As the U.S. President and other members of his administration say aloud that they will ignore court orders that disagree with their actions just as steadfastly as they will ignore legislators’ objections, there’s more and more talk about “the rule of law” and a “constitutional crisis”. That may, for certain purposes, be a reasonable account of what’s happening within the state, but it’s useless as a lens for looking at what’s happening in the country – that is, on the expanse of stolen land that the U.S. state rules. In fact, it is a way of actively avoiding dealing with what is going on in any way that can inform strategic or tactical thinking about how to resist.
Again and again, over the past five years of uprisings and discontent, we’ve seen progressive and radical groups (especially, but not exclusively, 501c corporations) and prominent movement figures fall back on two core strategies for responding to the far right.
One is elections: either backing the Democratic Party as a whole, as it moves steadily from the right to the far right1, or backing liberal candidates within it, who are uniformly marginalized, attacked, and defanged by the party leadership even as their presence legitimizes that leadership. It would be nice if that approach’s abject failure to win any material victories over the past decade discredited it, but given that its abject failure over the previous four decades didn’t, we can’t count on that.
The other is lex ex machina – intervention by the courts. That alleged strategy is based on the idea that legal decisions command a moral force that cannot be countered (which every U.S. justice movement’s history disproves), or that they are fundamentally self-enforcing magic words that control the state.
On the practical side, Andrew Jackson pointed out the problem with that last position back when the U.S. Supreme Court tried to restrict the State of Georgia’s authority over the Cherokee Nation. “Justice Marshall has made his decision, now let him enforce it” is the way Horace Greeley imagined him phrasing it; Old Hickory himself just called the decision “still born” (and in practice embraced, rather than rejecting, the court’s guidance on how exactly to go about committing genocide). But the problem for movement strategy isn’t the practical side, it’s the ideological underpinnings that let so many radicals who know that punchline continue to act as if they’ve never heard any such thing.
There is no such thing as a government of laws. There is no such thing as the rule of law. Laws are words on paper (or graven in stone, or incised on clay tablets, or preserved as digital 1s and 0s). They do not rule, they do not govern, any more than the Statue of Liberty does, or a pothole on I-95, or any other inanimate object.
States are made of people, say the state-preservationists of the left, and they’re correct. There’s even a grain of partial truth in their fantasy that this makes the state as a structure infinitely malleable. Laws are products of the state – of specific people within its structures – but what being a state means is that the people who act in its name decide what concrete effects its laws will have. The state is a specific kind of structure, and a key part of that specificity is the discretion that its agents hold.
We see this every day.
Cops arrest one person for drinking a beer in a park during a concert, but not dozens of others at another concert in a different park with glasses of wine. ⧳ Clerks in benefit offices make it possible for a family to feed their children properly, or not, and then school social workers decide which families who’ve been denied food will have their children stolen for underfeeding them. ⧳ Judges allow blatant lies from cops to stand as evidence, and throw out as inadmissible the footage that disproves those lies. ⧳ Clerks at the DMV, the passport office, the county hall of records, all decide whether a trans person will continue to carry paperwork that makes it possible for them to be arrested for “not matching their ID” anytime a cop feels like it. ⧳ District Attorneys transform the same action from murder to accident with no change in evidence at all. ⧳ University administrators decide whether teenagers on student visas will be deported, at the request of trustees or major donors or on their own. ⧳ Prison administrators add or subtract years from people’s time in cages by certifying a positive or negative write-up. ⧳ Health inspection supervisors decide whether information about contamination they receive from a meatpacking worker will save lives or not. ⧳ Immigration magistrates determine whether a person has to stay at a job under indentureship conditions to remain with their partner and children. ⧳ Prison guards add sexual assault to people’s sentences whenever they want to, as many times a year, a month, a week, a day as they choose to carry out a body search. ⧳ Tax auditors decide whether a millionaire, a billionaire, will pay less in taxes than a minimum wage worker. ⧳ Parole Board members turn prison sentences into executions by cancer, by tuberculosis, by COVID, by diabetes based on their alleged consciences alone.
These are not exceptions. These are the ordinary, everyday functioning of the state – of every state. Of a federal republic, a people’s democracy, a constitutional monarchy, a nation-state, an empire, an autocracy, a parliamentary theocracy. The only differences are the variations in whose discretion, exactly, a particular state in a particular moment empowers.
The state depends for its everyday functioning on the simple fact that laws aren’t real but the discretionary actions of the people who act in its name are.
The state is, at heart, this institutionalized awarding of discretion, of the power to decide what the law means, how it means, and whether and how it is to be enforced.2
It is odd that this seems so hard for many radicals and progressives to grasp, even when a President, an administration, a Congressional majority party, say very clearly – just as every cop says, equally clearly – that their discretion alone, not words on paper, determines what will happen.
