In Law without Future: Anti-Constitutional Politics and the American Right, political theorist Jack Jackson seeks to overturn a misconception about the contemporary American Right. The misconception, common among liberals and the Left, is that the Right is a lawless actor threatening to overturn the rule of law. The truth, writes Jackson, in a book bursting with insight and fresh readings of forgotten moments and texts of recent history, is that the Right uses the law to make law that undermines one of the law’s constituent premises: the connection between past and future. The Right resorts to the pull and power of law (p. 46). It does not act outside the law; it does not suspend the law; it does not disavow the law. But with each invocation of the law, the Right discards the precedents of the past and disavows any precedent for the future (p. 13). It declares and resorts to “law that is no law but which is not lawless” (p. 11).

Jackson focuses on a cohort of conservative judges, lawyers, and legislators who have justified, in speeches or writings, some of the key moves and maneuvers of the Republican Party over the last 20 years. His texts include the Supreme Court decision Bush v. Gore, which brought the presidential election crisis of 2000 to an end and installed George W. Bush in the White House; the torture memos of Bush’s Justice Department, which helped create some of the legal architecture of the war on terror; the “Palm Sunday Compromise” of 2005, in which a Republican Congress and Bush intervened in the right-to-die case of Terri Schiavo; and the Republicans’ defense of their refusal to hear testimony from Merrick Garland, who had been nominated to the Supreme Court by President Barack Obama. Hovering over these moments and texts is Donald Trump, whose presidency Jackson sees as both a fulfillment and intensification of earlier conservative arguments and activities (p. 122).

In getting a better handle on the legal and constitutional—or, as he says, “anti-constitutional”—politics of the Right, Jackson wishes to challenge a liberalism that he believes has grown complacent and conservative in its defense of the rule of law against what it perceives to be the lawless actions of the Right. According to Jackson, that liberal defense seeks a restoration of a regime of rules and norms that has proven all too accommodating of antidemocratic practices and institutions (pp. 15, 33, 36). In its drive for restoration (p. 32), liberals decry the Right’s alleged politicization of the law and of the Constitution—thereby undermining and discrediting the very politicization liberals and the Left will need to counter and topple the Right’s regime. It is through transformative politics and social movements, not a return to rules and norms, that liberals and the Left will create a new regime of rules and norms that will have the lasting-ness that the Right has destroyed and that will be worthy of the respect that liberals claim the law should have (pp. 8-9, 15).

Bush v. Gore, the subject of chapter 1, is Jackson’s urtext, a “landmark decision that marked the land not at all” (p. 20). On the one hand, the Court invoked a fairly novel equal-protection analysis, unmoored from the Court’s traditional concern for racial, ethnic, and gender classifications. The Court’s decision also helped determine the outcome of an election. It was a landmark. On the other hand, the Court failed to consistently apply its equal protection analysis to the case at hand—deeming Florida’s machine count of the vote immune to the challenge of valuing each person’s vote equally, when the Court itself acknowledged the flaws in the machine count, while also claiming that a manual recount of the vote was not so immune. More important, the Court declared its considerations to apply only to the case at hand (pp. 20-23). It marked the land not at all. “The future was lost” (p. 23).

To the Court’s critics, this invocation of a novel principle that could not bind the future had all the trappings of politics. It was a “lawless opinion” (p. 30) of the will that intervened in a contested moment, changed the outcome. Yet the Court refused to establish a principle by which the actors, or the Court, might be bound in the future. Amid that lawless wilderness, critics of Bush v. Gore planted the flag of legalism, assuming a convergence between the rule of law and democracy (“count every vote”) (p. 33). As Jackson points out, however, the rule of law is not always a friend of democracy. The Constitution authorizes institutions, including the Electoral College and the Senate, that violate basic democratic principles of one person, one vote. The Florida Constitution, like many other state legal documents, denies the vote to convicted felons, contributing to a national constituency of some six million Americans who’ve been disenfranchised (pp. 36, 38). “The ‘legal’ is precisely that which has politically abolished and banished several million citizens from citizenship,” writes Jackson (p. 38). “Protesting for democracy’s realization by expressing a desire for the ‘rule of law’ shepherded by apolitical judges, rather than ‘political partisans,’ in fact secures rather than challenges the antidemocratic order” (p. 38).

