“We Must Push Back Against Authoritarian Legalism”: An Interview with Prof. William E. Scheuerman
“It’s not old-fashioned dictatorship; it’s somehow a new form of authoritarianism. And I think we have to worry about that.”
Global Convivial Forum
Gabriel Brito (NDD-Cebrap), Marina Slhessarenko (NDD-Cebrap),
Bianca Tavolari (Mecila/ Cebrap/ Insper), Joaquim Toledo Jr. (Mecila)
Gabriel Brito, Bianca Tavolari, William Scheuerman and Joaquim Toledo Jr.
Image: Marina Slhessarenko
From August 3-10, Mecila hosted Professor William E. Scheuerman (James H. Rudy Professor, Political Science, Indiana University) for a Short-Term Research Visit, a new academic exchange modality inaugurated in 2022 as part of the Centre’s academic exchange program.
During his stay in Mecila’s São Paulo offices, Prof. Scheuerman attended workshops and meetings with researchers from Mecila and Cebrap’s Law and Democracy Nucleus (NDD), and delivered a Distinguished Lecture on «Politically Motivated Property Damage».
In this interview, Prof. Scheuerman discusses his experience at Mecila and topics that are currently occupying his research interests, including the connection between civil disobedience and politically motivated property, the global crisis of democracy, and the emergence in the United States of a right-wing legal and political thought influenced by interwar conservative German intellectuals.
Joaquim Toledo Jr.: Can you tell us about the academic activities you’ve been involved in so far in Mecila and how the short-term visit has helped your research?
William Scheuerman: I’ve already been to Cebrap before, which is a famous institution. I’m familiar with many of the people who work here, and I’ve always learned a great deal from them. I think the research here is really important. This was the first time I encountered people from Mecila, and I had a very similar impression. I thought the group of fellows and PhD students are all doing exciting projects. During the second session, I was humbled because I realized how little I know about all the things they’re working on. The projects seem politically timely as well as scholarly significant. I’ve just been very impressed with everything I’ve seen.
Bianca Tavolari: You mentioned you had been to Cebrap before and that it seemed to have been a lifetime ago. What’s the difference between then and now? I’d like you to comment on those two moments.
WS: I was here almost five years ago. Trump had just been elected in the United States. As you know, we no longer have a President Trump, although he’s still active. Bolsonaro had not yet been elected; COVID hadn’t taken place. So yes, it seems like a very different world in some ways. Of course, those things were probably all in the making. But I don’t think you here in Brazil expected Bolsonaro to get elected at that point. And nobody expected COVID.
I’m really enjoying not just the formal discussions, presentations, questions, and so on, but also the chance to catch up with people and hear about their work. That’s at least how it works for me. During a conversation, something might just get dropped, I think about it, and it becomes something. And I think that’s something we did lose during COVID, and it’s just wonderful to have it back.
Gabriel Brito: You now have very practical worries about current social struggles and the state of democracy, especially in the work you presented during your stay. Could you comment briefly on how your work relates to the contemporary political climate?
WS: I like being here so much because I feel very much at home. The people here are also committed to serious scholarship but think that scholarship should matter in the real world. And that’s always been my view. Unfortunately, I don’t think that’s the view of everyone in the academy. Not because they’re bad people, it’s how the academy is structured. I don’t think it always encourages us to address timely political questions in a serious scholarly way.
I stumbled into the issue of civil disobedience. A colleague asked me in 2014 to do a presentation on Edward Snowden in our law school. I initially got interested in these debates about whistleblowing, and that brought me into a broader discussion about civil disobedience. I don’t want to claim to be prescient, but you could certainly see much more attention getting paid to these new protest movements, to these new forms of disobedience in the US and elsewhere.
And then, of course, Trump was elected. That was crucial. I received money to do a project in Germany, but when I got there, I decided to do something very different. I was fortunate that I was allowed to do that. I decided that working on civil disobedience was potentially very important, even if just in terms of sorting out the debate. I saw a lot of confusion there, and I thought it could be at least somehow useful for people worried about these authoritarian trends. There is a direct political link in this project.
