Jacob Abolafia has posted Safety, in a Republican Sense: Trump v. United States, Democracy, and an Antisubordination Theory of the Criminal Law on SSRN. Here is the abstract:
This Essay argues for a broad anti subordination theory of criminal law in response to the Supreme Court's decision in Trump v. United States granting extensive immunity to former presidents. The Essay contends that the formal equality approach to criminal law fails to adequately address both mass incarceration of disadvantaged groups and under-enforcement against powerful elites. Drawing on democratic theory and the history of elite accountability, the essay proposes an anti subordination framework aimed at protecting substantive political equality and collective self-rule. This approach would minimize punishment overall while focusing enforcement on crimes that threaten democracy itself. The Essay distinguishes this view from both formal equality and abolitionist perspectives, arguing it provides a stronger basis for a democratically legitimate criminal law. By recognizing how status and power shape legal outcomes, an anti subordination approach could help resolve the dual crises of over-punishment of the marginalized and under-punishment of elites that currently undermine criminal law's democratic legitimacy.
