Lawful Extremism
Photo by Ian Hutchinson for Unsplash
By J.M. Berger
Senior Research Fellow
Center on Terrorism, Extremism and Counterterrorism
Middlebury Institute of International Studies
Dred Scott and his family were enslaved people living in America in the 19th Century. Like many other enslaved people, Scott filed a lawsuit seeking the emancipation of his family. Such “freedom suits” had existed for almost the entire history of America. They often revolved around technical claims that the plaintiff had been transported through or lived in a free territory, invalidating their enslaved status, which was the rationale behind Scott’s case.
By the mid-1800s, when the Dred Scott case was being adjudicated, the growing abolitionist movement had placed the defenders of slavery under unprecedented political pressure. After a series of appeals, Scott’s case arrived at the United States Supreme Court in 1856 and was decided the following year, a time when escalating tensions over slavery had started to threaten the nation’s stability.
Seeking to quiet what most people perceived as a looming storm over the legality of slavery in the United States, the Supreme Court used the Dred Scott case to forcefully defend the institution of slavery with a draconian decision that denied all Constitutional rights to Black Americans, whether free or enslaved. Writing for the Court’s majority, Chief Justice Roger B. Taney infamously stated that Black people:
…had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.
In an opinion now widely considered the worst in Supreme Court history, Taney argued that the authors of the U.S. Constitution must have shared these racist views and therefore the Constitution should be interpreted as providing no rights or privileges whatsoever to Black people who lived in America. The ruling also limited the ability of the federal government to regulate slavery in U.S.-controlled territories that had not yet become states in the Union.
If someone today expressed the racial views presented in the Dred Scott decision, we would deem them to be a White supremacist extremist. Can we say that Taney’s opinion, delivered in 1857, is also an expression of extremism, or must we make allowances for his time? That is one of the questions I set out to answer in Lawful Extremism: Extremist Ideology and the Dred Scott Decision, my new paper for the Center on Terrorism, Extremism, and Counterterrorism at the Middlebury Institute of International Studies at Monterey.
Most contemporary research on extremism focuses on fringe groups that seek to overturn the status quo in a given society. Therefore, in the academic literature, we find a widespread, but not universal, belief that extremism is by definition a fringe behavior that runs counter to dominant social norms. In this paper, I make the case that regardless of whether the extremist group is fringe or dominant, extremist beliefs do not fundamentally change in character. In other words, just because an extremist individual or movement takes or holds power, they do not stop being extremist.
Lawful extremism is the belief that a legally dominant in-group can never be healthy or successful unless it is engaged in hostile action against a legally marginalized out-group. In other words, lawful extremism is found when extremists control a society’s cultural and legal levers of power through which they enact laws that bolster and reinforce their extremist beliefs and ideologies. This was the case with the Dred Scott decision in which the majority opinion clearly articulates a white supremacist ideology and formalizes it into law.
By studying lawful and/or dominant forms of extremism, in addition to the fringe and minority movements such as jihadism or neo-Nazism that today dominate the field of study, we can gain vital insights into all forms of extremism--how they share common traits and how they differ. For example, both dominant and fringe extremists share a system of meaning (Ingram 2016) or a common narrative structure based on social identity theory, which stipulates that an in-group has been afflicted by a crisis associated with an out-group, and that the in-group must solve this perceived crisis by taking hostile action against an out-group, a dynamic which I delve into more deeply in my book Extremism (Berger, 2018).
In addition to sharing this common language and worldview, dominant and fringe extremists both show a tendency to radicalize in the face of challenges to their legitimacy (Berger, 2017). Dominant and fringe extremist movements also share an obsession with policing the boundaries of their in-groups, with dominant groups seeking to maintain and reinforce existing boundaries, in contrast to with the fringe extremist’s desire to redefine the nature of the in-group with an aggressive critique (Berger, 2021).
Despite these common elements, there are also sharp differences. While fringe extremists mainly seek to mobilize supporters, dominant extremists seek to demobilize detractors. Relatedly, the ideological texts of fringe extremists tend to focus on recruitment, while dominant extremists focus on retention of adherents. The two kinds of movement also appeal to different psychological impulses, with fringe extremists offering adherents a way to reduce uncertainty (Hogg, 2011), while dominant extremists appeal to a human tendency to justify and bolster the status quo against disruptions (Jost, 2004).
Most extremist movements seek to dominate their in-groups, and some succeed. Think about the baseline attitudes and behaviors discussed above and detailed further in the paper as a journey: By establishing the parameters of dominant and fringe narratives, we enhance our understanding of a lifecycle that can see an extremist movement travel from the fringes to the center and back again.
Many extremist movements never manage to establish dominance, but when they do succeed, they become empowered to carry out atrocities at an industrial scale, as with antebellum America’s pro-slavery ideology, or the height of Nazi power in Germany.
Extremists can also lose their power, as did the slaveholders and the Nazis. The Dred Scott decision came at a moment when pro-slavery forces still held considerable political and legal authority, but popular support was precipitously declining. That’s an important reason why the Court’s ruling failed to achieve its explicit goal of calming the national debate over the continuation of slavery.
That gap between power and prevalence is just one of many possible avenues for future research on lawful extremism. These crucial transition periods can hopefully enable us to better diagnose societies in peril, informing efforts to relegate extremists to the sidelines and prevent their atrocities from scaling to historic levels.
Extremists have been with us always, but in places around the world today, they are making significant progress toward establishing and/or securing dominance. The study of lawful extremism could prove critically important to the work of preserving free and pluralistic societies.
J.M. Berger is a senior research fellow at the Center on Extremism, Terrorism and Counterterrorism at the Middlebury Institute of International Studies. He is the author of Extremism (MIT Press, 2018).
View JM Berger’s presentation, “Lawful Extremism”, from the 2023 AVERT International Research Symposium.