Marina Slhessarenko: How do the debates on the crisis of democracy relate to your work on civil disobedience?
WS: There is a danger in speaking about crisis in an overly inflated way. It can also become a dangerous self-fulfilling prophecy. Trump likes to talk about crisis, which is his way of justifying executive rule. That question requires some serious scholarship and discussion. We can argue about how best to define a democratic crisis, but the evidence, it seems, is there. We have authoritarian political leaders. Political parties that previously were not authoritarian have become authoritarian.
The Republican party was the party of Lincoln and abolitionism. Then it took a conservative, yet not authoritarian, turn. But now, it has become a kind of authoritarian cult in some ways. If that is not a crisis, I don’t know what is.
At the same time, history doesn’t repeat itself. I don’t think we’re going to see some dramatic democratic collapse. We don’t see as many coups as we used to, which is a good thing, but we are seeing this democratic erosion or backsliding process, and at some point, that becomes a crisis.
There are many examples of a step backwards in terms of some model of democracy you might have. Hungary, Poland and Turkey still have elections, but they’ve been hollowed out. The press is not free for all kinds of reasons. It’s not an old-fashioned dictatorship; it’s somehow a new form of authoritarianism. So yes, I do think it makes sense to talk about crises. And I think we have to worry about that.
JT: The idea of a crisis of democracy can be like a Rorschach test: how it is seen says a lot about who is looking. You are currently writing on how far-right US think tanks are appropriating conservative views from interwar Germany to denounce the decay of the US republic. What is their version of the crisis of democracy?
WS: The hard right describes the United States as being in a specific kind of crisis. I was looking for academic literature on states of emergency, and the first thing that came up was State of Emergency (2006) by Patrick Buchanan. He is this extremely right-wing, xenophobic politician. It’s about how the United States faces an emergency and how immigration has destroyed the American identity.
You can see different versions of a manipulated type of crisis thinking. Trump talked about crises from his political perspective. The phenomena you’re referring to is very specific, and I was also surprised by it. I’m happy that few American academics and intellectuals were enthusiastic about Trump. That’s partly because the right-wing in the US has been bashing universities. That’s also become part of the political program, which is disturbing.
When I started teaching in the early 1990s, I had many conservative colleagues, often in the “hard sciences”. But that is decreasingly the case because Republicans have committed themselves to climate denialism, among other things. They’re beating up on science. Many of these people would not vote for a conservative today.
Not many people in Academia got on board with Trump, but there was a group of enthusiasts based at the Claremont Institute. It’s a long and complicated story, but in the United States, many people, particularly in political theory, were influenced by Leo Strauss, a pretty complicated thinker. Very conservative, but in an unusual way. His heroes were Plato and Aristotle. He’s not a free market conservative by any means. Maybe a cultural conservative in some sense of the term.
The Claremont Institute is a group of hard-right Straussians on the West Coast. They have been coming up with a romanticized defense of the American founding as having certain moments that connect the US republic to what they call classical natural law. They’ve decided that Trump can be the vehicle for the resurrection of that lost moment which has been under attack. Some of the documents you’ll find on official websites are taken directly from this institute.
They tell this story of the United States, where it has declined since the modern government was formed. They don’t want to roll back the last twenty or thirty years of reform; they want to roll back much more. That’s the group that gravitated towards Trump. Not surprisingly, since there weren’t too many academics he could call on, they ended up being very influential in his government and having a quite important role. The most infamous of all these figures is John Eastman. He was a lawyer who recommended to Trump that he overturn the 2020 election results.
What drove this is the idea that Trump could be the strongman who could save the virtuous core of the republic, and there are echoes of the Weimar Republic here. Conservative reactions to Weimar were about alleged moral degradation. And this is the American right’s story about the American Republic, and they’re looking for a savior. The good news is that there are also followers of Leo Strauss who push back against this.
