law

Of Acorns and Martyrs: Reno 911, Police Violence, and the Prospect of Reform

By Owen Symes


Cop shows have been around since TVs first gained popularity in the 1950s. From the 1970s onwards, they’ve weighed heavily upon the popular imagination, making up around 20% of the scripted output of major US television networks even as recently as 2020. From the beginning, shows like Dragnet, Police Story, Law & Order, or SWAT have often advertised their authenticity, claiming to entertain audiences with at least somewhat plausible or realistic stories. But most of these shows are little more than copaganda. Despite the occasional episode involving police misconduct, only a few procedurals have focused on criticizing the police, most notably The Wire in the early 2000s. But as recent news has amply demonstrated, the most realistic cop show isn’t that prestigious HBO drama, but rather an oft-overlooked mockumentary that began airing around the same time: Reno 911.

 

Bad Boys, Good Cops

If you’re not aware, Reno 911 began as a parody of the reality TV show Cops, a pioneer of the genre which presented audiences with half-hour episodes filled with vignettes of officers out on patrol. In the world of Cops, the streets are usually dark, the civilians uncooperative and suspicious, the law enforcers competent, knowledgeable, worldly, sometimes even philosophical. The shaky footage and pitch-black vistas of the show are given meaning by the explanatory narration of the police themselves. Their perspective is the truth.

Reno 911 took the same cinematic techniques employed by Cops but used them to skewer, rather than valorize, the police. Instead of presenting the cops with some baseline of professional competence, as even critical dramas like The Wire typically do, Reno 911 deflates its cops, bringing them down from the mythic cultural pedestal they’ve occupied for nearly a century. In so doing, the show highlights aspects of policing that we rarely see on US television: the stupidity, cupidity, timidity so common in real departments. Nothing illustrates this better than the opening scene of the pilot episode.

While on evening patrol, deputy Garcia hears on the radio that there is an officer down and shots fired. He flares his lights and speeds to the address provided. Arriving on scene, Garcia makes for the entrance and, gun drawn but without backup, lunges into the domicile. He shouts into the darkness, “Sheriff’s department!” The lights come on and we see a wall of cops starting to yell Surprise! It’s clearly a birthday party for Garcia. Already keyed up for action, however, Garcia discharges his weapon and hits an officer. The other cops look at their fallen comrade, then back at Garcia, then begin to scan the room awkwardly as they murmur surprise. The camera zooms in on deputy Jones, who sheepishly radios: “We have an officer down…”

The cops of Reno 911 are fundamentally fearful creatures: afraid of losing respect at least as much as they are of losing their lives. Recent news out of Okaloosa County, FL and Washington, DC has made the reality of this fear abundantly, maddeningly, clear.

 

Acorn Comes Into Frame

As detailed by a recently-released police report on the incident, early on the morning of November 12, 2023, police arrived at a woman’s house in the Florida suburbs responding to a call about a missing car and a threatening boyfriend. Soon after the police arrived at the woman’s house, the boyfriend appeared. He offered no resistance while he was searched. He was then handcuffed and placed inside the vehicle of one deputy Hernandez, a non-combat military veteran who had recently become a cop.

When news arrived that the girlfriend’s car had been found, Hernandez began moving back to his SUV in order to search the boyfriend again. As he later recounted, Hernandez approached his vehicle and heard:

…what I believe would be a suppressed weapon off to the side. Definitely heard this noise. At the same time, I felt an impact on my right side, like upper torso area…Um, so I feel the impact. My legs just give out. Um, I don't know where I'm hit. I think I'm hit.

He then summersaulted away from his vehicle in a desperate attempt to gain some distance from the shooter. Now on his back, Hernandez panicked like a flailing turtle, drew his service pistol, and discharged the entire magazine into his own vehicle.

Nearby, the experienced and long-serving sergeant Roberts saw Hernandez fall, saw his terror-stricken face, and heard him screaming that he had been shot. Without taking any time to understand what was happening around her, Roberts immediately went for her gun. She fumbled the quickdraw, accidentally dislodging her spare magazine from its pouch. As it struck the ground, she began firing haphazardly in the direction she thought the shooter was. Afraid of being struck by friendly fire, Hernandez crawled to cover.

When the smoke cleared, the officers belatedly began to assess the situation. Miraculously, the hapless boyfriend, still handcuffed inside the vehicle as it was being pulverized, survived unscathed. No other civilians (or police) were harmed during the fusillade. Medical staff later confirmed that Hernandez had never suffered a gunshot wound. What had happened?

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During the subsequent investigation, Hernandez gave his statement and was allowed to watch his bodycam footage. Then he was shown a still photograph from that footage. Investigators pointed out a tiny object striking the officer’s vehicle. Gears turned within the deputy, then clicked into place, prompting him to ask a vital clarifying question: “Acorn?”

An Investigator responded with appropriate brevity: “Acorn.”

Amid stutters and pauses, Hernandez tried but failed to articulate a response, eventually admitting that it was possible that an acorn had made the inciting noise. An investigator followed up with a question I’m sure every civil servant dreads: was Hernandez, “…in general…familiar with the sound of acorns striking vehicles?” He answered in the affirmative.

Investigators now offered him a chance to watch the footage again, that he might analyze the evidence anew and judge if the acorn had in fact been the mainspring of his actions. He declined.

Deputy Hernandez resigned from the department before the investigation concluded. Ultimately, the investigators found that Hernandez had acted unreasonably. They also determined, however,  that sergeant Roberts, the other officer who discharged their weapon at the scene, had behaved within reason. The investigating officers concluded that Roberts had acted under the impression that another officer had just been shot, thus justifying the (haphazard and panicked) use of her firearm.

 

Why Don’t FireFighters Carry Guns?

On February 25th, 2024, Air Force member Aaron Bushnell self-immolated outside the Israeli embassy in Washington DC in protest against the Gaza Genocide. Having just received a call about potentially “distressing” behavior, uniformed Secret Service officers were already on the scene when Bushnell began his protest. The Secret Service response was captured by Bushnell’s livestream.

The video begins with Bushnell matter-of-factly explaining that he is about to engage in an extreme act of protest. Having done so, he calmly sets his camera down, walks into center frame, douses himself in accelerant, and lights himself on fire, yelling Free Palestine. Off screen, we hear responding officers trying to communicate with him. Once the flames appear, they begin shouting that a man is on fire, that they need fire extinguishers. But we also hear someone repeatedly yelling for the young protester – already aflame – to get on the ground. We hear this over and over: Get on the ground! Get on the ground!

Officers then appear on camera. One rapidly engages his extinguisher, befogging the area. Despite the cloud of extinguishant, Bushnell’s fire still rages. Another officer appears on camera with his service weapon drawn and pointed at the protester. As officers move around Bushnell – and through this Secret Service agent’s field of fire – we hear further pleas for extinguishers. An officer, I think it’s the one who’s been calling for extinguishers the whole time, finally exclaims, “I don’t need guns. I need fire extinguishers!”

When later asked to comment on the officer pointing his weapon at a dying man, the Secret Service told a journalist at Reason: "The armed officer was ensuring the safety of the two Secret Service officers who were working to extinguish the fire and render aid to the individual." Once again, the police had judged their own actions to be reasonable.

“Get some cops to protect our policemen!”

- Intertitle from Buster Keaton’s 1922 short Cops

From their origins in the 19th century up through the 1920s, cops were not respected in the popular imagination. They only achieved a degree of social respect in the 1930s thanks to PR campaigns by the likes of FBI director J. Edgar Hoover and LAPD chief William Parker, with the cooperation of radio and TV producers like Phillips Lord and Jack Webb. Despite this new-found respectability, however, cops could never shake their fear of losing status. As a group, they remain afflicted by a Napoleon Complex, wanting to be treated as professionals on par with doctors and lawyers but fearful that people will cease to honor their authority and expertise. We see this anxiety manifest in the innumerable small indignities and petty punishments meted out at traffic stops and metro turnstiles. Sometimes we see it explode in bouts of comic farce or deadly violence.

In achieving professional credibility, cops have built for themselves another world, one where they are the put-upon sheep dogs defending the ungrateful and ignorant sheep from the wolves of society. So whenever embarrassments or fiascos occur, many cops fall back on the an refrain: we have tough jobs; it’s a dangerous world out there; we’re doing the best we can with the meager resources you give us! Secret Service communications chief Anthony Guglielmi echoed this rhetoric when he defended the February 25th response, claiming: "[T]his situation was unpredictable and occurred rapidly. In that instant, the level of threat to the public and the embassy was unknown, and our officers acted swiftly and professionally." The swiftness of the response is undeniable, but it can only be characterized as professional if we take that to mean, as the police themselves do, that cops have a primary professional duty to defend themselves from any threat, regardless of its actual potential to inflict harm upon them, and regardless of the cost to the public.

Reformers, well-meaning but naive, recognize some of the shortcomings of police and recommend improved training, stricter use-of-force policies, better equipment. These reforms are stillborn, however, because cops don’t take them seriously. They can’t. Simply put, they don’t think that outsiders are qualified to judge police behavior. They’re happy to accept additional funding and resources, and maybe the savvy police executive will tow the reformist line during budget meetings, but once they have a greater share of the budget, cops will invariably do whatever they want. More money for reform simply results in more cops to protect policemen

Right after World War 2, sociologist William A Westley imbedded himself in the department of a mid-sized US city for about a year. The book that resulted, Violence and the Police: A Sociological Study of Law, Custom, and Morality, remains a seminal work in the study of police culture. He identified the police as a society in miniature, with its own customs and its own moral code. Paramount to that code was – and remains – a determination to repel critics and outsiders. Thus, he observed, while most cops did not engage in violence, and a surprising number actively tried to avoid it, the brutes and the thugs that did exist were given a wide berth. Sadism was met with silence, badges deployed as a shield wall against the slings and arrows of ignorant critics.

Westley summarized the world of the cop:

The policeman’s most significant contact is with the law-evading public, which defines him as a malicious and dangerous intruder into their business and acts accordingly. His resolution of this problem includes an insistence on his will and on obtaining respect, by the use of violence, if necessary…He is exposed to public immorality. He becomes cynical. His is a society emphasizing the crooked, the weak, and the unscrupulous. Accordingly, his morality is one of expediency and his self-conception one of a martyr. [Emphasis mine]

Deputy Hernandez, the yet-unnamed Secret Service officer, and all the other members of that copper fraternity are given power, a gun, and a chip on their shoulder, so to go out and do battle with the demons of their own mind and making: with the hiss of acorns and the crackle of a true martyr’s flames. Our stories often bolster this state of affairs. They can do better. Reno 911 showed us how.

Educators Must Help Defeat the New Racist and Imperialist 'Red Scare'

By Derek R. Ford

Originally published on PESA Agora

Introduction: Racism and imperialism unite ‘both sides of the aisle’

Responding to criticism of the political system of the newly-independent Tanzania, the great African teacher, revolutionary, and theorist Julius Nyerere responded, observing ‘the United States is also a one-party state, but with typical American extravagance, they have two of them.’ He was and is right. Rhetorical differences and popular presentation aside, the two ruling-class parties effectively function as a dictatorship domestically and globally. For concrete and contemporary evidence, look no further than the New McCarthyism and Red Scare promoted by media outlets and politicians on ‘both sides of the aisle,’ from Fox News and Marco Rubio to The New York Times and Chuck Schumer.

On August 5, The New York Times released a report that, in essence, boldly and baselessly suggests groups and other organisations advocating for peace with China are part of an international conspiracy by the Chinese Communist Party (CCP). Despite the absence of any substantive proof, politicians are already using it as ammunition in their broader ‘new McCarthyism’ agenda, which could potentially have devastating consequences for the globe. Fortunately, a variety of institutions and networks are already mobilising against it by building a fight-back movement in which education plays a key role, and you can too.

Their presentation opens with the racist logic guiding their investigation as they try to discredit the multitude of spontaneous global actions against anti-Asian racism in 2021. They narrate a single action in London where a scuffle broke out, they contend, after activists with No Cold War (one of the event’s organisers) ‘attacked activists supporting the democracy movement in Hong Kong.’ They offer only two words to back up this narrative: ‘witnesses said.’

No Cold War is dedicated to promoting peaceful relations between the US and China, organising in-person and virtual events to advance the global peace movement. Having spoken on their panels and attended others, I can confirm they are educational, generative and productive intellectually and politically. They include a range of perspectives, given they are working toward peace. This principle is unacceptable for the Times and the New McCarthyites, however, as the journalists ‘reveal’ that No Cold War is merely ‘part of a lavishly funded influence campaign that defends China and pushes its propaganda.’ So too, it seems, is any group advocating for peace.

The investigators construct an international conspiracy centred on Neville Roy Singham, a millionaire sympathetic to peace and socialism who donates his millions to left-wing non-profits who, in turn, help finance very active and crucial anti-war, anti-racist, and anti-imperialist organisations. This is where the most dangerous suggestion emerges, one upon which pro-war forces quickly seized: that groups receiving funding from Singham could be agents of the Chinese Communist Party and thus in violation of the Foreign Agents Registration Act (FARA).

These suggestions are completely unfounded. The only ‘evidence’ presented are statements made by a handful of former employees and members of some organisations partly funded and supported directly or indirectly by Singham, including the Nkrumah School, the media outlet New Frame, and the Socialist Revolutionary Workers Party in South Africa. Then, of course, there is the fact that Singham supported Hugo Chávez, has relationships with some of the million members of the Chinese Communist Party, is pictured at a CCP meeting (excuse me, ‘propaganda forum’) taking notes in a book ‘adorned with a red hammer and sickle.’ And I almost forgot the nail in the hammer: a plaque of Xi Jinping hanging in Singham’s office.

Fox News and other right-wing outlets and politicians are at the helm of the bandwagon as well. For years they promoted propaganda alleging China is influencing US schools and universities as a method of attacking freedom of inquiry and speech in the US, including in my state of Indiana. In August 2021, Indiana’s Attorney General Todd Rokita (whom most Hoosiers don’t support) threatened to investigate the Confucius Institute at a small college, Valparaiso University, saying it operates ‘to spread propaganda and circulate the mantra of the CCP at both the university and in several K-12 schools in Indiana.’ The University closed the Institute but, importantly, maintained Rokita was lying about its function, which is to promote cross-cultural understanding and dialogue. Unfortunately, almost all such institutes have shuttered.


Old or new, ‘McCarthyism’ is reality, not hyperbole

On August 9, Senator Marco Rubio officially called on the Department of Justice to investigate a range of progressive organisations in the US for violating FARA and acting as unregistered Chinese agents. Rubio’s evidence? The Times ‘investigation.’ Rubio includes but adds to the groups smeared in the Times article. The strategy is to discredit anti-war groups, grassroots movement hubs, and anti-imperialist and anti-racist organisations as CCP operatives, thereby silencing opposition to their foreign policy strategy, part of which includes funding separatist movements in places like Hong Kong. In their opening, the Times journalists neglect to mention that most people in that region of China actually oppose the ‘freedom movement,’ partly because of its political character, exemplified by its leaders such as Joshua Wong, a close collaborator of Rubio, who led the charge to nominate Wong for the Nobel Peace Prize.

Rubio’s letter to the Biden Administration’s Attorney General names nine entities, including the anti-war group Code Pink, the Tricontinental Institute for Social Research, and The People’s Forum, amongst others. This list will likely expand to include numerous others who either didn’t respond to the journalists’ red-baiting or who maintain some connection to the groups identified.

Already serious, it could potentially be devastating. I don’t know a peace or social justice activist, let alone an anti-imperialist or anti-racist revolutionary organisation, with a substantial base, membership, or level of activity, that isn’t somehow related to one of these organisations and networks. The People’s Forum should be of particular concern for educators, as it is the most active and pedagogically innovative popular education institute in the US. Academic journals and publishers work with them to host events and book launches, and a range of professors, including myself, teach classes for them (without getting a paycheck, let alone a ‘lavish’ one, I should add).

There are several continuities between the anti-communist and anti-Black witch-hunts of the 1940s-50s and the new McCarthyism. In both cases, the same ruling-class parties united as outlets like The New York Times recklessly promoted their campaign, slandering heroic Black figures like W.E.B. Du Bois, Langston, Hughes and Paul Robeson. Newspaper headlines alone facilitated this work, such as the 1949 Times headline calling Robeson a ‘Black Stalin’ who “Suffered ‘Delusions of Grandeur.”’ This continued with the Civil Rights Era and was a major factor stalling its militancy and has again resurfaced. They never apologised for their role in spreading such racist propaganda.


Imperialism and white supremacy: More than and predating McCarthy

Labeling this wide historical period and its complex political configurations as ‘McCarthyism’ is useful in speaking popularly, but educators should note it can be misleading. The anti-Black and anti-communist/radical crusade preceded Sen. Joseph McCarthy. Historian Gerald Horne cogently locates the foundations of contemporary racist US capitalism in the imbrication of white supremacy and anti-communism insofar as it

‘is undergirded by the fact that slave property was expropriated without compensation.… [O]ne of the largest uncompensated expropriations before 1917 took place in this nation: African-Americans are living reminders of lost fortunes.’

Similarly, Charisse Burden-Stelly’s concept of modern US racial capitalism specifically designates a ‘political economy constituting war and militarism, imperialist accumulation, expropriation by domination and labour superexploitation.’ Like Horne, the system ‘is rooted in the imbrication of anti-Blackness and antiradicalism.’

History proves their theses correct. For one example, take Benjamin J. Davis, the first Black communist ever elected to public office in the US. He served as a New York City Councilman from 1943 until 1949, when he and other Communist Party leaders were arrested under the Smith Act. In Davis’ set of ‘autobiographical notes’ penned while captive in an apartheid federal prison in Terre Haute, an hour’s drive from where I’m writing, the Black Party leader recounts how, following the end of the US’s alliance with the Soviet Union, ‘the pro-fascist, Negro-hating forces which had been held in check during the war, began to break loose.’ The Republicans, Democrats, FBI, and other state elements sat idly by as racist attacks, including a mass lynching in Atlanta by the Klan, intensified.

Communists, on the other hand, responded immediately, with the Party’s Black leadership uniting and mobilising broad sectors of society. It was only then that the state responded, and not to the racist lynching but to those fighting them. In other words, while the US state passively accepted racist and fascist groups in the US, they turned to active repression when Black people and their supporters and comrades fought back.

The 1949 conviction and imprisonment of Davis and other Party leaders for violating the anti-communist Smith Act was an example of this repression. The US imprisoned and suppressed hundreds of communist leaders and fellow travelers, with countless others driven underground, blacklisted, and deported.

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It was not only their organising that threatened the state; it was also their ideology. Thus, prison administrators prevented the publication of Davis’s book for a decade after he was released. Physically and ideologically repressing communism was part of a project to exterminate the revolutionary, internationalist, and Black Liberation movements and traditions just as a new wave of US imperialist aggression was kicking into high gear.


Decolonisation and anti-colonialist struggle: A matter of survival, not academic fodder

This leads to one other glaring connection between the Red Scare of today and then, one that demonstrates the historical and ideological continuity of racist US imperialism, helps define the current conjuncture, and might convince academics we don’t need new words and more language but action: the US war against the Korean national liberation and socialist struggle.

Seventy years ago, on July 27, the resistance of the Korean masses forced the US to sign an armistice agreement, ceasing the US’s horrendous violence against the peninsula. Despite their military might, new chemical and biological weapons, and bombs that even the Air Force admits inflicted ‘greater damage than German and Japanese cities firebombed during World War II,’ they couldn’t defeat the freedom fighters in the Korean People’s Army (many of whom were from the south).

Before the armistice signing on February 2, Trinidadian-born Black communist Claudia Jones, who at 37 years of age was a high-ranking Party member and leading organiser and theorist, stood before Judge Edward J. Dimrock in a New York courtroom along with a dozen other Party leaders They were all convicted of several charges, including conspiring to overthrow the US government. The pre-sentencing statement is generally used to plea for leniency, but, as a revolutionary communist, Jones saw another opportunity to agitate and raise consciousness.

Jones opened by making it clear it wasn’t meant for the Judge or the state. No, Jones addressed the real power in the world: the global revolutionary movement. ‘If what I say here,’ she began, ‘serves even one whit to further dedicate growing millions of Americans to fight for peace and to repel the fascist drive on free speech and thought in our country, I shall consider my rising to speak worthwhile indeed.’

Overall, this and other trials that persecuted communists and progressives weren’t about specific articles or actions, although, as Denise Lynn notes, in 1947, J. Edgar Hoover directed the FBI to surveil ‘her every speech, radio interview, mention in the Daily Worker, and all of her written work as well as party functions she attended or hosted.’

The prosecution, Jones highlighted, introduced her articles as evidence but did not read them; actually, they could not read them aloud because, in the first place, doing so would affirm ‘that Negro women can think and speak and write!’

Jones then called attention to the second piece of evidence they could not read: her historic speech delivered at an International Women’s Day rally and published in Political Affairs under the title ‘Women in the Struggle for Peace and Security’ in March 1950, the same year the state obtained her deportation order.

In that speech, delivered months before the ‘barbaric’ war against Korea, as she called it, Jones proposed that ‘a fundamental condition for rallying the masses of American women into the peace camp is to free them from the influence of the agents of imperialism’ by linking them with the new phenomenon of a global anti-imperialist women’s movement spanning 80 countries. This would ‘inspire the growing struggles of American women and heighten their consciousness of the need for militant united-front campaigns around the burning demands of the day.’ Thus, the prosecution could not read it aloud because

‘it urges American mothers, Negro women and white, to emulate the peace struggles of their anti-fascist sisters in Latin America, in the new European democracies, in the Soviet Union, in Asia and Africa to end the bestial Korean war … to reject the militarist threat to embroil us in a war with China, so that their children should not suffer the fate of the Korean babies murdered by napalm bombs of B-29s, or the fate of Hiroshima.’

How terrifyingly presciently Jones’s words resonate with us here today, 70 years on. We face ongoing imperialist aggression against the Korean people and their struggle for peace, national liberation, and reunification, the ramping up of US militarism as they prepare for a war against China, and the accompanying ‘Red Scare’ to produce consent, silence dissent and inhibit solidarity efforts.


The US is a … Pacific power?

