The following was written for a different publication previous to Monday’s events at the Republican National Convention in St. Paul. Stay tuned for discussions about what happened Monday, what I saw and what it all means.

When discussing the upcoming RNC protests many ask why I am involved when protest will be ineffective. This essay will answer their question without either disputing their measure of effectiveness or of disputing the conditions on the street that may or may not result in a larger anti-capitalist constituency. This essay will elaborate two reasons why the very ‘efficacy question’ is a question of the conservative establishment.

The first argument is about our engagement with the world. Instead of futility as a reason for acquiescence I think futility is precisely why one should act. This ethic is seen elsewhere: the inability to stop murder does not mean a murderer should go unpunished; the inability to stop hunger does not mean bread should be hoarded by the rich; the inability to solve AIDS does not mean the cocktail should not be prescribed. There are successes to be achieved in the face of futility, one just needs to change the benchmark of success. To acquiesce is to slide into an atomistic world of darkness that I do not want to inhabit. My engagement is simple, I want to en-courage others to act against what they see as injustice.

The second reason why the ‘efficacy question’ is the wrong question is because it is shortsighted about the complexities of the world. The question is akin to the debates about who was most valuable to the civil rights gains: Martin Luther King, Jr. or Malcolm X. While there are nuanced counterfactual claims to be made this debate overlooks the necessity of one to the other. MLK needed Malcolm X to make his calls seem reasonable to those at risk of losing power. Malcolm X needed MLK to recruit constituents to the cause, allowing a debate over method to then occur.

The current social justice movements are involved in a similar plight. Radical action at the RNC may be the very public action needed to give Obama support not only for his election but also for a more progressive administration. Radical visibility can recruit people to Obama’s reformist camp by making his position seem more reasonable to those otherwise frightened of liberal causes. While Obama may not be the preferred option of the radicals planning to take to the streets, he represents to most a superior option to McCain. Radicals find Obama’s critical stance towards the current war and military engagement preferable to McCain’s rose-colored optimism about US military and moral superiority. A more progressive approach to health care also makes Obama a more preferable option for most of those considering protesting the RNC. Where MLK may have been a less scary option for white onlookers it was the radical appearance of Malcolm X that made MLK’s demands more palatable. Radicals taking to the street in St. Paul may also make an Obama administration more palatable to those that are scared by his politics and skin color.

RNC radical action may help build Obama’s base, but there is another function, similar to how unions train bosses of a shop, of how our action may help train future leaders. When a shop becomes unionized bosses are more likely to be reflexive about their actions. The presence of a structure to act may deter some actions and make the boss think twice before making some acts. This deterrence need not be limited to policy issues either. A recent issue faced by a shop in the Twin Cities is a boss that responds to employee comments with sarcasm and dismissal. If this shop is successful in unionizing one of the demands will be for the boss to not be flippant when a worker has an issue. Politics works the same way: our action may keep Obama from moving in a more rightward direction once he is inaugurated. Obama will face new challenges in his new job and the presence of a radicalized organized population will help shape his decisions and keep him more honest to a progressive agenda.

Questioning the ability of protests to create immediate measurable change is actually a move to keep people from protesting. This question places the goal so far away that the task seems daunting and too tiring, after all people have lives to live. The approach radicals need to take is to abandon that very landscape and recognize that there are other goals to be gained, goals that may actually be more important than the ones we are told (by those we oppose) to aim for.

These days I am making my way through season 1 of Deadwood. I am only on episode 5 and I must, literally ‘must’ as I do not want to admit it, say that I am hooked. Ian McShane is marvelous and I think he alone would make the show worthwhile watching. Another thing I really like about the show is its ambition. They speak of the show as depicting (actually, they speak in realist terms as though the show was really Deadwood, South Dakota and not a depiction) a lacuna of Law. The commentary with the show’s creator David Milch, however, shows us that he has a more realistic assessment: the show is not about an absence of Law but rather of the absence of law, attempting to cast the show as a study in other mechanisms of sociality. Too bad the show-sans-commentary does not impart this; the commentary is needed to realize the stated ambition of Deadwood is founded in a hubris.

