American Legal Realism, Legal Formalism, and MAGAism compared

American Legal Realism

American Legal Realism (ALR) is a legal ideology or doctrine that emerged in the early 20th century, primarily in the United States, as a reaction against the prevailing legal formalism of the time. It arose when there were major social and technological changes underway in the US. ALR drew heavily from pragmatism, a philosophy that emphasized practical consequences and real-world effects over abstract principles. ALR emphasizes the actual behavior of judges and the social, economic, and political factors influencing legal outcomes. Realists argue that legal rules and principles are not fixed or objective. Instead, they are often ambiguous, contradictory, or incomplete, leading to multiple possible interpretations in judicial decision-making. Under ALR, the law is seen as an instrument for achieving social ends, reflecting the belief that judges should consider fairness, public policy, and societal needs in their decisions. Here, there is an understanding that judicial decisions should be influenced by more than just legal doctrine, including social norms and empirical realities. 

Legal formalism

Legal formalism posits that law is a set of rules and principles that are independent of other political and social institutions. Formalists believe that by applying a consistent set of legal rules to a given case, sound legal decisions will be the outcome of logical deduction. The law is seen as a rational, scientific system where judges merely apply existing laws without considering external factors like social interests or public policy. Here, judges are expected to align their decisions with current laws without alterations. The role of the judge is to interpret the law, not to analyze or change it. This approach assumes that common law can only progress by following a specific set of principles drawn from legal authority, leading to predictable outcomes

MAGAism

MAGAism does not strictly adhere to either legal realism or legal formalism. Instead, it exhibits characteristics that align more closely with authoritarianism. The MAGA movement has been described as authoritarian, with tendencies towards nativism, opposition to pluralism, and a focus on maintaining power through various means, including undermining democratic institutions (1, 2, 3, 4). The movement's approach to the rule of law appears to be more about using legal mechanisms to achieve political ends rather than adhering to a specific legal philosophy. This includes threats to prosecute political opponents, invoking the Insurrection Act, and plans for mass deportations. The influence of the Federalist Society, which promotes originalist interpretations of the Constitution, suggests a formalist approach in judicial appointments. However, this formalist stance is often used to advance a political agenda rather than a pure commitment to legal formalism. For MAGA, the law is a means to desired ends.

The problem with writing laws

During Brett Kavanaugh's Senate confirmation hearing, senator Ben Sasse (R-NE) made these comments, which reflects a major problem with many important American laws:

“. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”

Here, Sasse a MAGA extremist was voicing criticism of the evil deep state, the damned bureaucrats. He wanted congress to do it job. That is something that congress is not competent to do because congress does not have the expertise that those hated federal bureaucracies have. MAGA got rid of Sasse because MAGA wants DJT to do congress' job. Sasse criticized that. That criticism made DJT angry and MAGA drove Sasse out of the Senate. 

See the problem? Which legal doctrine would you want, assuming competent judges acting in good faith, not Trump judges, ALR, legal formalism, or MAGAism?  

Secrecy & opacity: Regarding authoritarian MAGA's 180-Day Playbook & public trust

The secret plan

The fourth pillar of Project 2025 is our 180-day Transition Playbook and includes a comprehensive, concrete transition plan for each federal agency. Only through the implementation of specific action plans at each agency will the next conservative presidential Administration be successful.

Pillar IV will provide the next President a roadmap for doing just that. To learn more about Project 2025’s vision for a conservative administration, please read our recently published book, Mandate for Leadership: The Conservative Promise.

This plan has not been made public. It is not conservative. It is kleptocratic and authoritarian. The reason for secrecy is to hide the authoritarian and kleptocratic intent of America's corrupt, authoritarian radical right elites. From what I can tell, essentially no one in the MSM or the public generally seems to care that massive government changes are kept secret from the American people. Reporting about it has been minimal, with little or no mention of how morally rotten and anti-democratic it is to keep the American people in the dark about massive changes in their federal government. 

I guess the MSM and public trust DJT and MAGA elites to do the right thing. Well, as Zuckerberg would say: 

Masha Gessen's opinion

 Gessen sees what I see. It deserves a stand-alone post. Masha Gessen opines in the NYT (not paywalled): 

In 1978, my parents went to Poland, the first foreign trip in each of their lives. When they returned to our home in Moscow, my mother couldn’t stop talking about what they’d seen — not a place but a movie, Bob Fosse’s “Cabaret.” One scene in particular stayed with her. Three friends are returning from a weekend trip. Sleep-deprived, hung over and preoccupied with their sexual and romantic entanglements, they pull over at a roadside cafe. There, a teenager wearing a Hitler Youth uniform starts singing. He is both earnest and, in his brown pants tucked into white knee-high socks, puerile. But after a minute, other young people in uniform join in, and soon all but one customer are standing and singing. The protagonists duck out. They have been pushing Nazism out of their minds, but at this moment they realize that they are in the minority, that life as they’ve been living it is over. The song everyone around them is singing is “Tomorrow Belongs to Me.”

