There is a lot to get into with this subject so I have decided to split things into more and smaller segments so that they are readable. So this first post will just focus on the Commerce Clause. I have noticed in my discussions on this subject that my fears of right wing legal challenge to single payer are most often dismissed by a simple evocation of the Commerce Clause. Unfortunately there is reason to believe that single payer’s constitutionality under the Commerce Clause is not so straightforward given recent decisions and the direction of the courts.
The Beginning of the Debate of What Commerce Means
In my last post, I gave a straightforward but ambitious directive: “The Left needs to shake its discomfort with wielding power and build the intellectual and political synthesis to gain power.” While I did not mention it in the post (which focused instead on net neutrality), I was inspired by a hopeful shift being enacted by the Democratic Socialists of America’s (DSA) Medicare for All campaign. Those who worked on the Affordable Care Act may remember how power rarely if ever entered into the conversation. The power of health insurance corporations and powerlessness of the people were assumed, and instead the discourse focused on how to navigate these dynamics rather than disrupt or eliminate them.
While there are some who want to return to these paltry discussions, Medicare for All could be a crucial first step for the Left towards taking power. That is why I and many others have poured so much time into it, from door-to-door canvassing to work with medical debt. There’s a great groundswell of volunteers. But that is just part one of my aforementioned directive. Medicare for All will not be won solely by the Left deciding that it should take power. We also need to create the intellectual and political synthesis to make it happen. To be clear, this is not needed to fulfill the mandates of Medicare for All’s critics. They have already shown they have no qualms criticizing strawmen rather than any policy put forth by the campaign. Rather, it is needed to make sure that when we pass Medicare for All that it is an unencumbered single payer system, that it withstands constitutional challenge, and that it does not foreclose the path towards fully socialized medicine.
The beginning of the most fraught debate on government regulation in 2017 happened 14 years earlier when a young law school professor named Tim Wu wrote that net neutrality would “preserv[e] a Darwinian competition among every conceivable use of the Internet so that the [sic] only the best survive.” Not exactly a rallying cry against the free market, and while the issue was hotly debated among legal academics, its first attempt to become law in the United States failed miserably. Net neutrality would not be manifested in the law until 2010 with the passage of boletín 4915 in Chile.
Federal Communications Commission Chair Julius Genachowski, with a Democratic executive branch, decided to follow Chile’s lead despite the threat of Congress pushing back and enacted the FCC Open Internet Order on December 21st, 2010. This order was not net neutrality, at least in the eyes of the policy’s advocates, but it enraged the Republican Party. And on April Fool’s Day, Joshua D. Wright published a post titled “Welcome To Net Neutrality” on a blog called “Truth on the Market.”
At the end of every seven years you shall grant a remission of debts. “This is the manner of remission: every creditor shall release what he has loaned to his neighbor; he shall not exact it of his neighbor and his brother, because the LORD’S remission has been proclaimed. -Deuteronomy 15:1-2
A personal goal of mine in writing this blog was to do a somewhat extensive application of all of Marx’s Capital to U.S. law. That goal did not quite materialize as I got caught up in various things, but I recently started an amazing reading group through DSA’s Socialist Feminist Working Group for women and nonbinary people to read through Capital Vol. 1. Since I will be putting time into not only re-reading it but also discussing and learning from my nonbinary and sister comrades, I figure might as well apply that knowledge to the law.
So those who have read Capital know that Marx starts things off with his analysis of what a commodity is and why the nature of commodities leads to commodity fetishism. He famously (or perhaps infamously) uses the example of linen and coats for commodities. He did not pick these commodities at random: coats are a commodity that has near-universal familiarity and linen is one of its components (at least in the 19th century). They also have a clear utility: coats keep us warm and linen can be used to make clothes like coats. And they have a clear root in production through private labor: coats are tailored and linen is weaved. But this first chapter of Capital Vol. 1 is supposed to cover all commodities because of how Marx comes to his definition of the money-form.
Marx begins by describing the two values contained in commodities: use-value, the utility of a commodity in its consumption or use, and exchange value. Exchange value is derived by the relative value between two commodities, with Marx giving the example of 20 yards of linen=1 coat. Marx notes that every commodity has an extensive number of relative values, essentially as many as there are commodities in the marketplace. He explains that these other relative values are needed to really understand the value of a commodity. If, for example, whatever market fluctuations cause the exchange value of linen and coats to go up in the exact same proportion, their relative value will remain the same: 20 yards of linen=1 coat. Throw in a third commodity however and you can understand that the exchange value has gone up, i.e. 20 yards of linen=1 coat= 1 lb. of coffee > 20 yards of linen=1 coat=2 lb. of coffee.
As such, one can craft what Marx calls the general form of value by setting one commodity against all others – “the joint contribution of the whole world of commodities.” And per this relationship, society can come up with a commodity to serve as a universal equivalent. That commodity was gold. And this relationship of “direct and universal exchangeability” made gold into money. Gold’s existence as money then made its relative value towards other commodities the price form.
Now commodity fetishism is the part of this first chapter of Capital Vol. 1 that draws a lot of attention because of how present it still feels in our day-to-day lives. The deduction of money conversely seems a bit archaic: after all, we now have a fiat currency in the United States that does not rely on the gold standard. Is modern money still a commodity? Many would argue that is not: as the economist Georg Friedrich Knapp said, money is a “creature of law” rather than a commodity. It is important to recognize however, as Marxist economist Michael Roberts points out, that Marx is not writing about money throughout existence but rather money in a capitalist-commodity economy.
Roberts also notes that the state being able to create money “out of thin-air” as is done with a fiat currency is not the same thing as creating its value. He uses the example of the Great Recession to indicate that when the value of a national currency collapses that commodities’ demand increases to hoard value.
And I would argue a recent scourge of consumer protection law is also demonstrative of money’s role as a commodity and the importance of rooting the price form in relational values of exchange: the practice of buying consumer debts.
