We wake up this dreary Wednesday morning to an impending future of not only a President Trump but a Republican majority Congress and a soon-to-be conservative majority Supreme Court. Only time will tell exactly what this will mean for the political movement of the United States and the world, but I wanted to share with you some thoughts about how we got here as well as going forward.
Barney Frank may be three years into retirement from politics, but his spirit continues to haunt the LGBTQ movement. As if to emphasize the exclusionary nature of their politics, a invite-only conference call between the “leaders” of the LGBTQ US movement rehashed a debate that has been going on since the so-called “Gay Liberation” movement decided that Sylvia Rivera and other trans women were harmful to their respectable image. The debate was sharply divided into two sides: purse string holders Gill Foundation and National Center for Trans Equality (NCTE) on one side and ACLU, Lambda Legal, and a somewhat less confrontational HRC on the other side. Gill and NCTE are advocating for what they call “incrementalism,” focusing energy and resources on passing anti-LGBT discrimination in employment and housing and essentially abandoning public accommodations to be dealt with later. ACLU and Lambda Legal reject this “incrementalism,” pointing to laws like HB2 as pressing discrimination that demands attention and questioning whether public accommodations would ever be returned to if abandoned now. That’s right: we are in a bizzarro world where the HRC is defending the most marginalized trans people against NCTE redirecting resources away from them. But aside from HRC, this lineup is not all that surprising and represents a fundamental difference between how the lobbying-focused nonprofits think of advocacy and how community and litigation-focused nonprofits think of advocacy.
The ‘dollar’ is mentioned once in the Constitution:
The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
This is the infamous block on the abolition of the slave trade put into Article I Section 9 to placate the plantation owners crafting American capitalism through the blood and bodies of African peoples. It actually is not referencing United States dollars (which did not exist yet) but Spanish dollars, the currency used in the Spanish colonies. However Spanish dollars were Alexander Hamilton’s basis for creating the worth of the US dollar. Originally the USD’s value was based in silver, not gold: the Coinage Act set its value at 371 4/16 grain pure silver. The Coinage Act arose from a very simple directive of the Constitution, Article I Section 8: “To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.” But this provision is going to provide some very interesting problems for us later on.
If you couldn’t tell from this lead-in picture, this post and the next few posts are going to be chock-full of spoilers about the TV show Mr. Robot. Yes you should watch it before you read this, and no don’t just read the episode synopsis on wikipedia because it is a really good show.
Mr. Robot is a great show because it has that kind of surreal world creation that feels all too real, especially for those of us dealing with cyber security, law enforcement, mental illness, and multinational corporations. It is not afraid to portray just how far people will go ethically to accomplish their aims, whether it is escaping prison or taking over a country’s entire financial system. And along the way are thousands of allusions to the careful watcher about everything from hacker culture to Leftist politics.
Last night’s first presidential debate between neoliberal savior Hillary Clinton and Nazi billionaire Donald Trump had plenty of lies and misinformation, mostly of course coming from Trump who cobbles his statements together from Breitbart and your grandpa’s racist email chains. But there was one thing where, as wrong as Trump was, Clinton was actually more wrong, and that was the claim that stop and frisk was ruled unconstitutional.
The date is March 12, 2015 and I’m at Cardozo Law School for a presentation called “Policing, Conflict, and Change.” Like all CLEs and legal events I was mostly there to look for potential husbands so that I can be an unapologetic Marxist firebrand and not worry about, you know, a job. But in all seriousness I was mostly there to see all-star attorney Darius Charney of the Center for Constitutional Rights who for our purposes you should know as the lead counsel of Floyd v. City of New York. While my involvement in policing issues for the past few years means I’m not naive to what difference any one case can make, I still thought that so soon after the case that the room would be at the very least hopeful for turning back the tide. But another panelist, Professor Jeffrey Fagan, opened the panel with a somber tone that would be held throughout the discussion (and my apologies for this being an imprecise quote): “I was asked to come here today to speak about the Fourth Amendment, which is somewhat ironic because there is not much left of the Fourth Amendment.”