I finished watching the episode where Jack McCall is tried for Hickcock’s murder and the in-show commentary, delivered by Ian McShane’s character, is wrong. The trial did not mark the introduction of law into Deadwood, precisely because everyone knew the law and civility of the trial was, like its outcome, a sham. What the show did was to show that Deadwood is not a lacuna of the law but that all of the US was lawless. Instead of the law there is only a mask of the law. Zizek sums it up better than I do (keep in mind that Carnivale was another HBO show):

[T]he logic of the social carnival brought to the extreme of self-reflexion: anarchist outbursts are not a transgression of Law and Order; in our societies, anarchism already is in power wearing the mask of Law and Order – our Justice is the travesty of Justice, the spectacle of Law and Order is an obscene carnival (Zizek 2008, 192)

In a strange coincidence (I should not be surprised to find an articulation between Palahniuk and Zizek) I am working on the new Palahniuk book and it is – I am only about a third of the way through the book so this my thoughts may change – also about this mask. At the moment I am meeting the characters as they speak about Cassie. What is interesting is that the characters are in a waiting room bidding time for their chance to be with Cassie, and Palahniuk has yet to introduce me to Cassie. Will he? Is Cassie a transcendental in the book? None of the characters think of her as a transcendental, they all have plans to affect her. But at the same time they all dismiss the others as in-affective, reaffirming her transcendental condition. Does Cassie even exist? Is she instead some mask, some fantasmic inflatable sex doll lifelessly willing to receive their intrusions?

I am not sure where Palahniuk will go with this, but there will be drama and action in the waiting room among the characters, and Cassie, the supposed structuring principle of the story, will be revealed to be an ineffective structuring agent.

“I don’t think it’s out of the question that I would commit physical violence in order to defend my rightful ownership of that console,” Aunt Nina says, suddenly reverting to a kind of dead-voiced frigid calm.
“But that’s not necessary, Nina, because we have created this whole setup here just so that you can give your feelings the full expression they deserve!” Stephenson, Neal. (1999). Cryptonomicon. NY: Harper Perennial. 626)

This passage conjures a few thoughts, none of which are about the suspect nature of an inheritance (the console in question is a piece of furniture Nina’s recently deceased mother owned) as owned property. Instead this passage makes me think of violence and its nature. Nina clearly thinks violence is justified in some, particularly this, instances. Nina’s brother may also share that belief, which is why he created a system to divide the deceased’s possessions as a way to settle disputes without violence. The problem with Nina’s justifications, akin to so many treatises of violence, is their ethics exist in a vacuum. It is easy to say X deserves a violent response but that justification fails to account for other methods of conflict resolution and many times the presence or availability makes the very justification fall short.

This alternative, however, seems to be a double-edged sword. Many times people feel secure and safe because there is a system, even though the system may be seen as bankrupt or ineffective by the soon-to-be-violent. I am not talking here about a revolution, when the alternative is already and clearly indicted by the violent. I am speaking instead about other inter-personal day to day encounters. For example, a friend of a friend, I will call him Pedro, was riding his bicycle home over the bridge by the UMN law school. There were some drunk guys in front of him and these drunkards saw Pedro coming. The bike path on this bridge is narrow, with a concrete wall between it and the car lanes so Pedro had no ability to avoid the drunkards, short of postponing the trip home. One of the drunk men kept moving in front of Pedro chanting “what you gonna do?”

This drunk man clearly thought the system was protecting him, allowing him to be an asshole without consequence – after all, who will respond violently when it is clearly illegal and not worth the assault charge. Pedro asked numerous times for him to move and the man only replied with a slurred, “What you gonna do?” So Pedro punched him; he moved. Pedro rode home.

Was this justified? I contend it was. The alternative (legal system) was absent, in fact it was the potential presence of the alternative which allowed the drunk man to feel secure enough to be an asshole. Pedro was not initially violent, allowing the man opportunities to escape it. All of these circumstances leave me little hesitation in pronouncing his innocence. Would the law find him innocent? Probably not.

Edelman (1988) begins his book, more than begins as the book is about, a pessimistic assessment that your SN team has found more and more accurate as we have aged: the answer is not more communication. Many disagree thinking “citizens who are informed about political developments can more effectively protect and promote their own interests and the public interest. That response takes for granted a world of facts that have a determinable meaning and a world of people who react rationally to the facts they know. In politics neither premise is tenable…” (Edelman 1988, 1)

We would like to replace ‘rationally’ with ‘predictably’ (there are plenty of actions that are rational but not predictable because a person’s value system might be different than the observer), but aside from that modification we find Edelman to be so correct that his statement easily transcends political discourse into communications generally. This provokes some obvious concerns, but especially interesting is what this does to legal theory. Due Process is, after all, “the right to be heard” (Subrin et al. 2004, 1). If Due Process is founded on untenable premises then what happens to those very procedural protections?

Works Cited

Edelman, Murray. 1988. Constructing the political spectacle. Chicago: University of Chicago Press.

Subrin, Stephen N., Martha L. Minow, Mark S. Brodin, & Thomas O. Main. 2004. Civil procedure: Doctrine, practice, and context (2nd ed.) NY: Aspen Publishers.

