Shocker: Liberal Professor Concludes liberals should try to Persuade Voters of their Views

The yearslong effort to vanquish Donald Trump in court was a dismal failure.  For liberals like me, it may be tempting to attribute the collapse of the various cases against him to convenient explanations of process or personnel. The more uncomfortable truth is that our search for political salvation primarily through the law has backfired. To oppose Trump in his second term, liberals must learn the lesson of this defeat, [namely] that there is no alternative to persuading our fellow citizens of our beliefs.  For decades, liberals have made the mistake of prioritizing legal victories over popular ones.  It was a method of prolonging the civil rights movement even after its opponents assembled a majority to halt it.

Yale Law and History Professor Samuel Moyn, New York Times, 11/22/24

Yale Law Professor Samuel Moyn has long been a favorite of the New York Times as part of what I have previously described as a counter-constitutional movement in higher education. As I discuss in my book, The Indispensable Right, Moyn and others have insisted that the constitution itself may be the problem with America. … There is a point where “reimagining” everything from the police to democracy becomes less of an exercise of self-evaluation than self-delusion. What figures like Moyn are not willing to admit is that what Democrats attempted to do with lawfare was wrong and that the public rejected it … and them.

Yale Law and History Professor Samuel Moyn, New York Times, 11/22/24

It’s not a question of whether it’s a harmless drink but it’s against the law gentlemen and … we are going to enforce the law…

US Treasury Department agent Eliot Ness (Kevin Costner), speaking to Chicago police officers assigned to him, The Untouchables, 1987

I think I’ll have a drink. 

Eliot Ness (Costner), response to reporter asking if he has any comments if, as expected, “Prohibition” is repealed, The Untouchables, 1987

Imagine that! A Yale law professor, Samuel Moyn, has somehow been driven, after Donald Trump’s “landslide” victory in the 2024 presidential election, to the desperate conclusion that “liberals” should actually try “persuading our fellow citizens of our beliefs” instead of trying to “vanquish” their political opponents by having them arrested and indicted or bankrupted by means of the law.  What could have driven Moyn to the desperate conclusion that “liberals” should actually stoop to the level of trying to “persuade” the peasants of their beliefs?  Not that the cases are wrong on the law, as many liberal law professors have argued. And not that it is politically unwise to start trying, Stalin style, to throw one’s political opponents in prison or use the law to bankrupt them.   No, the reason Moyn has rejected the use of the law to achieve “salvation” (religious mission) from Trump is that it didn’t work and even “help[ed] to produce the popular majority [Trump] had never boasted before.”  As Turley puts it, “Moyn regrets the lawfare, not because it distorted the law and weaponized the legal system, but because it didn’t work.”  Can we assume, therefore, that if the Republicans manage to put Gov. Newsome in prison for violations of immigration law (8 USC 1324: Bringing in and harbouring certain aliens) that this would be good and just?  Or if Republicans manage to put former president Obama in prison for killing a US citizen Anwar Awlaki by a drone strike in Yemen or killing 3 others by accident then that would be good and just?  Is the test of such “lawfare” tactics simply that it works or doesn’t?  And, if so, does not that mean that the justification for the use of lawfare in such cases is simply a question of naked political power?  If our side has the power to get away with it, then it is justifiable.  Doesn’t that involve viewing the law simply as a battle of contesting power centers?  Didn’t the Sophist Thrasymachus argue that position (and lose) against Socrates in Book 1 of Plato’s Republic?

Moyn brings up this issue himself:

A few victories made it easy for liberals to forget that the law is just another domain of politics where their enemies enjoy power too. They talked of law as a matter of principle, ignoring that their movement had mainly treated it as a weapon for legalistic political change. Legalism’s greatest theorist, Judith Shklar … defended it as a useful strategy.  [Y]ou claim the rules are on your side and impose them [emphasis added] on your political enemies, and sometimes yourself, because the results are good ones.… The trouble is that they regularly aren’t. 

So, the problem with the “liberal’s” use of the law as a “weapon” for achieving their political agenda is that “[their] enemies enjoy power too”?  Does that mean that if one’s “political enemies” do not enjoy power, like, for example, blacks in the old South, then using the law against them is good and just?

Moyn would reply that this case is not a counterexample because he presupposes that the law is used in his envisaged cases of “lawfare” to achieve “good” results.  But who decides what is good and what not?   We do expect (hope) that the law issues in “good results” but the connection between goodness and the law arises at a different place in the process from that envisaged by Moyn.  We accord respect to a law, and, with Costner’s Ness, believe it must be obeyed, not because we personally believe it is good but because it was ratified in a lengthy democratic process by representatives voted into office by the people.

Moyn’s self-described “honest response” to the claim by Trump’s two picks for Attorney general (Matt Gaetz and Pam Bondi) that their aim would be to “end the weaponization of the Justice Department” is that “law has always been a weapon, and what matters is whether it advances just or unjust outcomes on balance.”  Unfortunately, Moyn’s counterargument is a classic fallacy of equivocation on the word “weaponization”.  To say that the law is a “weapon” against injustice, roughly, that it is justifiably used to punish criminality and other malfeasance, has an entirely different meaning from saying that the law has been unjustifiably “weaponized” in the political arena against one’s political opponents.

The question whether a given law “advances just or unjust outcomes on balance” must be decided, in a democracy, at the ballot box, not because some professor, in the service of their personal theory of what is good and just, believes that your 14-year-old daughter should be forced to shower with a biological male with a penis under their dress.  That latter circumstance is sublimely irrelevant to anything connected to the dignity of the law irrespective of how well that professor and their peer group think of themselves. 

Moyn’s belated admission, for the wrong reasons, that “there is no alternative to persuading our fellow citizens of our beliefs” is hardly a revelation.  It is simply the most basic meaning of our commitment to live together peacefully in a democracy, something that today’s “liberals” talk about a lot but have somehow talked themselves, spurred on with enormous hubris, and a large helping of sophistries, into completely misunderstanding.

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