Debt buying regularly comes up in the context of so-called “zombie debt.” This “zombie debt” is debt which has been paid off but the account winds up accidentally getting bundled with a bunch of open debt accounts and sold to debt buyers. Many creditors (and we’re talking big names here like Bank of America and Discover) deal with this problem by indemnifying themselves contractually from any liability, placing the responsibility of weeding out already-paid accounts onto the debt buyers. The debt buyers in turn have little to no incentive to weed out these accounts because (1) there is literally no court in the US where default judgments are not obtained in the majority of consumer debt proceedings, and (2) the main statute protecting consumers, the Fair Debt Collection Practices Act (FDCPA), limits penalties for individual actions to $1,000. That’s less than practically any of the judgments that debt buyers stand to win from filing suit, so it is simply a matter of profit margin.
But how come companies are allowed to buy debt in the first place? People appearing in court, sued by a company they have never heard of like Portfolio Recovery or Calvary SPV, often wonder why they are dealing with some strange company rather than their original creditor. After all, the origin of our ideas of debt are mostly from Judeo-Christian concepts of morality, like the common seven year statute of limitations that can be traced back to Deuteronomy. As in prior to capitalism being the dominant economic paradigm, when the impetus of paying debts came from fearing judgment and sin. It is hard to get across to people in debt from a wide array of backgrounds that this moral system has little to no bearing on their legal proceedings. The judge probably will not, and the plaintiff will certainly not, care if someone has always “done the right thing” or made one mistake. Moral culpability is irrelevant: what matters is contractual obligation.
Debt, and its more appealing twin Credit, developed to allow for the expansion of capitalism for reasons that will be covered further into Capital Vol. 1. For the time being, it just needs to be understood that debt is a contractual money obligation by one party, the debtor, to another party, the creditor. Like any other contract, the rights it instills can generally be assigned to another party. U.C.C. 15-317. But assignment only provides a legal vehicle for the purchase of debt: what is the economic motivation? And more precisely, is debt a commodity despite being nothing other than a money obligation?
While abstracted to an extraordinary degree not even imaginable in Marx’s worst nightmares, debt is very much a commodity under modern capitalism. One element that reveals the debt’s commodity form is the difference between its use value and exchange value. Debt buyers do not purchase debts for the money owed on it. Instead, evaluating several factors (age, type of consumer transaction, attempts at collection), a price is formulated in relation to the necessary labor time needed to produce its value. This necessary labor time consists of administration, compliance, and legal collection. As such the exchange value winds up being pennies on the dollar or even less: it is literally a full-time job to track down people in debt and collect from them while complying with all the appropriate government regulations. And it should be noted that the use value of these debts is not the money owed either: debt buyers are well aware that most of these debts will settle for less than the principal and some (if people like me do their job right) may get discontinued altogether.
The example of purchasing debt shows the power of money as a concept, and particularly the price form. In any other exchange system, it would be difficult if not impossible to calculate the exchange value of a debt as a commodity with such ruthless efficiency. For starters the debt would not be for money but rather for commodities: to use an example we all can hopefully relate to, let’s say Rosa owes Lucy three tacos. Lucy decides she does not actually want the three tacos but wants to come out with something, so she tries to sell this debt to Margaret since she knows Margaret makes amazing pizza. Even assuming there was a generally recognized rate of exchange of one taco for one slice of pizza, why would Margaret risk purchasing this taco debt that she’ll then have to collect on when she could just go to someone with tacos and trade? It’s an intentionally silly example but hopefully it illustrates how complicated these relationships can be without a universal equivalent.
And of course the debt buying process is particularly interesting when we consider the debate of whether money is a commodity. Like money, debt as a contractual obligation is a “creature of law.” The obligations are not natural things but social relations. And most importantly how they relate to people (through their use value, or the collection of the debt) is different from how they relate to other commodities. The minute a price (the exchange value between money and a commodity) is placed on a debt, it relates to the entire world of commodities despite itself being an odd shadow of the very universal equivalent of money that allows this relation.
I am going to apologize ahead of time because this post will lack the normal snarky jokes and clever quips because I am neither in the mood nor have the time since there is a lot to cover. Also to save on space I won’t be addressing issues that are important but better addressed by others elsewhere like who is considered a “terrorist” by the mainstream media nor will I be debunking the mind-blowingly dumb claims like that suppressors wouldn’t help someone maximize their killing spree. As briefly but thoroughly as possible I want to establish two things: first, that the current gun control laws are useless bourgeois nonsense and that most of the proposals for gun control are also useless bourgeois nonsense, and second, legal changes both immediately achievable and long term that will end the public health crisis that is periodic mass murder by use of firearms in the United States.
So probably everyone reading this is familiar with the Second Amendment and its “right to bear arms.” That right in practice is a gradient – the “core” of the right is the possession of handguns (since they are the most common weapon for self-defense) and furthest from the “core” of the right are theoretically things like machine guns and grenade launchers (we will get to that theoretically in a second). This was outlined in a series of cases, most importantly a case called McDonald v. City of Chicago. What the petty feckless racists who have turned “Chicago” into a Nazi rallying cry tend to forget is Chicago tried very hard to fight its problem with violence through a law that effectively banned the possession of handguns. That law was struck down by the Supreme Court in an opinion by Justice Alito. Justice Alito held that:
Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.
So cities and states cannot ban handguns. What can they do and what has been done? New York passed a law called the Secure Ammunition and Firearms Enforcement Act (SAFE Act) and it was put to the test in a case called New York State Rifle & Pistol Ass’n v. Cuomo. This law defined a semiautomatic firearm as a prohibited “assault weapon” if it contained any one of these “military-style” features: a telescoping stock, a conspicuously protruding pistol grip, a thumbhole stock, a bayonet mount, a flash suppressor, a barrel shroud, and a grenade launcher. “This statutory definition encompasses,” the court noted, “and thereby bans, the semiautomatic weapon used by the mass-shooter at Sandy Hook.” And the court upheld the law’s constitutionality, stating that while semiautomatics are popular that they’re not on the same level as handguns were in McDonald. The court held that when it came to the particulars of the right to bear arms that the legislature was better equipped than the judiciary, and they noted just how much evidence there was that semiautomatic firearms should be strictly regulated.
