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.
Continue reading the fantasy of “the rule of law”, and the concrete reality of the state