Given all the absurdities worthy of comment in the impeachment trial of President Donald J. Trump, history will probably overlook the appearance of the political philosopher John Rawls in Trump’s defense. The story of Rawls is not central to the trial of Trump. But the trial of Trump might tell us something about the story of Rawls.
On January 27, Trump’s lawyer Alan Dershowitz repeated in the Senate Chamber an argument that he had been making in public for more than a year: that a “colloquial” use of Rawls’s philosophy cautioned against Trump’s impeachment. Imagine, said Dershowitz, that the terms of the impeachment were the same—but that the President was a Democrat. Calling this the “shoe on the other foot test,” Dershowitz said that any Democrat who had objected to the impeachment of President Bill Clinton should be bound by that test to object to the impeachment of Trump.
Dershowitz has not yet explained why this test should not also apply to those Republicans who were gleeful in their pursuit of Clinton’s impeachment. Shouldn’t they, too, other-foot their shoes and allow Democrats to run roughshod with a Special Counsel? But equal application of the equalizing principle is not really Dershowitz’s aim. Mostly, he uses the “other foot test” to claim his own “nonpartisan” apprehension of justice: Dershowitz opposed Clinton’s impeachment. Now he opposes Trump’s impeachment. As, he implies, would Rawls.
The “shoe on the other foot test” sounds a lot closer to the Golden Rule than to the Rawlsian “veil of ignorance,” a fact which Dershowitz has sometimes come close to admitting. But that a Harvard Law School professor would choose to associate himself with Rawls rather than Jesus suggests the extent to which, in certain academic circles, Rawls is the point of divine reference—even as few Americans would recognize his name.
Katrina Forrester’s excellent recent book, In the Shadow of Justice, tells the story of how this came to be: how Rawls’s highly intricate and deceptively simple brand of abstract liberal egalitarianism—first articulated in his A Theory of Justice in 1971—came to take over academic philosophy, particularly via “a small group of influential, affluent, white, mostly male analytical political philosophers who worked at a handful of elite institutions in the United States and Britain” in the late twentieth century.
Around that time I entered graduate school at one of those institutions and, like most Americans, had never heard of John Rawls. Within days of my arrival, I learned that I must never forget him: that Rawls would be the nucleus of my graduate education, around which we were all to revolve. As I recall, the syllabus for our course in “Liberalism and Its Critics” devoted fully half of our class sessions to Rawls—and most of the other half to his late-twentieth-century interlocutors. On that liberal campus, Rawls was liberalism.
Rawls had so much authority in that historical moment in part because he claimed to be speaking from beyond it. Aspiring to what he called a “higher level of abstraction” in political philosophy, Rawls asks his readers to imagine inhabiting an “original position,” prior to and outside the particularities of individual, historical, and cultural experience. From that imagined position—in which you exist behind a “veil of ignorance” that prevents you from knowing what your individual traits, beliefs, or material resources might be—you choose the basic structure of society. The thought experiment should move us, Rawls argued, toward an apprehension of “justice as fairness” in which the diminishment of inequality and the nondiscriminatory distribution of property are paramount objectives.