The US’s ‘Pivot to Asia’ dates at least back to 1898 when they waged a war against and occupied the Philippine Republic, but its current iteration emerged in November 2011, when then-President Barack Obama told the Australian Parliament ‘The United States is a Pacific power, and we are here to stay.’ That month, his Secretary of State, Hillary Clinton, published an article in Foreign Policy (the unofficial organ of the US State Department) articulating the US’s new line, that first and foremost entailed ‘a substantially increased investment – diplomatic, economic, strategic and otherwise – in the Asia-Pacific region.’

We all know what Clinton meant by ‘otherwise,’ as did the Chinese people, government, and governing Party. For some context, recall that this came out one month earlier Clinton erupted in joy during a CBS interview after hearing of African revolutionary Muammar Gaddafi’s brutal assassination by reactionary forces (whose campaign was based on disproven propaganda and racism against migrant workers from the southern part of the continent). ‘We came, we saw, he died,’ she said laughingly after destroying an independent African nation and its widely popular government.

As the US was waging dozens of wars, occupations, covert military operations, and more, China followed the CCP’s line of a ‘peaceful rise.’ They did so as long as they could, and when it was clear the US wasn’t stopping, both China and Russia finally stood up to the US.

Especially since the election of Xi Jinping to the position of General Secretary of the CCP, China has made a sharp shift to the left and now, after decades, finally offers an alternative pole for the world order so the people of the world can finally be freed from the colonial rule of the US through military occupations and other mechanisms like the International Monetary Fund and World Bank. This is why the Belt and Road initiative is critical to formerly colonised states, and why it is falsely labeled ‘colonialist’ by ruling-class figures from Steve Bannon to Clinton.


What would you do then? Do it now! Resisting intimidation is the path to victory

Rubio ended his letter to the DOJ by proclaiming: ‘The CCP is our greatest adversary, and we cannot allow it to abuse our open system to promote its malign influence any longer.’ The threat of war is not rhetoric. The Department of Defence’s new military doctrine is explicitly guided by ‘Great Power Rivalry, a euphemism for an all-out war to recolonise and redivide China.

As US imperialist occupations expand, as they continue conducting military exercises in the South China Sea, China remains remarkably restrained. Can you imagine what the US would do if, say, China sent nuclear-armed submarines to the shores of California, patrolled the Atlantic waters off the coast of New York City, or stationed military bases throughout Mexico and Canada?

It is irrelevant wherever one stands on China, its political system, or any issue or policy. In terms of internationalist solidarity, the least that educators in the imperialist core can do is restrain our government. Even if one of your colleagues supports US imperialism, however, they will hopefully at least stand against attempts to intimidate and silence opposition and free speech. As the petition against the New McCarthyism states:

‘This attack isn’t only on the left but against everyone who exercises their free speech and democratic rights. We must firmly resist this racist, anti-communist witch hunt and remain committed to building an international peace movement. In the face of adversity, we say NO to xenophobic witch hunts and YES to peace.’

Read, sign and, share the petition now. Don’t be intimidated. The heroic freedom fighters we teach and write about, the ones we admire, never gave in despite their extraordinary oppression and unthinkable suffering.

For those of us committed to ending white supremacy, capitalism, imperialism, or at the very least, to protecting the freedom of speech and dissent, one small thing to do now is to talk with everyone about it, to sign this petition and affirm that you won’t be silenced or intimidated. Let’s follow the words and deeds of Jones, not Marco Rubio.

Our enemies aren’t in Russia or China, North Korea or Cuba. They are right here in the US, from the Pentagon and Wall Street to the cops who routinely murder and harass the exploited and oppressed. What the police do here, the US military does across the globe. Together, we can defeat them.



Full Citation Information:


Ford, D. R. (2023). Educators must help defeat the new racist and imperialist ‘Red Scare.’ PESA Agora. https://pesaagora.com/columns/educators-must-help-defeat-the-new-racist-and-imperialist-red-scare/

The “Powell Memo” and the Supreme Court: A Counteroffensive Against the Many

By Derek Ford

Republished from Liberation School.

Introduction: The domestic right-wing counteroffensive

By the early 1970s, the global revolutionary tide of socialist and national liberation struggles was at its apex, and the tide was washing over the U.S., with expanding and increasingly militant social movements and political organizations. The beginning of “neoliberalism” was a domestic aspect of the coming global counterrevolution, which devastated the world for decades.

This article tells the story of how the right wing of the capitalist class came to drive a new set of reactionary Supreme Court rulings, government policies, and ideological battles against democracy and the basic democratic rights our class won and that the right wing soon started rolling back. A key figure in this anti-democratic turn was Lewis F. Powell Jr., a tobacco company executive turned Supreme Court Justice. In the transition between the two roles, he wrote his infamous “Powell Memo.”

In hindsight, the private memorandum Lewis F. Powell Jr. sent to the U.S. Chamber of Commerce on August 23, 1971—known as the “Powell Memo”—in many ways represents the inaugural moment in this counteroffensive. Titled, “Attack on American Free Enterprise System,” the Memo clearly expressed the sharpness of the class struggle at that time and encapsulated the capitalist class’ fear that they were losing the battles of ideas and the world. It undoubtedly laid the groundwork for some key components of U.S. imperialism’s new offensive against the global revolutionary upsurge that characterized the immediate post-World War II environment, an offensive that is still with us today.

Understanding the background, context, and content of the Memo helps us get a sense of the right-wing counteroffensive against domestic people’s movements. Powell eventually entered the Supreme Court and helped usher in a wave of reactionary rulings against the people and for corporate profits. Thus, while the exact impacts of the Memo are hard to ascertain, they eventually made their way into the law books, attacking affirmative action and establishing a theory of corporate speech and “personhood.” More immediately, after the Memo’s circulation, the Chamber of Commerce “expanded its base from around 60,000 firms in 1972 to over a quarter of a million ten years later,” spending almost $1 billion annually to promote their interests [1].

The ideological stakes at play in the Powell Memo

Powell wrote and sent the confidential memo at the request of one of his colleagues, Eugene B. Sydnor, Jr., who chaired the education committee of the U.S. Chamber of Commerce, for a high-level discussion with the Chamber’s Vice President Arch Booth the next day. The Chamber of Commerce is not, as the name might imply, a government agency, but is the largest private pro-business lobbying group in the country. Because the Memo was written for the capitalist class by one of their most fervent ideologues, it displays the fears and ambitions of the imperialists in the most blatant manner, revealing exactly how they speak to each other when they don’t have to feign decorum or decency, providing a glimpse into how much they feared progressive movements.

“No thoughtful person can question that the American economic system is under broad attack,” the Memo begins [2]. The problem is not so much with the usual suspects like “the Communists, New Leftists and other revolutionaries who would destroy the entire system, both political and economic.” Although such “extremists of the left” are growing in numbers, support, and legitimacy in unprecedented fashion, Powell continues, they are still relatively minor players on their own.

Powell’s primary fear was that revolutionaries, the usual suspects, were now influencing “perfectly respectable elements of society” such as “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” In essence, Powell expresses how the global tide of revolutionary and progressive struggles sweeping the world during that period were normalizing and popularizing radical political change and demands [3]. As he puts it, the issue is that respectable institutions like the campus were hijacked “by minorities” who “are the most articulate, the most vocal, the most prolific in their writing and speaking.”

Powell’s insistence on the influence of vocal minorities—a prelude of sorts to the “silent majority”—was more than just a rhetorical flourish. Although the “Marxist doctrine that the ‘capitalist’ countries are controlled by big business” had widespread currency at the time, for Powell, nothing could be further from the truth. Simply put, Powell’s memo claimed that in capitalist countries capitalists had no influence or control over the government or society. This ridiculous claim is phrased frankly:

“…as every business executive knows, few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of ‘lobbyist’ for the business point of view before Congressional committees. The same situation obtains in the legislative halls of most states and major cities.”

Powell goes further still, in a sentence that constructs the corporation not only as a person, but as a minority person in need of protection: “One does not exaggerate to say that, in terms of political influence with respect to the course of legislation and government action, the American business executive is truly the ‘forgotten man.’”

This dire situation, in which the very existence of capitalism and imperialism are at stake—claims that are, to say the least, exaggerated—calls for drastic and wide-ranging responses. To address the supposed exclusion of corporations in the U.S. government and the attack on the capitalist system, Powell included a vast list of recommendations for pursuing their ideological agenda, in which the Chamber of Commerce would play a central and organizing role. Powell’s upbringing and professional career account for his deep concern for the position of the corporation in U.S. society and politics.

Powell: A fighter for “oppressed” tobacco companies

With a family lineage traced back to “one of the original Jamestown settlers,” Powell graduated from an elite prep school, McGuire’s University School in Richmond, Virginia in 1925 [4]. From there, he ascended the ranks of the political elite, earning a Master of Laws degree from Harvard Law School in 1932 before returning to Virginia and starting a long career with a Richmond law firm. After a brief stint as an intelligence officer in the Army, Powell integrated himself into Virginia’s political scene and rose through the ranks of the American Bar Association, becoming the ABA’s president in 1965.

Powell served on over a dozen boards, including the Colonial Williamsburg Museum and, most pertinently, the tobacco giant Philip Morris. Powell joined Philip Morris’ Board of Directors in 1964 at a time when, historian Jeffrey Clements notes, “the corporation sought to mitigate the US Surgeon General’s report about the grave dangers of smoking” [5].

When he penned his infamous memo, Powell was in the trenches defending Philip Morris and other tobacco corporations through their lobbying group, the now-discredited Tobacco Institute. He was also busy defending big tobacco when Richard Nixon asked him to serve on the Supreme Court in 1971 (although his appointment went into effect in 1972).

During his tenure at the Tobacco Institute, he fought against the “radicals” and liberals in public health and education who were increasingly sounding the alarm on the dangers of tobacco and nicotine addiction. In their 1967 annual report, issued on behalf of Powell and the rest of the Philip Morris board, they deplored how “unfortunately the positive benefits of smoking which are so widely acknowledged are largely ignored by many reports linking cigarettes and health, and little attention is paid to the scientific reports which are favorable to smoking” [6].

Powell was nothing if not a champion of free-enterprise, facts be damned.

The ideological counteroffensive

It’s not hard to draw the line between Powell’s defense of big tobacco and the broader capitalist system, on the one hand, and his derision of public health, education, and the public interest, on the other. For Powell, it was a small and logical step to move from attacking health researchers to attacking other “revolutionaries” and those they influenced in “respectable” places like universities.

In addressing “what can be done about the campus,” Powell outlines an array of tactics and strategies to beat back the insurgent student tide and revert educational institutions away from  critical inquiry. He called for the Chamber of Commerce to establish a cadre of “highly qualified” pro-capitalist scholars, a full-time paid staff of speakers, and a Speaker’s Bureau that would advocate for capitalists.

The Chamber’s “faculty of scholars” should be given “incentives” to publish prolifically in scholarly journals because “one of the keys to the success of the liberal and leftist faculty members has been their passion for ‘publication’ and ‘lecturing.’” Powell wasn’t concerned with the number of leftist faculty per se, and his memo only cited one by name: Herbert Marcuse, one of the few remaining critical theorists who remained committed to organizing and who supervised, among other important revolutionaries (and against the advice of his colleagues), the doctoral work of Angela Davis [7].

Those like Marcuse “need not be in a majority” because “they are stimulating teachers… prolific writers and lecturers,” according to Powell [8]. In fact, “as his attention to charismatic teaching, textbooks, and other writings shows, Powell based his strategy for ideological warfare on the intellectual productivity that he observed among progressive thinkers” [9].

The historical context for Powell’s ire is instructive, as it was during this time that oppressed nationalities were forcing changes in hiring practices, curricular content, and even creating physical spaces dedicated to the study of radical politics and oppressed nationalities and successfully fighting for open admissions.

The militant organized movements of students, workers, Black people, Chicano people, women, the LGBTQ community, and others—many of whom were openly Marxists—forced open some space within universities and society, legitimizing their grievances, proposals, and knowledge [10]. Importantly, the demands of the student movements “were organized around the redistribution of outcomes in the university and in US society generally” [11]. They helped, in part, to fundamentally restructure what and whose knowledge counted by positioning oppressed groups as central knowledge producers.

Unable to captivate audiences with their ideas or teaching, Powell urged the Chamber to ensure capitalist ideologues would gain audiences on campus. He called on the Chamber to “insist upon equal time on the college speaking circuit” between critics and proponents of capitalist exploitation and oppression. Importantly, they must be “attractive, articulate and well-informed speakers” who “exert whatever degree of pressure—publicly and privately” to ensure equal speaking opportunities” [12].

Powell’s focus on “equal speaking opportunities” denies the larger political and historical context of the times, as if socialists and capitalists get equal time and space in the mainstream news outlets or corporate papers. At the same time, within the universities, they’re still mobilized to promote right-wing ideologues. Today, it’s clear to growing numbers of people in the U.S. that “freedom of speech” policies are intended to limit the dissemination of and engagement with revolutionary ideas.

The Supreme Court: Defending white supremacy and corporate speech

Powell’s disdain for revolutionaries wasn’t personal (or wasn’t primarily personal); it was political. Take, for example, his role in the 1978 Supreme Court case Regents of the University of California v. Bakke, a ruling that was a significant step on the way to undoing affirmative action. Although the ruling sustained affirmative action, it declared racial quotas for university admissions to be unconstitutional and, specifically, in violation of the Equal Protection Clause of the Fourteenth Amendment.

In his majority opinion, Powell claimed that “the United States had become a Nation of minorities” and the U.S. Constitution was meant “to overcome the prejudices not of a monolithic majority, but of a ‘majority’ composed of various minority groups” [13]. White people were, according to his ruling opinion and his own beliefs, minorities deserving protection [14].

In 1982, he issued the majority opinion in Central Hudson Gas & Electric Corporation v. Public Service Corporation of New York, declaring that private utility and energy corporations could, with the protection of the right-wing activist court, dominate the imaginary “marketplace of ideas.” The case revolved around the prohibition of energy corporations from promoting their services during and after the 1973 oil crisis. Powell’s opinion affirmed that corporate “expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information.” The opinion “rejected the ‘highly paternalistic’ view that government has complete power to suppress or regulate commercial speech” [15].

With the backing of a new barrage of pro-capitalist think tanks and institutes, Powell led the Supreme Court on a pro-corporate rampage that was based on an illegitimate precedent. As discussed in the Liberation School article on Santa Clara County v. Southern Pacific Railroad Company, the 1886 Supreme Court case has been falsely interpreted as setting the “precedent” for corporate personhood [16]. The case did not rule on the question of corporate personhood. Rather, a statement on corporate personhood was included in a headnote added to the case. Headnotes are not legally binding and therefore do not impact the establishment of legal precedent.

Nevertheless, the same year that Powell led the court to undo affirmative action in the Regents of the University of California, he also established “corporate speech” as protected under the First Amendment. That case, First National Bank of Boston v. Bellotti, for the first time held that corporations are protected by the First Amendment and therefore are entitled to “free speech.” Powell delivered the majority opinion in the case, stating “the Court has not identified a separate source for the right when it has been asserted by corporations.” In the footnote accompanying the statement, he claims that “it has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment,” incorrectly citing Santa Clara as legal precedent [17].

With Powell’s new theory of corporate speech, “the Court struck down law after law in which the states and Congress sought to balance corporate power with the public interest” [18].

Conclusion: The struggle for socialism and liberation today

Powell’s Memo and interventions in the Supreme Court were part of an overall strategy to defeat or at least de-radicalize the revolutionary movements of the time, especially the radical transformations they achieved in education. A central element in the capitalist state, education always plays an important role in the class struggle, as it is a primary place where we form our ideology or worldview, whether we know it or not.

The struggle wasn’t—and isn’t—confined to the university, and in fact, its radical edge comes from its ability to link the university to broader social struggles, from anti-imperialism and socialism to anti-racism and sexism, then and now. As the Powell Memo shows, for the ruling class at the time, the balance of forces tipped too far toward the exploited and oppressed. In response, the capitalists launched a virulent counteroffensive in all areas of society, and Powell, his role on the Supreme Court, and his Memo were integral parts of this reactionary wave we need to, and will, push back.

References

[1] David Harvey,A Brief History of Neoliberalism(New York: Oxford University Press, 2005), 43.
[2] Lewis Powell, “Attack on American Free Enterprise System,”PBS. Availablehere.
[3] See Brian Becker, “From Inter-Imperialist War to Global Class War: Understanding Distinct Stages of Imperialism,”Liberation School, 28 July 2018. Availablehere.
[4] Tinsley E. Yarbrough, “Powell, Lewis F., Jr. (1907-1998), Supreme Court Justice,”American National Biography, 01 January 2001.
[5] Jeffrey D. Clements,Corporations are Not People: Reclaiming Democracy from Big Money and Global Corporations(San Francisco: Berrett-Koehler Publishers, 2014), 21.
[6] Cited in Ibid., 22-23.
[7] Gabriel Rockhill, “Critical and Revolutionary Theory: For the Reinvention of Critique in the Age of Ideological Realignment,” inDomination and Emancipation: Remaking Critique, ed. D. Benson (Lanham: Rowman & Littlefield, 2021).
[8] Powell, “Attack on American Free Enterprise System.”
[9] Roderick A. Ferguson,We Demand: The University and Student Protests(Oakland: University of California Press, 2017), 44.
[10] See Stephen Ferguson II,Philosophy of African American Studies: Nothing Left of Blackness(New York: Palgrave Macmillan, 2015), 16.
[11] Ferguson,We Demand, 40.
[12] Powell, “Attack on American Free Enterprise System.”
[13] Regents of the University of California v. Bakke, 438 U.S., 265 (1978), 292. Availablehere.
[14] Ibid., 295.
[15] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S., 557 (1980), 561, 562. Availablehere.
[16] Curry Malott, “Corporate Personhood, Monopoly Capital, and the Precedent that Wasn’t: The 1886 ‘Santa Clara’ Case,”Liberation School, 09 February 2023. Availablehere.
[17] First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), footnote 15. Availablehere.
[18] Clements,Corporations are Not People, 25.

Unions Fight Back: The Transformation of Labor Law in the United States and its Impact on Union Organizing Strategy

[Pictured: Christian Smalls has become an instrumental part of a nationwide labor resurgence in the United States, heading up union efforts at Amazon]

By Noah Streng

The state of union organizing in America is intimately tied to the legal structures governing labor. Court rulings during the late-19th and early-20th century, for example, created a semi-outlaw status for unions and their activities. Nearly every time unions tried to get the political system to pass pro-labor legislation, their efforts were overturned by a reactionary Supreme Court that had the final say over labor law. A prime example of this was Lochner v. New York (1905).

In the case, the Supreme Court overturned a New York law that prevented bakers from working more than 10 hours per day, citing liberty of contract guaranteed by the 14th Amendment. Unions had fought hard to pass this and other protections for workers in the New York legislature. But, despite the public’s mandate via their elected representatives, the Supreme Court overruled them in favor of private property rights.

Cases like Lochmer were common in postbellum labor relations. The outsized influence of the judiciary left elected legislatures with little say over American labor law. Many unions consequently lost faith in the potential for winning reforms through the ballot box and adopted an anti-statist approach to labor organizing. These unions had never experienced a state that worked on behalf of the working class, so it was hard for them to envision one.

This disillusionment gave rise to the anarcho-syndicalist Industrial Workers of the World (IWW) and voluntarist American Federation of Labor (AFL). Both prioritized grassroots labor action over state intervention. But, despite this commonality, the two unions practiced very different kinds of anti-statism.

The AFL focused on upholding liberty of contract by fighting to remove the government from labor relations entirely. When the AFL participated in elections and legislative advocacy, it was typically to preempt judicial intervention in labor disputes. Meanwhile, the IWW sought to unite laborers across race and gender lines to overthrow capitalism. In their organizing, the IWW gained significant traction — especially among unskilled workers, immigrants, people of color, and women. Unlike the AFL, which organized along craft lines, the IWW ran industrial unions that united all workers in a given shop.

Despite early momentum, however, many judicial rulings stifled the IWW’s ability to organize across racial lines. In Hodges v. United States (1906), for example, the Supreme Court officially stripped black workers of equal labor rights. This — in tandem with other hostile decisions — divided the American working class, thereby frustrating the IWW’s universalist strategy.

The environment for labor improved significantly following the passage of the National Labor Relations Act (NLRA), which guaranteed many American workers the right to organize unions, engage in collective bargaining, and partake in concerted union activity such as strikes. The NLRA did this by expanding executive power over the judiciary, transferring power from courts in labor law cases to the National Labor Relations Board. This paved the way for much of the pro-labor legislation in the New Deal, which the Supreme Court almost certainly would’ve struck down had it been able. The NLRA thus redefined what was politically possible for unions. Now, they could plausibly build worker power through the organs of the state.

Nevertheless, the NLRA had its flaws. Following the precedent set by Hodges and other discriminatory cases, the bill excluded domestic, agricultural, incarcerated, and sex workers from its labor protections. This would be hard to reconcile if we interpret the NLRA as something intended to advance working-class liberation. But that arguably wasn’t its intention at all.

Indeed, the NLRA’s legality was based on the federal government’s right to regulate interstate commerce. The bill provided concessions to labor in order to achieve “labor peace” and ensure the stability of the capitalist economy. Nevertheless, the NLRA — coupled with other pieces of legislation like the Norris-La Guardia Act — was undoubtedly beneficial to workers. By shifting power over labor relations from courts to the administrative state, the NLRA opened new opportunities for radical pro-union reforms.

Despite gains in the previous century, however, we still find ourselves in an era where the federal government and judiciary are aligned with the interests of capital. As both continue to chip away at the progress made by the NLRA, organized labor in the United States needs to develop new strategies for our current context. That includes finding ways to work around — or, preferably, reverse — legal restrictions on union activities as enshrined by, for example, the Taft-Hartley Act and infamous Janus vs. AFSCME (2018) Supreme Court decision. Just as union leaders in the past had to adapt to rapidly changing rules governing labor, leaders today must strategize to meet the moment and revitalize class struggle in America.

One way to do this would be through rekindling the socialist labor movement in the United States. Organizations like the Democratic Socialists of America have already begun doing so by raising over $100,000 for strike funds, engaging in solidarity actions, and directly organizing workers into unions across the country. Labor is at its strongest when grassroots, militant, rank-and-file-led unions organize to radically change society. Part of this strategy should include capturing state power and wielding it to redefine labor law, empowering workers in their fight against the owning class.

