”.
“America is great because we are free,” she says, “But today our freedom and rule of law are under attack.” She then discusses threats of violence made against her as Press Secretary, followed by a brief video montage referencing what appears to be police confronting protestors or looters “in the streets” (recalling the protests for racial justice during summer 2020 and continuing the conflation and oversimplification of protest/ looting/ violence), the 2017 shooting at a Congressional baseball game, and the January 6 siege. While that violence (all of it) is “not who we are as Americans,” she immediately warns viewers that:
The radical left’s solution is to impose government control and censorship from the top down. But their socialism and cancel culture will not heal America, it will only further divide and destroy us.
This provocation is not just an inverted assertion from the party championing “law & order” while encouraging the activities of weaponized private militias and even the execution of Democratic members of Congress, it is also said without acknowledgement of the letter from ten Democratic congressmembers on 19 January explicitly advocating against a reactionary expansion of domestic national security and surveillance powers.
It’s as if Dr. Parfitt’s observations from the January 6 attack have already – 19 days later – been pulled through the looking glass to live yet again in a reversal of logic, packaged neatly in the campaign video: America’s freedom is under attack and we need law & order on the one hand (the good things); while on the other is the perceived threat of “violence/ fascism” coming from the “radical left” (depicted through the conflation of protest / baseball shooting / siege) who would also “impose government control” and “socialism” (the bad things). And so, the dissonance continues.
Priya S. Gupta is Professor of Law at Southwestern Law School, and is currently Wainwright Senior Fellow at McGill University Faculty of Law. She can be found on Twitter @PriyaSGupta.