An Old Theory Helps
Explain What Happened to Renee Good
Jan. 18, 2026
By David French
Opinion
Columnist
Imagine for a moment
that you’re a member of Renee Good’s family. You’re mourning her death at the
hands of an ICE agent in Minneapolis, and you want justice.
So you visit a lawyer to
see what can be done.
First, you want to help
in any criminal investigation of the officer. You’ve got information about
Good’s intentions when she protested ICE activities — information you think
might be relevant to prosecutors looking into the case.
“I’m sorry,” the lawyer
replies. “The administration has already declared that the agent did no wrong, and the Justice Department’s civil rights
division hasn’t opened an investigation into whether the
agent violated Renee’s constitutional rights.
“Federal officials are, however,
investigating Renee and may investigate her family, so you might need a defense
lawyer.”
You didn’t have high
hopes that the Trump administration would hold anyone accountable, but surely
the next administration could? There’s no statute of limitations for murder,
right?
“I’m sorry,” the lawyer
replies. “Given President Trump’s past pardons, I’d
say it’s quite possible that he’ll pardon the agent. And once he pardons the
agent, he’s beyond the reach of federal law for the shooting.”
But there’s state law,
right? You’ve seen the mayor of Minneapolis, Jacob Frey, speak out. Tim Walz,
the governor, is furious. Murder is still against the law in Minnesota.
“I’m sorry,” the lawyer
replies, “but there is only a small chance that will work. There is a doctrine
called supremacy clause immunity that
prohibits state officials from prosecuting federal officers when they’re
reasonably acting in their official capacity. It’s not absolute immunity like
the administration claims, but it’s still a high hurdle for
any prosecution to overcome.”
We can still sue the officer, can’t
we? Even if the government can’t or won’t prosecute, we’ll still want to hold
him liable.
“I’m sorry,” the lawyer
replies, “but there is almost no chance that will work. There’s a federal statute that gives you the ability to sue state
and local officials when they violate your constitutional rights, but there’s
no equivalent law granting the right to sue federal officials for the same
reasons.
“In 1971,” the lawyer continues, “the Supreme Court
created a path for plaintiffs to sue federal officials for violations of their
constitutional rights. Since then, however, the court has limited the reach of
that case, and it is now extremely difficult to sue when the federal government
violates your civil rights.”
And there you have it —
that’s the challenge any citizen faces when he or she tries to hold the federal
government responsible for violating the Constitution. The government is
defended by a phalanx of immunities and privileges, buttressed by the president’s
unchecked pardon power — a vestige of royal authority that should no longer have any place in our
constitutional republic.
President Trump is stress-testing American law, and the law is
failing the test. The health of the American experiment rests far more on the
integrity of any given American president than we realized.
We trusted that presidents would
impose accountability on the executive branch. We trusted that presidents
wouldn’t abuse their pardon power — or, if they did, then Congress could
impeach and convict any offenders. And so we manufactured doctrine after doctrine,
year after year, that insulated the executive branch from legal accountability.
It’s hard to overstate
how much this web of immunities — combined with the failure of Congress to step
up and fulfill its powerful constitutional role — has made the United States
vulnerable to authoritarian abuse.
In Federalist No. 51,
James Madison wrote some of the most famous words of the American founding. “If
men were angels, no government would be necessary,” Madison wrote. “If angels
were to govern men, neither external nor internal controls on government would
be necessary. In framing a government which is to be administered by men over
men, the great difficulty lies in this: You must first enable the government to
control the governed; and in the next place oblige it to control itself.”
This is a version of
the ancient question:
Who will watch the watchers?
Madison’s next words
were crucial. “A dependence on the people is, no doubt, the primary control on
the government; but experience has taught mankind the necessity of auxiliary
precautions.”
In the Trump era, those
auxiliary precautions have utterly failed. They’ve been undermined to the point
where the reverse is now true. Rather than providing additional precautions
against the rise of authoritarian rule, American law and precedent seem to
presume that angels govern men, and those angels would be free to do even more
good if only they possessed a free hand.
And so we’ve slowly but surely created
the mechanisms of what the Nazi-era Jewish labor lawyer Ernst Fraenkel called “the dual state.”