Semiautomatics create more wounds, more serious wounds, and more victims on average. They’re disproportionately used in violent crime and especially mass shootings. And they’re the weapon most used to kill police officers.
But now we will start to see where liberal gun control falls apart. Because this was not a ban on semiautomatics, but rather semiautomatics with certain “military-style” features. As one of my DSA comrades noted, that kind of regulation is more about aesthetic than killing capacity:
One of the most commonly mocked gun laws is the National Firearm Act, and in particular the 1968 amendments. The law classifies certain types of firearms for special regulation: machine guns, short-barreled rifles, short-barreled shotguns, silencers, and destructive devices. Weapons dealers and enthusiasts figure out ways to avoid their weapons falling into these classifications, often by having something defined as a pistol. Now when you think pistol you’re probably imagining this:
And now here’s what the horrifyingly creative weapons dealers think of as a pistol:
Why don’t gun regulations work? We could explore all the intricacies here, maybe offer some amendments to the NFA to change the definitions of the different kinds of firearms, fight like hell against the NRA, get a watered down version passed which dealers and manufacturers would get around in a year at most. It is not a capacity for innovation in general, which capitalism actually isn’t that good at, but rather a capacity for profit-seeking innovation.
Guns are essentially video games for adult, mostly white men. It is an enormous subculture that exists not to promote mass shootings – that is just a side effect – but to promote patriarchal fantasies of power and colonialist domination. Like how the government blow back against Grand Theft Auto led to video games of an unimaginable level of depravity and violence, so has the market-friendly regulations against firearms just encouraged these men to seek out even deadlier weapons. Not because they’re planning on killing people, but because they like to fantasize about it. At least, until they take the next logical step. As long as capitalism, patriarchy, and white supremacy exist in this relatively uncontested union, mass shootings will only get worse.
But that does not mean we should just shrug our shoulders at every tragedy until some fantastical revolution saves us.
So if liberal gun control does not work for failing to confront capital and patriarchal fantasy, what can be done? Here are five proposals outside the norm of gun control regulation:
1. Nationalize Weapons Manufacturing
This one seems a bit counter-intuitive, but I believe it actually has the most potential to eliminate spontaneous mass shootings. Because a nationalized weapons manufacturing opens up so many possibilities. It could whittle down all firearms production to the bare necessity to engage in self-defense against a lethal threat. There are obvious problems here, mainly with foreign weapons flooding in to fill the vacuum. But it is worth noting that U.S. weapons currently flood the world so if there is one place to strategically attempt to plug up, it is here. This solution is obviously a pretty fantastical one in the current political environment, and it is on this list less as a serious suggestion for a campaign and more to start conversation about what can and should be nationalized and socialized in this country, how many problems could be solved if the profit motive was eliminated.
2. Shut Down Weapons Dealers
The term “dealer” under the law refers to both distributors and vendors, and both groups are complicit in mass shootings. One of the things found at the scene of the recent shooting was a modified bump stock, one of the ways that gun enthusiasts simulate automatic fire. Dealers pass around these custom parts and undermine any attempt at regulating the killing capacity of firearms.
Laws should be passed to hold dealers accountable. But until then another remedy may be available: wrongful death lawsuits. Certain family members of those killed in mass shootings have standing for wrongful death lawsuits – in fact, it happens somewhat regularly. But those lawsuits are generally against the government or the shooter’s estate (since the shooter is usually deceased). What if the dealers of guns were sued? It would require a good test case with a clear proximate cause of a dealer’s decision to sell a certain particularly lethal part or weapon to a mass shooting (and before someone jumps in with the “guns don’t kill people, people kill people,” the law recognizes any event can have multiple proximate causes, so yes guns and people kill people). It would require family members ready to fight organizations as vicious as the NRA, but luckily fed up family members are not too hard to find.
And for the Leftists who have been at the ready to attack me because you’ve convinced yourself any kind of gun control would attack the working class, don’t kid yourself. It is true that some kinds of gun control only harm the working class, like ridiculous licensing fees, and that some are straight up racist, like using the no fly list as the basis for restrictions. But the recent shooter being a multi-millionaire isn’t some anomaly. This is a game for high rollers, not for people looking to arm themselves for self-defense. Parts as small and innocuous as the Echo AR-II Trigger (another way people get around the automatic fire ban) cost $479. And as long as we are letting the market alone decide who gets the best guns, the Left by nature of its class composition is bound to get outgunned.
3. Resurrect the Federal Trade Commission’s attempted child advertisement ban
The next three solutions focus on the aspect of mass shootings too often ignored: that they begin and end with patriarchy. Patriarchy is an insidious system of power, “so deep as to be invisible” as Shulamith Firestone wrote. Part of why it is so deep is that it is instilled in all of us from the cradle to the grave. And a particularly disturbing iteration of that in modern society is video advertisements, both from TV and now online. This broad survey of the literature shows concerns that advertisements may, among other harms, be instilling aggressive and violent behavior in children.
The Federal Trade Commission (FTC) in 1978 announced that per their statutory mandate they were creating a rule to heavily restrict advertisement targeting children, particularly children too young to understand “the selling purpose” and advertisements promoting sugary foods. Needless to say, the capitalists flipped out. Particularly three industries mounted a campaign to stop the FTC: advertising, food, and toys. They tried all sorts of procedural tricks to take out FTC Chair Pertschuk (e.g. Association of Nat’l Advertisers, Inc. v. FTC), but they were only able to stop it by tearing apart the agency itself.
For decades this travesty went relatively unremarked upon. But a documentary called Fed Up identified its connection to the obesity crisis and child advertisement is up for debate again. A powerful coalition could be formed between all the different affected and concerned parties from the harmful effects of advertisements targeting children.
4. End All Funding By The U.S. Military Of Propaganda
One of the most disturbing parts of the glorification of violence and weapons in mass digital culture is how much of it can be traced back to the U.S. Military. The U.S. Military not only provided the jets, aircraft carriers, and other weapons of war for movies, they in turn helped shape the imperialist narratives behind them. They provide their trademarks and such for these creepy toys. And they fund summer indoctrination camps for the future mass shooterpatriotic youngster.
