In pursuit of truth

Abstract

IN THE PAST FEW YEARS a wave of right-wing populism has swept the western world and we have seen emotions take the political helm. The voting booth triumphs of Donald Trump in the United States and Brexit in the United Kingdom were affective: they stoked racist, sexist and nativist sentiments while campaigning on social, economic and legal issues. In short: they moved the electorate, and thereby gained control. As Hillary Clinton explains, these tactics are designed to ‘keep people off balance and make them think that this will, if not make their lives better, make them feel better’ (emphasis ours).1 We might therefore say that feelings brought Trump to power and propelled the Brexit campaign in Britain. We might equally suggest that they continue to drive these political and legislative agendas. The Trump administration has already demonstrated an unprecedented reliance on the executive order as an exercise of presidential will, issuing an abundance of executive actions – legally enforceable actions – that have predominantly targeted Muslims, immigrants, LGBTQIA+ people, and women, groups who were also the focus of emotionally charged, hateful rhetoric on the campaign trail.2 Meanwhile, in the UK, the Brexiteers continue to insist, as they did throughout the referendum campaign to leave the European Union, upon the need to reclaim ‘sovereignty’. This is an amorphous concept which they characterize, in explicitly legal terms, as the act of taking jurisdiction (and thereby control) back from the courts of the European Union; in practice it has come to stand in popular parlance for a certain brand of nationalistic fellow-feeling.3 Feelings also inform the forces resisting those agendas. Consider, for example, the crowd-sourced legal action to challenge the British government’s attempts to initiate Brexit without parliamentary involvement.4 Or the countless immigration lawyers who waited for hours with fellow protesters in American airports following the issuance of Trump’s ‘travel’ ban, ready to represent those whose arrival in the country might be impeded.5 These cases all dealt with constitutional issues, and even in the word ‘constitutional’, a word we have heard a great deal in recent months, we can see the interplay of emotional and legal connotations. This word encompasses a technical legal meaning in the notion of a country’s founding legal document or principles, but it also bears the idea of a human constitution, a disposition or emotional make-up. Ours is a moment in which we are forcefully reminded of the emotional content of law.6