Noah Streng is a member of River Valley DSA’s steering committee and a graduate student at the University of Massachusetts Amherst Labor Center.

Kamala Harris and the New Imperialism

By Daniel Melo

In her recent trip to Guatemala, Vice President Kamala Harris spoke of seeking to end corruption, building trust in the region, and tackling the “root” causes of migration. But she also had a dire warning for would-be migrants—do not come to the US, you will be turned back. Never mind the fact that her remark flies in the face of international law protecting the right to seek asylum. This hard-line stance seems to be at odds with the present administration’s supposed compassionate view of migrants. In reality, it is the latest rendition of the long-standing hypocrisy within capitalism and its displacement of people, a tragically necessary result of US imperialism in Latin America.

US capitalist imperialism is central to the very conditions present in Central America today. In several texts on the issues of empire and migration, professor Greg Grandin details the US’s expansive exploitation, both in military and economic terms, throughout Latin America. This includes everything from direct military intervention, to strong-arming Latinx nations into destructive neo-liberal economic policies, to transplanting the very gangs that now hold criminal empires. This mode of imperialism actually supersedes the prior eras of colonialism. As Grandin argues in Empire’s Workshop, it replaced the old colonialism, as the latter could no longer handle the nationalistic tendencies of former colonies nor the nativist uproar they caused at home. Capitalism needed a new way of exploiting territory beyond itself, without the costly eventual repercussions of direct colonizing. Latin America became a “workshop” for the budding US empire, where it could flex both its military and economic might, a place for developing and honing the empire's machinery. Empire, says Grandin, became synonymous with the very idea of America. We are witnessing over a century’s worth of empire dire consequences--hundreds of thousands displaced, crumbling governments, and the rise of neo-facisim.

Of course, Harris has the benefit of time in masking the US’s own culpability in the displacement of people in Latin America. Time and short memory. Her comments received little contextualization in the greater arc of US relations with the Latinx world, which aids in veiling the empire’s direct role in lighting said world on fire. Recent comments by DHS secretary Majorkas echo this ignorance—“Poverty, high levels of violence, and corruption in Mexico and the Northern Triangle countries have propelled migration to our southwest border for years.  The adverse conditions have continued to deteriorate.  Two damaging hurricanes that hit Honduras and swept through the region made the living conditions there even worse, causing more children and families to flee.” Not only are these remarks devoid of any historical materialist context noted above, but significantly, drive home the reality that the US has fully absolved itself of any responsibility, moral or otherwise, from the human consequences of empire.

Thus, Harris' warning to the Guatemalan people is a continuation of the nature of the new imperialism and the hypocrisy at its heart—to do as it wishes without having to deal with the direct consequences. The contradiction is even clearer when paired with her other recent remarks about the border. When NBC’s Lester Holt questioned her choice not to visit the US-Mexico border as part of her trip, she responded that “my focus is dealing with the root causes of migration. There may be some who think that that is not important, but it is my firm belief that if we care about what’s happening at the border, we better care about the root causes and address them.” What she actually means by “caring” and “addressing”  is ensuring that the “problem” of thousands of displaced people simply be relocated to somewhere away from the US border. Of late, papering over the direct consequences of a century of US foreign policy in Latin America comes in two flavors--paying others to keep the problem at bay (“monetary aid”) or direct applications of force at the border (“you will be turned back”). In other words, the ravages of capitalist imperialism are best dealt with by ensuring that they never make their way to the US in the first place.

However, hostility toward the growing desperate multitudes will do little to deter people who are fleeing for their lives. As the Italian delegates at the Socialist Congress of 1907 long ago noted—“One cannot fight migrants, only the abuses which arise from emigration…we know that the whip of hunger that cracks behind migrants is stronger than any law made by governments.”  This administration, like the one before it (and so on for 100 years), assumes that brutality is a functional means of abating the ravages of capitalism. And while oppression may momentarily suppress the movement of people, it cannot fill stomachs, reverse climate change, or repair the decades of damage done by imperialism. As Grandin notes in The End of the Myth, the horrific and historic cycle of violence at the border is a product of the impossible task of policing the insurmountable gap between massive wealth accumulation and desperate poverty. Keeping people where they are will increasingly require escalations of violence and force to hold-off the human consequences of capitalist imperialism.

In this respect, Harris and the administration’s aim at tackling the “root causes” of migration will be forever out of their reach. To do so, they would first have to acknowledge the pivotal role that the US had and continues to have in creating such conditions, and in turn, the unsustainable nature of capitalism itself. This is ultimately no more likely than them suddenly conceding power to the workers of the world. Yet, Grandin also unveils a sliver of light in the darkness of imperialism--the lesson taught by the history of US involvement in Latin America is “[d]emocracy, social and economic justice, and political liberalization have never been achieved through an embrace of empire but rather through resistance to its command.”

 

 

Daniel Melo is a public sector immigration lawyer in the American Southeast who primarily works with refugees and the son of a migrant himself. His book, Borderlines, is due out from Zer0 Books in August 2021.

Uprising, Counterinsurgency, and Civil War: Understanding the Rise of the Paramilitary Right

By Tom Nomad

Republished from Crimethinc.

In this analysis, Tom Nomad presents an account of the rise of the contemporary far right, tracing the emergence of a worldview based in conspiracy theories and white grievance politics and scrutinizing the function that it serves protecting the state. Along the way, he describes how liberal counterinsurgency strategies function alongside the heavy-handed “law and order” strategies, concluding with a discussion of what the far right mean by civil war.

Tom Nomad is an organizer based in the Rust Belt and the author of The Master’s Tools: Warfare and Insurgent Possibility and Toward an Army of Ghosts.

The bulk of this text was composed in September and October 2020, when the George Floyd uprising was still unfolding and many people feared that Trump would try to hold on to the presidency by any means necessary. Since then, the uprising has lost momentum and the Trump administration has failed to organize a seizure of power.

Yet the dynamics described herein persist. The uprising remains latent, waiting to re-emerge onto the streets, while the formation of a new MAGA coalition is underway. Since the election, a constellation including the pro-Trump right, conspiracy theorists, the remnants of the alt-right, and traditional white nationalist groups has formed around a belated attempt to keep Trump in power.

This coalition is motivated by conspiracy theories and narratives about Democrats “stealing” the election. An additional segment of the American voting population has connected with the far right, openly calling for their opponents to be eliminated by violent means. This is not just a new right-wing coalition, but a force with the ability to leverage AM radio, cable news, and elected officials to spread racism, xenophobia, and weaponized disinformation.

Trump and his supporters will be removed from office shortly, but this coalition will persist for years to come. While centrist media outlets described Trump as seeking to seize power, his supporters see themselves as acting to defend the “real” America. In response to Trump’s removal from power, they aim to work with the “loyal” elements of the state—chiefly right-wing politicians and police—to eliminate what they consider an internal threat to the US political project. At its foundation, the right remains a force of counterinsurgency.

Introduction

The events of the George Floyd uprising represent something fundamentally different from the convulsions of the preceding twenty years. The normalities of activism, the structures of discursive engagement premised on dialogue with the state, gave way; their hegemony over political action began to crumble before our eyes. The mass mobilizations—with their staid, boring formats, their pacifist actions with no plan for escalation, their constant repetition of the same faces in the same groups—were replaced by a young, radical crowd largely comprised of people of color, willing not only to challenge the state, but also to fight back. Over a period of months, the previous barriers of political identity evaporated—the constructs that distinguished “activism” from “normal life.” This new force ripped open the streets themselves, leaving the shells of burned police cars in its wake.

For some of us, this was a long time coming. The global influence of the US has been in decline since the end of the Cold War; the post-political era that Fukuyama and Clinton proclaimed so confidently has given way to a history that continues to unfold unstoppably. The war that the police wage against us every day finally became a struggle with more than one antagonist. The long anticipated uprising, the moment of reckoning with the bloody past of the American political project, seemed to be at hand. We saw the state beginning to fray at the edges, losing its capacity to maintain control. While we cannot yet see a light at the end, we have at least finally entered the tunnel—the trajectory that will lead us towards the conflicts that will prove decisive.

But, just as quickly as this new momentum emerged, we were immediately beset on all sides by the forces of counterinsurgency. The logic of the revolt is constantly under attack, sometimes by those we had counted as allies. Some insist that we must present clear reformist demands, while others aim simply to eliminate us. All the techniques at the disposal of the state and its attendant political classes—including those within the so-called movement—are engaged as our adversaries endeavor to capture the energy of the struggle or exploit it for their own gain.

From the first days, liberal organizers played a core role in this attempt to bring the revolt back within the structures of governance. Caught off guard, they immediately began a campaign to delegitimize the violence expressed in the streets by framing it as the work of provocateurs and “outside agitators.” They progressed to trying to capture the momentum and discourse of the movement, forcing the discussion about how to destroy the police back into a discussion about budgets and electoral politics. Now, as Joe Biden gets his footing, liberals have completed this trajectory, arguing that rioting is not a form of “protest” and that the full weight of the state should be brought to bear on those who stepped outside of the limits of state-mediated politics.

The truth is that the revolts of 2020 represent a direct response to the failures of former attempts at liberal capture. During the uprisings of 2014 and 2015, liberals were able to seize control and force the discussion back to the subject of police reform. Consent decrees were implemented across the country; so-called community policing (a euphemism for using the community to assist the police in attacking it) and promises of legislative reform effectively drove a wedge between militants and activists. These attempts delayed the inevitable explosions that we have witnessed since the murder of George Floyd, but they were stopgap measures bound to fail. The current revolt confirms that reformism has not addressed the problem of policing. The areas of the country that have seen the most violent clashes are almost all cities run by Democrats, in which reform was tried and failed. In some ways, the narrative advanced by the Trump campaign that cities are in revolt due to Democratic administrations is true—but it is not as a consequence of their permissiveness, but rather of the failure of their attempt to co-opt the energy of revolt.

At the same time, we are experiencing a new attempt to supplement state forces with the forces of the far right. Militia groups that previously claimed to be opposed to government repression are now mobilizing their own informal counterinsurgency campaigns. This is not surprising, given that these militias were always grounded in preserving white supremacy. It is also unsurprising that more traditional Republicans have allowed themselves to be pulled in this direction—ever since September 11, 2001, their entire ethos has been built around the idea that they are the only people willing to defend the “homeland” from outside threats.

Yet it is surprising the lengths to which the state is willing to go to accomplish this goal. Traditionally, the basis of the state has been a set of logistical forces able to impose the will of a sovereign; in America, that sovereign is liberal democracy itself. The continuation of this project is directly tied to the state’s ability to function in space, logistically and tactically; this requires spaces to be “smooth,” predictable, and without resistance or escalation, both of which can cause contingent effects that disrupt state actors’ ability to predict dynamics and deploy accordingly. In calling for para-state forces to confront the forces of revolt in the street, Trump and his colleagues are setting the stage for a conflagration that—if all sides embrace it—could lead to large-scale social conflict. Their willingness to embrace such a risky strategy suggests how near the state has been pushed to losing control. It also indicates the ways that they are willing to modify their counterinsurgency strategy.

The revolt is now under siege. The official state forces—the police, federal forces, National Guard, and the like—are employing a strategy of consistent escalation, which functions both as retaliation and repression. The forces of liberal capture have showed which side they are on, affirming Biden’s promise to crush the militant sectors of the uprising and reward the moderate elements. The forces of the right have received approval to generalize the “strategy of tension” approach that they developed in Portland in the years since 2016. When these newly anointed forces of right-wing reactionary para-militarism are incorporated into an already existing patchwork of counterinsurgency-based approaches, the scene is set for a scenario that can only end in mass repression or mass resistance, and likely both.

The emergence of these converging counterinsurgency strategies has coincided with a rising discourse of civil war. This is not the sort of civil war discussed in texts like Tiqqun’s Introduction to Civil War, which describes, in hyperbolic terms, a conflict between different “forms of life.” Civil war, as understood in the modern US context, is a widespread frontal conflict between social forces that involves the participation of the state but also takes place apart from it. The idea that this could somehow resolve the core social and political differences emerges from a millenarian vision structured around American civilian militarization, which has emerged in response to the so-called “War on Terrorism,” the realities of social division within the US, and the rising perception of threats, whether real (people of color dealing with the police) or imaginary (“rioters are coming to burn the suburbs”). Though many on all sides embrace this concept, this fundamentally shifts our understandings of strategy, politics, and the conflict itself.

We should be cautious about embracing this concept of civil war; we should seek to understand the implications first. The framework of civil war might feel like an accurate way to describe our situation. It can feel cathartic to use this term to describe a situation that has become so tense. But embracing this concept and basing our mode of engagement on it could unleash dynamics that would not only put us in a profoundly disadvantageous situation, tactically speaking, but could also threaten to destroy the gains of the uprising itself.

Before we can delve into why this is the case, we must review how the framework itself emerged. To do so, we need to go back to the middle of the 20th century.

The Origins of the Push towards Civil War

To consider what civil war could mean in contemporary America, we have to understand how we got here. We have to tell the story of how white supremacy shifted from being identical with the functioning of the state itself to become a quality that distinguishes the vigilante from the state, on a formal level, while operating directly in concert with the state. What we are tracing here is not a history, in the sense of a chronicle of past events, but rather a sort of genealogy of concepts and frameworks.

We’ll start with the shift in political and social dynamics that took place in the late 1950s and early 1960s in response to the Civil Rights Movement. Resistance to hegemonic white power began to impact two fundamental elements of white American life during this period: the concept of American exceptionalism—the idea that America is a uniquely just expression of universal human values—and the notion of a hegemonic white power structure. This led to a shift in the ways that white, conservative groups viewed the world. They felt their hegemony to be newly under threat, not only in regard to their control of political institutions, but also in ways that could erode their economic and social power.

Previously, in many places, police had worked hand in hand with vigilante groups like the KKK to maintain racial apartheid. The day-to-day work of maintaining this political structure was largely carried out by official forces, with the underlying social and economic support of a large part of the white population. For example, during the racist massacre that took place in Tulsa, Oklahoma in 1921, many of the white assailants were deputized and given weapons by city officials.

During the fight for civil rights in the 1960s, when the role of the state in the enforcement of white supremacy began to shift in some places, many white residents adopted an active rather than passive posture in supporting the racist aspects of the social order. As resistance reached a critical mass, the issue of racial segregation became openly political, rather than unspoken and implicit, with entire political platforms structured around positions regarding it. In response to the challenge to the hegemony of the white apartheid state, the structure of apartheid came to the surface, and white Southerners enlisted in openly racist political forces on a scale not seen since at least the 1930s. These shifts and the subsequent widespread social response created the political and social conditions for the dynamics we see today.

During that period, the discourse of white supremacy also changed form. As oppressed populations rose up with increasing militancy, the narrative of unchallenged white supremacy gave way to a new narrative grounded in an idyllic portrayal of white Christian America and a promise to construct racial and economic unity around an effort to regain power and restore the “lost” America. This narrative, articulated by politicians like George Wallace, Barry Goldwater, Pat Buchanan, and later Ronald Reagan (and distilled today in Trump’s slogan “Make America Great Again”), was not just a call to preserve white supremacy. Rather, it described an ontological conflict in which the attempt to overthrow Jim Crow and bring an end to structural disparities represented a threat not only to an economic and social structure, but also to white America itself. Further, it proposed that this threat necessitated a response employing informal violence, mobilized across a wide swath of society, with the consent of the state. This narrative portrayed the emerging social conflict, not as a conflict about race and politics, but as an existential struggle, a matter of life and death.

In some circles, the demand for a political and social unity for white America was framed in terms of “civilization”—this is the current from which the contemporary far right emerged. As Leonard Zeskind argues, this shift involved embracing the concepts of “Western civilization,” the need to defend it, and the incorporation of fascist and Nazi tropes into the thinking of the far right. Many of the personalities who were to drive a militant shift in the far right—David Duke, Willis Carto, William Pierce, and others like them—began to publish newsletters and books, finding a home in the world of gun shows and obscure radio programs. This shift, from white populations taking their political and social domination for granted to white populations reacting to a perceived loss of hegemony, also contributed to the rise of armed right-wing groups. The idea of defending Western civilization provided a moralistic framework and a justification for violence, leading to groups like The Order carrying out armed robberies and assassinations during the 1970s and 1980s.

In more mainstream Republican circles, these ideas of the idyllic America and its civilizational superiority became policy positions, though they were expressed only in coded terms. By the time of the 1992 George HW Bush re-election campaign, it was no longer possible to leverage overt racism within polite society the way it had previously been. As a result, the right began to frame this discourse in new terms, speaking of “Western” values and civilization, describing a “real” America defending the world against Communism and disorder, which were implicitly associated with racial and political difference. In place of people like Duke or Wallace articulating overt calls for racial segregation, the right began to use a different discourse to call for separation on the basis of the concepts of purity and deviance and the language of law and order.

This served to define a cultural and political space and also the areas of exclusion—not on the basis of overt concepts of race, but around the idea of a civilizational difference. The terms of division were sometimes framed through the lens of religious differences, other times through the lens of a gulf between a rural and an “urban” America. Some within the right at this time, like Lee Atwater, discussed this shift overtly with their supporters (though behind closed doors), articulating how “dog whistle” policies on tax, housing, and crime could serve as replacements for the overt racism of the past. This concept of a Western civilization under threat fused with the fervor against “communism” that was revived under Reagan in the 1980s, along with rising conspiracy theory discourse—a toxic mixture that would explode, literally and figuratively, in the late 1980s.

Meanwhile, the rise of the religious right as a political force added another element to this fusion of conspiracy theories, anti-communist paranoia, and the increasingly armed politics of white grievance. Prior to the Reagan campaign in 1980, the religious right had largely approached politics with suspicion, with some pastors telling their parishioners not to participate in a political system that was dirty and sinful. The Reagan campaign intentionally reached out to this segment of the population, shifting its campaign rhetoric to attract their support and elevating their concerns into the realm of policy. Consequently, anti-choice campaigns and the like became a powerful means to mobilize people. This gave the narrative of social polarization an additional moral and religious angle, using rhetoric about sin and preventing “depravity.” The result was an escalation into armed violence, with the Army of God murdering doctors and bombing abortion clinics around the US.

In this move toward armed violence, right-wing terrorist discourse underwent a few modifications. The first of these was an expansion of the terrain where they saw the “war” being fought. The tendency towards armed violence expanded from focusing on civil rights initiatives and the question of whether marginalized groups should be able to participate in society to sectors that had traditionally considered themselves distinct from overt fascism. As the mainstream right increasingly embraced the concept of the culture wars, they also adopted the implication that there was a fundamental existential conflict. By framing the conflict in terms of purity and deviance, coupled with the idea of civilizational conflict that was already emerging in the right, the construction of an absolute social division around political power came to justify a rising discourse of armed politics. Right-wing attention was concentrated on those who did not share right-wing moral codes; this was framed as a justification to use state violence (in the form of legal restrictions, such as abortion bans) and armed force (in the form of far-right terrorism) to eliminate all groups perceived as threats to moral American life.

In addition to targeting people who were pro-choice, who had different religious affiliations, or who expressed themselves outside of the cis-hetero normative construct, these perceived threats were also directed at non-white people, though this was framed in the language of responding to social and political deviance. The idea of an armed cultural conflict, the targets of which now included everyone outside of white Christian conservatism, began to spread throughout the right wing, as some of the more moderate factions embraced or at least explained away anti-choice violence or the formation of militia groups. However, as the violence became a more significant political liability, conservative politicians began to modify the extremist rhetoric of armed factions into policy, embracing the culture of these political circles while rejecting armed violence, at least in public. This was evident in anti-choice politics, in which politicians embraced groups like Right to Life but rejected groups like the Army of God even as they incorporated their political rhetoric into policy.

The development of this broad political identity based in white Christianity and the attempt to restore and protect an idyllic America from all “outside forces” brought the discourse of far-right organizations into increasingly mainstream contexts starting in the early 1990s. However, while their ideas were becoming more and more generalized, armed far-right groups became increasingly isolated, especially as the Gulf War precipitated rising mainstream patriotism. As allegiance to the state became a default politics on the right, armed violence was increasingly seen as fringe terrorism. In some ways, during this period, the right no longer needed the armed groups, since it held almost unchallenged power, and could implement far-right visions incrementally through policy.

During this period of right-wing ascendancy and lasting until the election of Clinton in 1992, the armed far right became publicly ostracized from the mainstream right, which increasingly saw the indiscretion of the far-right as a liability. Increasingly marginalized, far-right fringe elements kept to themselves, breeding an ecosystem of conspiracy theories dispersed via newsletters, pamphlets, books, and radio. However, with the rise of the Clinton administration and the loss of Republican power in Congress, far-right beliefs were slowly reintegrated into the mainstream right. Publications like American Spectator magazine picked up fringe conspiracy theories from the far right about the Clintons’ financial dealings, the deaths of their former friends and business associates, and Bill Clinton’s supposed ties to moderate left-wing activists during the Vietnam War (never mind that he was an informant while at Oxford). This process accelerated after the government raids at Waco, which were portrayed by many on the right as an attack against a religious community over gun ownership issues, and at Ruby Ridge, portrayed as a state assault on a rural family minding their own business.

The events that played out at Waco and Ruby Ridge, early in the Clinton administration, began to play a role of being points of condensation around which conspiracy theories could form. The efforts to establish global unity under American political norms, which arose at the end of the Cold War, accelerated the emergence of narratives about a purported New World Order—a superficially modified version of some of the anti-Semitic conspiracy theories that the Nazis had previously advanced. Combined with the narrative of an absolute cultural and political division, this fueled perceptions that the “traditional” America that the right wing held up as an ideal was collapsing. Elements of the racist far-right used these conspiracy theories as openings to enter mainstream right wing circles. Mainstream Republican discourse integrated the former fringes—a move propelled by Newt Gingrich and Thomas DeLay for the purposes of creating a permanent Republican voting block; by pushing the narrative of permanent division and existential threat, they could demonize the Democrats, guaranteeing loyalty among their voters. The popularization of these narratives extended the Overton window to the right in ways that the far-right subsequently exploited to extend its influence and recruitment. Many of these tendencies fuel present-day Trumpism.