The Military has long resisted being told what to do by anyone, government or otherwise, so I doubt any kind of redirection here would be effective. Instead, the solution is a bit more straightforward: cut the Military budget. And while we push for that, support grassroots efforts like Stop Recruiting Kids that are fighting back.
5. Create The Violence Against Women Law That We Deserve
The Violence Against Women Act is one of the most criticized and studied pieces of modern law, from its civil remedy to survivors of violence that was struck down by the Supreme Court in 2000 to its tenuous relationship with tribal sovereignty. The Act was originally composed of five sections: (1) the Safe Streets for Women Act, which increased criminal penalties for rape; (2) the Safe Homes for Women Act, which required states give “full faith and credit” to protective orders granted in other states; (3) the Civil Rights Provision, which allowed survivors of gendered violence to sue their attackers for money damages; (4) Violence Against Women Act Improvements, which addressed campus sexual assault; and (5) Equal Justice for Women in the Courts Act, which trained state court judges and personnel in how to deal with sexual violence. As Claire DeMatteis who worked on the bill as Joe Biden’s consul noted, the law was preceded by dozen of hearings which were some of the first times that the violence women have faced and their stories have been recorded and solicited by the U.S. government.
But the Violence Against Women Act, for all its accomplishments, is not enough. Some feminists now question whether incarceration can play a part in our liberation. While the civil rights remedy was struck down in VAWA, it was a popular enough idea to inspire restitution struggles at local levels. There are many gaps created by the changing times: what should the legal remedies be for wrongful conduct like revenge porn? Harassment on Twitter?
A proposal for a new Violence Against Women Act deserves its own in-depth analysis. But the point here is that violence against women continues to be a largely unsolved problem, and that could be a crucial element in undermining the patriarchal roots of mass shootings. We must not simply give into fear and lash out, but rather approach the problem systematically as Crown Heights program Save Our Streets has done effectively.
Today the more moderate forces of progressives and the far Left are obsessed with one thing: the corporation. “Get corporate money out of politics,” they say. “We’re not against capitalism,” they explain, “We’re against corporatism.” “Corporations have taken over,” they argue, “We need to take back democracy from the corporations and their creations like NAFTA.” That last point is an interesting one because, even for the oldest among them, saying that the corporations have taken over during their life time implies that this supposed shift happened sometime in the 20th century.
The term “gaslighting” came into popular use in the feminist movement to describe a practice used in domestic violence contexts where the abusive partner lies and manipulates facts in order to have the abused partner doubt their own ability to understand reality, and thus to understand that they’re in an abusive relationship. It can be as simple as “No I wasn’t yelling, you’re remembering that wrong” or as elaborate as messing up a recently cleaned room and punishing the person for “not cleaning” it. Generally this dynamic occurs between a man (the abuser) and a woman (the abused). Why is this? In The Dialectic of Sex, Shulamith Firestone states that it is because of the inability of women to love “gratiutously, but only in exchange for security”:
the emotional security which, we have seen, she is justified in demanding.
the emotional identity which she should be able to find through work and recognition, but which she is denied – thus forcing her to seek definition through a man.
the economic class security that, in this society, is attached to her ability to “hook” a man.
…For once a woman plunges in emotionally, she will be helpless to play the necessary games: her love would come first, demanding expression. To pretend a coolness she does not feel, then, would be too painful, and further, it would be pointless: she would be cutting off her nose to spite her face, for freedom to love is what she is aiming for.
Firestone and I both practice a materialist feminism, that we analyze patriarchy through the historic and materialist (in Firestone’s case, the biological reality of reproduction) conditions of society. But materialist feminism is not just analyzing how patriarchy came about materially, it is also analyzing how patriarchy shapes seemingly non-gendered things in society. While she focuses on cultural production (in particular classical ideas of art), she writes that patriarchy’s influence even extends to the seemingly empirical professions, in particular because women experts have to adopt a “split ‘professionalized’ personality, emotional ignorance, the narrow views of the specialist.” This conclusion brings to my mind a common truism among women attorneys, which is that women judges are always more strict to “make up for” the stereotyping of women as overly emotional and soft.
In particular I am interested in how patriarchy has shaped the laws of the United States, my (hopefully) first as-yet unpublished law review article looking at the ways patriarchy has shaped consumer bankruptcy. Whereas other scholars like Elizabeth Warren have focused on how bankruptcy disproportionately effects women, I am more interested in how gendered ideas creep into seemingly gender-neutral laws. And few laws are as facially gender-neutral (at least now that the practice of using “he” as a default pronoun has mostly faded) as the rules of evidence. But these rules play their own part in reifying patriarchal relations of power, and one illustrative example of this is the opponent party admission exception to hearsay.
Rule 801 does not say too much about opponent party admission:
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
…(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
…(B) is one the party manifested that it adopted or believed to be true.
Without getting too much into the specifics, hearsay can be a major encumbrance for attorneys. Unless you are able to manipulate someone successfully in cross-examination, it can be almost impossible to have a person admit to saying something that they did not say. The phrase “I cannot recall,” a favorite in depositions by our current president, can derail a case. This is especially true for a criminal attorney trying to exonerate their client from a rape or sexual assault charge. For cases that often boil down to “he said, she said,” establishing that the victim changed her story can make or break the case, or at the very least garner a better settlement.
And they look for changes in the story because they are common. Women are gaslighted into believing that their rapes are not a big deal, that what they remember as sexual assault was actually a consensual hook up, etc. If these “admissions” happen to police officers or other key witnesses, it can be very difficult to keep it out of court. Even the rape shield law, created to protect victims from being questioned about their sexual history, is vulnerable to this loophole.
A survey in the UK reports that 21% of those who do not report the assaults to police do so because they think the police will not believe them. But the gendered effects of this rule extend much farther than explicitly gendered issues like rape. Witnesses have notoriously faulty memories in general, and yet a common patriarchal idea of gender difference is that women in particular are liars.
