In Chapter 6, the history of the rule and role of law over time demonstrates a longstanding but eroding dedication to human well-being, particularly in natural law and constitutional principles derived from natural law. A strict adherence to traditional natural law is criticized for its selective support of certain traits as universal.

The objective of this discussion is to apply wisdom to illuminate the nature of psychological animals, beings who are primarily guided in their behavior by subjective experience. The primacy of subjective experience has broad implications for behavior, explored in Part I. Subjective experience is malleable and can become unhinged from objective reality. Second, subjective experience has been manipulated by authoritarian strongmen to support antidemocratic movements. In the second section of the chapter, I describe what I term banal authoritarianism, the mainstreaming of authoritarian thinking and practices, so that they become integrated in, and part of, the everyday behavior of ordinary people. Third, I explore cognitive warfare, the use of technological and psychological means to manipulate behavior toward military objectives. In conclusion, I argue that wisdom leads us to abandon the depiction of human as political animals and social animals, in favor of psychological animals.

This chapter explores the traditional strategies for democratic defense developed in response to the rise of fascism in the twentieth century within the context of American political constraints and constitutional jurisprudence. Democracy is not naturally occurring. It demands the intentional commitment, and recommitment, to a shared future based on shared values. During periods of political polarization and economic stress, authoritarianism offers the illusion of unity through restrictive and exclusionary policies that promise a return to a “great mythic past.” The twentieth century democratic defense scholarship grappled with how to resist the appeal of the easy but dangerously costly answers offered by antidemocratic movements. Building on this democratic defense scholarship, this chapter recognizes the limitations of implementing intentionally antiauthoritarian safeguards within the American constitutional and political context. As an alternative, it proposes the development of a nonlinear, collaborative queer and trans liberation agenda and outlines a practice of queer transformative democratic resistance that is founded in principles of social movement theory.

This chapter examines intensifying state-led attacks on LGBTQ people and reproductive rights in the United States through the lens of patriarchal authoritarianism. It connects the rise of the worldwide anti-gender movement with the historic exploitation of preexisting patriarchal power disparities by fascist and authoritarian regimes. It exposes the retrenchment towards state control over reproductive, bodily, and sexual autonomy as a tangible marker of a nation’s transition towards patriarchal authoritarianism and a time-tested fascistic tool. Patriarchy can be wielded as a fascistic tool and help facilitate a slide into authoritarianism by expanding social control and narrowing acceptable expressions of individuality, dignity, and freedom. Patriarchy excludes women from the public sphere while also exerting control throughout the private sphere of the family. Patriarchal authoritarianism further reinscribes patriarchy by exerting state control over reproduction, sexuality, and the family. Restricting opportunities for women and narrowing avenues for gender and sexual expression support the consolidation of power by limiting individuality and nonconformity.

This chapter addresses the deepening crisis of democratic decline and political instability in the United States. It charts the erosion of our longstanding democratic norms and institutions and explores the contours of foundational terms, such as authoritarianism, fascism, fascistic tools, and autocratic legalism. By examining the American experience in the broader global context of democratic backsliding, this chapter explains how attempts to consolidate power by imposing conformity and restricting individual rights can serve as an early warning signal of a fascistic rise. It asserts that the most recent attacks against LGBTQ people in the Unites States are part of a dangerous antidemocratic movement using scapegoating and demonization to stoke populist anger. Through this lens, the MAGA movement’s flagship policies of gender conformity and patriarchy are both a symptom of democratic decline and a fascistic tool that can be used to consolidate power. Although many Americans have only recently begun to come to terms the realities of our democratic decline, generations of queer and transgender people have spent their lifetimes navigating the fault lines of this unfolding crisis.

The Introduction explains how queer and trans survival is inextricable bound to the future of American democracy. While acknowledging the flawed history of American democracy, it outlines the inherently liberatory values of our democratic system and the importance of democratic longevity, especially to queer and trans people. The Introduction examines the bellwethers of an authoritarian slide and explores that ways that queer and trans people are uniquely situated to help stop the slide and effect meaningful change as members of an expansive transformative, pro-democracy or democratic resistance movement. It cautions that although history does not repeat itself, it does rhyme, and our challenge is to learn from the gift of hindsight.

This chapter looks beyond traditional concepts of democratic defense and provides a framework for the queer and trans community to engage in the process of democratic creation within the broader pro-democracy and democratic resistance movements. It argues that the queer and trans experience with rejection, vulnerability, and collaborative survival has uniquely prepared us to navigate the unfolding American democratic crisis. It encourages LGBTQ people to embrace the powerful status of being an “outsider” in service to the larger democratic project. Rooted in feminist and queer theory, this chapter concludes that both our societally manufactured difference and our innate equal dignity and humanity can help us to see beyond the restrictive binary thinking of mainstream society. This chapter argues that pro-democracy movements must be fueled by a commitment to collaborative survival and mutual aid. It recognizes that the celebration of our authentic expression and humanity are radically pro-democratic actions, especially when faced with state mandated conformity.