Concurrently, in the 1990s, militia movements that had previously been viewed as fringe elements increasingly came to be regarded as necessary to defend America from internal and external enemies. As right-wing conspiracy theories reached a fever pitch and increasingly mainstream Republicans embraced these politics, the militias grew in size. This tendency, coupled with the right’s historic fervor for gun culture, popularized the notion of the “patriot” standing up against “tyranny” to preserve “freedom” and an American (read: white-dominated) way of life. This language was continuously weaponized over the following decades, pulling more moderate conservatives into contact with extreme right-wing ideas, which became less and less divergent from the language of mainstream Republican activists.

Understandings of “freedom” as the preservation of white domination and Christian supremacy continued to infiltrate the mainstream right, fueled by the conspiracy theories about how Clinton was going to destroy the white Christian way of life in America. In this mutation, the concept of “freedom” was modified to represent a rigid set of social norms. For example, Christian groups began to declare that it was a violation of their “freedom” for the state to allow non-hetero couples to marry, or not to force children to pray in school. In the past 30 years, this dynamic has been repeatedly applied to exclude people from society based on sexual orientation or gender identity and to further integrate the language of Christianity into government documents. This notion of “freedom” as the “preservation” of a “way of life” has become so popular with the right-wing that it barely requires repeating when politicians employ it to push policies of exclusion. Combined with the desire to eliminate difference and to preserve social and political inequality, disempowerment, and racial apartheid, the notion of “freedom” has been stripped of any actual meaning. This has set the stage for an increasingly authoritarian posture across the right.

The concept of a culture war, which had become common parlance within the religious right, fused with the widespread conspiracy theory narrative describing the rise of a tyrannical elite. In its attempts to undercut Clinton, the Republican Party created the conditions for a concept of total cultural warfare, which became increasingly militarized and seeped back into the more moderate factions of the Republican Party. Some of these factions still embraced policy-centric positions, but the narratives they utilized to motivate voters were all based on this notion of an absolute cultural threat. Voters were presented en masse with the image of an American culture threatened with extinction, led to believe that they were the only forces that could mobilize against a tyrannical “liberal elite” in order to preserve their “freedom.” As this mentality generalized, the idea of civil war as a horizontal conflict between social factions came to be widely accepted among the right.

The Mentality of Defending the “Homeland”

With the advent of the second Bush administration and the September 11 attacks, the relationship between the state and the fringe far right changed dramatically. The state’s response focused on constructing a national consensus around the “War on Terrorism”—a consensus which was exploited to justify systematic violations of civil liberties, to target entire communities, and to channel trillions into overseas military occupations. The core of this campaign was the construction of a narrative of two elements in conflict (“with us or against us”)—a binary distinction grounded in unquestioning loyalty to the state—and the drafting of the “public” into the intelligence and counter-terrorism apparatuses. The attacks themselves and the rhetoric around them helped to popularize the concept of a conflict of civilizations; the idea of defending the “homeland” from foreign threats that sought to “destroy the American way of life” was increasingly adopted across the American political landscape. A sort of renaissance occurred in the militia movement: no longer alienated from the state, the militia movement started to become a cultural phenomenon. The concept of the citizen defender of the “homeland” entered popular culture, becoming a widespread cultural archetype within mainstream conservatism.

The embrace of the tenets that formed the foundations of the militia movement in the decade leading up to September 11 had profound effects.

First, an ecosystem of conspiracy theories developed around September 11, propelling Alex Jones from the fringe towards mainstream conservative circles. This was bolstered by state efforts to spread the narrative that hidden enemies within the US were waiting for a time to attack. This posture lends itself to justifying social exclusion and validating conspiracy theories; the threat is not apparent but hidden, associated with elements of society that diverge from supposed social norms. As a result, the narrative on the far-right shifted from a framework that was at odds with the state to a framework in which the right targeted others based on race, religion, and politics in order to defend the state itself. Conspiracy theorists were able to exploit increasing Internet use, using online media and the newly formed mass social media platforms—chiefly Facebook—to spread conspiracy theories to new social circles.

Second, the incorporation of far-right ideas and personalities into mainstream conservative discourse brought more traditional conservatives into increasingly close contact with extreme racism and Islamophobia. Before the rise of social media and the right-wing idea of the civilian soldier, many people saw these conspiracy theories as marginal and lacking credibility, or else did not encounter them in the first place. But now, these fringe elements gained an audience within more mainstream circles, hiding their intentions within the parlance of counter-terrorism. As the field of counter-terrorism studies emerged, many of those who initially populated that world hailed from the Islamophobic far right; they were able to pass themselves off as “terrorism experts” simply by presenting themselves as a “think tank” and making business cards. As the right came to adopt the concept of an absolute threat and to identify that threat with otherness in general, the fear of an immediate terrorist threat that politicians had propagated bled over into cultural and political divisions, conveying the sense that the enemy represented an immediate and physical threat to health and safety. The more this mentality spread throughout the right, and the more that this was leveraged to demonize difference, the more the conditions were created for these divisions to be characterized with a narrative of overt warfare.

For more and more Republicans, inclusion in society became conditional, depending on political beliefs; protest activity was enough to identify a person as an external enemy. This is ironic, insofar as the right wing has dishonestly sought to rebrand itself as defending free speech.

Within the right, as the idea of a militarized defense of the state against enemies both internal and external took shape, the definition of “enemy” expanded to include not just those of different cultural, ethnic, or religious backgrounds, but also immigrants, Muslims, and “liberals.” As the Bush era wore on, this newly empowered militia movement, increasingly aligned with the white nationalist agenda, began to engage in semi-sanctioned activity, such as the Minutemen patrols along the Mexican border. Republican politicians incorporated the ideals of these militarized groups into GOP policy, both nationally and locally in places like Arizona, where white nationalists played critical roles in drafting SB1070, and later helped to popularize a narrative about the need for a border wall. Following the patterns of past social conflicts, this narrative served to create political conditions that could render increasingly invasive state policies more acceptable and successful—including the expansion of the surveillance state, the militarization of the police, and the military campaigns in Afghanistan and Iraq.

As militarism took hold on the right, the foundations of the contemporary conservative position were laid. The right came to see themselves as defenders of the state, and the state as the force that defends their “freedom”—understanding “freedom” as the preservation of a white Christian conservative society. Consequently, formerly anti-government militias shifted to openly supporting repressive government intervention, and even the supposedly “libertarian” elements of the right embraced the police and the forces of the state.

When Obama took office, the stage was set for the final act, in which the politics of white grievance, the violent preservation of white supremacy, and what would become a state strategy of counterinsurgency came together in a volatile cocktail. Just as they had during the Clinton era, Republican politicians began to capitalize on racism and conspiracy theories as political strategies to regain power—but this time, these conspiracy theories took on overtly racial and religious tones. What had been implicit in the 1990s was now explicit.

The prevalence of conspiracy theories within the Republican Party reinforced the notion of a “real America” protecting the state from internal enemies—which, according to this narrative, had managed to take control of the state itself in the form of the Obama administration. The necessity of portraying the threat as Other, external to a “real America,” is obvious enough in the rise of the “birther” conspiracy. The right merged everything they opposed into a singular force attempting to destroy America: recall the infamous Glenn Beck conspiracy board, according to which the Service Employees International Union was selling copies of The Coming Insurrection to help Obama institute Islamo-Fascist Leninism. This completed the process via which the right had begun to view all who disagreed with their doctrines as the enemy and to consider themselves a distinct political project based around the defense of America.

Paranoia took over in the mainstream right. All sources of information that did not reinforce their views, all policies that could be portrayed as part of a “liberal conspiracy,” all efforts to promote social tolerance were seen as direct attacks against America itself. The conspiratorial tendency that Republicans had incorporated into the party in the late 1990s had metastasized into a belief that Republicans were constantly under assault by enemies that must be destroyed. The entirety of society and politics were viewed as the terrain of an ongoing civil war, conceptualized in increasingly millenarian terms. To those outside the right, this narrative seemed completely divorced from reality—but within these circles, these theories were the result of years of social polarization and burgeoning ideas about cultural warfare, promoted by Republican politicians. Departing from the idea of a lifestyle under threat, moving through the concept of cultural warfare into conspiracy theories and the framework of civilizational warfare, an overtly racist call to “protect Western civilization” became the cornerstone of contemporary right wing politics.

The open embracing of conspiracy theory generated several mutations within right-wing discourse, two of which became prominent.

The first mutation took the form of the Tea Party and the birther conspiracy—from which Donald Trump’s candidacy ultimately emerged. In these circles, conspiracy theories fueled by Facebook and online right-wing platforms spread at an unprecedented pace, generating theories about everything from “death panels” to undocumented immigration and eventually culminating in QAnon. The rapid pace at which these theories proliferated and were adopted by the Republican Party and their attendant media organizations, such as Fox News, created the conditions for these narratives to grow increasingly divergent from demonstrable and observable fact. In these circles, the acceptance of information had less to do with its veracity than with the declared politics of the communicator. This backlash against “liberal media”—i.e., any media organization that did not valorize right-wing narratives—formed the basis of the “fake news” narrative later pushed by Trump.

The second mutation was the emergence of newly empowered militia and white nationalist movements, which had come to exist in close proximity with one another twenty years earlier when they were relatively isolated during the Clinton era. These organizations capitalized on their newfound access to people in positions of power. Narratives about defending the state against “outsiders” continued to spread online, enabling militia groups to capitalize on populist discontent in the waning years of the Obama administration. These elements began to organize through several different channels, including attempts to carry out attacks against immigrants and Muslims, the emergence of “citizen’s militias” in places like Ferguson, Missouri in response to the uprising against racist police violence, and direct standoffs with state forces such as the one at the Bundy Ranch in 2014. These confrontations provided a point of condensation, while right-wing media pointed to them as examples of “resistance” to the supposed internal threat.

Concurrent with the acceleration of activity within conspiracy theory and militia circles was the rise of the “Alt-Right,” which emerged during “Gamer Gate” in 2014. Largely driven by the Internet and misogynist white grievance, this element introduced a new and well-funded influence into the right-wing ecosystem. The Alt-Right is rooted in the white-collar racist right-wing, populated by figures like Jared Taylor and Peter Brimlow who were often seen as soft and bourgeois by other elements of the far-right. Taylor, Brimlow, and similar figures are situated in the universities and think tanks of Washington, DC; they had always operated in a space between the official Republican Party and the Nazi skinheads and racist militias that had dominated the far-right fringe for decades. Flush with cash from tech and financial industry funders and armed with a logic of strategic deception, the Alt-Right gained widespread attention through online harassment campaigns, which they justified by disingenuously leveraging the rhetoric of free speech. Thanks to the developments of the preceding years, the Alt-Right was able to traffic openly in conspiracy theories and disinformation while portraying anyone who opposed them as part of the “liberal establishment”—the groups that the right had convinced their adherents represented an internal threat.

As the online presence of the Alt-Right grew, they gained entry into influential Republican circles by teaming up with older, more traditional racist conservatives who had attained positions from which they could shape policy. This influence was amplified by publications like Breitbart, run by Trump’s confidant Steve Bannon, and funded by the Mercer family, who made billions running hedge funds. For Republicans like the Mercers, embracing the Alt-Right was a strategy to gain power within conservative circles and overcome the power networks of more traditional funders like the Koch brothers. Others recognized the power that they could wield by tapping into the online forces assembling around the Alt-Right. This online presence was supplemented by the mobilization of older conservatives through the Tea Party, rising far-right activist energy, and the construction of a culture around the militia movement.

Many conservative politicians began to embrace this new formation, despite its outright racism and the ways it used confrontational tactics to achieve its goals. In many ways, as with Gingrich and DeLay in past decades, Republican politicians saw this new element of the right wing as a possible source from which they could draw grassroots energy. They hoped to use this energy to compensate for the fact that the Republican Party was becoming a minoritarian party with a voter base that was slowly dying out—just as they used gerrymandering and voter suppression to counteract this disadvantage. They saw an opportunity to construct a voting block that was completely loyal to them and isolated from any other perspectives, beginning with the demonization of the “liberal media” and eventually encompassing every aspect of everyday life—where people buy food and clothes, what kind of cars they drive, the music they listen to, the books they read. The social “bubble” that the right had spent years building crystalized, enabling them to mobilize rage and reactionary anger almost at will. Though this allowed the Republicans to leverage parliamentary procedure to limit much of the Obama agenda, it also created the conditions that led to the old guard of the party losing control over the party itself.

Out of this moment arose Donald Trump, who ran a campaign that was as openly racist as it was nationalistic, as blatantly grounded in disinformation as it was in a politics of social division and white grievance. Even though his candidacy was openly rejected by traditional Republican power circles, they quickly came to understand that their attempts to build a grassroots conservativism had caused them to lose control over the force that they had helped call into being. The Overton Window in the US had shifted so far right by this point that the politics of Pat Buchanan, which the Republican base of the 1990s had rejected as racist, were now firmly entrenched as core Republican beliefs. The Trump campaign set about tearing down the remaining elements of the right that resisted his overt politics of racial division; in the process, it empowered the overtly racist elements within the right that had been gaining influence for years. Many commentators attributed this shift to the rise of the Alt-Right and its internet disinformation and trolling campaigns. In fact, the stage had been set for Trump long before, when the narrative of white communities at risk of destruction gained currency in the years following the Civil Rights Movement.

Thanks to the overt articulation of racist politics, the isolation of the right in a media bubble, and the construction of an absolute conflict between the right and all other political and social groups, the Trump campaign found a ready group of supporters. This mobilization invoked the idea of being under attack by “others,” but it also invited this base to serve as a force in offensive street action. The forces of militarization and social polarization that had been gaining ground on the right for years were unleashed in the street. All around the US, Trump supporters attacked immigrants, vandalized stores and places of worship, carried out mass shootings in the name of ethnic cleansing, and organized rallies and marches during which participants often attacked everyone from organized opposition to random passersby.

This mobilization enabled Trump not only to win the nomination and the presidency, but to marginalize practically all other factions of the Republican Party. This, in turn, created a situation in which normal conservatives were willing to consider taking on counterinsurgency roles on behalf of the state to defend the “homeland” against opposition to Trump, who has become synonymous with the rise of the white Christian “true America” to power.

This popularization of formerly fringe ideas has been widespread and terrifying. On the level of society, this manifests as a sort of cultural warfare, instilling inescapable and constant fear: immigrants fear being rounded up, dissidents fear being targeted by the state or right-wing vigilantes, targeted groups fear discrimination and police racism. Over the past four years, elements of the overtly racist right have openly mobilized in the streets, causing a massive social crisis—yet this has also driven elements of the left and left-adjacent circles to mobilize against rising fascist activity, and they have largely succeeded in driving the far right off the streets again, or at least limiting their gains.

Meanwhile, the Trump administration has not hesitated to use the mechanisms of the state to crack down on dissidents and harass populations considered to threaten the re-establishment of white hegemony, while continuously spreading disinformation to construct a parallel reality. The justification for targeting dissidents is descended directly from the concept of defending “real America” from attack by secretive internal enemies. Narratives that reinforce this portrayal of the scenario are promoted, regardless of verifiability, by an entire universe of right-wing media. Trump has positioned himself and the media outlets that support him as the sole sources of truth for his supporters. Consequently, he has been able to frame any opposition—even simple fact checking—as an attack against himself and his vision of America, separating his adherents from all other sectors of the American public.

What emerged is a sort of final act, a culminating move in the construction of the concept of civil war on the right. The right transformed from a force opposing everyone they considered immoral or un-American, including the state, depending on who was in power, to a force that was completely loyal to the state. In this transformation, the concept of civil war also underwent a fundamental shift from a notion of social or cultural conflict between defined social factions, as it was for the religious right, to a strategy of defending the state against oppositional forces. In this transformation, the concept of civil war acquired a central paradox, in which the term came to mean something wholly other than its initial connotations within right-wing rhetoric. It no longer denotes a conflict that occurs between social factions outside of formal state power; now it describes a conflict in which one political or social faction becomes a force operating alongside the state within a framework of counterinsurgency.

The Concept of Civil War

The concept of civil war, in its traditional sense, presumes that there are two or more political factions competing for state power, or else, a horizontal conflict between social factions that are otherwise understood as part of the same larger political or social category. In this framework, the factions that enter into conflict are either doing so directly, with the intention of eliminating each other, or in a situation in which the control of the state is in question, with different factions fighting to gain that control. The horizontality of civil war distinguishes it from concepts like revolution or insurgency, in which people struggle against the state or a similar structure such as a colonial regime or occupying army. To say that a conflict is “horizontal” does not mean that the factions involved wield equal political, economic, or social power—that is almost never the case. Rather, in this sense, “horizontality” is a concept used in the study of insurgencies to describe a conflict as taking place across a society, without necessarily being focused on the logistics or manifestations of the state. In shifting the focus of struggle away from the operational manifestations of the state, this understanding of civil war tends to isolate the terrain of engagement. Rather than centering the struggle in everyday life—in the dynamics of our day-to-day economic and political activities—this understanding of civil war engenders a series of mutations.

First, it forces a sort of calcifying of the way the conflict is understood. Rather than the dynamic, kinetic conflicts that typify contemporary insurgencies, in which conflict manifests as a result of and in relation to everyday life, this way of seeing approaches social divisions as rigid forms. If we begin by assuming the existence of a fundamental social division preceding any questions about contextual political dynamics—as in the concept of cultural warfare embraced by the right—this will cause us to identify both the enemy and our “friends” as permanent and static entities. In this conceptual framework, these identities necessarily precede the conflict—they form the basis of the conflict within the original category of unity—and remain static throughout the conflict, as they are the terms that define the conflict itself. Consequently, partisanship becomes a sort of ideological rigidity in which actions are driven by a purely abstract definition of friendship and enmity.

There are clearly elements of the aforementioned “horizontality” in the current uprising and the reaction to it, and concepts of identity have played a key role in the way that the conflict has emerged, but the reality is more complex. If the social struggle that exploded into the streets in 2020 had simply been a conflict between right-wing social and political factions and their anti-fascist opposition, then the characterization of civil war might have been apt, just as it would have been if it were simply a conflict over who controls the state. But the actual scenario is profoundly more frightening than the clashes we have seen in Charlottesville, Berkeley, and Portland since 2016. In 2020, we have seen political factions functioning as para-state forces aligned with the state, working in concert with the police and openly engaging in counterinsurgency measures employing extralegal violence. The state is no longer simply refusing to act in response to violence between fascists and anti-fascists, as it had since 2016. Starting in summer 2020, factions within the state actively began to call these right-wing forces out into the street, while at the same time promoting conspiracy theories to legitimize militias and expand their reach within the moderate right, modifying DHS intelligence reports to justify the violence, and using the Department of Justice as a legal enforcement arm. Between August and November, all this took place in coordination with the messaging of Trump’s reelection campaign.

The traditional understanding of civil war implies a conflict between two distinct factions within a wider unity that defines both, as argued by Carl Schmitt. For example, a civil war would be an apt description of an open fight between fascists and anti-fascists over control of the state. The current scenario does not match that narrative. One element of the conflict is openly identifying as an element of the state itself, however unofficially; the perceived legitimacy of the right-wing position derives from their claim to be working in the interests of “America,” even if that involving opposing certain elements of the state. Describing the defense of the state as civil war creates the illusion of a horizontal social conflict, when in fact what we are describing is nothing more than informal policing.

This explains how the contemporary right wing embraces the police, soldiers, and murderers like Kyle Rittenhouse in the same breath. They understand themselves as fighting alongside the state to preserve it. It is not just that Trump has leveraged them for this purpose; their entire narrative propels them in this direction, rendering them willing participants in the establishment of authoritarianism under the banner of “freedom.” All the state has to do to mobilize them is to conjure an enemy and legitimize extra-legal action.

In calling them forward and sanctioning their actions, the state has employed a strategy with two clear objectives. First, to compensate for the state’s failure or hesitance to mobilize enough force to contain the uprising. Giving leeway to vigilante forces, the state enters a zone of exception that allows for violence not subject to the constraints that ordinarily limit what the state can do by force. Second, to construct the uprising as a threat. Taking advantage of widespread xenophobia, racism, and citizen militia mentality on the right, the state presented the uprising as something outside of America, posing a threat to America. This mentality is clearly confined to one segment of the American population, but that segment is all that is necessary for the operation to succeed.

For these moves to be effective, it was necessary to construct a threat that was both outside and internal. The narrative of “outside agitators” was mobilized to delegitimize Black resistance by denying that it ever actually occurred, insinuating that “outside agitators” drove the local rebellions. This narrative has been deployed across the political spectrum, from conservative Republicans to progressive Democrats, in a flagrant attempt to decenter the idea of direct, localized resistance. This served a number of different agendas. In cities governed by Democrats, it enabled local administrations to deny the failures of reformism; in more conservative areas, politicians used it to deny the profound racism at the core of the American project and to preserve the narrative of American exceptionalism. This effort to conceal Black resistance was easily debunked, as arrestee statistics around the country repeatedly showed that the majority of people arrested in local protests were from the immediate area and were hardly all “white anarchists.”

When the falsehood about “outside agitators” collapsed, Trump turned to defining whole cities as outside the realm of American legitimacy. This included threatening local officials, declaring that they had lost control of cities, and ultimately designating those cities as “anarchist jurisdictions.” This successfully mobilized right-wing groups to go into some of these cities and start conflicts, but ultimately, the reach of this ploy was limited. For counterinsurgency to succeed, it needs to employ narratives that are widely accepted—and uncontrolled “anarchist jurisdictions” failed this test. This narrative has been most effective when it focuses specifically on “anarchists,” defining the term as anyone involved in any sort of direct resistance, including marches. By promoting the idea that Americans face a dangerous adversary bent on evil, the Trump administration tried to construct the terms of a horizontal social conflict in which elements of the right could play a direct role in fighting the “anarchists.”

Calling the militia movement into the streets via a narrative of total conflict shifted the terrain of conflict itself. Where previously, the unrest emerging throughout society was directed at the state, suddenly those in revolt were compelled to contend with two forces, the state and the paramilitaries. In this mobilization of social conflict, the state was able to not only gain force in the streets, often leveraged through threats and direct political violence, but was also able to decenter the focus of resistance away from the state, and into the realm of social conflict.

In mobilizing paramilitaries, the state both leveraged and incorporated the social polarization of the past decades. This provided the state with a mechanism outside of the structure of law through which repression may take place. In embracing this informal force, the state adopted a strategy similar to the approach seen in Egypt and then Syria during the so-called Arab Spring, in which reactionary social forces were mobilized to attack uprisings.