A number of not-so-scientific surveys say that women are more likely to lie then men. But in every one of these surveys, what is recorded within “lies” includes things like telling someone you like a gift that you actually did not or giving a fake number when someone asks you for one. In other words, the “lies” that women tell are about survival, either placating or avoiding all together the male domination in their lives. And these “lies” can under the opponent party admission exception be turned against women when they attempt to seek justice: a placating statement to an employer to avoid getting fired could be used as evidence that the problem at work is fabricated or an almost pre-programmed impulse to apologize when involved in a car accident could be used as evidence that the woman was at fault.
That’s not to say that there are not valid applications of opponent-party admission. A comprehensive and full confession of anything falls well outside of the fibs described above. And as someone who does legal work, I understand that as a general rule better decisions are made when all the evidence is allowed in. But to give such weight to offhand statements, whether made because of psychological manipulation by an abuser or because of social conditioning to be demure, is not conclusive of anything other than the double bind which women are placed in.
In terms of a solution, it is a bit chicken or the egg: should the focus be on ending the conditions that get women gaslit and socially conditioned to placate male feelings or should the focus be on not giving these “admissions” evidentiary weight? But they are not mutually exclusive struggles, and in fact are quite compatible given that the second is a more immediate goal (amending the rules of evidence) whereas the first is a more systemic goal (overthrowing patriarchy). And of course you do not have to be a lawyer to fight against the patriarchal idea of women as liars: that struggle can be fought every day in our personal lives by believing women when they speak earnestly about their oppression.
To head off the “[insert revolutionary leader here] DID NOTHING WRONG” crowd and just because Westerners tend to be woefully misinformed, let’s start with describing Burkina Faso under the revolutionary government of President Thomas Sankara and why despite its brief existence of four years it accomplished more than most other attempts at socialism, throughout the globe and history, ever have. All land and mineral wealth was nationalized. 2.5 million children were vaccinated against meningitis, yellow feaver, and measles. Before environmental issues were talked about by most of the world, the Democratic and Popular Revolution planted 10 million trees to fight back against the desertification of the country. In four years Burkina Faso became not only food self-sufficient by dramatically increasing agricultural production but had a surplus due to some crops like wheat being produced at triple the rate. The country spurned the silencing of stigma by being one of the first in Africa to recognize the AIDS epidemic. 700 km of rail were laid to facilitate extraction of manganese by and for the people. Female genital mutilation, forced marriages, and polygamy were banned. Sankara himself was an ardent feminist who promoted contraception and men stepping outside of traditional gender roles by going to the market and cooking. He was the first African leader to appoint women to his cabinet and the revolutionary military actively recruited women. These are just a few of the successes that Sankara and the Burkinabe under the Democratic and Popular Revolution were able to accomplish in the span of four years. And we’re not even touching on how President Sankara was an amazing orator who frequently told the most powerful people in the world that he refused to abide by their colonial rule any longer.
The great successes of Burkina Faso during this time makes it all the more tragic that the revolution fell apart after only four years. There are four major reasons why this happened: (1) President Sankara and the government’s conflict with certain sections of the proletariat, especially teachers, syndicalists, and unions in general; (2) the Committees for the Defense of the Revolution were decentralized and undisciplined as President Sankara himself admitted and was beginning to address, though unfortunately too late; (3) the international hegemony was scared to death that President Sankara was inspiring not only revolution in Burkina Faso but a Pan-African rebellion against the International Monetary Fund and capitalism itself, so they actively sabotaged and undermined the regime (and judging from others like President Lumumba of the Congo, Sankara’s execution very well may have been aided or ordered by these authorities); and finally (4) the Popular Revolutionary Tribunals, an attempt to hand over control of the judiciary to the people for the purpose of establishing real justice. While having the best intentions, these tribunals quickly devolved into kangaroo courts for settling personal scores. This devolution happened because the Popular Revolutionary Tribunals were set up only in recognition of one of the two dialectics of the law: they had authority but not certainty.
Much like the proletarian state is still an instrument of violence arising from class antagonism, a revolutionary legal system cannot exist for long without authority and certainty. Authority is simply the framework by which the law outlines the actions of the state. In the United States there is generally ultimate Supreme Court authority through the Supremacy Clause and the rest of the Constitution, especially the Civil Rights Amendments as applied after Cooper v. Aaron. Cooper was the culmination of a plethora of cases that arose in reaction to Brown v. Board of Education, with Southern courts and governments refusing to recognize federal authority. The Supreme Court simply reaffirmed the federal system of government and while states rights’ are still held as an issue by conservative legal scholars, federal supremacy is to a certain extent accepted across the political spectrum. While the system of authority is at times ridiculously complicated, it functions to uphold the authority of the law as a whole and subsequently the authority and legitimacy of the state itself.
Authority itself though is only the synthesis of the tensions between two intersecting counter-posed relations: legitimacy and power. No authority can preserve its legitimacy without the power to do so, and no authority can exercise its power without the legitimacy to do so. And both of these relations were present at the start of the Popular Revolutionary Tribunals. The courts were legitimate because they were held in the open with direct oversight by the people. The conception of the appeals process and federal oversight are unique aspects of the US legal system that I doubt are in any way necessary for authority, especially in a country as small and far more homogenous as Burkina Faso. They had power because their decisions were binding and final. But of course alone these characteristics could not preserve it. They degraded: trials began to be held in secret and decisions became more difficult to enforce as magistrates and sects of the military began to fight among themselves. And they degraded because of the lack of certainty within the legal system.
Certainty is a bit more complicated. Traditionally certainty is framed as an important aspect of liberal formal equality, that people should know be able to calculate the legal impact on their lives like a set formula. I prefer to consider certainty by how it functions rather than how it is supposed to function. So for example, a liberal person would say due process rights are meant to protect all individuals from having rights taken away without some good reason. I would say due process rights are meant to prevent massive redistribution of wealth and create a certainty (i.e. you go 20 over the speed limit, you get a $1000 ticket) that makes it more difficult to dissent from the authority (you knew the speed limit and that going above it would get you punished, therefore it was your choice).