The most conspicuous difference between the law’s problems in determining historical facts and those of other disciplines lies in the procedure of decision. Other disciplines rely primarily on the method of inquiry, reflection, and report by trained investigators. In other disciplines the final conclusions as to key facts are drawn by experts, and the conclusions may be changed if they are found later — after further inquiry and reflection — to be wrong. The law, in contrast, depends in most formal proceedings upon presentation by the disputants in public hearing before an impartial tribunal, a tribunal previously uniformed about the matters in dispute. And findings of fact by the tribunal are usually final so far as the law is concerned. – Hart and McNaughton, Evidence and Inference in the Law
The rules and practices of evidence in United States law provide a rich substance to examine from a dialectical perspective. Evidence is a current running through all areas and subjects of the law: varying in importance and proliferation, but nonetheless a key component even when they are supposed to matter less, namely in appeals. While the Federal Rules of Evidence (FRE) provides much of the infrastructure, the common law and trends of practice within different courts also provides a significant amount of the practices and procedures around evidence. Furthermore, the judge stands as the gatekeeper of evidence, the final word not only on what evidence is allowed but the way in which it is allowed. It is one of the most powerful means by which judges control our legal system, a deeply undemocratic governance full of bigotry and contradiction. One of the few checks on the behavior of individual judges is risk of having their decision overturned on appeal.
So summer is coming to a close for those of us in the seemingly Sisyphean task of law school: I’m pretty sure this will be the three longest years of my life. Summer was an opportunity to not only get in some practice doing actual legal work but to try to read my way through a lot of new books. While articles and blogs are usually more up-to-date than books, I value books and writings like law review and other journal articles for the clarity and depth of the thought. I understand it isn’t for everyone, especially our comrades with dyslexia and other challenges to reading as a medium, but for those of you who are bookworms like me I thought I’d provide a syllabus of writings I think are worth reading this year.
Colonialism
– Frederick Cooper, Colonialism in Question: Theory, Knowledge, History
– Frantz Fanon, Wretched of the Earth
– Paulo Freire, Pedagogy of the Oppressed
Economics
– Caren Grown and Gita Sen, Development, Crises, and Alternative Visions
– David Harvey, Seventeen Contradictions and the End of Capitalism
– Rosa Luxemburg, The Accumulation of Capital
– Karl Marx, Capital
– Michael Roberts, The Long Depression
– Anwar Shaikh, Capitalism: Competition, Conflict, Crises. Shaikh has posted his lectures on the book on youtube, very useful for those of us who cannot afford such an expensive book.
Feminism
– Angela Davis, Blues Legacies and Black Feminism
– Shulamith Firestone, The Dialectic of Sex
– Audre Lorde, Sister Outsider
– Catherine MacKinnon, Sexual Harassment of Working Women
– Obioma Nnaemeka, Nego‐Feminism: Theorizing, Practicing, and Pruning Africa’s Way
– Filomina Chioma Steady, Women and Collective Action in Africa
History
– Ibn Battuta et al, Ibn Battuta in Black Africa
– Leslie Brown, Upbuilding Black Durham
– George Ciccariello-Maher, We Created Chávez: A People’s History of the Venezuelan Revolution. You can watch Mr. Ciccariello-Maher talk about his book here.
– Simon Clarke et al, What About the Workers?
– Gord Hill, 500 Years of Indigenous Resistance
– Howard Zinn, A People’s History of the United States
Law
– Erwin Chemerinsky, The Case Against the Supreme Court
– Howard Engelskirchen, Capital as a Social Kind
– Ann Fagan Ginger et al, Undoing the Bush-Cheney Legacy
– Evgeny Pashukanis, The General Theory of Law and Marxism
– Amy J. Schmitz, Nonconsensual + Nonbinding = Nonsensical? Reconsidering Court-Connected Arbitration Programs, 10 Cardozo J. Conflict Resol. 587
– Elizabeth Warren, What is a Women’s Issue? Bankruptcy, Commercial Law, and Other Gender-Neutral Topics, 25 Harv. Women’s L.J. 19
Political Theory
– Black Panthers, Ten Point Program
– Fredriech Engels and Karl Marx, The Communist Manifesto
– Kris Hermes, Crashing the Party. I did an interview of Kris for the NLG’s podcast Motion to Resist!