I have been asked to comment on a proposal for SCOTUS action based on the Chemerinsky 2003 article found in the North Carolina Law Review. Please note that while I am making some arguments, this essay is not to be cited. I still have friends and interests in certain activities and this essay’s citation would require a discussion with which I am not concerned. This essay is a vehicle for me to help organize some thoughts and a place to begin research on the issue at hand.

There is a call among some scholars for the Supreme Court of the United States to overturn Milliken v Bradley (1977) on the grounds that the requirement for proof of discriminatory intent places an undue burden on the plaintiffs instead requiring proof of discriminatory impact. I think this approach is inadequate and an imprecise reading of the Chemerinsky article.

It needs to be clarified at the outset that Chemerinsky, at least in this article, makes no call for Milliken’s overturning. The closest he comes is when he lists an alternative decision among a litany of other alternative decisions as things that would have caused a substantially less resegregated public school system. At no point is there an argument that reinterpreting Milliken would rectify the harms contributed to by the earlier decision. That genie has left the bottle and other facts presented in the Chemerinsky article prove this.

Chemerinsky finds Milliken irrelevant in Southern States, because it is easy for plaintiffs in those cases to demonstrate de jure segregation. The Milliken problem is in the northern states where state policies are discriminatory in their impact and not necessarily in their intent (a discriminatory housing policy may cause a segregated school district but because it is not an educational policy it is deemed to not intentionally cause a segregated school district.)

Chemerinsky’s discussion of more recent court decisions proves the ineffectualness of the proposed Milliken decision. Courts are no longer willing to issue new desegregation orders, even in the face of irrefutable proof of school resegregation. Milliken provides the court with a type of remedy to mandate upon school districts, but a lack of court willingness to even issue a desegregation order means the Milliken revision would do nothing. Chemerinsky discusses 3 cases that halt the issue of new orders; the Milliken revision would need to be accompanied by action on these precedents. Voluntary desegregation efforts fall under a different problem, one which was recently addressed in oral argument before the Supreme Court and the fate of which is still unknown.

Even if the court were to overcome a failing of the above plan and be able to order school districts to implement multi-district desegregation remedies, there are still some problems. The white flight problem is not entirely circumvented as there will be boundaries marking the limits of the interdistrict cooperation. A student in downtown Detroit cannot be bused to Ann Arbor because the drive would take too long. White flight would then still be a possibility, it just means the flight will go further out than just a single school district boundary.

Chemerinsky also tries to head off the private school argument. He contends people do not go to private schools to flee the desegregation efforts because they did not. Private schools account for 17% of status quo segregation (Chemerinsky cites a source which I have not investigated because of a lack of need.) Assuming this 17% figure is accurate we need to remember that it is a measure of white flight when there is a viable alternative (relocation to a suburb). If Chemerinsky is correct that Milliken overcomes the white flight possibility then the 17% would increase as private schools become more than they are in the status quo to those that do not want to be part of a desegregated school district. Overall, white flight would still be a problem which could easily mitigate a significant portion of any gains the Milliken revision might have accrued.

The ultimate limitation upon the judiciary to bring about social change is easily seen in this instance. People may be racist and want segregated schools and will act to make it happen. There are so many other decisions on the periphery of the issues at play in Milliken that actual enforcement will never happen without more comprehensive judicial revisions. An example would be the complicated school financing issue. Even if some districts cooperated to end segregation there would still be inequities in school financing which can cause the very ills desegregation is supposed to resolve.

One possible action Chemerinsky does advocate however needs to be discussed. I am curious how after reading this article someone can contend it argues for a change in the burden required by Milliken. What there is a call for is to recast education as a fundamental right. The court found in these education cases that a strict scrutiny standard is inappropriate because there is neither a suspect classification at work (the poor is not a suspect class) nor a violation of a fundamental right. Chemerinsky hints that the solution lies in getting to the strict scrutiny standard.

I do not want to argue that education is not a fundamental right, but Chemerinsky is right about why the court does not make that determination: because then there would be an increase in burdens placed on the government. Recasting education as such would force a heightened standard and arguably one that would cause Milliken and the other cases mentioned above to be recast. This is the appropriate mechanism for action on Milliken and the better reading of the 2003 Chemerinsky article. While this solution would open a whole new can of worms, it is the only possible action on Milliken alone that can overcome the deficiencies I have illustrated with the limited Milliken ruling.

This is a diverse and interesting body of literature and I am surprised someone has decided to make a call for SCOTUS action based upon this one article. It is even further disconcerting that the reading of this single article is a poor reading and too simplistic for the complexity at work.