What limited use ‘due process’ has had for more progressive objectives comes from the need to preserve the legal fiction of equality under the law. In constitutional legal theory this is referred to as ‘representation-reinforcement,’ the theory that our legal-political system works by the laws morphing to match the majority’s will enough to prevent large scale revolts and the destabilization of the government. Its more liberal proponents argue in addition that this means the responsibility of the courts, and especially the Supreme Court, is to make sure there are no impediments of people resolving their problems through the political process. ‘Due process’ is the penultimate civil right of ‘representation-reinforcement,’ in that it is the guarantee of political process rather than the actual remedy of any grievances. And it is important to distinguish ‘due process’ from remedy: after all, what does ‘due process’ matter to the 95% of criminal defendants who are pressured into guilty pleas?
So it is not surprising that Sankara (and ironically the anarchists he despised) would not care much for guaranteeing due process in the new revolutionary legal system. But here lies the contradiction that the Democratic and Popular Revolution unfortunately failed to realize. The bourgeois state does not guarantee ‘due process’ for the sake of defendants: so why would the proletarian state? The purpose of the proletarian state to begin with is as a necessary instrument of violence to preserve the revolution. Its mission is hardly that different from the bourgeois state, the only differences being that power has been reversed and that this reversal will cause the withering away of class itself. Authority and certainty are just as, if not more, needed. So like the current bourgeois state, the proletarian state will use ‘due process’ to create a legal fiction of ‘representation-reinforcement.’ Rather than protecting the individual’s property rights, now it will exist to preserve the right to shared abundance, the abolition of private property. Rather than jumping hoops to receive damages from a corporation that harmed you through its conduct, the corporation would have to jump hoops to establish that every part of itself was contributing to the common good rather than the profits of a select few.
Without this clear principle, the law will quickly become abused as it was by the Popular Revolutionary Tribunals for the settling of private scores, the very reinforcement of individualism and private property relations. Sure, ‘due process’ will give the deposed bourgeoisie access to the political process, but it will only be the sort of access that the proletariat currently has. It is a necessary formalism that has been recognized, with varying degrees of success, by both the Democratic People’s Republic of Korea (Articles 69 and 158) and the Bolivarian Republic of Venezuela (Articles 26, 46, 49, 267, 271, 285, and 337), among many other socialist governments which have managed to thus far survive imperialist plots of regime change (while affording even people as vicious as Leopoldo Lopez due process).
It may seem underhanded or ‘fighting fire with fire,’ but revolution is always a messy process in this manner and arguably not nearly as inhumane as the current social conditions. By nature the process is too convoluted to ever be permanent: it should wither away just like the state itself. President Sankara and the Democratic and Popular Revolution had the best intentions with the Popular Revolutionary Tribunals, but without guiding principles of authority and certainty like ‘due process’ it was doomed to devolve into an anarchistic and individualistic legal system. No doubt the brilliance of the movement and Thomas Sankara could have reversed this course, were it not for the treachery of Blaise Compaoré under the guidance of Western imperialist capitalism.
Back around the time when I first started this blog, I predicted that the next president following Obama would sign into law a repeal of most, if not all, of the Dodd-Frank Act. And sure enough, with little fanfare as the media is largely focused on Russian phantoms or (more understandably) the destruction of what little public healthcare exists, the end of most of Dodd-Frank is proceeding down the legislative pipeline. Any hopes that the “populism” of a real estate mogul president would lead to tougher bank regulations is fading fast.
[Parts of this post were originally written for Jacobin, but they ghosted me so it wound up never getting published.]
The Left designates a considerable amount of its efforts to resisting the prison industrial complex and the racism and violence of the police. What often gets left out of their analysis is the actual exploitation within the criminal law itself. When this exploitation is not addressed, it leaves out the fundamental basis for why the state has such an antagonistic relationship with the people it is supposedly serving. That lack of discourse has given capitalists a monopoly in dealing with, and defining, social violence.
At the end of the day, the Koch brothers could care less if their profits are coming from a prison or a re-entry program. They could care less if the law is being enforced at gunpoint or by a nonlethal weapon filmed with a body cam. What matters to the capitalists and their politicians allies is that disrupting or undermining capitalism is punished with the full panoply of state power and that the criminal law can squeeze out what little money is held by the working class in order to fund their own criminalization. While it is important to rally against the police and prisons of the state, the anarchist vision of a New Abolitionism falls short of what is needed. We must overthrow the very ideas of what is criminal, and to do that requires not only the end of capitalism but a socialist state.
The modern criminal law is fundamentally shaped by the capitalist economy. But this relationship is not quite as clear as other realms of the law: contracts, property, and various other realms of law employ no subtlety in how they are made to protect the power and privileges of the upper classes. Criminal law functions as a separate personality. Like many other functions of feudal states (as I wrote about previously with landlord/tenant law), pre-capitalist criminal law was subsumed and repurposed by capital to meet the ends of a new economic system and the class that dominated it. Modern criminal law originates from Christian systems of certainty in punishment as handed down by an authority.
Authority and certainty are the two key elements of any legal system. Certainty simply refers to a public understanding in the society that if, for example, someone steals from another person, they will face a specific punishment based on their actions. Without certainty, it is difficult to distinguish what is “the law” and what is a ruler consolidating power based on arbitrary decisions. Authority is what anarchists refer to as the state’s monopoly on violence and what Lenin called “a power which arose from society but places itself above it and alienates itself more and more from it.”
Both of these elements are dialectical. Certainty must be contradicted to preserve state power, most infamously in the impunity of police officers. But not all its contradictions are so intentional: some arise simply from human error in crafting the law and others are opened up strategically by Leftist lawyers. And the law, to preserve itself, will assimilate those contradictions: as such the dialectic is legal prescription by case law and statute (thesis) and legal contradiction (antithesis), resolved by synthesis to restore certainty (though never for long).