When this took place in Egypt in 2011, the rebels in the streets did not allow this strategem to divert them from focusing on bringing down the Mubarak regime. But in Syria, the introduction of paramilitaries into the conflict not only hampered the uprising from focusing on the state, but also restructured the conflict along ethnic and religious lines, diverting the uprising into sectarian warfare and enabling the state to ride out the ensuing bloodbath. These scenarios were similar in that forces outside of the state were mobilized for the purpose of counterinsurgency, even if the kinds of force involved were different. As in Egypt and Syria, the struggle in the US could be diverted into sectarian violence. If this takes place, it will be the consequence of a fundamental misunderstanding of how the state functions and what the role of paramilitary forces is.

Though these situations differ in many ways from the one we find ourselves in, there is one common thread that ties them together. In Egypt, Syria, and in the current American context, the narrative of civil war initially developed specifically in communities that were aligned with the state. These communities conceive of civil war in paradoxical terms. On the one hand, there is a narrative describing a conflict between social factions, a “with us or against us” mentality. On the other hand, these social divisions are drawn along the same lines that define loyalty within the political space. The factions that see themselves as aligned with the state shape their identity largely around some sort of ideological project (such as right-wing Christianity in the US, for example) that they seek to implement through the state, leading them to see all opponents of the state as social enemies. In this framework, the concept of civil war becomes an analogue for a fundamentally different phenomenon, the voluntary involvement of those outside the state in its operations as paramilitary forces.

So the question confronting us is not whether to engage in civil war. Rather, the concept of civil war, as popularly understood in the contemporary United States, is a misnomer.

Law and Liberal Counterinsurgency

The emergence of this paramilitary phenomenon must be understood in the wider context of the development of counterinsurgency strategies as a response to the George Floyd uprising. Counterinsurgency theory is a vast field, emerging from colonial powers’ attempts to maintain imperialism in the wake of World War II. Beginning with British tactics during the Malayan Emergency in the 1950s, the model provided by those attempts to maintain colonial power came to exert profound influence on subsequent military and policing theory. Both “community policing” and the approach that the US military took during the later phase of the occupation of Iraq derive from thinking that originally emerged at that time. The primary goal of contemporary counterinsurgency, at its most basic, is to separate the insurgents from the population, and to enlist, as much as possible, this same population in initiatives to eliminate the insurgency. As French military thinker David Galula wrote in the 1950s, “The population becomes the objective for the counterinsurgent as it was for his enemy.”

Unlike the traditional understanding of warfare, which assumes a frontal conflict between identifiable, organized forces and the control of territory, counterinsurgency engages at the level of everyday life, where material action is taken and politics occurs. The terrain of the conflict is not space, necessarily, but rather security—the participants seek the ability to contain crisis in a given area, and then to expand that area. This has taken many forms—from the British brutally relocating entire populations to camps and the Americans napalm-bombing Vietnam to the softer approach of buying loyalty seen in the Sons of Iraq program during the Iraq War. However, the core of this approach is always a system that creates incentives for loyalty and negative consequences for disobedience, resistance, and insurgency. As many historians of US policing have pointed out, there is a cycle in which tactics developed in foreign conflicts are integrated into American policing and vice versa. Counterinsurgency is no exception; the earliest domestic appropriations of this approach were used to provide political victories for the moderate elements of political movements in the 1960s, followed by the emergence of so-called “community policing.”

The important thing here is to understand how this approach has been modified during the uprising that began in May 2020. In some ways, the response to the George Floyd uprising employed longstanding techniques—for example, the attempt to recuperate moderate elements. In other ways, we have seen a dramatic break with the techniques that the state relied upon until recently. To understand these differences, we can begin by tracing where they originate.

The discourse of law and order has formed the foundation of the contemporary prison-industrial complex and the explosive rise in prison populations—paving the way for “broken windows” policing, the militarization of police forces, mandatory minimum sentences, and the expansion of the prison system. This discourse relies on two fundamental elements: the state and the law. Following Carl Schmitt and Giorgio Agamben, we can describe the state as a formation through which the will of sovereignty is expressed, with the primary goals being the projection of sovereignty and the continuation of that projection. Within this construction of the state, law exists as an expression of sovereignty—but it is not the only possible expression. The state can suspend law, or supersede law, in an attempt to perpetuate itself.

We saw this play out during the George Floyd uprising, as elements of the state abandoned the framework of a police force limited by law, along with the idea that laws against assault, threats, and brandishing weapons apply equally to everyone. Though we often think of the state and law as phenomena that imply each another, the state exceeds the structure of law. When liberal activists wonder why cops appear to be above the law, it is because they literally are. The state is not premised on the construction and maintenance of laws—Stalin’s regime, for example, was often utterly arbitrary. The construction of laws necessitates the existence of the state, but the converse is not true.

Philosophically, the structure of law functions to the extent that there cannot be exceptions to the law—in other words, to the degree that the law is enforceable and that there are no moments outside of law. Yet laws—or, to be precise, the dictates of a sovereign structure—do not function simply through declaration; a Bill in Congress is just a piece of paper. Both the law and extra-legal impositions of sovereign will only take force via mechanisms that can impose them upon everyday life. The police are one such mechanism.

Understood thus, law exists as a sort of aspirational totality intended to cover all time and space and to regulate the actions of all citizens. Within this construct, any attack against the police is in some sense an attack upon the state itself. Attacking police, building barricades, and other such disorderly actions all serve to prevent the police from projecting force into an area. Even outside the framework of law, in a state of emergency and in open warfare, the structure of the occupying force and the ability of that force to impose the will of the occupiers functions only to the degree that they can crush resistance within that space. Accordingly, any illegal activity, from unpermitted street marches to open rioting and looting, must be stopped at all costs—otherwise the hegemony of law will degrade, eventually leading to the disorganization of the police and the breakdown of the state.

The narrative of “law and order” presents this concept of law as the absolute definition of life and existence. The formal argument in the US political context is that law must apply to all people in the same way all the time, though we all know that this is never the reality and that in fact, the administration itself does not adhere to the law. Under the Trump administration, the state takes the form of a traditional extra-legal sovereignty structure, via which the will of the sovereign imposed through force and law serves as a convenient mechanism to criminalize any form of resistance.

This tendency to employ the state as an extra-legal apparatus for imposing sovereignty has manifested itself in a variety of forms—including the argument that people who attack property should spend decades in jail, the use of federal law enforcement to protect buildings from graffiti, and the use of federal charges against protesters, often for actions that local officials would not have deemed worth prosecuting. The goal is clear: to suppress the uprising in its entirety, rather than to regulate or channel its energy. This approach largely failed, often provoking severe reactions in places like Portland, where the presence of federal law enforcement on the streets energized the uprising and inspired some interesting tactical innovations.

The other side of this counterinsurgency puzzle is an emerging form of liberal counterinsurgency. Liberal counterinsurgency is nothing new. We can trace it to the attempt to moderate the labor movement after World War II and subsequent efforts to contain the Civil Rights Movement; the current strategies are familiar from the later days of the Iraq occupation. The fundamental move here is to provide an access point through which elements of a political faction or movement can get involved in the state. Sometimes this is through the mechanism of voting and the channeling of resistance into electoralism. If that fails, or if the crisis is acute enough, the state will attempt to incorporate these moderate elements directly by appointing them to government positions, including them in committees and in the constructing of policy. Arguably, the beneficiaries of previous applications of this technique form the core of the contemporary Democratic Party, which is comprised of the moderate wings of various political initiatives, all of whom were given access to some element of power. The final move in this strategy is to delegitimize or crush the ungovernable elements that refuse to compromise.

At its core, liberal counterinsurgency relies on fracturing political initiatives, uprisings, and organizations, sorting the participants into those who can be recuperated and those who must be eliminated. We saw elements of the state and various aspiring state actors employ this strategy in response to the George Floyd uprising. Early on, this took the form of conspiracy theories about outside agitators and agent provocateurs; eventually, it progressed into discourse about the importance of peaceful protest, a focus on defunding the police rather than abolishing them, and calls for people to follow the leadership of community organizers who were attempting to pacify the movement.

Liberals have attempted to completely reframe what has occurred in the United States since May within the context of acceptable politics. They have worked tirelessly to produce studies showing that the majority of the demonstrations were “peaceful.” They have spoken in the media in support of the uprising, but only mentioning elements adjacent to the uprising who were already associated with the electoral system, such as the various candidates and politicians who got tear gassed for the cameras. They have condemned the actions of the police, but only as violence perpetuated against the “innocent.” The move to glorify peaceful protest implicitly excludes and condemns those who do not fit this narrative of legitimate resistance.

Once the most radical elements are delegitimized and excluded, liberals move to criminalize them, even going so far as to justify police force against ”rioters,” often in the same cities where politicians started by condemning police violence. To hear them tell it, legitimate “peaceful” protests were hijacked by violent elements and outside agitators: illegitimate participants undermining the goals of the protests. Those of us who were in the streets at the end of May know that this narrative is absurd—people were fighting back from the moment that the cops shot the first tear gas—yet it has gained favor in liberal circles. This narrative is an attempt to hijack the uprising, to draw what was an ungovernable, uncontrollable element in direct conflict with the state back into electoral discourse.

Regarding the narrative that focuses on defunding the police—a proposal that means different things to different people—the liberal political class immediately began to insist on articulating demands that could be addressed to the state. This follows a pattern familiar from the Occupy movement and the rioting after police murdered Michael Brown in Ferguson in 2014. Structurally, the act of formulating demands suggests that the state is a legitimate interlocutor; it frames an uprising as a sort of militant lobbying directed at the state. By insisting on a model that centers demands, liberals position the state as the chief mechanism through which “change” occurs, ruling out the possibility of fighting against the state and the police themselves. The purpose of the demand is not so much to “win concessions” as it is to force potential uprisings back within the bounds of “acceptable” politics mediated by the state; this is why politicians always insist that movements must articulate clear demands.

By framing the discussion around demands to defund the police rather than attempts to abolish or eliminate them, liberals shifted the discussion to the less threatening arena of policies and budgets. This also enabled them to provide the moderate elements involved in the uprising with access to political power, in order to channel that energy into the formal legislative process. The irony is that the George Floyd uprising is a result not only of the long history of racism in the United States, but also the ways that prior attempts at liberal reform have failed.

This liberal counterinsurgency led to an inevitable conclusion: in August, Joe Biden directly declared that riots are not “protests,” essentially asserting that only attempts to engage in dialogue with the state are acceptable and that the full force of the state should be used to crush whatever ungovernable elements of the uprising remain. Biden combined both approaches—both repressing and coopting—by separating “peaceful” protesters from “rioters” and “anarchists,” then speaking directly to the most moderate demands for police reform.

Biden expresses the other element of the core paradox within state strategy: the state will allow protests, but redefines protesting to eliminate resistant elements. The goal is to provide an outlet, to allow people the opportunity to express complaints about particular state actions as long as no one challenges the state itself or the bureaucracies and parties that interface with it. This approach is fundamentally grounded in the concept of containment, according to which the state does not necessarily attempt to eliminate crisis, but rather aims to keep whatever happens under control via management and maintenance.

In the response to the George Floyd uprising, these differing approaches to law and security functioned to undermine each other; this is what set the stage for the emergence of para-state forces in response to the uprising. The “law and order” approach, based around imposing sovereignty through force, created a situation in which the forces of the state were empowered to employ increasing levels of violence to suppress the uprising. As we have seen in the streets, the use of impact munitions, beatings, arrests, and tear gas in 2020 has far outstripped any precedent in recent protest history. In response to these tactics, we saw an escalation on the part of the rebels in the streets, increasing numbers of whom began to form shield walls, bring gas masks, throw stones, and set fires, occasionally even employing firearms or Molotov cocktails. These were not aberrations, but common tactics emerging across a wide geographical area, fundamentally endangering a liberal counterinsurgency strategy based around containment.

As conflict escalates, containment-based approaches encounter two difficulties. First, it becomes increasingly challenging to identify more moderate or “innocent” elements and to isolate them from rebellious elements. Likewise, as state violence intensifies, it becomes harder to make the argument that reformism is valid or effective. Rebels on the street became more uncompromising as the uprising stretched on, seeing how increasing police violence indicates the failures of reformist approaches. Second, containment-based approaches reveal a fundamental contradiction. These approaches necessitate legitimizing some element of the uprising, which means acknowledging the legitimacy of the critique of the American political project it articulates. Yet as an uprising becomes increasingly uncontrollable, legitimizing these criticisms is tantamount to legitimizing the violence of the uprising itself.

As the liberal approach to counterinsurgency contributed to legitimizing the narrative of the uprising, it came into conflict with the law-and-order approach. The law-and-order approach drove militancy in the street, which in turn drove increasingly egregious police responses, rendering it increasingly difficult to contain the crisis. At the same time, because liberals took the position of supporting the core criticisms articulated via the uprising, they could not easily abandon those assertions, even as it became difficult to find elements that would abandon those who remained active in the street. This is what created the situation in which elements of the state were compelled to exceed the bounds of the law. In this context, the state resumed its essential nature as an imposition of sovereign force, in which law is only one of several possible manifestations, but at the same time, it also began to make space for extralegal para-state forces. This, in turn, created the conditions for far-right elements to receive leeway to operate outside of the law.

The inclusion of social forces from outside of the formal state structure in counterinsurgency strategies contains in microcosm several dynamics that have always been latent in US politics. It is from this perspective, in view of the contradictions latent in the counterinsurgency strategies deployed against the uprising, that we should understand the emerging discourse of civil war.

Social War, Not Civil War

The mobilization of paramilitary forces outside the limitations of the law points to a core element that is essential to this specific counterinsurgency operation as well as to the state in general. Throughout the Trump administration, we have seen the norms that formed the foundations of the perceived legitimacy of the democratic state erode. As this veneer has worn away, the state has also lost the ability to confine conflict within the bounds of the legislative process. Over the past three years, the relationship between the state and society has become increasingly characterized by material conflict. The Trump administration has used executive edict and raw violence to impose an image of America derived from the far right. This is the state as material force, pure and simple. Under Obama, repression was associated with failed compromise or the surgical precision of surveillance and drone strikes; under Trump, the naked repressive force of the state is laid bare for all to see.

Inherent in the functioning of the state is the defining of what is inside it and what is outside of it. According to the philosopher Thomas Hobbes, for example, what is outside of the state is described as the “state of nature” in which life is allegedly “solitary, poor, nasty, brutish, and short.” This account of the “outside” justifies the existence of the state as a mechanism to prevent what is outside from manifesting itself. Inside the state, the sovereignty of the state is considered to be total, while the outside is understood as any situation in which the sovereignty of the state is absent, or at least threatened. In US political theory, the concepts underlying the state are held to be universal, supposedly applicable to all humans. Therefore, anything outside of the state—even if that outside is geographically internal—is considered an absolute other that must be destroyed.

Consequently, in the US, the paramilitary is constructed both as a force in social conflict with any geographically internal enemy defined as outside of the American project, and as a force inherently tied to the preservation of the state and the prevention of change. Until recently, the concept of the enemy was tempered by self-imposed limitations, which served to reintegrate rebels through liberal counterinsurgency methods or to concentrate state action chiefly within the legal system. Today, these limitations have outlived their usefulness and right-wing militias are eager to eliminate the “outside.”

Now that the state has dispensed with the niceties that served to conceal its core as a logistics of raw force, a few things have become clear. First, the structure of law as a concept that theoretically applies to all people equally was based in the assertion of a sort of universal inside that included all within the purview of the state. Dispensing with law except insofar as it can be manipulated to serve as a weapon, the administration has opened up a space outside of law, a terrain formed by the state of emergency. Second, the paramilitary is no longer a force separate from the state. From the perspective of the uprising, there is no distinction between struggle against the far right and struggle against the state. This is not a horizontal conflict on the level of society—that would assume that all the forces involved were part of the “inside.” Rather, this is a material conflict between the state and all those defined as outside and against it.

With the elimination of the universality of law, framed through the concept of equal protection, and the overt incorporation of the paramilitary into state counterinsurgency strategy, the language of civil war loses its usefulness. Civil war is fundamentally a conflict between social factions, but that is not what is occurring here. That framework actually distorts the current dynamics of engagement. We are not experiencing a conflict between social factions, regardless of how the right conceives of the conflict. Rather, by incorporating the defense of the state into paramilitary doctrine and framing this around a rigid set of ideological commitments (termed “freedom,” but which really represent forms of social control), the right wing has given rise to a political conflict about the state, its role, and the structure of state and police power.

If we embrace the concept of civil war as it has been constructed in the contemporary US context, we will find that this generates tactical problems. Embracing civil war as a strategic posture could cause us to neglect the terrain of everyday life, where the state actually operates and most conflicts play out. If we understand ourselves as contending in a civil war, we will likely look for a linear conflict between two identifiable forces fighting each other without regard to the material terrain.

What is at stake here is not just a conceptual distinction or a question of semantics. The core of the distinction is important to how we think of conflict in relation to the wider anarchist project.

Structures of law and capital always function to regulate and channel actions toward specific ends according to the will of those who wield sovereignty. Resistance is a concrete question of how to act to disrupt the operational logistics of the state—i.e., the police, in the broadest possible sense of the term, which is to say, all those who regulate behavior according to these dictates. If we embrace the posture of civil war, the conflict becomes conceptually displaced from the terrain of everyday life, in which the state and capital operate, into a zone of abstract opposition.

To frame the current conflict as a civil war is to describe the state as a secondary element, rather than the focus of action, and to conceptualize the conflict as a linear struggle between two rigidly identified factions, both of which are defined prior to the opening of hostilities. This approach would produce a social conflict in which the state will inevitably play a role, but in which we will fundamentally misunderstand the terms. Rather than seeking to understand the shifts that have occurred on the level of society and the ways in which the uprising has been successfully defined as an “outside” by the state, we would end up concentrating on only one element of the collaboration between the state and para-state forces. Essentially, we would replace a struggle for everything—for the whole of life itself—with a far less ambitious struggle against other elements in the social terrain.

Seeing things that way would end up limiting our tactical options. If we base our understanding of the terms of conflict around broad conceptual categories, it will be harder for us to strategize for a kinetic conflict with the state that is in a constant process of change. In fact, adopting a framework of rigid linear conflict tends to produce conditions in which popular resistance becomes impossible. Contagious popular resistance presupposes the breakdown of the limits of the political; it manifests at the moment that the distinction breaks down between those who define themselves and their actions “politically” and those who do not. This was what made the uprising so powerful, unpredictable, and transformative, enabling it to exceed the state’s capacity to impose control. Constructing a linear conflict between predefined factions according to the framework of civil war, we would reduce those currently outside of the self-identified political movement to bystanders, lacking agency in the conflict yet still suffering its side effects. Reducing our understanding of the social terrain to the task of identifying who is “us” and who is “them” would ultimately distract us from everyone who is not already tied to an identifiable faction and from all the ways that we could act to transform that terrain itself.

The George Floyd uprising has shown us the power latent in this concept of popular resistance, understood as a dynamic resistance. Over the past several months, the limits of the political have fundamentally ruptured, as popular understandings of the possibilities of political action have expanded to include all the elements of everyday life alongside traditional forms of activism. In this rupture, we can glimpse the dynamics of successful uprisings: the breaking down of the limitations that confine conflict within particular bounds, the generalization of this expanded sense of political conflict throughout everyday life, and the abolishing of the distinction between political spaces and other spaces of life. To embrace the framework of civil war in this context, in the ways that this concept has been defined and manifested by the right, would be to abandon the possibility unleashed by the uprising. It would mean turning away from a dynamic conflict that has been opaque in its sheer complexity and awe-inspiring in its scale. It would mean abandoning the social terrain, and, as a result, the dynamic, kinetic possibilities of popular resistance.

Blood, Breastmilk, and Dirt: Silvia Federici and Feminist Materialism in International Law

By Miriam Bak McKenna

Republished from Legal Form: A Forum for Marxist Analysis of Law

If the politics of gender have been dragged front and centre into public discourse of late, this shift seems to have evaded international legal scholarship, or legal scholarship for that matter. Outside feminist literature, discussions of gender continue to be as welcome as a fart in a phonebox among broader academic circles. Unfortunately, Marxist and historical materialist scholarship fare little better. Despite periods in the 1960s and early 70s when their shared belief in the transformative potential of emancipatory politics flourished, Heidi Hartman had by 1979 assumed the mantle of academic marriage counselor, declaring that attempts to combine Marxist and feminist analysis had produced an “unhappy marriage”. [1] Women’s interests had been sidelined, she argued, so that “either we need a healthier marriage, or we need a divorce”. [2] Feminists pursued the latter option and the so-called “cultural turn”–a move coinciding with the move away from the “modernist” agenda of early second-wave feminism towards postmodern perspectives.

Not all feminists, however, took the cultural turn or wholeheartedly embraced postmodernism. Many continued to work within broadly materialist frameworks. Silvia Federici, known prominently for her advocacy of the 1970s Wages for Housework demand, continued the Marxist feminist momentum in her advocacy and scholarship by overseeing a revision or perhaps even reinvention of materialist feminism, especially in the United States. Federici’s work on social reproduction and gender and primitive accumulation, alongside a small but active group of materialist feminists (particularly Wally Seccombe, Maria Mies and Paddy Quick), brought a new energy to materialist feminism, making the capitalist exploitation of labour and the function of the wage in the creation of divisions within the working class (starting with the relation between women and men) a central question for anti-capitalist debate. Drawing on anti-colonial struggles and analyses to make visible the gendered and racialized dimensions of a global division of labour, Federici has sought to reveal the hierarchies and divisions engendered by a system that depends upon the devaluation of human activity and the exploitation of labour in its unpaid and low-paid dimensions in order to impose its rule.

In this post, I argue that Federici’s work offers a rich resource for redressing the conspicuous absence of a gendered perspective within academic scholarship on materialist approaches to international law. Materialist analyses of systematic inequalities within the international legal field are as relevant now as they ever were, yet the sidelining of gender and feminism within both traditional and new materialism has long been cause for concern. A gendered materialism in international law, which casts light on the logic of capitalist socialization and which affords the social reproductive sphere equal analytical status, allows us to access a clearer picture of the links between global and local exploitation at the intersections of gender, race, and nationality, and provides new conceptual tools to understand the emergence and function of international legal mechanisms as strategies of dominance, expansion, and accumulation.

