I am very thankful for Professor Robin’s quite thoughtful engagement with the arguments in the book. In this brief space I want to address two primary issues that Professor Robin highlights in his review: 1) the radicalism of the torture memos in terms of constitutional practice and 2) the place of political economy in anti-constitutional politics.

We should distinguish between two forms of radicalism on the U.S. Right in relation to constitutional politics. On the one hand, there is a radicalism at the level of doctrine. As I note, today “the Court stands at most one vote away from a root and branch assault on fifty-plus years of Constitutional development” (p. 3 ). Professor Robin also helpfully illuminates this fact in his discussion of an emerging Commerce Clause jurisprudence that threatens to hurl the U.S. back to pre-New Deal days (The Enigma of Clarence Thomas, pp.118-127). On the other hand, there is a radicalism that dissolves the practice of law, veers into an anti-constitutional form of power, and fundamentally reconfigures the terrain of constitutional politics. The torture memos move along this second track. Without rehearsing the arguments here (see. pp. 45-54 in Law Without Future for a detailed explication), I will say that I agree with Jack Goldsmith’s description of the memos as having “no foundation in law” (quoted at p. 53) and thus disagree with Professor Robin’s assertion that they are no different from most legal arguments.

There is, however, a convergence between these two forms of right-wing politics in the practice of policing, imprisonment, and torture. As a matter of practice, there’s a linkage between, say, Justice Thomas’s interpretation of the Eighth Amendment and the off-shore torture sites birthed, in part, from the anti-constitutional torture memos. But we must also grapple with the discontinuity between these two regimes. A leftist critique which simply collapses these two distinct practices together will miss the novel turn in the torture memos and the political consequences that radiate far beyond policing and torture. A liberal diagnosis that sees torture as only exceptional and new will obscure the important continuity of practices and thus romanticize an uncritical return to the rule of law. My aim is to disrupt both of these responses.

Now, to the issue of political economy. As I note in chapter four, a particular political economy lurks behind and informs the constitutional fear of democracy, and any hope of vindicating and enriching democracy and political freedom must address constitutional political economy. Elsewhere I have labored to show how the Commerce Clause is central to this project (Jackson, “Not Yet an End: Neoliberalism, the Jurisprudence of Obamacare, and the Welfare-State Left,” Theory & Event, 16(2), 2016), and I share Jedediah Britton-Purdy’s view that today the Right has effectively resurrected what he calls “the Bosses’ Constitution” (Britton-Purdy, “The Bosses’ Constitution,” The Nation, Sept. 12, 2018). At the same time, I am wary of too quickly rendering the apocalyptic desires of the Right as being born of economic calculation or reducible to neoliberal utility. To borrow language from Professor Robin’s review, it is a “beast wilder and stranger” than that.