Equally strange, some of them insist that we should treat some of the people who exercise these discretionary powers over life and death as allies rather than opponents; that we should distinguish between the child-stealer whose job title is “social worker” or “school counsellor” and the child-stealer who carries the name “police officer”. And some who insist on maintaining these denials and fictions have, I assume, applied for food stamps or for Medicaid, challenged a ticket for a fictional offense, perhaps even been charged with “obstruction of vehicular traffic” after being arrested inside a building.
Do they connect their own direct experience to their strategic vision, or are they too enamored of the pretty abstractions that seeing like a state provides, or of the fantasy that the Good Tsar – sorry, I mean, the “pro-state state” – will throw off his Evil Advisors and rescue his pure-hearted children?
That’s a rhetorical question.
What’s not rhetorical, however, is what we can know from the history of our movements. Those lessons are so clear that they’ve been available in print for half a century. If you want to affect state policy, the work of scholars like Frances Fox Piven and Richard Cloward tells us, lobbying and drafting legislation is not the path to take. The formal abolition of chattel slavery, the labor regulations of the 1910s, the New Deal policies and welfare structures of the 1930s, the Civil Rights protections and Great Society programs of the 1960s-70s, the few scraps of positive policy on HIV/AIDS, environmental preservation, and disability in the 1980s-90s – every one of them happened because of widespread militant, disruptive, concretely effective, and ostentatiously illegal actions.
Not arrest-based lobbying, of the kind that the 501c sphere has stopped called “civil disobedience” because “direct action” sounds sexier (and words have no meanings to them). Not photo-ops in public buildings holding banners that subcontractors were paid to design and coordinate unpaid labor to paint. Not theatrical self-sacrifices, whether by hunger or fire. Not trudging in the streets past weekend-empty offices, after paying the police for “permission” (and a fantasy of safety from arrests).
Actual, materially effective actions where the point is getting the concrete thing done and getting away with it, and capture by the state is a risk, not the plan.
Abolitionists breaking recaptured “fugitive slaves” out of prison. ⚑ Picketers blocking scabs and shutting down struck shops by force. ⚑ Neighbors carrying each other’s furniture back inside after driving off the eviction squads. ⚑ Sit-down strikers occupying factories. ⚑ Armed self-defense groups firing on Klansmen. ⚑ A citywide carpool network to make it possible for a boycott to bankrupt the bus system. ⚑ “Rioters” and “looters” taking control of city centers. ⚑ Armed patrols to discourage and intervene to prevent police violence. ⚑ Thousands upon thousands of off-hours bombings of state and corporate targets, disrupting them with almost no casualties. ⚑ Queers stopping work at medical industry offices, from the CDC to pharmaceutical company headquarters. ⚑ Tree-sits and widespread logging-machine sabotage. ⚑ And all the less immediately visible scut-work that supports and makes possible those moments of visible eruption.
We’ve never gotten progressive policy changes by going through state channels, or by appealing to the people who make up the state, or by addressing ourselves to the state. They only come, as every example from the past several centuries shows, as state reactions to uncontainable (and often unpredictable) militancy with practical aims and concrete effects. We get them, when we do, because the state is scared shitless of us and willing to do whatever it takes to make us quiet down.
Whether we should take that implicit deal is a different question.
But even for state-preservationists, the clear historical facts remain: if you want progressive policy change, you should be advocating for, funding, materially supporting, loudly defending, and figuring out how to engage in militant illegal action.
There is no “inside strategy”, because there is no “inside” route to even a purely policy goal, and never has been. The state knows perfectly well that laws aren’t real, that words on paper aren’t what determines what happens. We need to be just as clear, and learn from our past successes instead of endlessly repeating failed strategies based on abstractions and fantasies.
- Even if we were to set aside the party’s actions, which are surely the best guide to its political position – funding, supplying, and advocating for Israel’s genocidal war on Palestinians; dismantling the public health structures set up to contain and monitor the COVID pandemic; massively accelerating deportations and other attacks on migrants and refugees; massively increasing funding for police and expanding their access to military hardware; intervening to break strikes over the most minimal right to sick leave and reasonable working hours; etc – the 2024 party platform saw an abandonment of even lip service to key parts of the liberal minimum program, including the removal of the longstanding anti-death-penalty plank and the addition of a full-throated threat to start a war with Iran. ↩︎
- This is the material reality behind one of the most actively misleading definitions of the state. No state has “a monopoly on violence”. What states have – obscured by that blatantly inaccurate phrase – is the ability to meaningfully declare some violence legitimate, and some illegitimate. In other words, to declare that some people (specific individuals, formal organizations, informal groups, demographic categories, etc.) have the discretion to decide to use violence without facing consequences from the state. And, by the same token, to declare that some people (specific individuals, formal organizations, informal groups, demographic categories, etc.) will face consequences from the state – almost always in the form of legitimized violence – if they use force for any reason. ↩︎