A Brief Portrait of a Troubled Union

In 1903 the leading German SPD activist Clara Zetkin wrote: “[Marx’s] materialist concept of history has not supplied us with any ready-made formulas concerning the women’s question, yet it has done something much more important: It has given us the correct, unerring method to explore and comprehend that question.” [3] In many respects this statement still rings true. While Marxism supplied means for arguing that women’s subordination had a history, rather than being a permanent, natural, or inevitable feature of human relations, it was quickly criticized for marginalizing many feminist (and other intersectional) concerns. Feminist scholars in particular called attention to the failure of some forms of Marxism to address the non-economic causes of female subordination by reducing all social, political, cultural, and economic antagonisms to class, and the tendency among many traditional Marxist scholars to omit any significant discussions of race, gender, or sexuality from their work.

Marxist feminists (as well as critical race scholars and postcolonial theorists) have attempted to correct these omissions with varying degrees of success. The wave of radical feminist scholarship in the 1960s produced a number of theories of women’s domestic, sexual, reproductive, and cultural exploitation and subordination. Patriarchy (the “manifestation and institutionalization of male dominance over women and children in the family and the extension of male dominance over women in society in general” [4]) emerged as a key concept that unified broader dynamics of female subordination, while gender emerged as a technique of social control in the service of capitalist accumulation. Within this logic some proposed a “dual-system theory” wherein capitalism and patriarchy were distinct systems that coincided in the pre-industrial era to create the system of class and gender exploitation that characterizes the contemporary world. [5] Others developed a “single-system theory” in which patriarchy and capitalism “are not autonomous, nor even interconnected systems, but the same system”. [6]

During the 1970s, discussions turned in particular to the issue of women’s unpaid work within the home. The ensuing “domestic labour debate” sought to make women’s work in the home visible in Marxist terms, not as a private sphere opposed to or outside of capitalism but rather as a very specific link in the chain of production and accumulation. By exploring its strategic importance and its implications for the capitalist economy on a global scale, this analysis helped show that other forms of unpaid work, particularly by third world peasants and homeworkers, are an integral part of the international economy, central to the processes of capital accumulation. However, the Wages for Housework Campaign was criticized for failing to engage with broader social causes and effects of patriarchal oppression, as well as for essentializing and homogenizing the women it discussed. [7] These criticisms contributed to deep divisions between feminist thinkers on the left. A majority were to follow the lead of those like Hartman, arguing that Marx’s failure explicitly to examine domestic labour, coupled with the “sex-blind” analysis of most Marxist theorists, had prevented Marxism from adequately addressing women’s working conditions. Describing this period, Sue Ferguson noted that the “festering (and ultimately unresolved) issue” fueling socialist feminist thought was the place of Marxist analysis. [8] This shift, meanwhile, was overtaken by the cultural turn in social theory and the question of “how women are produced as a category” as the key to explaining their social subordination, in which materialist issues such as the debate over domestic labour were largely discarded. [9]

WWF: Wages, Witches, and Fanon

Among the Marxist feminist scholars who stayed the course during the broader scholarly shift towards structuralism, a small group of materialist feminists, including Silvia Federici, began to expand the debates over the relationship between patriarchy and capital by integrating the complexities of various forms of reproductive labour into their work. Led by such notable figures as Mariarosa Dalla Costa, Selma James, Leopoldina Fortunati, Maria Mies, Ariel Salleh, and Federici herself, their work on the sphere of social reproduction, which had largely been neglected in Marxist accounts, brought new energy to the materialist debate. In particular, responding to the above-mentioned critiques, they shifted their perspectives to develop situated accounts of the role of women in the global geopolitical economy that incorporated overlapping issues of imperialism, race, gender, class, and nationality.

The arc of Federici’s scholarship mirrors to a large extent the broader shifts within late-twentieth century Marxist feminism. Inspired to pursue a PhD in the United States after witnessing the limitations placed upon her mother, a 1950s housewife, her arrival coincided with an upswing of feminist activity in U.S. universities. Federici’s first publication, titled Wages Against Houseworkand released in 1975, situated itself within the domestic labour debate, drawing on Dalla Costa and James’ arguments that various forms of coerced labour (particularly non-capitalist forms) and generalized violence, particularly the sexual division of labour and unpaid work, play a central function in the process of capitalist accumulation. This structural dependence upon the unwaged labour of women, noted Maria Mies, meant that social reproduction is “structurally necessary super-exploitation”–exploitation to which all women are subjected, but which affects women of colour and women from the global South in particularly violent ways. [10]

In Wages Against Housework, Federici expanded these social reproduction insights into a theory of “value transfer”, focusing on the dependence of capital on invisible, devalued, and naturalized labour. Contrary to the prevailing ideology of capitalism, she argues, which largely depicts labour as waged, freely undertaken, and discrete, the reality is that–especially where women are concerned–labour is often coerced, constant, proliferating, and uncompensated. “We know that the working day for capital does not necessarily produce a paycheck and does not begin and end at the factory gates”, she explains together with Nicole Cox in “Counterplanning from the Kitchen”. [11] Capitalism infiltrates and becomes dependent upon the very realm that it constructs as separate: the private life of the individual outside of waged work.

Central to Federici’s thesis is the need to analyze capitalism from the perspective of both commodity production and social reproduction in order to expand beyond traditional spaces of labour exploitation and consider all of the spaces in which the conditions of labour are secured. As Federici argues in Caliban and the Witch, traditional Marxist categories are inadequate for understanding fully processes of primitive accumulation. [12] She notes that “the Marxian identification of capitalism with the advent of wage labor and the ‘free’ laborer…hide[s] and naturalize[s] the sphere of reproduction”, and further observes that “in order to understand the history of women’s transition from feudalism to capitalism, we must analyze the changes that capitalism has introduced in the process of social reproduction and, especially, the reproduction of labor power”. [13] Thus, “the reorganization of housework, family life, child-raising, sexuality, male-female relations, and the relation between production and reproduction” are not separate from the capitalist mode of organization, but rather central to it. [14] The conflation and blurring of the lines between the spaces of production of value (points of production) and the spaces for reproduction of labour power, between “social factory” and “private sphere”, work and non-work, which supports and maintains the means of production is illustrated through her analysis of the household. Housework, Federici declares (and I am sure many would agree here) is “the most pervasive manipulation, and the subtlest violence that capitalism has ever perpetrated against any section of the working class”. [15] Housework here is not merely domestic labour but its biological dimension (motherhood, sex, love), which is naturalized through domestic violence, rape, sexual assault, and most insidiously through “blackmail whereby our need to give and receive attention is turned against as a work duty”. [16] For Federici, the situation of “enslaved women … most explicitly reveals the truth of the logic of capitalist accumulation”. [17] “Capital”, she writes,

Has made and makes money off our cooking, smiling, fucking”. [18]

In Federici’s historical analysis of primitive accumulation and the logic of capitalist expansion, both race and gender assume a prominent position. For Federici, both social reproductive feminism and Marxist anticolonialism allow historical materialism to escape the traditional neglect of unwaged labour in the reproduction of the class relation and the structure of the commodity. As Ashley Bohrer has explored, Federici, like many other Italian Marxist feminists, has drawn explicitly on the work of post-colonial scholars, most prominently Frantz Fanon [19], in developing their theories of gendered oppression. [20] In the introduction to Revolution at Point Zero, Federici explains how she and others drew on Fanon’s heterodox economics in expanding their analyses beyond the scope of the traditional capitalist spaces:

It was through but also against the categories articulated by these [civil rights, student, and operaist/workerist] movements that our analysis of the “women’s question” turned into an analysis of housework as the crucial factor in the definition of the exploitation of women in capitalism … As best expressed in the works of Samir Amin, Andre Gunder Frank and Frantz Fanon, the anticolonial movement taught us to expand the Marxian analysis of unwaged labour beyond the confines of the factory and, therefore, to see the home and housework as the foundations of the factory system, rather than its “other”. From it we also learned to seek the protagonists of class struggle not only among the male industrial proletariat but, most importantly, among the enslaved, the colonized, the world of wageless workers marginalized by the annals of the communist tradition to whom we could now add the figure of the proletarian housewife, reconceptualized as the subject of the (re)production of the workforce. [21]

Just as Fanon recasts the colonial subject as the buttress for material expansion among European states, so Federici and others argue that women’s labour in the home creates the surplus value by which capitalism maintains its power. [22] Federici contends that this dependence, along with the accentuation of differences and hierarchies within the working classes for ensuring that reproduction of working populations continues without disruption, has been a mainstay of the development and expansion of capitalism over the last few centuries, as well as in state social policy. Colonization and patriarchy emerge in this optic as twin tools of (western, white, male) capital accumulation.

Expanding upon Fanon’s insights about the emergence of capitalism as a much more temporally and geographically extended process, Federici regards the transition as a centuries-long process encompassing not only the entirety of Europe but the New World as well, and entailing not only enclosures, land privatization, and the witch hunts, but also colonialism, the second serfdom, and slavery. In Caliban and the Witch, she presents a compelling case for the gendered nature of early primitive accumulation, by excavating the history of capital’s centuries-long attack on women and the body both within Europe and in its colonial margins. For Federici, the transition was “not simply an accumulation and concentration of exploitable workers and capital. It was also an accumulation of differences and divisions within the working class, whereby hierarchies built upon gender, as well as ‘race’ and age, became constitutive of class rule and the formation of the modern proletariat”. [23] According to Federici, the production of the female subject is the result of a historical shift of economic imperative (which was subsequently enforced by those who benefited from such economic arrangements), which set its focus on women, whose bodies were responsible for the reproduction of the working population. [24] The goal was to require a “transformation of the body into a work-machine, and the subjugation of women to the reproduction of the work-force” [25], and the means “was the destruction of the power of women which, in Europe as in America, was achieved through the extermination of the ‘witches’”. [26] The witch–commonly midwives or wise women, traditionally the depository of women’s reproductive knowledge and control [27]–were targeted precisely due to their reproductive control and other methods of resistance. The continued subjectification of women and the mechanization of their bodies, then, can be understood as an ongoing process of primitive accumulation, as it continues to adapt to changing economic and social imperatives.

While a rich and engaging tradition of feminist approaches to international law has emerged over the past few decades, it has shown a marked tendency to sideline the long and multifaceted tradition of feminist historical-materialist thought. Similarly, within both traditional and new materialist approaches to international law, there has been a conspicuous sidelining of gender and feminism, along with issues of race and ethnicity. The argument for historical materialism in the context of international legal studies is not, as some critics have claimed, that women’s oppression ought to be reduced to class. Rather, the argument is that women’s experiences only make sense in the explanatory context of the dynamics of particular modes of production. However, this requires an adequate theory of social relations, particularly of social production, reproduction, and oppression, in order to sustain a materialist analysis that “make[s] visible the various, overlapping forms of subjugation of women’s lives”. [28]

It is my contention that Federici’s social-reproductive and intersectional theory of capitalism provides a path toward a more nuanced and sustained critique of the logic and structure of capitalism within the international legal field. This approach foregrounds the social–that is, social structures, relations, and practices. But it does not reduce all social structures, relations, and practices to capitalism. Nor does it depict the social order as a seamless, monolithic entity. Moving beyond traditional class-reductionist variants of historical materialism, capitalism emerges here as one part of a complex and multifaceted system of domination in which patriarchy, racism, and imperialism are fundamental, constitutive elements, which interact in unpredictable and contradictory ways.

As Federici’s scholarship has stressed, the importance of foregrounding social reproduction as part of the dynamic of capitalist accumulation, as facilitated by states and international institutions, is essential to any materialist analysis, including one of the international legal field. This is necessary for exploring women’s specific forms of oppression under capitalism, particularly as they are facilitated by the family and the state. For example, Federici’s insights into the domain of unpaid social reproduction and care work are useful for understanding women’s subordinated incorporation into labour markets, especially in the global South and in states affected by structural adjustment. Indeed, while the state largely facilitates women’s entry into the workforce, their categorization as “secondary” workers–“naturally” suited to care work and the fulfillment of physical and emotional needs, and “naturally” dependent upon men–has continually been reproduced to the detriment of their labour situation. [29]

While Federici’s social reproduction theory begins with women’s work in the home, she demonstrates that capitalism’s structural dependence upon unwaged and reproductive labour extends to regimes of domination predicated upon social control on the global plane (from slavery through the exploitation of immigrant workers to the genocide of indigenous peoples). In her account of primitive accumulation, power relations sustained through the construction of categories of gender, race, sex, and sexuality facilitate the creation of subjects predicated upon capitalism’s systemic needs. While the heterosexual family unit is one of the more visible ways in which this domination is socially reproduced, the relationship, Federici argues, is reproduced in many settings. The transformations of the neoliberal era–particularly the global reorganization of work fueled by the drive to impose the commodity form in ways that seek to harness and exploit labour in its unpaid and low-paid dimensions–are characteristic of this dynamic. Federici has also emphasized the fact that domestic workers and service providers have consistently been devalued as workers. [30] In doing so, she highlights one of the rhetorical gaps in the contemporary feminist movement: when women enter the waged work-force, they often enter into an exploitative relationship with other women (and men) with less social power. It is the latter’s labour, bodies, and time that provide the means for access to better conditions within the labour market.

This relation of exploitation is also prevalent in neocolonial forms of exploitation–called “the new enclosures” by Federici–which ensure that the affluent North benefits from social and economic conditions prevailing in the global South (for example, through transnational corporations’ access to cheap land, mineral, and labour resources). Capitalism, Federici argues, depends not only on unwaged housework, but on a global strategy of underdevelopment in the global South, one that relies upon the stratification of and constructed division between otherwise common interests. “Wagelessness and underdevelopment”, she argues, “are essential elements of capitalist planning nationally and internationally. They are powerful means to make … us believe that our interests are different and contradictory.” [31]

Federici’s depiction of patriarchy, the state, and capitalism as interacting forces, together with her focus on relational, overlapping regimes of domination and their attendant systems of control, points the way toward a new way of understanding intertwined techniques and discourses of power in the international legal field. Capitalism’s reliance upon multiple types of exploitation, multiple forms of dispossession, and multiple kinds of subjects is visible in broader themes of international law. It is, for instance, visible in the overlapping dynamics of control that mark the history of colonial expansion, as well as the emergence in the nineteenth century of sovereign hierarchies and various legal mechanisms that ensure patterns of dominance, expansion, and accumulation in the international sphere.

An examination of the historical and contemporary role of international law in perpetuating these dynamics of oppression prompts us to address the specific processes whereby these categories are produced and reproduced in international law. Examples include norms surrounding marriage and the family, the production of the category of the temporary worker, and the illegal immigrant whose disenfranchisement is the necessary condition of their exploitation. Much the same can be said for trade, property, taxation policy, welfare and social security provision, inheritance rights, maternity benefits, and support for childcare (or the lack thereof). In the context of the gendered dynamics of globalization, we can examine the manner in which the devaluation of female labour has been facilitated by international institutions, notably the World Bank and International Monetary Fund, and through development initiatives such as micro-finance and poverty reduction strategies. Federici has also revealed the complicity of ostensibly neutral (and neutralizing) discourses such as development, especially when pursued with the stated objective of “female empowerment”, in glossing over the systemic nature of poverty and gendered oppression. These dynamics are ultimately predicated upon law’s power to create, sustain, and reproduce certain categories.

Usefully, Federici’s relational theory of subjectivity-formation also allows us to move beyond gender and race as fixed, stable categories, encouraging a new understanding that helps us detect more surreptitious gendered tropes and imaginaries in the structure of international legal practice and argumentation. One example is the set of narratives that surround humanitarian intervention. Indeed, as Konstantina Tzouvala has suggested, one of the glaring deficiencies in the socialist feminism proposed by B. S. Chimni is the absence of an explanation of how gender, race, class, and international law form an inter-related argumentative practice. [32]

Conclusion

Writing some ten years after David Schweickart lamented that analytical Marxism “remains a discourse of the brotherhood” [33], Iris Marion Young noted that,

[O]ur nascent historical research coupled with our feminist intuition tells us that the labor of women occupies a central place in any system of production, that the gender division is a basic axis of social structuration in all hitherto existing social formations, and that gender hierarchy serves as a pivotal element in most systems of social domination. If traditional Marxism has no theoretical place for such hypothesis, it is not merely an inadequate theory of women’s oppression, but also an inadequate theory of social relations, relations of production, and domination. [34]

Young’s defense of a “thoroughly feminist historical materialism” [35] is as relevant today as ever. While great in-roads have been made within materialist approaches to various disciplines, including international law, the continued tendency to marginalize issues of gender (along with issues of race and sexuality) greatly undermines the soundness of such critiques. In pointing to issues of social reproduction, racism, sexual control, servitude, imperialism, and control over women’s bodies and reproductive power in her account of primitive accumulation, Silvia Federici highlights issues that must occupy a prominent place in any materialist treatment of international law.

Miriam Bak McKenna is Postdoctoral Fellow and Lecturer in International Law at Lund University.

Notes

  1. Heidi Hartman, “The Unhappy Marriage of Marxism and Feminism” [1979], in Lynn Sargent (ed.) Women and Revolution: The Unhappy Marriage of Marxism and Feminism–A Debate on Class and Patriarchy (London: Pluto, 1981) 1.

  2. Ibid., 2.

  3. Clara Zetkin, “What the Women Owe to Karl Marx” [1903], trans. Kai Shoenhals, in Frank Meklenburg and Manfred Stassen (eds) German Essays on Socialism in the Nineteenth Century (New York: Continuum, 1990) 237, at 237.

  4. Gerda Lerner, The Creation of Patriarchy (New York: Oxford University Press, 1986), 239.

  5. Pat Armstrong and Hugh Armstrong, “Class Is a Feminist Issue”, in Althea Prince, Susan Silvia-Wayne, and Christian Vernon (eds), Feminisms and Womanisms: A Women’s Studies Reader (Toronto: Women’s Press, 1986) 317. See, for example, Hartman, “Unhappy Marriage”; and also Sylvia Walby, Gender Segregation at Work (Milton Keynes: Open University Press, 1988).

  6. See, for example, Lise Vogel, Marxism and the Oppression of Women: Toward a Unitary Theory (New Brunswick, NJ: Rutgers University Press, 1983); Iris Marion Young, “Beyond the Unhappy Marriage: A Critique of Dual Systems Theory”, in Lydia Sargent (ed.), Women and Revolution: A Discussion of the Unhappy Marriage of Marxism and Feminism (Boston: South End Press, 1981) 43.

  7. See Angela Y. Davis, Women, Race, and Class (New York: Random House, 1981).

  8. Sue Ferguson, “Building on the Strengths of the Socialist Feminist Tradition”, 25 (1999) Critical Sociology 1, at 2.

  9. See, for example, Rosalind Coward and John Ellis, Language and Materialism (London: Routledge, 1977) and Juliet Mitchell, Psychoanalysis and Feminism (Harmondsworth: Penguin, 1975).

  10. Maria Mies, Patriarchy and Accumulation on a World Scale: Women in the International Division of Labour, 1st edition (London: Zed Books, 1986).

  11. Nicole Cox and Silvia Federici, Counterplanning from the Kitchen: Wages for Housework–A Perspective on Capital and the Left (Bristol: Falling Wall Press, 1975), 4.

  12. Silvia Federici, Caliban and the Witch: Women, the Body and Primitive Accumulation (New York: Autonomedia, 2004), 8.

  13. Ibid., 8–9.

  14. Ibid., 9.

  15. Silvia Federici, Revolution at Point Zero: Housework, Reproduction, and Feminist Struggle (Oakland: PM Press, 2012), 16.

  16. Silvia Federici, Wages Against Housework (Bristol: Falling Wall Press, 1975), 20.

  17. Federici, Caliban and the Witch, 89.

  18. Federici, Wages Against Housework, 19.

  19. Frantz Fanon, The Wretched of the Earth, trans. Richard Philcox (New York: Grove, 2004 [1961]).

  20. Ashley Bohrer, “Fanon and Feminism”, 17 (2015) Interventions 378.

  21. Federici, Revolution at Point Zero, 6–7 (original emphasis).

  22. Ibid., 7.

  23. Federici, Caliban and the Witch, 64 (original emphasis).

  24. Ibid., 145.

  25. Ibid., 63.

  26. Ibid.

  27. Ibid., 183.

28. Chandra Talpade Mohanthy, Feminism Without Borders: Decolonizing Theory, Practicing Solidarity (Durham: Duke University Press, 2003), 28.

29. Daniela Tepe-Belfrage, Jill Steans, et al., “The New Materialism: Re-Claiming a Debate from a Feminist Perspective”, 40 (2016) Capital & Class 305, at 324.

30. Silvia Federici, Revolution at Point Zero: Housework, Reproduction, and Feminist Struggle (Oakland: PM Press, 2012), 65–115.

31. Ibid., 36.

32. Konstantina Tzouvala, “Reading Chimni’s International Law and World Order: The Question of Feminism”, EJIL: Talk! (28 December 2017).

33. David Schweickart, “Book Review of John Roemer, Analytical Marxism“, 97 (1987) Ethics 869, at 870

34. Iris Marion Young, “Socialist Feminism and the Limits of the Dual Systems Theory”, in Rosemary Hennessy and Chrys Ingraham (eds), Materialist Feminism: A Reader in Class, Difference and Women’s Lives (New York: Routledge, 1997) 95, at 102.

35. Ibid (original emphasis).

An Economic Theory of Law Enforcement

By Edward Lawson

Law enforcement is a necessary endeavor in society. Government makes laws, but someone must enforce those laws, through violent coercion if necessary. The American ideal is that the people elect the government and the government serves the people, so naturally the police serve the people as well. However, the actual activities of the police call this normative account into question. I argue that government--the state--serves the will of anonymous, extraordinarily wealthy oligarchs, and it passes laws that benefit them at the expense of the rest of society. In addition, I argue that the police are the primary tool of enforcing compliance with the wishes of oligarchs among society, and that they alter their behavior based on the socioeconomic conditions of the area in which they operate.

The recent deaths of individuals such as Michael Brown in Ferguson, MO and Walter Scott in North Charleston, SC, are only the most recent, high-profile incidents of police acting according to this purpose. Police violence, as well as mass incarceration, maintain a state of fear among the working class, as well as the ongoing division between races within the working class, in order to prevent organization for common cause. Oligarchs--the anonymous, incredibly wealthy individuals who exert disproportionate pressure on the state to do their bidding--use institutions such as the police to hold and expand their power.