This chapter explores the use of restorative nostalgic political propaganda by antidemocratic forces to pursue a myth of a “golden age” and reinstate policies built on racism, homophobia, transphobia, and misogyny. Although conservative political figures in the US have long capitalized on the allure of restorative nostalgia to delegitimize progressive social and political reforms, today’s populist MAGA movement is different in both kind and degree. In a quest to “make America great again,” the MAGA movement aims to turn the clock back on decades of social justice gains by villainizing the social progress and expansion of rights that have made many of our lives possible. This chapter explains the historic use of restorative nostalgic propaganda by fascist regimes to blame modernity and the expansion of civil and political rights for the loss of a “great mythic past” defined by simplicity and prosperity. Under this view, individuals who advocate for progressive reforms are demonized and branded as enemies of the state. Restorative nostalgic political propaganda demands the exclusion and erasure of nonconforming individuals to restore the “simple life” and regain national glory.

The epilogue discusses the post-independence history of legal nationalism in India and Israel. It traces its decline and recent resurgence. In the years following Indian and Israeli independence, leaders such as Nehru and Ben-Gurion sought to preserve the anglicized legal system inherited from the colonial period, and revivalist legal projects failed to materialize. From the late twentieth century onward, however, legal nationalism re-emerged. In India, Hindu nationalist politicians belonging to the BJP have called for “decolonizing” Indian law. In Israel, right-wing politicians from the Likud Party and religious parties have pressed for an expanded role for Jewish law in state law. Both movements reflect global illiberal currents that sometimes depict Western liberalism as opposed to non-Western traditions. The early twentieth-century scholars examined in this book did not treat Western and non-Western law, institutions, and values as inherently incompatible. Their nuanced scholarship emphasized similarities between Hindu and Jewish law and modern liberal and democratic values. The overlooked writings of these legal thinkers of colonial India and Mandatory Palestine remain relevant today.

The loss of community is often seen as one of the reasons for the alienating experience of modernity. Community seems to allow for a civic-minded solidarity that counteracts the legitimation crisis of democracy by returning agency to citizens. Such a demand for a communitarian correction to liberal constitutional democracy is not without dangers, even when this demand is intended to stand in the service of a more democratic life. This chapter traces the fate of this communitarian desire in a broader transatlantic field, highlighting the uncanny connections among the philosophical debate about communitarianism, the antidemocratic and authoritarian drift in American conservative political and legal thought, and central aspects of European neofascism. These connections should make us suspicious about the democratic potential often ascribed to community. The ease with which arguments for a communitarian correction of democracy can be used against democracy suggests that community lacks an intrinsically democratic and emancipatory potential.

Why do democracies backslide into dictatorships? Exploring this question is the central contribution of this chapter. I start by discussing how citizens in Colombia voted against the 2016 peace deal and how citizens in the United Kingdom voted to leave the European Union. Months later, Donald Trump was elected President of the United States for the first time. I take these events as a point of departure and then provide a model to explain the psychological appeal of populism. This focuses on the distinction between “them” and “us,” how this classic in-group/out-group dynamic intersects with the psychology of status hierarchies, and ultimately how people feel about their group’s position in relation to others. I then offer a broader psychological model – “the wonderland model” – to explain how democracies, such as the United States, can re-elect authoritarian leaders and then turn into dictatorships.

Chapter 7 explores Egypt, a consolidated autocracy. Historically colonized by the French and British, Egypt also received substantial financial support from the United States. Egypt was initially less involved with Europe’s external migration approach throughout the 1990s and 2000s in comparison to neighboring countries, but in 2017 the EU and Egypt signed an agreement under the EUTF worth €60 million. The funding was divided among seven projects, ranging from institutional capacity building to job generation and entrepreneurship. The majority of EUTF funding went toward infrastructure improvement in line with the current President Abdel Fattah El-Sisi’s domestic priorities. In this way, migration management aid reinforced Egypt’s authoritarian rule through substitution (pathway II) and by channeling funding through patronage networks (pathway III). The EUTF’s predominant spending on local infrastructure projects tied beneficiaries to government networks, and also allowed the government to redirect its funding toward mega infrastructure projects built through military contracts, thereby further capacitating the regime’s repressive apparatus.

This chapter examines what judges can do inside the courtroom to promote democratic norms amidst authoritarian pressure. It proposes a two-step adjudicative framework – that of ‘Sustainable Democratic Adjudication’ – that allows judges to systematically incorporate both constitutional legal principles and judicial strategies. Under step one, judges need to form an initial view on what the law requires under the democracy-orienting approach proposed in Chapter Four. During this step, they must apply a presumption of ‘institutional blindfold’, ignoring the possible influence of prudential considerations. This book terms the tentative conclusion reached at this stage the ‘formal legal position’. The second step involves judges lifting the blindfold to check whether, and if so how, the formal legal position should be supplemented with or adjusted by strategic considerations. These are questions determined by the level of risk incurred by maintaining the formal legal position. The chapter also examines the strategies in relation to outcome, reasoning, language and timing that judges can deploy during the adjudicative process.