That is the impasse that we now find ourselves in—between a right promulgating a law that is no law and a liberalism defending a legal order riddled with anti-democratic practices. Though Jackson makes this claim as a partisan of democracy, he also points out that liberals will never fell this conservative forest of “law that is no law” if they do not muster the unruly armies of democracy against the anti-democratic practices that are embedded in the rule of law as it has been practiced in this country.

In most chapters—most notably, the first chapter on Bush v. Gore; chapter 3 (on the Terri Schiavo case, in which Jackson brilliantly develops his ideas about the right’s embrace of an apocalyptic future that is not a future); and the final chapter on the Garland episode—Jackson arrays his arguments well, and the pieces fit together as they should. The resulting portrait is singular and striking.

In chapter 2, however, which deals with the Bush torture memos, the claims get murkier, and Jackson’s argument is more difficult to parse. Jackson shows how a simple notion that the Bush torture regime dispensed with the rule of law—again, quite common among Bush’s critics (pp. 45-47, 148, 18-22)—doesn’t hold up. Yet Jackson’s effort to establish that there was something quite radical afoot in the torture memos akin to Bush v. Gore’s “law that is no law” (pp. 47-48, 50-52) sits uneasily with his reading of the Bush torture regime as an extension of America’s domestic policing and prison complex (pp. 54-65).

Jackson wishes to read law not as a rule or an instrument but as a practice—“open, in a sense, but…also carry[ing] the weight of the past” (p. 47). He says that Bush’s torture camps in Guantanamo, at Abu Ghraib, at CIA black sites across the world, “break the bonds of the practice of the law” (p. 48). Yet he also claims that “preventive detention, policing discretion, life internment, expanded surveillance, systematic yet randomized violence (the very definition of ‘terror’) by state and state-contracted officials inside and outside the prisons, proliferating executions: these have all become what the law is” (p. 54, emphasis added). As radical critique, this latter claim has tremendous power. But how can it be reconciled with the claim that there is a “genuine radicalism…at work” (p. 47) in the Bush torture regime and that Obama was wrong not to prosecute the authors of that regime (p. 65)? Given all that Jackson has said about the continuity between America’s domestic carceral regime and its international torture regime, and his claim that law is a practice rather than a rule, it’s not clear what practices Bush and his administrators have violated. Jackson shows that the authors of the torture memos ignored some precedents (p. 48-52), but he also shows they honored others—a feature of most legal argument and practice. Why that means the memo-writers have opted for an anti-constitutional politics or a law that is no law is not clear.

Jackson may be correct that the right has morphed into a beast wilder and stranger than the lawless creature of liberal lament, and he’s certainly correct that simple invocations of the rule of law wind up normalizing the moves of the right (his discussion of Gore’s concession speech, and its standing in liberal memory, is especially on point) (pp. 133-134). Yet Jackson’s argument would have been deepened by an engagement with liberal and left critiques that deal with similar problems but from a different angle.

For example, legal scholar Jack Balkin has written on what he calls “constitutional rot,” which describes, in a different idiom, the absence of futurity—the law that is no law—that Jackson discerns on the right. But where Jackson seems unresolved about whether this is a novel development on the right or symptomatic of a centuries-old political order, Balkin’s account is simultaneously more structural and contingent, offering an important counterpoint in the conversation Jackson has so helpfully initiated here.

Similarly, scholars such as Amy Kapczynski, Jedediah Britton-Purdy, Amna Akbar, Samuel Moyn, Sabeel Rahman, and others, have been laboring in or near Jackson’s vineyards, pushing legal liberals to go beyond constitutional fetishism and legal restorationism by thinking about the kinds of popular authorization and social movements that a new legal and political order would need. These scholars bring to Jackson’s account a focus on political economy, which might help render the puzzles of the right, which Jackson poses, less puzzling and more intelligible as a mode of longstanding political practice. A focus on political economy—none of Jackson’s chapters discuss questions of anti-trust, contracts, regulatory agencies, banking, and much else that comprise law’s daily practice—might add some texture to Jackson’s notion of a future that is being sacrificed for the sake of an apocalypse. Such a focus might open a window on a social distribution and an economic order that are being zealously pursued and upheld—for the long-term.