Duncan Kennedy on Trump’s Big Win

While he does not write that much these days, Duncan Kennedy used to be a big deal.  Kennedy was one of the leaders of Critical Legal Studies, the far leftist group of scholars who had a significant influence in the legal academy in the 1970s and 1980s.  Interestingly, CLS seemed to lose tremenous influence after the fall of the Soviet Union, raising questions about their claim to favor a different type leftism than that country.

While many on the right disliked Kennedy’s articles, I didn’t.  Not only was he my favorite CLS scholar, I found his work quite interesting.  Like some others within CLS, such as Roberto Unger, Kennedy focused on classical liberal political and legal theories, such as those authored by Friedrich Hayek.  I disagreed with Kennedy’s critique of those theories, but to me he was focused on the right debate and had interesting things to say about it, even if I disagreed with his bottom line.

Kennedy now has a new piece on the 2016 presidential election, “A Left Of Liberal Interpretation Of Trump’s “Big” Win,” which shows much of what I had always liked about him.  It is a pretty balanced piece, especially given that it was written by someone on the left.  My guess is that Kennedy can be balanced because he is so far to the left and does not have a strong identification with the Democratic Party.  In any event, here is a long excerpt from the introduction.  While the whole thing is worth reading, I certainly don’t agree with all or even most of it.  But it is interesting.

The question of interpreting Donald Trump’s election, in liberal discourse, is mainly “how can he have won, given that he is racist and sexist?” The answer of many of my friends is that he won because his racism and sexism appealed to a shockingly large part of the electorate, confirming that “our whole society is sexist and racist.” According to the liberal conception, this is particularly true of the non-college part of the electorate, which had more “traditional” (racist and sexist) values and less cognitive ability to figure out that he was going to screw them. If they were not racist and sexist, they would have rejected him outright, no matter how much they didn’t like Hillary. I think class, race and sex were key to everything, but in a different way than in that account.

It’s hard to argue with the more careful, liberal-Democratic account in which the answer to the question “why is he president?” is that the swing states just barely tipped to Trump in spite of Clinton’s solid victory in the popular vote. Why did that happen? The outcomes in Pennsylvania, Michigan, Wisconsin, etc. were so close that many situational factors could have been enough to determine the outcome.

Race figures in this analysis not as a general characteristic of the electorate but as one factor among many. The suppression of black votes in swing states is one of the things that could have made the difference. Another is Trump’s “dog whistle” to serious white supremacists, which probably helped turn out previous non-voter racists. But at the same time we can attribute it to Comey, or to taking the rust belt for granted, or to Russian hacking, or to “the treacherous liberal media,” to Hillary’s personal weakness as a candidate, or any number of others, maybe even Bernie. Or all of them together.

Then there is the “structural” factor: white, non-college voters are overrepresented in swing states compared to the country as a whole, giving their rational and irrational resentments an accidentally outsized importance in this particular race. Last, African-Americans voted overwhelmingly for Clinton, but in nothing like the numbers for Obama, and it is hard to see voter suppression as explaining the whole effect.

Which factor we choose to focus on is not about the “true” cause, but about what we think is important in terms of our larger agenda. My larger agenda is to understand the race/gender/class dynamics of the current situation in order to get a sense of what the future is likely to hold in terms of perils and possibilities. In big terms, I want to argue the election did not signal a major shift to the right of American political consciousness, but it did signal a rebellion (not a revolt), by many non-college-educated whites in red states, swing states, and red pockets in blue states; against both political parties.

Reader Discussion

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on November 23, 2017 at 12:33:04 pm

One error that rationalists make regarding elections is the value of a single vote compared with the total votes as a basis for explaining why people don't vote. What matters is not total votes, but the value of a single vote to the margin of votes between the winning and losing candidate: its the marginal value of the vote that matters.

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Dan Slaby
on November 23, 2017 at 20:27:58 pm

never read Kennedy's stuff before. Thanks for the exposure. I still believe the class theory of everything is a big sophomoric but he made a consistent non-emotional analysis. It;s a shame that such a mind has to be tied to the Asimov Psycho history nonsense in his Foundation series. Thanks again

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Jeffrey Cantelope
on November 23, 2017 at 22:58:12 pm

Kennedy acknowledges that, due to the razor thin margin of Trump’s victory, we are justified in identifying pretty much anything as a potential cause. That said, he uses this essay to focus on free-market neoliberalism. While I don't share Kennedy's views about the efficacy of Nixon's economic policies, I share Kennedy's suspicions about the rest:

“[M]any non-college white voters who had voted for Obama did not turn out for Clinton or voted for third party candidates…. [M]any non-college whites who had not voted in 2012 turned out to vote for Trump….

Why would non-college whites vote for Trump instead of for Hillary? [T]hey were voting against Hillary for the same reason they voted against Bush and Kasich in the primary[:] because [Trump] was trashing the dominant policies of the Democratic-Republican, neoliberal consensus.

