Transitional justice after Trump

A tool used after civil wars will be necessary to heal

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Two scenes, both of which took place today, 22nd May, have me thinking about justice and accountability in American history and in the future.

In 1872, President Ulysses S. Grant signs the Amnesty Act, removing most of the penalties which had been imposed on members of the rebellion in the aftermath of the Civil War. All but about 500 of the most prominent secessionists could now hold federal and state office again despite engaging in a treasonous war to destroy the constitution in the name of white supremacy only a decade earlier. Soon, many would be elected to office again and federal troops would leave the South, allowing the era of Jim Crow to begin.

2002, a jury in Alabama convicts former Ku Klux Klan member Bobby Frank Cherry of the murder of four young African-American girls in the 16th Street Baptist Church Bombing, which had occurred in 1963. The killings had been intended to stoke terror and quash the burgeoning civil rights movement. It had taken nearly forty years for Cherry to meet justice, in part because witnesses would not talk and because the authorities failed to zealously pursue him.

I’ve always been interested in the symmetry of these two events occurring on the same day. The Amnesty Act was a signal that most white Americans wanted to move on from the tension of the Civil War by reintegrating the rebels rather than punishing them. It was one of many missed opportunities in the aftermath of the Civil War to set the United States on the path to becoming a multi-racial democracy. Instead, African-Americans in the South would be left more or less on their own, and nearly a century of further oppression would follow under Jim Crow.

The bombing of the 16th Street Baptist Church was one of the death throes of that specific form of oppression, a rearguard action to defend segregation and white supremacy. The KKK members planted 19 sticks of dynamite on a church, on a Sunday, and murdered four young girls in a terrorist act. They all lived free for at least a decade afterwards, just like the other countless other Southern whites whose acts of private violence upheld Jim Crow. Cherry’s eventual conviction was a sign that something like justice could come, but always too late and never strongly enough.

Both of these events cast light on the dark underbelly of American history - the authoritarianism and the white supremacy which has always existed as the other side of the coin of liberty and justice for all. Because liberty and justice has never really been for all - it has been for some people, some of the time.

The current administration is undeniably a creature of that underbelly. It tells us as much itself when its members put so much effort into reviving the memory of the Confederacy, helpfully telling us which political tradition they consider themselves a part of. It shows us as much Donald Trump confronts the black leader of independent South Africa in the Oval Office with the most vile, ridiculous propaganda one can find in white supremacist corners of the internet. And it terrifies us into seeing the truth when it deports immigrants to South Sudan in complete mockery of a court order and hence the entire foundation of the constitutional system.

Once this is over - and one day it will be over - it will not be possible to go back to the way things were before. There will be hundreds of people who emerge from this administration with the stain of guilt. They will be the people who ordered that innocent people be sent to torture prisons and the ones who loaded them onto the planes; the people who decided to arrest judges and mayors and the ones who did the arresting; the ones who broke the law and sullied the constitution in ways that we do not even know about and have not yet even dreamed of.

America has always struggled with meting out individual justice to such people, but it has struggled even more with the sort of societal reckoning with its sins that is now long overdue. This is not just about the president or the secretary of homeland security. It is about the whole apparatus of violence and propaganda that makes up their movement. It is about Fox News, the RNC, and Turning Points USA. It is about Tucker Carlson, Elon Musk, and the evangelical churches. It is about the entire network of actors - the enemy with many faces - that is enabling and carrying out the current attack on the constitution.

What America needs if it is to survive is transitional justice, the practice of healing that often follows after civil wars or other periods of major internal stress. Transitional justice involves getting to the bottom of what happened - of finding out what each actor did and so what guilt they bear - and following up with trials, reparations, and an attempt to re-establish social trust. It involves realizing that a major turning point has been reached and that without the right choices, a further descent into the abyss beckons. This is what was supposed to happen after the Civil War, but never did.

What might this look like in practice? It might start with changes to the constitution. Expand democracy by guaranteeing statehood to Puerto Rico and Washington, D.C., end gerrymandering, voter suppression and the rural bias of American political institutions, and strengthen the courts. If some states which championed the insurrectionist and his assault on the constitution oppose these changes then cut them out of the process, much as was done to the South after the Civil War (until the end of Reconstruction, at least).

But changes to the constitution are not enough, because constitutions are ultimately pieces of paper which, as Trump is showing, can be disregarded. There is a need also for deterrence - for individuals to realize that they will bear personal consequences for their personal crimes. Streamlined processes must be deployed to bring them to justice swiftly enough to stop them from simply waiting the courts out, as Trump did. These processes must still respect their rights, but they must not allow evasion. At the same time, regulation to other areas of life, particularly the media, must be changed. If a Supreme Court captured by originalist radicals tries to stop these changes, Congress has the constitutional authority to balance it.

Delay is no longer possible. Without this process, even once the forces of the underbelly are ejected from office, the victory will only be temporary. Those who make up the other tradition in American political history - let us call them the forces of the constitution - must confront and defeat the underbelly. They must avoid the temptation either to close their eyes and pretend that it does not exist (in other words, to do an Amnesty Act) or to defer dealing with it until another day in pursuit of some elusive peace (to give them what Cherry got).

But America cannot survive in its current form with one side of its political spectrum entirely subsumed by the underbelly. It’s time to face up to it, to stare into it, reckon with it, and finally, to put it in its place. A total victory is too much to hope for. But a new political settlement, one which puts the forces of the constitution back in the saddle, is not.