Last March, Aziz Huq, a
University of Chicago law professor, wrote a prescient (and deeply
disturbing) piece for The Atlantic that revived Fraenkel’s
analysis for this new American age.
Fraenkel had observed
the rise of Nazi rule as a working lawyer and committed social democrat and
noted that ordinary Germans enjoyed the benefit of what Huq describes as a
“capitalist economy governed by stable laws” even as other parts of the German
system changed into an engine of genocide and war.
The two components of
the dual state are the normative state — the seemingly normal world that you
and I inhabit, where, as Huq writes, the “ordinary legal system of rules,
procedures and precedents” applies — and the prerogative state, which is marked
(in Fraenkel’s words) by “unlimited arbitrariness and violence unchecked by any
legal guarantees.”
“The key here,” Huq
writes, “is that this prerogative state does not immediately and completely
overrun the normative state. Rather, Fraenkel argued, dictatorships create a
lawless zone that runs alongside the normative state.”
It’s the continued existence of the
normative state that lulls a population to sleep. It makes you discount the
warnings of others. “Surely,” you say to yourself, “things aren’t that bad. My life is pretty much what
it was.”
While we’re thankfully
not yet close to the Nazi reality, you can see the emerging dual state in
action in Minneapolis right now. In much of the city, life is routine. People
create new businesses, enter into contracts, file litigation and make deals as if
life were completely normal and the rule of law exists, untainted by our deep
political divide.
But if you interact with
ICE, suddenly you risk coming up against the full force of the prerogative
state. One of the most heartbreaking aspects of the ICE agent’s video of the fatal encounter between Renee Good
and ICE is that it’s plain that Good thinks she’s still in the normative state.
She has no idea of the peril she’s in.
She seems relaxed. She
even seems to have told the agent that she’s not mad at him. In the normative
state, your life almost never depends on immediate and unconditional compliance
with police commands.
But she wasn’t in the
normative state. She had crossed over the border to the prerogative state, and
in that state
you can be shot dead recklessly, irresponsibly and perhaps even illegally, and
no one will pay the price. Your killer might even be rewarded with more than $1 million in
donations from friends and allies.
In fact, some of the anger against
Good comes from those who think she was the one in the prerogative state, that she was
operating recklessly and lawlessly, heedless of any consequence.
Unlike in Nazi Germany, our emerging prerogative state was often built by
well-meaning people operating with the best of intentions.
Think of supremacy
clause immunity. For most of our nation’s history, states were far more of an
instrument of oppression than the federal government, and limiting the
authority of states to prosecute federal officers was indispensable to
protecting civil rights.
The limits on lawsuits
against public officials are often designed to protect (presumably) good public
servants from (presumably) malicious and frivolous lawsuits from angry and
ungrateful members of the public. Would good people want to enter public service
if they were vulnerable to endless litigation?
As a consequence, for
generation after generation, lawmakers and courts have twisted themselves into
a logical and moral pretzel, somehow believing that the government will be
better if it is less accountable to the public and to the law.
Yet we don’t apply such reasoning to
other vital aspects of public and commercial life. How many people think, “We
need banks to have a flourishing economy, so let’s make bankers immune from
most lawsuits and nearly impossible to prosecute”?
The opposite is true.
The integrity of the banking system is so vital that we need more
accountability and transparency, not less.
And so it is with the
government. Trump is proving the wisdom of Madison’s words. Any legal or
political system built around trust in the integrity of the president is doomed
to failure.
Eventually the people
will elect a bad and corrupt person to the presidency, and he will wield every
tool, power and prerogative that was designed for good to build his own edifice
of oppression and greed.
If we can endure this
crisis, there will be a time of reflection and reform. It happened after the
Civil War. It happened during the civil rights movement. It happened after
Watergate. And when the time for reform comes again, it must focus on the
abolition of the prerogative state.
Angels do not govern us — men and
women do — and no man or woman should be immune from the rule of law. We’ve
taken that idea for granted for far too long, to the point where we’ve
abandoned the “auxiliary precautions” the founders knew we needed. Now we are
paying the price in blood.