* * *

Robert Putnam, Our Kids from the left, and Coming Apart by Charles Murray (yes, him), from the right, [agree] that there is a white, ex-working class increasingly isolated from what is happening to everyone else and trapped … at the bottom. [T]he biggest change from the 1950s for non-college whites is the virtual disappearance of upward social mobility. A high school diploma was once an indicator of promise; now, without more it indicates “no prospects.”

[F]or this group, even Trump’s much mocked evocation of a golden American past is right on point….
The victims certainly deserve part of the blame for their fate. A “traditional values” response to the crisis—say by banning sex education and abortion—seems wildly counterproductive; locating the problem in big government or affirmative action or immigration likewise.

But I don’t think the white, ex-working class deserves what has happened to them, even if racist and sexist attitudes and utterances and practices are more common (o.k., much more) there than among their college-educated counterparts. [I]t was logical—if not justifiable—for non-college, white voters in these particular deindustrialized or declining agricultural locales to vote for Trump.

* * *

[T]he single most important cause of devastation [among white non-college communities] has been the adoption of “neoliberal” policies, equally by Democrats and Republicans, … since approximately the Carter Administration. Nixon was the last president with a strong, affirmative model of state intervention to stabilize the system and inflect its growth…

[N]eoliberalism is …. a set of policies that collectively eliminated particular regulatory structures that had produced relatively evenly distributed growth…. [T]he drivers of policy change acted from a correct estimate that there would be many gainers, above all, and enormously the one percent….

* * *

[Neoliberalism led to] a dramatic, long-term rise both in GDP per capita and in household wealth. The losses [among white non-college communities] have been no more than a small fraction, in dollar terms, of the gains in dollars to the people living in the centers of development. Those people include migrants from the internal American periphery who escaped to a better life in the cities, and a large, post-civil-rights, black, middle class. Moreover, the gains to perhaps a billion very poor people living in the countries that now export to the US have been life-transforming….

So what’s the problem? The neoliberal policies caused the good development and they caused its bad effects. [But] the bad effects go far beyond national trends of increased income and wealth inequality, wage stagnation, and differential red/blue state growth rates. They were concentrated on a subsector of non-college whites and the black, urban poor….

The bad effects were not a necessary cost of the gains…. The gains were so large that it would have been possible, without changing any neoliberal policy, to tax enough of them away from the gainers to fund large-scale attempts to halt or reverse peripheral downward spirals. Alternatively, it would have been possible to alter many neoliberal policies at the micro level, selectively departing from free trade and domestic uncompensated factor mobility (capital can’t just up and leave), to tilt toward losers. Or some combination.

Nothing like that happened.

* * *

Trump’s switching non-college, white votes, and of Hillary’s lost, no-show, white, non-college votes, were in rebellion against the Republican/Democrat … consensus…. [Yet] nothing will come of it. The Inaugural was a farewell. These voters are obviously powerless in relation to the consensus. Only 40 percent of the electorate is white and non-college educated; the putative rebels are a minority of the minority with no consensus about what’s wrong or what to do about it.”

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on November 24, 2017 at 12:22:48 pm

When you deny that God Is The Author of Love, of Life, and of Marriage, anything can become permissible, as it is no longer God Who Declares what is Good. While it is true that apart from God, unfettered Capitalism will lead to atheistic materialism, Trump's big win was due to the fact that he was the least likely of the three candidates, to force us to deny that our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness Is Endowed to us from God, not Caesar, King John, or John Locke. This is the principle upon which our Country was founded and it is the denial of this primary and essential principle that leads to atheistic materialism.
No doubt, Tax Law has been used as an attempt to deny the essential principle upon which this Nation was founded.
One can know through both Faith and reason that in the case of the unconstitutional Contraception Mandate, which was not necessary or proper, the obscene penalty that was placed on those employers who desired to provide their employees with Health Insurance sans contraception coverage versus the penalty placed on those employers who chose not to provide Health Insurance at all, was a gross violation of the principle of proportionality, and thus can only be construed to be serving as a means to influence the recipient of said fine into violating a tenet of their faith.


When you deny God Is The Author of Love, of Life, and of Marriage, you deny our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness.

"Don't let anyone deceive you in any way..."

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on November 24, 2017 at 16:13:37 pm

"even if racist and sexist attitudes and utterances and practices are more common (o.k., much more) there than among their college-educated counterparts."


"...on-college, white votes, and of Hillary’s lost, no-show, white, non-college votes, were in rebellion..."

Could it be that THESE are the same people. You may be surprised to know that the traits / behaviors that you rightfully criticize are as common (perhaps, more so) among the Hillary no-shows as with the other non-college whites.

Anecdotal - maybe? But tailgating rarely lies!

"These voters are obviously powerless in relation to the consensus."

Gee, wasn't there also a consensus concerning the outcome of the last election!

What remains a possibility is for some of these elements to coalesce with those who do know "what’s wrong or what to do about it" and a growing portion of the latter are making their presence and positions known amongst the intellectual class.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.