On Saturday, during his rally in Waco, Texas, Donald Trump took a rhetorical sledgehammer to America’s justice system. Having sown the seeds of doubt about the integrity of elections, he and his MAGA allies in Congress want to undermine whatever confidence Americans may have in our legal institutions.
In its reporting on the rally, CNN notes, “Without evidence, Trump repeatedly described the probes as politically motivated efforts to hamper his 2024 presidential bid.” Trump told his supporters that “Prosecutorial misconduct is their new tool, and they’re willing to use it at levels never seen before in our country.” He called the several ongoing investigations of his conduct “bullshit,” and alleged that the prosecutors leading them “henchmen” of the national Democratic Party.
He urged his supporters to stop them and said, “‘We must not allow them to go through another election where they have yet another tool in their tool kit.’”
As I watched Trump’s speech, I was deeply troubled by its overt authoritarianism but also reminded of one of the challenges faced by teachers of law in the liberal arts. I thought about what I would say if a student asked me whether prosecutors worked with the kind of political agenda that Trump ascribed to them.
Of course, Trump’s Waco speech is just the latest episode in his ongoing war on the rule of law. The New York Times wrote in 2018, “In his attempt at self-defense amid the swirl of legal cases and investigations involving himself, his aides and his associates, Mr. Trump is directly undermining the people and processes that are the foundation of the nation’s administration of justice.”
When it suits his purpose, Trump wants Americans to believe that prosecutors and judges are political actors and nothing but political actors. He asks his supporters to believe that charges that he has violated the law are being made up out of whole cloth by his political opponents.
Trump drove home this point on Saturday: “I am the most innocent man in American history.”
A poll conducted last week suggests that the former president’s message about the weaponization of law for political purposes is resonating, but only partly. Fifty-four percent of the respondents said politics was driving the criminal case now being considered by a Manhattan grand jury. Not surprisingly, 80% of Republicans subscribed to this view compared to 32% of Democrats.
Yet, 70% of those responding and fully half of the Republicans also said “it was believable that Trump during his 2016 presidential campaign paid the adult film actress Stormy Daniels for her silence about an alleged sexual encounter.” A slightly smaller number, 62%, believed that Trump falsified business records and committed fraud to cover it up.
That same poll found that “[n]ine in ten Americans (88%) agree that Donald Trump is not above the law, including 94% of Democrats, 89% of Republicans and 79% of independents. Eighty-five percent of Americans say if Donald Trump broke the law, he should stand trial, including 94% of Democrats, 79% of independents, and 80% of Republicans.”
This split-screen view of the relationship between law and politics suggests a surprising and reassuring level of sophistication among the American public.
Legal scholars have tried to capture this quality in various ways. For example, writing in 2018 during the confirmation hearing of Justice Brett Kavanagh, Yale law professor Amy Kapczynski argued, “In a democratic system judges are not political in the way politicians are. They must hear all comers; give reasons; express a universal principle — they morph politics and produce universalizing argument.”
Or, as political scientist Keith Bybee puts it, “The law is made to serve different purposes: on one hand, the law is pressed into service by interested parties trying to solve their problems; and, on the other hand, the law is shaped into a rational structure in order to give ‘the story of government’ meaning. The law operates in both registers at the same time, even though they point in incompatible directions.”
Trump’s antics make it more important than it has ever been to reinforce that message. That is what law teachers in the liberal arts do every day.
Perusing the catalog of almost any college or university in the United States, the casual reader might well conclude that legal study in the liberal arts is thriving. They will find countless courses in which law figures prominently—e.g., constitutional law, judicial process, anthropology of law, philosophy of law, law and economics, law and literature—sprinkled throughout the curriculum of the arts and sciences. Historically, disciplines like political science, sociology, and philosophy, to name just a few, have provided space for the examination of law.
What this means is that many more students will learn about law during their undergraduate years than will ever set foot in a law school to pursue a professional degree. The Consortium of Undergraduate Law and Justice Programs, founded in 2003, now lists dozens and dozens of colleges and universities offering majors or minors in legal studies and a handful of places with autonomous legal studies departments.
And law teaching in the liberal arts has a long history.
As early as 1887, Yale University established a course of study “for those not intending to enter any active business or professional career, but who wish to acquire an enlarged acquaintance with our political and legal systems, and the rules by which they are governed.”
In 1894 Woodrow Wilson said, “We need laymen who understand the necessity for law and the right uses of it too well to be unduly impatient with its restraints.” The function of a college course in law, he went on, is to teach students “what law is, how it came into existence, what relations its form bears to its substance, and how it gives to society its fibre and strength….”
During the 1920s, Johns Hopkins University created an Institute for the Study of Law devoted “to the nonprofessional study of law, in order that the function of law may be comprehended, its results evaluated, and its development kept more nearly in step with the complex developments of modern life.”
In 1956, the report of a Harvard conference concluded that “[t]he study of law-not as a matter of professional training but as a matter of humane, or liberal, education, can enrich the minds of students.”
Two decades later, the Report of the Law Center Consultative Committee at the University of Massachusetts underlined the importance of law teaching in the liberal arts. There is, it said, a “coherent body of knowledge about the social functions and consequences of legal institutions and processes…[that amounts] to more than the extraprofessional study of law; it is itself a new scholarly enterprise. . . . a distinctively new and broader scholarly discipline with law and legal systems at its core.”
Legal study in liberal arts aims to sharpen students’ skills as readers, as interpreters of culture, and as citizens schooled in what Aristotle would have regarded as a kind of practical wisdom, a knowledge that extends beyond theoretical understanding to civic and moral action. To understand legal materials, students are required to develop habits of close reading and hone their interpretive, imaginative, and analytic abilities.
Understanding those materials requires great attentiveness, the ability to see how arguments are constructed, and the willingness to imagine alternate possibilities. Because law is concerned with resolving disputes, students of law are invited to test their ethical arguments and textual understandings in a context where decisions must be made and force often must be deployed.
Of course, such learning cannot in itself save America from Trump.
But it is one place where students can learn about the politics of law and appreciate that while law is not completely separated from politics, it is also not, contra Trump, completely subsumed by it. As Bybee rightly observes, “The resulting system endures not in spite of the contradiction between instrumental action and impartial principle, but because this contradiction suits the law to the people who are governed by it.”