– George Jackson, Blood in My Eye
– Vladimir Lenin, The State and Revolution
– Huey Newton, Revolutionary Suicide
– Michael Parenti, Contrary Notions
Sociology
– Nicole Aschoff, The New Prophets of Capital
– Dahr Jamail, The Will to Resist: Soldiers Who Refuse to Fight in Iraq and Afghanistan
– John King, The Football Factory
– Emily Van Der Meulen et al, Selling Sex
– Robert Walser et al, Keeping Time: Readings in Jazz History
Capitalism is a magic trick. Through sleight of hand obfuscated by the charismatic voice and flourishes of the illusionist, the doubts as to the superiority of this economic system over any other possibility disappear. The illusionist reaches into his hat and pulls out the profit motive. The profit motive is the great and mysterious force that binds capitalism. An ethos of greed supposedly needed to incentivize people to work. The wage laborers work and work, but somehow the profits evade them. The illusionist opens the trap door and there are the workers’ profits. But in modern globalized capitalism, the traditional exploitation of labor is just one of the many magic tricks that the illusionist can perform:
The nonfinancial corporate sector has deleveraged even less than households. Instead, companies have taken advantage of low interest rates and plentiful liquidity to take on more debt to buy back equity to support share prices, pay larger dividends, and hoard cash. In the United States, corporations have expanded their debt relative to GDP by 14 percent…As a result, corporate leverage (the ratio of net debt to GDP) is higher than at this point of business cycle than in recoveries from previous recessions. That does not bode well for a quick escape from the depression if interest rates on debt start to rise. Michael Roberts’s The Long Depression (pg. 109-110)
Most of the women were young, Black, together women who had come to college now because they’d not been able to get in before…A lot of them were older. They were very streetwise, but they had done very little work with themselves as Black women. They had done it only in relation to, against, whitey. The enemy was always outside. -Audre Lorde explaining a class she taught at John Jay College to Adrienne, Sister Outsider pg. 97-98
A lot of the movements and people I work with every day remind me of these students that Audre Lorde spoke so eloquently about, for they too have done little work with themselves and for them too the enemy has always been outside. Some are young Black women like those students; some are young trans women seeking some modicum of power on the internet; and some are young white men who were promised the world. They are all very different, but they all have one commonality: harm. Maybe greater or lesser, unexpected or brought-on, cyclical or spontaneous, but nevertheless the thread that runs through them remains: harm.
Aetna has joined many other major insurers in pulling out from most of the markets created by the Affordable Care Act. The right wing mainstream media is predictably depicting this withdrawal as a sign that the Affordable Care Act was too ambitious. Aetna for its part blames the Affordable Care Act’s risk-adjustment system. The truth is much more simple. Universal healthcare and the free market are incompatible ideologies: trying to create a hybrid of the two was as likely to succeed as pairing ice cream with industrial waste. The removal of profit motive is the only means of ensuring healthcare coverage for all people.
Though we tend to forget since liberals united behind it during the repeated attacks by the Tea Party and others, the Affordable Care Act was such a deplorable compromise that even Left-liberals like Dan Savage called it “Less evil. But still evil.” And Savage easily identifies the main flaw: it is as dependent as the Republican’s suggested alternative on people “not getting sick.” This is indefensibly shameful when the corporations behind these plutocrats have had free reign and government subsidizing to brainwash people into drinking, eating, and otherwise consuming poison. 98% of the 4000 food ads children view every year are products high in fat, sugar, and sodium. But that’s just half of why the “don’t get sick” model is so patently offensive. Aetna and even the U.S. government wants you to believe that the problem has been that an unexpected number of people got sick and, according to Aetna, the ACA did not have the risk-adjustment tools necessary to deal with that. It is a lie.
Habeas Quaestus 