Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR DANIEL FARBMAN
Professor Farbman, who holds a JD from Harvard, teaches and writes in the areas of local government law, legal history, constitutional law, the legal profession, civil rights, and property. His work focuses on the legal history of radical reform movements in public law both from an institutional perspective and from the perspective of the practice of cause lawyering.
In historical terms, what has the coronavirus pandemic revealed about the strengths and weaknesses of the rule of law and its responsiveness in times of international crisis? So much of the answer to this question depends upon what we mean by the rule of law. On one definition, the rule of law is expressed by institutional continuity and fidelity to the set of rules and norms built around those institutions. This “stability” conception of the rule of law has been steadily eroding since November 2016. Every day since the election (and even before) we have woken up in a world where the guardrails that we took for granted have either moved or disappeared. In the last few months, with the pandemic and the protests, this process has accelerated. We are living through a time of upheaval and we see and feel the instability that is rocking the institutions that define a stability conception of the rule of law.
From a historical perspective, this stability conception has always fared poorly in times of crisis. The reason is simple: Stability, institutional continuity, and a status quo order cannot protect against forces that are fundamentally changing our institutions and challenging the status quo order. Where the legal and social norms we are accustomed to become less solid, the rule of law can seem to be crumbling beneath our feet alongside the stability of the institutions that we have accepted as foundational.
But if the stability conception has always been weak in moments of transition and crisis, there are other ways of thinking about the rule of law’s persistence in American history that might offer more optimism. I am more drawn to a “participatory” conception of the rule of law in which our core fidelity to law is expressed not in institutional stability or even public order, but rather in a prolonged commitment to and participation, debate, and struggle over the most fraught and divisive issues in our public lives.
I see evidence of this “participatory” conception in two transformational moments of upheaval in our national past: the 1850s and the 1930s. In the 1850s, the collective compromise that had upheld and protected slavery was quickly dissolving. The Civil War brought the collapse of the status quo order grounded in slavery—and represented an absolute rupture of a stability conception of the rule of law. But it is a mistake to see the war as a product of anarchy or despair. The war was situated within a cataclysmic national debate over the nature of our collective polity. We could understand the war and the new, more inclusive, national order that emerged from it (appreciating the promise of Reconstruction while recognizing that it would soon be abandoned in favor of reconciliation, redemption, and Jim Crow) as part of a struggle for a legal order that would be worth defending. Likewise (and less apocalyptically) one could see the transformation wrought by the Depression, the New Deal, and World War II as a radical overhaul of institutions that was brought about by the iterative, intensely combative, but fundamentally participatory deep principles of American legal disputation.
Letting go of faith/hope that the stability conception of the rule of law will preserve us from social and legal upheaval in the present crisis is scary. The instability that all of us are experiencing is, by definition, unsettling. But when I see the collective public response to save lives in the pandemic, and when I see the collective action in the streets to assert that Black Lives Matter, I find myself hopeful that the deeper, participatory conception of the rule of law remains something to hope on.
What short- and long-term opportunities do you see arising from the pandemic for a new understanding of and appreciation for the lessons of legal history? What role does constitutional law play here? One of the strangest things for me about teaching through these momentous times has been how little the news has changed the way that I approach teaching Constitutional Law through the lens of legal history. The main reason for this is that I spend a lot of my time thinking about the extent to which we deceive ourselves into thinking that our “constitutional order” acts as some sort of robust barrier against the forces of mundane politics and world events.
As I teach the famous cases of Constitutional Law, I try to represent them as products of their political and historical contexts. You cannot understand Dred Scott without knowing something about the toxic politics of the last years of before the Civil War. You cannot understand Plessy without a picture of the political forces that made our near-century of Jim Crow possible. You cannot understand the Commerce Clause cases of the 1940s without a view of the political crises of the 1930s and 40s, and you cannot understand the modern court’s cases without understanding the ways in which our national political imagination has shifted since the 1980s.
All of this is to say that careful readers of history will always attend to the ways in which our understandings of law and “doctrine” are rooted in the complex political, cultural, and social contexts that they are embedded in. To the extent that something like “law” can emerge out of those contexts and act as a brake on present power—that, too, is a historically contingent role for law to play.
My own view is that a deeply informed historical understanding of Constitutional Law should not lead us to think that the Constitution itself, or Constitutional Law itself will set boundaries on our national politics or policies. Rather, as we’ve seen, fragments of what look like law will be used opportunistically in the present. (For example, President Trump will invoke Federalism when it comes to testing, but will invoke federal power when it comes to suppressing protests).
Let me be clear that this is not nihilism. We live in a time where the recourse to Constitutional faith and constitutional traditions have a strong rhetorical and moral appeal. Understanding how to engage in the constrained discourse that is Constitutional debate is a critical tool for those who want to leverage that rhetorical and moral power. But just as the Constitution was not, alone, a bulwark against slavery, civil war, depression, Japanese Internment, Jim Crow, or caging children at our borders—neither is it alone enough to fall back on in this time of extreme unsettlement. As has been true so many times in the history of our constitutional project, the Constitution itself is undergoing a transformation in the crucible of the present. Constitutionalists need to be doing more than saving the document, they should be shaping it.
What is your vision for a post-pandemic world: What resources can you point to that could guide us toward building and sustaining a stronger and more just society? Do you foresee a surge of radical reform movements coming out of this? Before I returned to the academy, I worked with organizers who were on the ground engaged in grassroots struggles for local justice: ending racial disparities in school discipline, reducing segregation, closing achievement gaps. The most precious resource that these groups had (and the one that they sought to cultivate) was energy and collective power. Five students in a small meeting with a superintendent could be waved away, five thousand students walking out of the school together demanded attention.
This is the lens through which I view the promise of the present moment for social transformation. The pandemic destabilized all of our comfortable routines and forced us to pay attention to concerns that we might otherwise be too busy or numb to engage with deeply. When the police killed George Floyd and the protests erupted, the potential energy stored up by that destabilization became activated.
The historian in me knows that these moments of transformation have their own limits. Reconstruction met the buzz saw of white supremacy and Jim Crow after just a few years. The gains of the civil rights movement were stalled out by resistance in the 1970s, which has led us to the present moment. In my most pessimistic moments I doubt President Obama’s faith that the arc of history is bending toward justice and see, along with Derrick Bell and others, a cyclical trap of progress and regression. But this is not a moment for pessimism and that is not the view of the world that my friends organizing at the grassroots inhabit.
And so, I choose to see the present unrest and uprising as a monumental opportunity to transform systems that had seemed inevitable only months ago. Defunding the police was a fringe position in January and in June it has become a topic of hot and pragmatic public debate. Universal health care was a much-gnawed-on abstraction in January, but three months into the pandemic it has become clear that health care must emerge from this crisis transformed. We are standing in the most terrifying and optimistic moment of legal and social transformation. We are at time-zero of what will come after. History shows us that it is in these moments that transformation happens through the hard work of those who dare to imagine utopian futures. The promise of this lesson should not be entirely dampened by the knowledge that those transformations that do occur will inevitably be moderated, domesticated, and perhaps even reversed over time.
All of this is to say that I find myself deeply hopeful when I see so many people engaged in the hard and dangerous work of imagining and building a radically better world beyond the crises of the present. That hope, itself, is precious—it’s the best defense against the anxiety, instability, and cynicism that all threaten to creep in around the edges of our present crisis.
Read all faculty Vision Project interviews here.