Is violence an essential element of the populist right’s political agenda? To claim otherwise has become increasingly difficult.
A manifesto co-authored by John Eastman—the Trump lawyer who was forced to resign as dean of Chapman University Law School for inflammatory remarks at the January 6th pre-insurrection rally—is instructive.
The piece is titled “How States Could Constitutionally Assume Abandoned Responsibilities of the National Government” and in it Eastman and co-author Stephen Balch begin by introducing a legal “doctrine” of their own design called “protective resumption.” What they mean by this is “a resumption of the states’ reserved police powers in the face of abdication by the federal government of its own primary responsibilities.”
They begin by claiming that the quarantines and mask orders of the last 18 months have been “an exercise of state ‘police powers’ on a scale and scope unprecedented in America’s peacetime history.” This isn’t true, of course. The enforcement of Jim Crow laws and the eventual enforcement of desegregation—just to pick two obvious examples—were much larger expansions of state police power, deployed to opposing sides of the same issue.
Yet Eastman and Balch are not arguing from the libertarian position in favor of a more restrained government response to public health emergencies.
Instead, they see quarantines and mask orders as a useful precedent for an even greater expansion of state police powers, saying that their goal is “to point out what such robust assertions of police powers could achieve, constitutionally and politically, if put to different and more legitimate ends.”
What if, they wonder, we used these same emergency authorities for explicitly ideological purposes?
Thus begins a paranoid and reckless power fantasy that, if pursued, would assuredly lead to political violence, if not open civil conflict.
Helpfully, the authors do not attempt to hide their motivations. They make an explicit nod to the white nationalist “Great Replacement theory” by asserting that the Biden administration has “thrown open” the southern border as “part and parcel of a larger project to transform our civic order through demographic change.”
Because this is where the conservative intellectual movement is these days.
So how might the states assert their “reserved police powers”?
Eastman and Balch start with immigration:
A governor might mobilize state law enforcement and national guard units to take up positions at commonly used crossing points, and simply turn back illegal entrants, or place them in state holding centers from which they would be returned by air or other conveyance to the countries from which they entered. Equipped with a more robust constitutional mandate, eminent domain could also be used to acquire land at or near the border to erect walls and place other impediments to unauthorized entry. And this shouldn’t be by unilateral gubernatorial action, but done in concert, if at all possible, with the relevant state legislatures. Checkpoints would also have to be established along the lines demarcating borders with states that didn’t join in this effort in order to prevent migrant circumvention. Here COVID precedents could be drawn upon.
Planning a drive from San Bernardino to Kingman? Don’t forget your passport. If you’re unlucky enough to have a dark complexion or a foreign-sounding name, you’ll want to bring utility bills and your birth certificate, just to be on the safe side. And if you have young kids, you might decide the risk of being detained and separated is too high to even bother.
“As in the case of any deliberately thrown gauntlet, the bolder these policies, the better,” Eastman and Balch write, embracing the audacity and divisiveness of their scheme as virtues.
But they also want it to be accompanied by shows of popular force:
Supporters could be directed to the borders, where they would demonstrate and provide cheer and comforts to the police and guardsmen. Demonstrations would also be mounted in major cities, making this a high intensity, media saturating, citizen-involved campaign.
It’s not clear which borders the authors are talking about here, or what “high intensity” demonstrations would mean in practice—perhaps they are thinking of all the loving and kissing that took place at the U.S. Capitol on January 6, 2021.
Eastman and Balch then proceed to suggest other areas where states could subvert federal authority. For instance, they offer that a state concerned about inflation could sell dollars and buy cryptocurrency and use it to pay salaries and bondholders, effectively undermining national monetary policy.
The authors devote a single vague paragraph to something they admit would “produce the highest level of direct state-federal confrontation.”
Enjoying equal protection of the laws is at the heart of safeguarding the general welfare. If the national government refuses to guarantee equal protection in order to politically persecute its opponents or pursue notions of group rights as now embodied in the Left’s illiberal concept of “equity,” another opportunity to invoke protective resumption might arise. If under the color of the law the feds egregiously subvert individual civil rights, the states might assume their enforcement as another aspect of residual police power. Since federal abuse in such situations would probably involve acts of commission as well as omission, state action would have the character of protective shielding as well as protective resumption. This would, of course, produce the highest level of direct state-federal confrontation.
While it’s difficult to discern how they imagine this conflict might play out, the racial elements are, again, unmistakable. Imagine if George Wallace had a lawyer like John Eastman whispering in his ear about “protective shielding”, goading him not to back down when President Kennedy federalized the Alabama National Guard.
And what of the “doctrine of protective resumption”? It turns out that it works not only for things that the federal government is supposedly neglecting, but also for “acts of commission” that a state finds “abusive” (just as long as you call it “protective shielding.”) Even taken on their own made-up terms, these are slippery and dishonest arguments.
While they pay lip service to the U.S. Constitution, the mask occasionally slips.
“If state action can succeed in doing what the feds could do but won’t,” Eastman and Balch write, “the legal arguments may prove secondary to those that derive from the very definition of a sovereign nation state.”
They accuse the federal government of “revolutionary” behavior and “top-down sedition.” These are better understood as admissions. Eastman and Balch are grasping for a permission structure to respond in kind.
The authors conclude by lamenting that “only one side of our cold civil war has thus far shown any real resolve—the wrong one.” Coming from a pre-insurrection hype man, this is an astonishing claim. It would suggest that, by their lights, the assault on the Capitol didn’t go far enough.
Despite his removal as dean of Chapman Law, Eastman still heads the Claremont Institute’s Center for Constitutional Jurisprudence. His association with the Federalist Society, where he chaired the Federalism & Separation of Powers practice group, remains unclear. It would be useful if the Federalist Society clarified its relationship with Eastman. It would be even more useful if the Federalist Society condemned his reckless behavior.
But if anything, Eastman might be the junior partner in this push for legally justified authoritarianism.
In November 2020, Eastman’s co-author Stephen Balch, a former professor at Texas Tech and founding president of the National Association of Scholars, wrote that “an audacity is now called for, a willingness to stretch institutional bonds to a degree that genuinely alarms our conniving subverters.” Balch made clear that there should be almost no restraint on actions to overturn the election.
Today, we’re back to the human default, wherein “those who have the power take and those hold who can.” And the item in contest is America itself . . .
So damn the COVID, the president must now lead his followers into America’s streets and squares. They must especially flock to the capitol complexes of all the critical states and register indignant protest.
In the face of their literal coup, let ours be a counter-coup de théâtre. If the president and his attorney general believe they have the federal goods on individual malefactors, let them convene grand juries, bring in indictments and make midnight (and televised) arrests of top perps.
Our forefathers measured up to their great moment when it thunderously came down upon them. They passed history’s test. Despite the counsels of concession, it is their example that we should now be following.
What makes Eastman and Balch so remarkable is that they’re declaring their seditionist agenda openly. While every lawyer with a bar card swears an oath to “defend the U.S. Constitution, in all ways, at all times,” Eastman’s commitment to the Constitution seems, at best, to be highly subjective.
Eastman, Balch and their confederates have made a bet that mainstream conservatives are too intimidated to raise much of a fuss during the planning stages and that if they get the chaos they’re hoping for, their faint-hearted brethren will fall in line behind calls for an “American Caesar” to restore the law and order that they cynically undermined.
And maybe they’re right. Maybe GOP leaders deserve their reputation as decadent, late-republic pushovers.
After all, if they’ll tolerate this from their fellow travelers, what wouldn’t they tolerate?