I was 11 when my mother couldn’t stop talking about “Cabaret,” and I was confused. I thought my parents had gone to an actual cabaret and somehow gained an insight into the nature of the Soviet regime. A few years later, after I’d seen the movie myself, I realized my mother was right: That scene is the single most vivid portrayal of what it feels like to live in a society that is falling in line before a totalitarian leader. I experienced this in real life as an adult, when Vladimir Putin came to power in Russia and my world suddenly felt like a chessboard from which an invisible hand was picking off pieces faster than I had thought was possible.

Now, in Donald Trump’s America, I am living through something similar, and it is moving at a faster rate still. For me, it began before the election, when the owners of The Los Angeles Times and The Washington Post decided to pull their papers’ endorsements of Kamala Harris for president.*** It continued with Mark Zuckerberg remaking Meta to reflect what he called the “cultural tipping point” that was the presidential election; with ABC News handing over millions of dollars in response to one of Trump’s frivolous lawsuits and CBS considering doing the same; and most recently, with the great erasure: of records of trans care for minors provided by hospitals and of diversity-and-inclusion policies at many universities and corporations. Now some universities are quietly retooling their programming in hopes of conforming with expectations that have not yet been clearly laid out. 

*** For me, it began in August or Sept. of 2016 if I recall right. Gessen also saw it early and said so publicly in the New York Review on Nov. 10, 2016. So, what she really means is that we're once more living through the rise of a corrupt, cruel, bigoted dictatorship and other forms of corrupt authoritarianism. I never saw an end of the rotting process since 2016. Biden was a flicker of hope for a while, but it was clear to me early on that he was probably going to fail.

I am talking not about deletions of pages from government websites, such as those of the White House and the Centers for Disease Control and Prevention, presumably mandated by newly installed officials; I am talking about actions that individual people or private institutions took pre-emptively, with some measure of free will.

The Yale historian Timothy Snyder has called this “anticipatory obedience.” In his 2017 book “On Tyranny: Twenty Lessons from the Twentieth Century,” lesson No. 1 was “Do not obey in advance.” Those who anticipate the demands of a repressive government and submit to these demands before they are made, Snyder wrote, are “teaching power what it can do.”  

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Next comes the pragmatic argument. Rational people do not stand on principle for the sake of principle. They pick their battles. Or so this argument goes. Perhaps this was the logic that led the country’s largest private funder of biomedical research to halt a $60 million diversity program, Target to scrap its D.E.I. goals or ABC News to settle Trump’s libel suit. As cynical as this argument sounds, it too is rooted in values and obligations to others — shareholders, business partners, clients.  

Last, we have the zeitgeist argument. “We are in a new era now,” Zuckerberg observed when he announced that Meta would end its fact-checking program. Companies should have more “masculine energy” and have “a culture that celebrates the aggression” more, he added a few days later, speaking on the Joe Rogan podcast. This kind of argument is the very definition of rational. Societies define sanity as conforming to dominant beliefs and culture. In totalitarian societies, cultural and intellectual rebels are often confined to psychiatric institutions. In the Soviet Union, dissidents were often diagnosed as insane — and by the standards of that society, they were.

Gessen goes on at length. Having had first hand experience and a reasonably rational mind, she really understands cruel, corrupt, vindictive tyrants.

Constitutional Crises…

We hear pundits talk about potential “Constitutional Crises.” Some say, “If [x] happens, we will be in a Constitutional Crisis.”  There’s a lot of that kind of talk these days, especially with Trump, et al. again in charge.  It’s basically coming from the politically-left-leaners.

I decided to see what exactly a “constitutional crisis” means. There are several different takes, but here’s one I found, when researching it:

Link.

FiveThirtyEight says that there are 4 types of constitutional crises:

1. The Constitution doesn’t say what to do.

2. The Constitution’s meaning is in question.

3. The Constitution tells us what to do, but it’s not politically feasible.

4. Institutions themselves fail.

You can read about the details of each of these 4 if you go into the link above.

• Q1: What are your thoughts about us, the U.S., already experiencing a Constitutional Crisis under this second Trump term?  Are we? If so, which type(s) above applies?

• Q2: Who decides if we are in one?  

• How is that determined?  

• What can be done about it?

(by PrimalSoup)