Operating behind the state provides oligarchs with a veneer of legitimacy, particularly in a democracy. That legitimacy extends to the police, who have state-sanctioned authority to enforce compliance with the law and punish noncompliance with violence. However, rather than using that authority to benefit society, they use it to oppress the poor and placate the affluent--those who are comparatively wealthy but not oligarchs themselves.


On the Origin of States

Law enforcement organizations are agents of the state, and therefore the goals of the state are also the goals of law enforcement. This connection means that, in order to determine why members of law enforcement behave in certain ways, it is necessary to discuss the purpose of the state first. Fortunately, political theory devotes a great deal of attention to the origin and purpose of states. In all of the various theories on the origin of the state, the state exists as a product of individuals ceding at least some of their rights to a governing body. This body makes laws according to, generally (and idealistically), the will of the population it governs. However, what happens when some members of that population possess influence over the government in excess of others? What happens when a small minority dominate that government, and use it to benefit themselves rather than society?

In essence, this is how Winters (2011) views society, particularly in the United States. He argues that most societies are ruled by oligarchs, and he defines oligarchs as those who control large concentrations of material resources--wealth--and use those resources to defend and increase their wealth and position. Essentially, oligarchs use wealth to protect and improve their dominant position within society.

One purpose of the state is to protect property rights. In a Hobbesian state of nature, those who possess property are under constant threat of its loss to rivals who desire it. Therefore, individuals form states, in part, to legitimize claims of property rights and protect them from others who would try to take property away. The legitimized defense of property rights by the state is what Winters (2011) refers to as property defense, which is the first mechanism of oligarchs' wealth defense. The second, income defense, comes after property is secured. Income defense is the use of wealth to manipulate government into passing laws that protect the income of oligarchs as well as their property, at the expense of other citizens.

Using the mechanisms of wealth defense essentially subordinates the state to the oligarchs. The state, therefore, becomes an agent of oligarchs. The state's purpose is to preserve and promote the oligarch's power at the expense of the rest of the population and using the state as its defender provides a veneer of legitimacy. The oligarchs need the state to support their interests, otherwise they face the threat of losing their property, wealth, and power to an overwhelmingly large number of people who would certainly try to take that property and wealth if it were not protected by the state.


Special Bodies of Armed Men (With a Nod to V.I. Lenin)

How, then, does the state enforce the will of the oligarchs controlling it? If oligarchs are a small minority, how can they force the majority of the population to follow laws they create for the purpose of legitimizing their own wealth and power? What stops the rest of the population from simply destroying them? The answer lies in what Lenin (1918/1972) refers to as special bodies of armed men. In The State and Revolution, Lenin proposes his own theory on the origin of the state which seems closely aligned with that of Winters (2011). Lenin argues that the state is the product of irreconcilable class differences, specifically the conflict between those who own the means of production (the bourgeoisie) and those who produce (the working class).

The state is, therefore, a means for the oppression of one socioeconomic class by another. Oligarchs hoard wealth and use it to increase their power (and wealth) at the expense of the larger society. The rest of society prefers a societal organization that benefits the majority and leads to a more egalitarian distribution of material resources. The solution to this irreconcilable conflict is for the oligarchs to use their wealth and the associated power to construct a state that legitimizes their control of society.

The special bodies of armed men are the tool oligarchs use to enforce compliance with the state (Lenin 1918/1972). Specifically, these bodies are the military and the police. Both of these institutions have state-sanctioned authority to use violence in order to protect the state and force compliance with its laws. However, their domains are separate. The military address foreign threats to the state (and to the wealth and power of the oligarchs controlling it). The police address domestic threats and enforce compliance among citizens (Kraska 2007).

As Lenin (1918/1972) writes, ``A standing army and police are the chief instruments of state power." They are, then, the chief instruments of oligarchical power. The state exists to grant legitimacy to oligarchy and promote the interests of oligarchs. Special bodies of armed men (and women, of course) --the military and the police--exist to promote the interests of oligarchs as well. As agents of the state, they have legitimacy that an armed band of hired mercenaries would not. They have uniforms, rules of engagement, codified laws and policies, etc., to convey legitimacy to the public. But they are still only tools.

Indeed, an armed band of mercenaries, while more directly controllable by oligarchs, would also be counter-productive. As Winters (2011) argues, part of the power of oligarchs is that no one knows who they are. Hiring an armed mercenary group to enforce their will is a highly visible act and also lacks the legitimacy of a state-sponsored police force. The visibility shows the general public who the oligarch is that hired the group. The lack of legitimacy means that the public have much less incentive to comply with the group's instructions. Therefore, though hiring an armed band would give an oligarch more direct control, operating indirectly through control of the state is preferable.


Protect and Serve or Patrol and Control

As this paper discusses law enforcement, I leave the topic of the military to others. I have explained the origin of the state as a means for oligarchy to protect and expand its power, as well as the existence of police as a tool for enforcing the will of oligarchs. The next logical step, then, is to address why some people receive harsher treatment from police than others. If law enforcement organizations exist to enforce the will of the state, which exists to legitimize the will of oligarchs, why is every state not a tyrannical dictatorship? There are several reasons.

One may assume that, for this theoretical framework to hold, then police should be violently oppressing everyone within a society. This is a flawed conclusion. First, citizens who are not wealthy enough to be oligarchs but are what Winters (2011) calls the "merely affluent" have a considerable stake in maintaining the society's respect for property rights and protection of incomes even if they do not exercise control over the state or have as much wealth as the oligarchs who do. These merely affluent citizens are not wealthy enough to exert control over the state, but they are wealthy enough to have lives of relative comfort which they do not want to jeopardize. A regime that oppresses all citizens risks encouraging the affluence of society to pool their resources in order to fight against the oligarchs even with the protection of the state. Those pooled resources, combined with sheer numbers as the lower class joins the effort, have a real chance of overwhelming the oligarchs despite their wealth advantage. In particular, the police and the military may join the side of the oppressed rather than stay with the oppressors, which eliminates the state's means for enforcing the oligarch's will.

The affluent are also much more visible. They are typically community leaders or, at least, respected residents. They know each other. The media recognizes them. A regime that turns oppressive against the affluent also risks exposing the oligarchs to media scrutiny, which could have the effect of rallying the affluent from all of society to a common cause of self-defense.

In addition, the limited wealth of the affluent provide an incentive to not ``rock the boat." Just as the oligarchs want to protect their wealth, so do the affluent even if their wealth is considerably less. Without the pressure of a tyrannical regime, they have little incentive to resist the state and risk losing their relatively comfortable position.

Instead, oligarchs direct the power of the state--and, by extension, the police--against the poor. The poor are more numerous, which by itself presents an increased threat. If the lower class could unite itself against the oligarchs, no amount of material resources could stop them. However, they are less able to organize than the affluent for a few reasons. First, they are much less visible despite their numerical advantage. The poor do not receive much media coverage (except, perhaps, to demonize them) and are not typically well known in a community. Second, those who join the military and police typically come from the poorer sections of society. This means that, essentially, the state can effectively divide much of the lower class against itself. Third, they spend most of their time focusing on meeting basic survival needs and do not have the time or energy to organize themselves as the affluent might. Fourth, in addition to lacking time and energy for organization, they also lack the material resources necessary for mounting a large scale and sustained organizing effort.

This last point is important for another reason: although the poor lack the means to organize, they also have the least to lose from trying. If they manage to overcome the impediments to mounting an organized opposition to the oligarchs, it is likely to be much more radical precisely because they risk so little. As opposed to the affluent, the poor have much less incentive to avoid ``rocking the boat" in order to protect what they have. They have, essentially, nothing, and have nothing to lose if they oppose the oligarchs and fail.

For these reasons, oligarchs are more likely to use state power to oppress the poor and placate the affluent. Police enforce the laws of the state, and the state passes laws to benefit the oligarchs, so the laws of the state and the behavior of the police in enforcing those laws will mirror this purpose. This leads to the dichotomy of protect and serve versus patrol and control.

Protect and serve is the normative idea of policing as experienced by the affluent. The police are public servants. They are trustworthy, kind, friendly, honest, brave, etc. The affluent tell their children that they can always go to a police officer for help. The affluent trust the police to enforce the laws of the state because the laws of the state are designed to maintain their comfortable position. The police protect law and order in society. If a member of the affluent violates the law and pays a fine or goes to prison, it is that person's fault for violating the law, but they can make bail, continue with their lives, and receive a capable defense in a fair trial. The police only enforce law. They do not have much discretion, nor do they allow their own prejudice to alter their behavior. They are Sheriff Andy Taylor in Mayberry.

On the other hand, the poor experience patrol and control. The police are militarized oppressors. They take on the mindset of an occupying army holding down an enemy population. Rather than serving the public, they serve the state and its oppressive controllers. The poor tell their children not to run to the police for help but to avoid them as much as possible. And, if they cannot avoid them, to peacefully and quietly comply with any and all directions in order to avoid jail, assault, or death. The poor fear the police rather than trust them, and they see the laws as a means to facilitate their oppression rather than maintain law and order. Indeed, ``law and order" is just a code phrase for the violent and discriminatory oppression of the poor and minorities. If a poor person violates the law, which they may be forced to do for survival, that person is put in jail where they sit for months, maybe years, because they cannot afford bail. They get an overworked, underpaid public defender in a trial they have no hope of winning before going to prison. After prison, they cannot find a job and will probably have to return to illegal means for survival, which repeats the same process over again. The police have significant discretion to decide how to deal with the public, and they choose to deal with the poor harshly and violently. To the poor, they are Judge Dredd.


Conclusion

In this paper, I have sketched out a theory of law enforcement that explains how police alter their behavior based on the socioeconomic conditions of the people with whom they interact. I began by describing several theories on the origin of states, highlighting the commonalities between them and linking them with a more modern theory of states which formed the foundation of my later discussion. I next explained how special bands of armed men--the military and the police--are tools used by the state to enforce the will of the oligarchs who control it, granting both legitimacy and anonymity to the oligarchs. Finally, I describe why and how police officers provide different treatment to different socioeconomic groups.

This paper is a theoretical work, but it has a great deal of potential empirical purchase. Indeed, research already suggests its accuracy. Some work demonstrates the discretion of police and how they teach the public about their place in society (Oberfield 2011). Other work suggests that police violence is a means of controlling the poor in society (Chevigny 1990) or of maintaining inequality (Hirschfield 2015).


References

Chevigny, Paul G. "Police Deadly Force as Social Control: Jamaica, Argentina, and Brazil." Criminal Law Forum, vol. 1, no. 3, 1990, pp. 389-425., doi:10.1007/bf01098174.

Hirschfield, Paul J. "Lethal Policing: Making Sense of American Exceptionalism." Sociological Forum, vol. 30, no. 4, 2015, pp. 1109-1117., doi:10.1111/socf.12200.

Kraska, P. B. "Militarization and Policing--Its Relevance to 21st Century Police." Policing, vol. 1, no. 4, 2007, pp. 501-513., doi:10.1093/police/pam065.

Lenin, Vladimir Illyich. "The State and Revolution." Marxists Internet Archive, 1999, www.marxists.org/archive/lenin/works/1917/staterev/.

Oberfield, Zachary W. "Socialization and Self-Selection: How Police oCers Develop Their Views about Using Force." Administration & Society, vol. 44, no. 6, 2011, pp. 702-730., doi:10.1177/0095399711420545.

Winters, Jeffrey A. Oligarchy. Cambridge University Press, 2012.

Misoprostol, Coat Hangers, and Trump: Foreign Objects in Our Wombs

By Assata Baxter

In the United States, one in three of us has had one. We don't share this. In the midst of making hard decisions, we bear the vitriolic harassment of those who have never and will never carry children, or those who chose to project the insecurities of their own decisions on others, before we can get to the door. We are blamed and shamed in clinic parking lots with pictures of 56 week old dead fetuses. We enter clinics alone without our partners' knowledge, weighted with surprises in pink lines when it's not yet our time. Or our partners hold our hands and say that whatever we choose they are beside us. Or depending where we are in a low-income country, there may be no clinics. So, we ask our friends if anyone has a doctor in the family who can write a prescription; anyone who knows someone who knows someone who works at a pharmacy. We look up which combination of pills it requires, and pray that it works. We go to sangomas in another village. We put our lives in the hands of "surgeons" and hope that we wake up with use of our reproductive organs… or that we wake up period. There are no certain answers. No "do-it-yourself" manuals. And every 8 minutes in low-income countries, one of us will die of complications arising from it.

We don't announce our decisions on Facebook, or post pictures to Instagram of the sonogram, of the fetus we have chosen not to keep. We may tell some close to us, but often we don't tell our best friends, our parents, our siblings, sometimes our partners. We are afraid their religion or recently recognized righteousness will get in the way of them hearing us…that they will guilt us into thinking otherwise, or it may change forever how they see us. We fear scarlet letter branding. We talk in hushed whispers if at all. Sometimes we find support groups. Sometimes we continue life as usual. Sometimes we are forever changed. While our experiences are different, what remains consistent is that abortion sits squarely at the juncture of ethics, religion, morals, science, gender and politics. And yet the discussion of the experience remains taboo.

I have had two abortions; one in Kenya, one in Djibouti, both "back alley" in the sense that they lacked medical supervision or prescription. I was not raped. My health was not in danger. Simply, neither the birth control, nor the morning after pill worked. I give you these moderating factors for two reasons. One, because the myth often goes that underserved populations use abortion as birth control. This was not the case. Further these very factors had both an impact on my conscience and impacted accessibility to any legal type of procedure.

My period was a week late. But, my period was always a little bit hard to calculate. It didn't cross my mind that I could be pregnant until week two. We always used protection, and our one accident, I had taken the morning after pill. I bought a take-home pregnancy test at the nearby market. I remember crouching on the floor of my apartment in south B, Nairobi watching the Test line appear. The test was supposed to take three minutes, but positives appear faster… and even the few seconds it took, seemed like a lifetime. I rocked back and forth, hugging my knees to my chest, crying… I called my boyfriend, shaking, inconsolable, tears pouring down my face. He rushed over and held me as I cried myself to sleep. I wished it happened like in the movies. The girl who finds herself pregnant always magically miscarriages. She never actually has to make a decision. She can share her story freely, with whoever chooses to listen, because miscarriages are not of our choosing. They are not our fault or our choice. They are met with sorrow or pity or empathy, because they are God's will or the will of the Universe or whomever we believe in. We hold no "fault".

But it did not happen like the movies. I bought three more pregnancy tests the next week. I convinced myself I had ovarian cysts, that I kept contaminating the urine sample, or that the pharmacy by my house was selling expired tests. By the end of the week, I started having dizzy spells. I was beginning to feel nauseous quite often, but I had three days off work before heading to rural Uganda for work, and so the race against the clock started. The next day I woke up I felt awful, and depressed. I wanted to see a doctor. That would be the only way to know for sure. We made an appointment at a nearby hospital. I explained the situation and they too thought that pregnancy was unlikely, particularly given the dates of my last period and encouraged me to do an ultrasound. I agreed. For once and for all, I would know.

My memories of the next few moments that day are very blurred. I remember hearing a heartbeat. I remember crying and heaving in some corner in the hospital. I remember I went home with a sonogram as a parting gift, that I have never brought myself to discard. But I did not want to have a baby, even after heartbeats and sonograms. I was 24, living and working in Kenya on 2000 USD a month, with an ocean separating me from my family, and financially supporting a sick mother back at home. I was six weeks pregnant, and I did not want to be a mother, then… the same way I am unsure if I want to be a mother now. I knew immediately what I wanted to do, but had no idea how to do it, and having chosen to abort, there was nothing more that I wanted than to stop being pregnant. In my mind, I kept thinking the longer I waited, the closer the fetus came to viability, or to what in my mind was personhood. However, figuring out what to do was not easy. There is no "Planned Parenthood" in Kenya. I could not make an appointment to discuss my options. Abortion is and was illegal in Kenya, and only viable to save a woman's life or preserve her physical health.

I was not willing to wait any amount of weeks to try and fly to another country and come back. I also was not willing to literally have a back alley surgical abortion. I had one or two friends I confided in, who might have known someone who had "the surgery". I was not willing to risk my future reproductive health or a return to consciousness being unsure of what had been cut, or poked or inserted inside of my body. Here there was no RU-486. We had to find a doctor who would be willing to write a prescription for the pills I would need to give myself a medical abortion. We could not get it in the pharmacy without a prescription. We found a doctor who was willing to write a prescription however the dosage was not enough. It was for only 200mcg. We made copies of the prescription. We bribed pharmacists to give us more until we had 800mcg. There were multiple websites with multiple directions. I chose one and stuck with it. I put a pill under my tongue, wrote a letter to my unborn child, and asked for her forgiveness and to come back when it was her time. I wore a pad for the rest of the night. And in the morning, it was just as if I started my period. And that was it. I no longer felt nauseous. I just had what felt like period cramps... At least I thought that was it. I headed to Uganda for work. The secret safe between my boyfriend and I.

For the next two days life, continued as somewhat normal. However the third day, I had cramps far worse than any period I had ever had. They were so painful that I had to bite on a towel to keep from screaming out, every time I used the bathroom. I struggled through my work day, taking multiple breaks per hour. I was dizzy, sweating, and nauseous. Day four, I had what I realize now was probably Class Two hemorrhaging. I woke up to blood everywhere in the sheets. I wouldn't stop bleeding. In a town in far West Uganda, coming from the bathroom, too weak to walk, I tried to crawl back to bed, but could not make it. So, I lay on the cold floor of a hotel room, entering and exiting consciousness until morning; bleeding uncontrollably, until a friend found me in the morning. I never did see a doctor, but the process of healing from both the physical and psychological wounds was a long one. The psychological wounds remained because the physical damage to my body, the anticipated lack of support, my suffering in physical and emotional pain in silence, the battle of my conscience, and the feeling of utter loneliness did not leave immediately. But I survived… which makes me a lucky one.


International Access to Abortion

Imagine that approximately 310,000 women undergo abortions in secrecy each year in Kenya alone, according to the East Africa Centre for Law and Justice[1]. 21,000 women are admitted each year as a result of complications related to unsafe abortions, which are usually undertaken in back alley clinics. 2,600 of these women eventually die. Research from the Center for Reproductive Rights has found that unsafe abortions account for 40% of the maternal mortality rate[2]. I was fortunate enough to have a supportive boyfriend, and enough financial capital to be able to afford both seeing private doctors, and paying the costs of both prescriptions and bribes. I know that is a privilege not all women have in Kenya. Due to restricted abortion legislation, even with the new constitution, women, less than having access to a medically safe procedure, do not even have access to the human contact that would provide them with the support and empathy they seek, and the tools they would need to make an informed decision.

In sub-Saharan Africa, 98% of countries allow abortions to save the mother's life, however only 33% permit abortion in cases of rape or incest and only two allow elective abortions for any reason. But, I will point fingers neither at Kenya, nor the continent of Africa. Kenya is not the only country with restrictive abortion legislation. In fact the countries with the most restrictive abortion legislation are found in Europe, Central and South America. The Holy See (Vatican City), Malta, Dominican Republic, El Salvador, Nicaragua and Chile do not allow abortion under any circumstances, even if the mother will die from complications prior to or giving birth[3].

According to Pew Research Centre, although in Europe about 73% of countries allow abortions for any reason, Ireland, Andorra (between France and Spain) and San Marino (Italy) only allow abortions in order to save the life of the mother. In Ireland, illegal abortion carries a sentence of up to 14 years in prison. And therefore, more than 5000 women each year are forced to leave the country to have abortions outside of Ireland [4]. These same studies have revealed that 26% of countries in the world only allow abortion to save a mother's life; and 42% allow abortions only when the mother's life is at risk in combination with "at least one other specific reason, such as to preserve a woman's physical or mental health, in cases of rape or incest, because of fetal impairment or for social or economic reasons" [5]. According to the World Health Organization 21.6 million women undergo unsafe abortions every year [6]. Of those, 6.9 million women were treated for complications from unsafe abortions. I form part of the 40% of women who experienced complications but never received treatment. Unsurprisingly, almost all abortion-related deaths occur in low-income countries, with the highest number occurring in Africa. The Guttmacher Institute, according to recent studies have found that 8-18% of maternal deaths worldwide are due to unsafe abortion, and the number of abortion-related deaths in 2014 ranged from 22,500 to 44,000 [7].

What these numbers and percentages mean, is that beyond any discussion about population control in low-income countries, at what specific age human life becomes viable, if abortion is morally right or wrong, the after-life consequences of our actions, is that women are literally dying trying to get abortions, often of the surgical kind.


Trump in Our Wombs

The 1973 Helms Amendment , created in the wake of the Roe v. Wade decision, prevents the use of American foreign aid for abortions. The caveat being that the money could still be used to fund family planning, or educate women about abortions, but could not be allocated to the procedure itself. On January 23 rd 2017, beneath our noses, President Trump signed an executive order which reinstated the "global gag rule". Effectively this rule bans federal funding for international non-governmental organizations that offer abortions, advocate for the right to an abortion, or even discuss abortion as an option to mothers. In the past this order known as the "Mexico-City Policy", has been instituted by Republicans and struck down by Democrats multiple times. Yet the massive degree of funding that will be affected by this gag order is absolutely unprecedented. The gag rule will apply to about $9.5 billion dollars in global health funding which will effect organizations mostly in low and middle income countries. These cuts may even effect HIV prevention and treatment, and maternal health care. Conservative estimates by the Guttmacher Institute project that the result will be 38,000 more abortions. Marie Stopes International estimates that the global gag rule will lead to an additional 2.2 million abortions worldwide, and given the restrictive abortion policies in 68% of countries, a vast majority of these will be unsafe abortions.


Basta de Rosarios en Nuestros Ovarios (No More Rosaries in Our Ovaries)

While it is impossible to project definitively, I wonder how many more women will die this way, unaccounted for, afraid, hemorrhaging to death on the floor of a hotel room, or during surgery in the room of a back office with no windows, where her body may simply be disposed of, to ensure the continued financial gain of the "clinic". This unnecessary maternal mortality is a direct byproduct of desperation in environments that stigmatize and demonize women for unintentionally becoming pregnant, for whatever reason, and then punish them by restricting access to services. On top of this, with funding basically drained to international and national NGOs who specialize in family planning, pregnancy prevention, and pre- and post-counseling, women, especially in low-income countries are left very alone. I took years to heal from my psychological wounds. I never once regretted my decision. But I almost lost my life in the process. Reproductive rights belong to those who are doing the reproducing. Trump's new policies are invading our wombs, reaching into our bodies to yank away reproductive rights with fetal heartbeat bills and global gag rules. As has happened historically, when autonomy over our own bodies is taken away, we as women find a way to take it back. Banning abortion, or cutting funding to organizations that even discuss abortion will not make abortion disappear, it will only result in the unnecessary death of tens of thousands of women a year, by knitting needle, Misoprostol and coat hangers.