Similarly authority is created by the resolution of its own contradictions. Authority only exists when it is recognized, a basic principle that everyone from Hobbes to Foucault has recognized. But to “deserve” that recognition, authority must be “above” society: we trust a doctor to diagnose our illness because she is “above” us in her knowledge of the subject. This authority though is often not “deserved,” whether by fraud or human error. As such, those under the authority may rebel, and such rebellion is generally dealt with violence, or as Lenin called it “the special bodies of armed men having prisons, etc., at their command.”
Under the Christian system, certainty was dictated by the religious doctrines imposed by the Catholic Church in Europe and later by the various European colonizers who brought their various sects of Christianity to the places they occupied. It is a cruel irony when activists in Europe or the United States criticize the homophobic laws of other countries, because nearly all of those laws can be traced back to the very same European nations imposing them by force in the name of Christianity.
The rise of industrial capitalism also saw the rise of the modern ideas of criminal law, along with the standing municipal police forces to enforce them and the prisons to provide the means to enact the punishments. An early example of replacing the Christian conception of divine morality with market dynamics, the Criminal Ordinance of 1670 in France, was famously illustrated in Foucault’s Discipline and Punish. It is no coincidence that the rise of Jean-Baptiste Colbert’s state capitalism in France was accompanied by what Foucault called an “economy of punishment.” A crime and its punishment are variables in an economic function. Their exchange values are determined based on their ability to subdue disruptive or dysfunctional class elements. How the criminal law accomplishes this task can be divided into two intersecting categories.
First, it coerces subjects to participate in state-sanctioned markets. This method is most appallingly demonstrated in the United States’ War on Drugs. If capital’s army of surplus labor, the unemployed, suddenly finds a means to survive or even thrive outside the state-sanctioned economy, it seriously jeopardizes the ability of capitalists to control the working class, especially those in unskilled sectors like fast food. That is not to say that the judges, police, and prison wardens have any illusions that the state will ever succeed in using the criminal law to stamp out black markets. It is not the annihilation of the black markets that capitalism requires: only to sufficiently control its participation by making the risk to enter the black market high, even lethal. Every shipment seized, every dealer incarcerated, and every sex worker forced into a sweatshop gives the state enough control to prevent a dangerous abandonment of state-sanctioned markets by the working class.
Some of these crimes, like child pornography, are unquestionably anti-social and violent, while others are simply means to target certain populations that cause problems for the ruling order. The criminal laws around drugs were ramped up in conjunction with Black resistance movements. The same month that Assata Shakur was arrested in New Jersey saw the passage of the Rockefeller Drug Laws in New York. The same month that Richard Nixon declared a “War on Drugs” saw the emergence of the Black Liberation Army. Essentially, the capitalist politicians developed the criminal statutes on drugs to be able to destroy or weaken Black alternatives to state-sanctioned capitalism, regardless of whether those were resistance movements like the Black Panther Party or black markets controlled by gangs.
The criminal law also is built to preserve the social order necessary for the circuit of capital. While a capitalist legal system creates a great deal of immunity for the upper class and the police, lines can be crossed that threaten to incite public discontent against the market. When police officers actually do get convicted, they are bittersweet victories. The criminal law is not being reconfigured to recognize that Black lives matter: it is that the District Attorney and judge are concerned about disruptions of social order seen in Ferguson and Baltimore, as well as the more concerted disruptions Black Lives Matter activists have organized on highways, political rallies, and trendy brunch spots. Essentially, the criminal law system will sacrifice its own enforcers in order to preserve itself and capitalism. It instills the totality of the system’s racism into a “bad apple” individual separated out from capitalism, and far too many are more than willing to believe this hegemonic narrative.
The punishment of crimes are designed to vary little in anything except quantity: a fine of x dollars, a prison sentence of x days. This was a major change from the pre-capitalist legal systems that employed sadistic creativity in their punishments, ranging from the public shaming of the stockades to the gruesome dismemberment of draw and quartering. They were based on the whim and power of the punisher. Punishments in criminal law have narrowed in variance to allow it to function like currency. It is no coincidence that criminal punishments are talked about as “paying for their crimes” or “they owe a debt to society.” A criminal trial is essentially litigating a breach of the “social contract” the person holds with the state. The state evaluates the cost of the criminal act and the defendant attempts to either argue that they did not breach or bargain for lower damages.
Like any contract negotiation, the money and power held by each side and how much the crime costs determine how it proceeds more than any of the stipulations of the contract itself. And much like currency, criminal punishments have little to no social use outside of their exchange value. A jarring example of this is the state’s response to sexual violence: a man who commits rape, seriously damaging a woman’s life far more than any function of the market, can be sent to prison for several years but in most places no reparations or assistance will be given to the survivor of the rape. And even where there are, such as in California, the state’s overall priority remains capitalistic rather than social. Reparations are at most an after-thought to the central punishments of a fine and incarceration.
So if criminal punishments are the currency of criminal law, why aren’t they entirely monetary rather than the mix of fines and incarceration? Because deprivation of freedom forms the rate of exchange in the criminal law system. It is the ultimate punitive measure since the worker’s only individual economic power rests in their capacity to exchange their labor power. The 13th Amendment of the U.S. Constitution speaks strongly to this aim:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States…
If the state is going to expend large amounts of resources to preserve capitalism through the criminal law, it must recuperate at least some of these costs through hyper-exploitative prison labor. But there lies a common misconception: U.S. prison labor, even as it has begun to go beyond a million workers, is not making the state a profit. While it certainly makes private corporations a profit, in New York state alone the corrections system costs the state $3.1 billion. It costs about $60,000 per year to incarcerate someone in New York. It is simple economic reality to know that the state is not incarcerating people to make a profit off their near-free labor because on average their labor just will not generate more than that cost of $60,000 per year. Carceral peonage through the 13th Amendment is not about making money for the state. It is about segregating dissident workers: their enslaved labor just mitigates the costs of this segregation.
