Irreconcilable Differences
"I had reasoned this out in my mind; there was one of two things I had a right to - liberty or death. If I could not have one, I would have the other." - Harriet Tubman
Liberty is a war zone:
Consider the issues that SCOTUS [Supreme Court of the United States] has resolved this term—the first full term with a 6–3 conservative supermajority. The constitutional right to abortion: gone. States’ ability to limit guns in public: gone. Tribal sovereignty against state intrusion: gone. Effective constraints around separation of church and state: gone. The bar on prayer in public schools: gone. Effective enforcement of Miranda warnings: gone. The ability to sue violent border agents: gone. The Environmental Protection Agency’s authority to regulate greenhouse gases at power plants: gone. Vast areas of the law, established over the course of decades, washed away by a court over a few months.
These decisions communicate a clear message - nothing (including the right to your body) belongs to you unless the state says it does. Independence is not for everyone. It’s the exclusive right of the master. In its decision to outlaw the abortion right, the Supreme Court further clarified this message in its analysis of the concept of “ordered liberty.” Ordered liberty sets limits and defines the boundaries of the broader right to autonomy. It determines and establishes which ideas about existence, meaning, the universe, and the mystery of human life become the laws of the land. As has been much discussed, the Court makes these determinations based on when it can identify a right as being “deeply rooted in the Nation’s history and traditions.” It determines these rights, not by studying the will of the nation’s inhabitants across time as reflected in slave narratives, women’s suffrage pamphlets, abolitionist writings, newspapers reporting on protest movements, etc., but by reading legal treatises and statutes enacted by state legislatures during the previous 100 years. It is only the desires of yesterday’s powerful that guide today’s powerful. That is the modus operandi of authoritarian rule in America.
Rights are a site of struggle in which disparate visions of liberty are fought. They define the terms and conditions of social existence. But they can also be altered or revoked at will. The rulers recognize the endless invocations of the rule of law as some sort of magic phrase that will force a realization that they’ve gone too far for the political immaturity that it is. Invoking the rule of law is, in effect, nothing more than an appeal to conscience. And what good is appealing to the conscience of a state that is designed to be God? Democracy isn’t supposed to be a winner-take-all formulation, but these people aren’t invested in democracy. They are invested in the continuation of their revolutionary war. This Court has made clear that the rule of law is whatever the victors say it is and the rest of us are expected to acquiesce to our captivity. Judicial norms don’t matter. Institutional legitimacy doesn’t matter. There is nothing to be reasoned with, only all the carnage to the reckoned with.
There have been many critiques of rights as adequate containers for our demands and assertions of our personhood in response to the present crisis, and with good reason. It’s true that power concedes nothing without demand, but power also seeks to make the lives of the powerless so unlivable that it precludes their ability to make demands at all (e.g. the article excerpted above also discusses a significant election law case that the Court will hear next term). And yet, rights remain a consequential battle ground for ideological and material warfare. These are complex, but not unprecedented times. The fight is on all fronts.
The call to celebrate “independence” as a ruling ideal in American society is meant to reconcile us with the state power that mandates our sufferings and deaths. In the face of this kind of propaganda, we who are committed to refusing the existing order of things should be firm in the understanding that our differences with this country’s brutality are, in fact, unreconcilable. 246 years after it’s founding, there’s still every reason for us to continue on with our revolutions, too.