Notes

[1] http://eaclj.org/about-us/7-fida-and-kclf-landscaped-comparison.html

[2] https://www.reproductiverights.org/initiatives/maternal-mortality

[3] http://www.care2.com/causes/the-5-countries-that-would-let-a-woman-die-before-getting-an-abortion.html

[4] http://www.pewresearch.org/fact-tank/2015/10/06/how-abortion-is-regulated-around-the-world/

[5] Pew Research Center http://www.pewresearch.org/interactives/global-abortion/

[6] http://www.who.int/reproductivehealth/topics/unsafe_abortion/magnitude/en/

[7] https://www.guttmacher.org/fact-sheet/induced-abortion-worldwide

"Spider Webs for the Rich and Mighty": A Libertarian-Socialist Critique of Criminal Law

By Colin Jenkins

As human societies have developed over the course of history, so too have corollary systems of order. In the most basic sense, the often informal development of customs, norms and ethics become inevitable in spaces where groups of human beings come together to interact with another. However, as the scales of human interaction have grown - from tribes to communities to nation-states - these informal codes of conduct have become formal systems of rule and order which have taken on physical identities in the form of states and governments.

In his influential essay, Politics as Vocation, Max Weber provided one of the most important analyses regarding the sociological development of the state. Weber introduced the concept of rational-legal authority in his attempt to explain the rise and justification of the modern bureaucratic nation-state. As a self-described "bourgeois theorist," Weber provided a strong breakdown of the modern state, tended towards justifying its purpose, and recognized the inherently forceful nature of its existence:

"'Every state is founded on force,' said Trotsky at Brest-Litovsk. That is indeed right. If no social institutions existed which knew the use of violence, then the concept of 'state' would be eliminated, and a condition would emerge that could be designated as 'anarchy,' in the specific sense of this word."[1]

Perhaps most crucial was Weber's notion of a "monopoly of violence" for which he viewed as a legitimate power of the state:

"Today, however, we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory. Note that 'territory' is one of the characteristics of the state. Specifically, at the present time, the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state is considered the sole source of the 'right' to use violence."[2]

Weber's justification is predicated upon two important assumptions: (1) that a distinction between authority and coercion exists, and that authority becomes legitimate when "individuals accept and act upon orders that are given to them because they believe that to do so is right;" [3] and (2) that rational-legal authority itself is legitimized, via the political process, by the people under its rule. Despite the questionable nature of these assumptions, Weber's hierarchical structure has come to dominate our world. The formation of criminal law, while not just a modern phenomenon, has provided further justification for rational-legal authority. And the formidable development of modern criminal justice systems equipped with the means to carry out this "monopoly of violence" on a daily basis has assured the maintenance of Weber's state.

These legitimized systems of violence, authority and coercion have reached a point where they are accepted by most without hesitation: a common acceptance that begs to be questioned.


Law as Morality

"Nobody in the world, nobody in history, has ever gotten their freedom by appealing to the moral sense of the people who were oppressing them."

- Assata Shakur


There has been an ongoing, centuries-long societal experiment to equate written laws with morality. The historical development of human societies have made laws necessary for reasons that will be discussed below, and the need to house these laws in justifications centered within authority and domination (also discussed below) have relied on an institutional "rebranding" of these hierarchical relations. One of the main tools in this rebranding process has been the inclusion of morality-based conditioning, which exists everywhere from parenting to public education. This is not a new phenomenon, but yet persists as a main tool in shaping customs and norms which are amenable with living under systems of domination. In his 1886 classic, Law and Authority, Peter Kropotkin touches on this deep conditioning process used to create an obedient population:

"We are so perverted by an education which from infancy seeks to kill in us the spirit of revolt, and to develop that of submission to authority; we are so perverted by this existence under the ferule of a law, which regulates every event in life - our birth, our education, our development, our love, our friendship - that, if this state of things continues, we shall lose all initiative, all habit of thinking for ourselves.

Indeed, for some thousands of years, those who govern us have done nothing but ring the changes upon "Respect for law, obedience to authority." This is the moral atmosphere in which parents bring up their children, and school only serves to confirm the impression. Cleverly assorted scraps of spurious science are inculcated upon the children to prove necessity of law; obedience to the law is made a religion; moral goodness and the law of the masters are fused into one and the same divinity. The historical hero of the schoolroom is the man who obeys the law, and defends it against rebels." [4]

This cultural conditioning seeks to establish widespread consent, or at least the appearance of such, through the construction of an artificial system of morality. As opposed to ethics and morals which are innate attributes of the human race - live and let live, treat others as you would expect to be treated, cooperate and co-exist, etc - these artificial systems of morality have been designed to make "rights" synonymous with things like authority, order and obedience, and "wrongs" as being synonymous with any and all dissent from this established order.

Governments play a major role in this cultural process, and modern systems of liberal democracy aid in this construction. In The Individual, Society, and the State, Emma Goldman sheds light on this phenomenon:

"Political government and the State were a much later development, growing out of the desire of the stronger to take advantage of the weaker, of the few against the many. The State, ecclesiastical and secular, served to give an appearance of legality and right to the wrong done by the few to the many. That appearance of right was necessary the easier to rule the people, because no government can exist without the consent of the people, consent open, tacit or assumed. Constitutionalism and democracy are the modern forms of that alleged consent; the consent being inoculated and indoctrinated by what is called "education," at home, in the church, and in every other phase of life.

That consent is the belief in authority, in the necessity for it. At its base is the doctrine that man is evil, vicious, and too incompetent to know what is good for him. On this all government and oppression is built. God and the State exist and are supported by this dogma." [5]

This artificial notion of morality, and the modern creation of "manufactured consent" via systems of "constitutionalism and democracy," is what Howard Zinn aptly referred to as The Conspiracy of Law. In transitioning the deliverance of authority from the "rule of men" to the "rule of law," according to Zinn, the power brokers have not only created their own sets of "Natural law," but have also made such laws nearly impossible to question:

"The modern era, presumably replacing the arbitrary rule of men with the objective, impartial rule of law, has not brought any fundamental change in the facts of unequal wealth and unequal power. What was done before - exploiting men and women, sending the young to war, putting troublesome people into dungeons - is still done, except that this no longer appears as the arbitrary action of the feudal lord or the king; it is now invested with the authority of neutral, impersonal law. Indeed, because of this impersonality, it becomes possible to do far more injustice to people, with a stronger sanction of legitimacy. The rule of law can be more onerous than the divine right of the king, because it was known that the king was really a man, and even in the Middle Ages it was accepted that the king could not violate natural law. (See Otto Gierke, Political Theories of the Middle Age, Notes 127-134.) A code of law is more easily defied than a flesh and blood monarchy; in the modern era, the positive law takes on the character of natural law."[6]

The repackaging of authority into morality (written law as natural law), and the arbitrary nature of this new authority, also make it nearly impossible to target:

"Under the rule of men, the enemy was identifiable, and so peasant rebellions hunted out the lords, slaves killed plantation owners, and radicals assassinated monarchs. In the era of the corporation and the representative assembly, the enemy is elusive and unidentifiable; even to radicals the attempted assassination of the industrialist Frick by the anarchist Berkman seemed an aberration. In The Grapes of Wrath, the dispossessed farmer aims his gun confusedly at the tractor driver who is knocking down his house, learns that behind him is the banker in Oklahoma City and behind him a banker in New York, and cries out, 'Then who can I shoot?'" [7]


Law as Authority

"As long as some specialized class is in a position of authority, it is going to set policy in the special interests that it serves."

- Noam Chomsky


The need for written laws is something that is rarely, if ever, questioned. It is a common belief that such laws are necessary, and that "the need for law lies in the history of the human race."[8] In popular college textbooks like Essentials of Criminal Law, this common acceptance is housed in a rationality that can be summarized by the following: 1) People are individuals, and their desires, needs, and wants differ from those of others; 2) These differences cause conflict; 3) When people began to live in groups, communities, and societies, laws became necessary; and 4) Law became necessary as a means of social control, either to alleviate conflicts or to settle them in a manner most advantageous to the group.[9]

When viewed in this manner, laws are presented as a mechanism designed to serve the community for which they are applied. The assumptions for applying them under this rationale are numerous: for example, we must assume that all individuals within a given community/society are allowed equal access to basic necessities; we must assume that all individuals are treated equally under the law; and we must assume that material conditions (or the base economic system for which society rests) allow for free association among all members. Without this foundation, as summarized by these basic assumptions, the justification widely used in support of written laws becomes null and void.

Therefore, when applied to societies that are shaped by flawed economic systems - systems that disenfranchise members and fail to allow many to fulfill basic needs - laws no longer serve the community, but rather serve the most powerful members of that community. In this instance, laws are transformed from statutes designed to enhance the common good to statutes designed to control the disenfranchised members. When this transformation occurs, laws become weapons of authority, essentially losing their legitimacy within a given community or society. Kropotkin describes this transformation which is based in the need to establish the domination of the minority over the majority:

"The desire to dominate others and impose one's own will upon them; the desire to seize upon the products of the labour of a neighbouring tribe; the desire to surround oneself with comforts without producing anything, whilst slaves provide their master with the means of procuring every sort of pleasure and luxury - these selfish, personal desires give rise to another current of habits and customs. The priest and the warrior, the charlatan who makes a profit out of superstition, and after freeing himself from the fear of the devil, cultivates it in others; and the bully, who procures the invasion and pillage of his neighbours, that he may return laden with booty, and followed by slaves; these two, hand in hand, have succeeded in imposing upon primitive society customs advantageous to both of them, but tending to perpetuate their domination of the masses. Profiting by the indolence, the fears, the inertia of the crowd, and thanks to the continual repetition of the same acts, they have permanently established customs which have become a solid basis for their own domination." [10]

The establishment of authority and domination becomes necessary when a minority section of society decides that it is deserving of owning wealth and land far beyond the purpose of its own use. This development naturally leads to the disenfranchisement of a multitude of members whose size grows in a perpetual manner alongside the constant pursuit of more wealth and land by the elite. As this development continues, laws are reduced to serving this dominant minority. Kropotkin explains:

"But as society became more and more divided into two hostile classes, one seeking to establish its domination, the other struggling to escape, the strife began. Now the conqueror was in a hurry to secure the results of his actions in a permanent form, he tried to place them beyond question, to make them holy and venerable by every means in his power. Law made its appearance under the sanction of the priest, and the warrior's club was placed at its service. Its office was to render immutable such customs as were to the advantage of the dominant minority." [11]

As time goes on, these laws become customs that are widely accepted even by the majority-population for which they are designed to control, and to prevent from accessing basic human needs, through violence and coercion. This gradual process has led to the modern justifications given above, all of which ignore the historical process of minority rule via the disenfranchisement of the majority, to the point where the legitimacy of such laws are no longer questioned. As Kropotkin concludes:

"Such was law; and it has maintained its two-fold character to this day. Its origin is the desire of the ruling class to give permanence to customs imposed by themselves for their own advantage. Its character is the skilful commingling of customs useful to society, customs which have no need of law to insure respect, with other customs useful only to rulers, injurious to the mass of the people, and maintained only by the fear of punishment.

Like individual capital, which was born of fraud and violence, and developed under the auspices of authority, law has no title to the respect of men. Born of violence and superstition, and established in the interests of consumer, priest and rich exploiter, it must be utterly destroyed on the day when the people desire to break their chains."[12]


Criminal Law in a Capitalist System

"Ask for work. If they don't give you work, ask for bread. If they do not give you work or bread, then take bread."

- Emma Goldman


As with all societies, written laws become the primary mean of maintaining the status quo. The most fundamental purpose of such laws is to create and maintain a minimal degree of stability or at the very least a semblance of stability within certain areas of society. In the modern United States, the status quo has been shaped by a base economic system of capitalism that is characterized by multi-generational poverty, extreme inequality, and high concentrations of wealth and power. Therefore, when applied to this base, criminal laws are essentially statutes that are developed by legislators who either come from or are tied to those concentrations of wealth and power, and are placed upon the at-large population which has already been disenfranchised by the economic system. Because of this, a critical theory of criminal law becomes vital in deconstructing the nature and purpose of such laws.

In his essay Crime Control in Capitalist Society, Richard Quinney provides us with important assertions that must be understood before moving forward with this breakdown:


· American society is based on an advanced capitalist economy.

· The State is organized to serve the interests of the dominant economic class, the capitalist ruling class.

· Criminal law is an instrument of the State and ruling class to maintain and perpetuate the existing social and economic order.

· Crime control in capitalist society is accomplished through a variety of institutions and agencies established and administered by a government elite, representing ruling-class interests, for the purpose of establishing domestic order.

· The contradictions of advanced capitalism - the disjunction between existence and essence require that the subordinate classes remain oppressed by whatever means necessary, especially through the coercion and violence of the legal system.

· Only with the collapse of capitalist society and the creation of a new society, based on socialist principles, will there be a solution of the crime problem.[13]


The process of transforming laws into weapons of authority to be wielded by the wealth and land-owning minority over the disenfranchised majority, as touched on by Kropotkin, has reached its current stage via the promulgation of this "advanced capitalist economy" in the United States. This system, as an economic base, has allowed for the historical continuation of separating the masses from access to basic needs, while also fusing the law-making apparatus (the government) nearly completely with the wealth-owning elite (the former private sector).

When examining criminal justice systems found under capitalism, Marxist gatekeeper theory is invaluable. The most basic application of this Marxian analysis proves helpful in illustrating the positions of those who commit crimes versus those who create and enforce laws. Basic tenets of this theory include:


· Deviance (as determined by the artificial morality described above) is partly the product of unequal power relations and inequality in general.

· Crime, as established by the ruling class (with their own interests in mind) is an understandable response to the situation of poverty and mass disenfranchisement.

· Crime is often the result of offering society demeaning work with little sense of creativity.

· The base (economic system) disenfranchises the working-class majority; the superstructure (government and law creation) serves the ruling-class minority.

· The capitalist class (minority) co-opts the capitalist government to create laws that seek to maintain its power through coercing and controlling the working-class majority.

· "The heart of the capitalist system is the protection of private property, which is, by definition, the cornerstone upon which capitalistic economies function." Thus, written law reflects this fundamental value of property and profit over people. [14]


In the United States, the dominant ideology that espouses "individualism" and "exceptionalism" has been successful in merging manufactured morality and consent to the economic "virtues" of capitalism and patriotism, which are also manufactured in the same ways. Goldman explains the cultural effects of this process:

"This 'rugged individualism' has inevitably resulted in the greatest modern slavery, the crassest class distinctions, driving millions to the breadline. 'Rugged individualism' has meant all the 'individualism' for the masters, while the people are regimented into a slave caste to serve a handful of self-seeking 'supermen.' America is perhaps the best representative of this kind of individualism, in whose name political tyranny and social oppression are defended and held up as virtues; while every aspiration and attempt of man to gain freedom and social opportunity to live is denounced as 'unAmerican' and evil in the name of that same individualism."[15]

This merger serves to not only fortify the justification for written laws as tools of authority and domination over the majority, but also the unquestioned consent of those (in this case, the alienated working-class majority) being controlled and oppressed by such laws.

In direct contrast to a common belief in the need for law to address "natural" conflict in human societies, it is crucial to recognize the manufactured conflicts created by capitalism. The justification presented in the dominant paradigm possesses two fundamental flaws in this regard: the first of which lies in the view that conflict is in fact "natural" within all human societies; and the second being in the exclusion of material conditions as a factor in creating conflict. In order to be legitimized, this justification must rely on basic assumptions related to material conditions, most specifically the presence of an economic system which allows for equal and broad access to basic necessities such as food, clothing, shelter, healthcare, etc. Much like the false assumptions in Weber's analysis of the modern state, any premise that fails to consider the manufactured conflict stemming from the material conditions of a society's mode of production finds itself lacking legitimacy and justification.

In reality, capitalism creates widespread conflict by alienating the majority. Therefore, in such a system, "crime" (especially regarding that which is routinely enforced) represents the actions of people who have become dehumanized, dispossessed, stripped of human creativity, and left without the means to fulfill basic human needs.


Conclusion

"The master's tools will never dismantle the master's house."

- Audre Lorde


If human beings are in fact individuals with "different desires, needs, and wants," as described even by the dominant criminological paradigm, then we must question the existence of hierarchical societies based in authority and domination. Such societal arrangements persist and have been accepted as "common sense" despite the inherent contradictions they impose. Within these arrangements, written laws have been identified as "social controls" needed to "alleviate natural conflict" and settle such conflict "in a manner most advantageous to the group (society/community)." However, when applied to societies that have been shaped by flawed economic systems (like capitalism) and historical processes that have led to wealth and land-owning minorities "governing" disenfranchised majorities, laws have taken on a different identity, mainly one that serves as a weapon of unquestioned authority.

Authority, in itself, is not a wholly illegitimate concept. Authority as a measure of competence or expertise may be extremely useful when serving society. However, when it becomes a means of social control, of domination by one over another, its legitimacy should come into question. Mikhail Bakunin perhaps explained this best in his treatise, What is Authority:

"Does it follow that I reject all authority? Far from me such a thought. In the matter of boots, I refer to the authority of the boot-maker; concerning houses, canals, or railroads, I consult that of the architect or the engineer. For such or such special knowledge I apply to such or such a savant. But I allow neither the boot-maker nor the architect nor savant to impose his authority upon me. I listen to them freely and with all the respect merited by their intelligence, their character, their knowledge, reserving always my incontestable right of criticism and censure. I do not content myself with consulting a single authority in any special branch; I consult several; I compare their opinions, and choose that which seems to me the soundest. But I recognize no infallible authority, even in special questions; consequently, whatever respect I may have for the honesty and the sincerity of such or such individual, I have no absolute faith in any person. Such a faith would be fatal to my reason, to my liberty, and even to the success of my undertakings; it would immediately transform me into a stupid slave, an instrument of the will and interests of others." [16]

Because they are constructed for the purpose of controlling the disenfranchised masses of people, modern laws represent authority of the illegitimate kind. Speaking of such laws, the anarchist Pierre-Joseph Proudhon famously proclaimed:

"I recognize none of them: I protest against every order which it may please some power, from pretended necessity, to impose upon my free will. Laws! We know what they are, and what they are worth! Spider webs for the rich and mighty, steel chains for the weak and poor, fishing nets in the hands of the government."[17]

In the modern United States, Proudhon's vision plays out every day. Under capitalism, laws are created by millionaire legislators who are financially supported by billionaire interests, enforced by hired guns of the working class (police), and ruled on by wealthy elites in black robes who are largely detached from their subjects. As capitalism naturally leads to greater concentrations of wealth and power, along with greater numbers of dispossessed citizens, crime and punishment becomes solely directed at the most marginalized of these masses. In the US, this includes the poor, the working poor, and people of color.

This correlation has never been more evident than in the neoliberal era (roughly 1980 until now), which is widely recognized as an intensification of the capitalist system. Since 1980, the total adult correctional population (those in prison/jail and on probation/parole) has increased from two million to seven million.[18] During this time, the prison population itself has increased 470 percent (from 320,000 in 1980) to 1.5 million in 2013.[19] Those scooped up by ruling class "fishing nets" and placed in "steel chains" are disproportionately poor and black.[20]

This scenario that has developed over the course of centuries has delegitimized any attempt to establish state authority, coercion, and its "monopoly of violence" via the criminal justice system. As long as capitalism is used to shape the social relations that are to be monitored and controlled, the state remains as nothing more than a tool to be wielded by the wealth and land-owning minority. And as long as the state remains a coercive extension of these social relations, the notion of criminal law will remain nothing more than a camouflaged totalitarianism designed to keep its boot on the neck of the disenfranchised majority.



References

[1] Weber, Max (1919), "Politics as a Vocation." Accessed online at http://anthropos-lab.net/wp/wp-content/uploads/2011/12/Weber-Politics-as-a-Vocation.pdf

[2] Ibid

[3] Best, Shaun (2002), Introduction to Politics and Society (Sage Publications) Accessed online at https://www.sagepub.com/sites/default/files/upm-binaries/9547_017533ch2.pdf

[4] Kropotkin, Peter (1886), Law and Authority. Accessed online at the Anarchist Library on November 12, 2015 @ http://theanarchistlibrary.org/library/petr-kropotkin-law-and-authority

[5] Goldman, Emma (1940), The Individual, Society and the State. Accessed online at the Anarchist Library on November 12, 2015 @ http://theanarchistlibrary.org/library/emma-goldman-the-individual-society-and-the-state

[6] Zinn, Howard (1971), "The Conspiracy of Law." Appeared in The Rule of Law, edited by Robert Paul Wolff (New York: Simon and Schuster)

[7] Ibid

[8] Chamelin, N. & Thomas, A. (2009) Essentials of Criminal Law, 11th edition (Prentice Hall)

[9] Ibid

[10] Kropotkin (1886)

[11] Ibid

[12] Ibid

[13] Quinney, Richard (1975), "Crime Control in Capitalist Society: A Critical Philosophy of Legal Order." Appeared in Critical Criminology, edited by Ian Taylor (Routledge)

[14] Covington, Jeanette (2000), Marxist Perspective on Crime. Accessed on November 29, 2015 at http://www.sociology.org.uk/

[15] Goldman (1940)

[16] Bakunin, Mikhail (1871), What is Authority? Accessed online at the Anarchist Library on November 12, 2015 @ http://theanarchistlibrary.org/library/michail-bakunin-what-is-authority

[17] Proudhon, Pierre-Joseph (1851), General Idea of the Revolution in the Nineteenth Century. Republished by Courier (2013)

[18] Bureau of Justice Statistics (BJS), US Office of Justice Programs (2014). Accessed online at http://www.bjs.gov/content/pub/pdf/p13.pdf

[19] The Sentencing Project: Research for Advocacy and Reform (2014). Accessed online at http://www.sentencingproject.org/template/page.cfm?id=107

[20] BJS (2014)