The U.S. Constitution is the country’s supreme law, and its Bill of Rights is often cited to prove that equality of opportunity and human rights are protected by the state. But while the Bill of Rights does have influence, it is ultimately the criminal law that determines the rights of individuals. The rights allowed by criminal law are thus also variables in an economic function. Due process, for example, is not the preservation of the right to liberty or privacy as claimed but rather a function of preserving the right for an authority (the judge and jury) to arbitrate the contract between two parties (the criminal and the state). Freedom of assembly or speech transforms into disorderly conduct, trespassing, or unlawful assembly when done at a protest, and even when the charges do not stand up in court, the state extracts payment through the arrest and pre-trial detention and bail. And as Chelsea Manning is an unfortunate witness to, freedom of speech can transform into treason if the state feels sufficiently threatened. At the edge of every constitutional right is a criminal statute enforcing capitalism.
Once this dialectical relationship between crime and rights is understood, it becomes clear that abolishing mass incarceration in itself will not end the exploitative nature of the criminal law. Whether the punishment is a diversion program, weekend prison, house arrest, or even mandated drug tests, it will still be a deprivation of the liberty of the individual for failing to economically fall in line with what the state wants. Prison abolition will only alter the payment method, it will not change the fact that lower classes will still have to pay for dissent and that lower class people affected by social violence will be at most a secondary concern to the state.
Evgeny Pashukanis, a legal scholar in the Soviet Union, was one of the first to analyze criminal law through Marxism. Coming to similar conclusions, he realized that freedom from the violence of criminal law would only be possible in a world without capitalism. This raised the question: if criminal law cannot be abolished in a capitalist world, how should socialists address this criminal law? Pashukanis suggested that socialists must look at a completely different motivation, means, and methodology for dealing with intra-social violence outside of the market. The foundation of this socialist alternative was the concept of “social defense.”
Social defense is not the protection of atomized individuals from each other, but rather the protection of social coherence and harmony for as many people and as intersectionally as possible. The idea of crime and its prescriptions must be replaced with the idea of social violence and its conditions. The logical conclusion of this change is the abolition of guilt itself, a step Pashukanis felt was paramount to move away from the exploitation of the modern criminal system. In the modern criminal system, guilt is determined by proving beyond a reasonable doubt that the defendant fulfilled the requisite mens rea (intentionally, knowingly, recklessly, or negligently) and actus reus (the conduct, i.e. the actus reus of murder is killing someone).
A common misconception is that mens rea is motive. While motive is important for evidentiary reasons too complicated to get into here, it ultimately is not necessary to establish guilt. If, for example, the prosecutor has an email from me saying “I am going to kill Donald Raygun” and video footage of me killing Donald Raygun, the reason why I killed Donald Raygun is irrelevant. Whether I killed him as a jealous ex-lover, a political statement, or a sadistic pleasure, I’m guilty all the same and the punishment will likely not be altered.
Mens rea must be replaced with “method of influence.” This change replaces the proportionality of a subject’s responsibility for an action economically with the correspondence of a subject’s relation to an act socially. A man is at a football game, and his team is wiping the floor with the opposing team. After yet another touchdown, he begins to scream about how the players on the field are “pussies” and playing like “little girls.” A fan of the opposing team hears him, and in addition to being angry about her team being insulted she is offended by the misogynist character of the insults. She yells back at the man, who is in turn angered and eventually the situation escalates into a fist fight. The man gets knocked down, and although he does not get up the woman is not satisfied and so pours a beer on him while he is still on the floor. The current criminal law system would likely arrest one or both participants, and charge them with crimes like assault or disorderly conduct. They would not be held accountable for the violence they committed against each other and other people, but rather held accountable for disrupting the economic order. In a social defense model, this event would not be seen as one or more criminal acts but rather a holistic collection of violent acts. Examining the evidence and witnesses, a social defense system could ascertain that the conditions of the violence were factors such as the misogyny of the male fan, the level of alcohol consumption at the event, and the lack of policy on how the football stadium deals with rude fans. The woman’s method of influence might be determined to go beyond ending the misogynist remarks of the man since she poured the beer on him in a punitive final act.
But this would not be used to ascertain her “guilt,” but rather determine if and how she must be held accountable for her actions, such as going to anger management, working through the issue with the man she humiliated, etc. All of these steps would be decided by both parties, their lawyers, an arbitrator, and if needed, some democratic community process like a jury. Procedural guidelines established by democratic law would steer the process away from an adversarial one where one party wins or is guilty in the eyes of the state.
So how do we get to this admittedly utopian sounding legal system? The criminal law, especially in the United States, is one of the strongest systems of power in the world, and is incredibly detrimental to revolutionary change. But unlike liberal progressive legal theorists who promote reforms to alter but also affirm the criminal law system, Pashukanis and other Marxist interpretations of the law demonstrate that even something as radical as the abolition of prison will not lift the capitalists’ boot of criminal law off the necks of the working people. Only through the conscious action to shift how the state treats intra-social violence from capitalist exploitation to social defense will there ever be a forms of communal accountability and justice that people can truly be equal before.
A socialist programme must seek to abolish the arbitrary ways that the criminal law targets poor people; regardless of the immediate goal, nothing less than the abolition of mechanisms like bail, parole, and the criminalization of non-violent acts such as drug use or engaging in prostitution. A socialist programme must also show that there are alternatives to the capitalist state’s adversarial method of dealing with violence, such as community-based programs like Mothers Against Senseless Killings that with one hand use crisis management and de-escalation to prevent violence and with the other protect the community from violent police interventions.
And finally, a socialist programme to abolish the concept of criminal guilt must begin at home: in every organization, party, and workplace we belong to, we must advocate that social violence (as opposed to war crimes and other abuses of power which represent a whole other issue) should be dealt with only in ways that promote social defense rather than fulfilling an individual or even group desire for punishment. None of these aims means that we will be able to always forego detaining people, always prevent violence, or always succeed at getting someone to take accountability without coercion. But in return, none of those realities make the goal of social defense any less desirable or any less attainable.
An advantage socialists have always had over the capitalists is we can fight for what may seem at the time to be impossible. The capitalists may make all sorts of claims about innovation in competition, but socialism is the opportunity to create, imagine, and reconfigure a better world without the restraint of a profit motive. A world where no one is a criminal is a fantastical notion for capitalists; a world where no one is a criminal is a necessary part of the socialist dream of a world where we are all free.