BT: This interview takes place during an important week for Brazil’s presidential elections. Tomorrow, August 11, there will be a manifesto for democracy in front of the University of São Paulo law school. Meanwhile, some threats from the right here in Brazil have been influenced by the attack on the Capitol on January 6, 2021. How do you see the relationship between these threats to democracy, the rule of law, and renewed interest in the Weimar Republic?
WS: That’s a great question. I don’t have a good answer. I think the reason for the preoccupation with Weimar is because it culminates in National Socialism, which we universally believe was a total disaster. It was such a cataclysm that people had to come back to it.
There is a reason why in the US, and to the extent that American political science has been influential elsewhere, why Weimar is such a preoccupation for better and worse. I think there are some problems with that, which we’ll talk about later. We had so many refugees, and people also had lived through this traumatic experience, were involved in World War II, and were trying to make sense of what happened.
Regarding January 6, I find that interesting. Let’s hope anyone imitating it is as inept as Trump. He thought the Executive was his property, and the United States Attorney General was his personal lawyer. Trump didn’t get the distinction between office and person. This is another way in which he’s authoritarian. It’s almost pre-modern, before you have the modern state and we started distinguishing office from the person. Trump didn’t get the Constitution as a restraint on him.
The good news in the US was that these crucial elites in the military, in the Department of Justice, in the State Department and so on did not go along with this craziness. He had to rely on the kind of people I was talking about, who I hope will be viewed as ridiculous historical figures.
I’m hoping things look similar in Brazil and you have enough people in the military who recognize that a military dictatorship is not even a great thing for the military. They’re the ones who have to take responsibility. You may commit horrible crimes and, at some point, pay for them. I’m also hoping that the US government under President Biden plays a much more positive role than the US government in 1964 when it played a disastrous role, based on my understanding of what happened in this country.
Nobody should try to imitate it, but it could be an inspiration for people sitting in the Brazilian state to resist a president trying to overturn elections. If that’s an inspiration in some way, maybe something positive came out of that terrible day. I’m hoping something positive comes out of it.
MS: The judicial system has played a key role in the crises of democracies. It is expected to contain authoritarian advances, but also co-opting and packing courts with loyalists are two of the main authoritarian strategies. What role does the rule of law play in this crisis?
WS: I have an easy answer and then a hard answer. The easy answer is if anyone thought that the rule of law or constitutional government doesn’t matter, I don’t know where they’ve been the last couple of years. What we’ve been seeing is a frontal assault on the rule of law. Legal institutions and constitutional mechanisms are crudely instrumentalized to undermine the core of what they’re supposed to be about. That’s the ABC of the rule of law: nobody should be above the law. Trump and his followers still don’t understand that, which is terrifying.
Now the more complicated answer, and this speaks to this issue of these people who are advising Trump. One of the things I found fascinating in a kind of perverse way is that they rely on a reified notion of the US Constitution as a pristine document from the past that we shouldn’t touch. We call them originalists. They believe in an original meaning, which they somehow have access to. Constitutional originalism means there were these heroic semi-divine founders who read the classics, and God forbid we touch their masterpiece.
We must push back against these views of the rule of law and constitutional government. I would say that for Trump, the rule of law is what we would call authoritarian legalism, to the extent that you can use the law as an authoritarian mechanism to go after enemies. People in the United States think the rule of law is law and order, more police. One has to have a political battle about that and say, no, that’s not what it is.
We’re in trouble. That is just a reactionary agenda in the deepest sense of the term. We have a tradition of constitutional worship which is very problematic. On the one hand, it does lead people to respect the constitutional government. That’s a good thing, but it does lead or invite this reified understanding of the founders as these great men. That’s a profoundly anti-democratic notion of constitutional government.
Image: Crowd of Trump supporters marching on the US Capitol on 6 January 2021, ultimately leading the building being breached and several deaths by TapTheForwardAssist CC4.0