Where We Are Now

When I was a young man, I wrote law. I was not a lawyer, having no degree beyond my high school diploma, although I had attended a few colleges as a creative writing and/or English major before dropping out from UC Berkeley to perform “alternative” service as a Conscientious Objector to the military. That service I performed as a volunteer case worker for the Committee for Prisoner Humanity and Justice (CPHJ),  headquartered in San Rafael, California, a couple of miles from San Quentin State Prison. My “alternative” service obligation ended abruptly at the end of 1972 when Rep. Ron Dellums (D  - Berkeley) forced the Selective Service to concede that the induction of COs at a time when the army had stopped inducting draftees was illegal.

That determination had multiple consequences for me. The most important personally was that I was able to convince CPHJ to hire me as a full time employee, and that I be permitted to work on more substantial projects than just casework. I soon became the director of education at a lofty salary of $235 per month and spent the next four-plus years working to end the indeterminate sentence in California. I was one of a half-dozen or so active authors of the Uniform Determinate Sentencing Act that then-governor Jerry Brown signed into law in 1977, the purpose of which was to render punishment less capricious, less political, less racist.

The other active participants in that legislation, which effectively rewrote the sentencing portion of some 3,000 felonies that you could commit in California, did include lawyers, most notably Michael Salerno, a staff member who worked for state senator John Nejedly (R – Contra Costa). Nejedly was a former district attorney of Contra Costa county who actively promoted his self-image as “Iron John Nejedly,” a bad-ass pro-law enforcement type who had come out against the existing law (in which every sentence for a felony in California was slotted into one of three categories: six-months to 50 years; one year to life; and the death penalty, which at that moment was on the books but not being carried out due to having been declared unconstitutional [temporarily] by the US Supreme Court). Nejedly conveyed what he thought of the existing law by always wearing a Mickey Mouse watch. He knew that the existing structure was racist and being used politically by the California Department of Corrections. He simply wanted the law to mean what it said. Radical notion, that.

It was Nejedly who sponsored the legislation, but it was a motley coalition of legislative staffers and outside volunteers from the prison movement who actually wrote it. One, Frank Smith of the Prisoners Union, was an ex-convict. Another, Clarence Williams, who worked for the speaker of the Assembly, Willie Brown (D – San Francisco), was intending to go to law school, but at the time his expertise was that he had the trust of the most powerful legislator in the state. Salerno himself was still attending UC Davis law school and had not yet passed the bar. Valmar Schaaf, a Marin County civil engineer who was the chair of the board at CPHJ, was another major contributor. Beyond this inner core were a large number of other commentators, ranging from Jan Marinissen of the American Friends Service Committee to Popeye Jackson of the United Prisoners Union, Fay Stender of the Prison Law Project (and better known as George Jackson’s attorney in the Soledad Brothers case), Eve Pell and Patty Roberts of the Prison Law Collective, Willie and Patty Holder of the Prisoners Union as well some of their attorneys, Jim Smith and Michael Snedecker.

Rewriting some 3,000 separate statutes in a democracy is a messy political process. One consequence of the too-many-cooks nature of drafting this legislation was that the bill as finally enacted misspelled “forcible” in the rape section of the law simply because Salerno was not a great speller. Although this was pointed out to him at the time, he refused to correct his preferred “forceable.” I believe the error was later amended in a “clean-up” bill that was passed long after I had left CPHJ for work at Hospitality House in San Francisco.

At Hospitality House, I worked first on an ethnography of the agency’s neighborhood, the Tenderloin, then cobbled together a job editing the community newspaper, the Tenderloin Times, running a writers workshop under the sponsorship of the California Arts Council, and worked on housing legislation to preserve the neighborhood’s stock of Single-Room Occupancy hotels. To this day, that housing, a good portion of it now owned by a series of neighborhood nonprofits, is the largest remaining stock of low-income affordable housing in San Francisco.

So these 40-year-old experiences are the background I carry with me when I read and think about the nomination of “originalist” Bret Kavanaugh to the US Supreme Court. When I was with CPHJ, Willie Brown actively tried to persuade me to attend Hastings School of Law where, he assured me, he could guarantee my acceptance as an ex-officio member of its Board of Regents. At the time, I thought that was a terrible idea. My commitment, as I kept telling anyone who would listen, was to poetry and the art of language. Forty years hence, not having been a lawyer is one of my major accomplishments.

But this background informs my sense of the willies (no pun intended, Mr. Brown) as I hear Kavanaugh depicted as an originalist. In theory, originalism is a legal framework put forward by reactionaries to justify their attempts to block, overturn and/or undo any progress made in the law since 1789. It has a narrow interpretation, in which language is presumed to be essentially unchanging in meaning, and a broader, looser one, in which justices ought merely to interpret any legislation as its authors originally intended. It is my understanding that Kavanaugh is being presented as an example of the latter tendency, but it is the entire notion of originalism that creeps me out. Underneath it, and far scarier, is what is being done now politically, by this administration and this Congress, to enact a fascist regime in the United States. I fear that the damage they doing may last until the end of time. Which, given their impact on the environment, may be around the year 2300, if not sooner. In short, I think that the women protestors who show up at events these days dressed as handmaids out of Margaret Attwood’s dystopian classic, The Handmaid’s Tale, are not guilty of hyperbole in the slightest. They are being true to their language and the language, which separates them out from originalists entirely.

The narrow interpretation of originalism is easily demonstrated as ahistorical to the point of illiteracy. One classic example of how language always changes meaning over time is that the “men” referenced in the Declaration of Independence in the phrase that “all men are created equal” is now taken to mean all human beings, whereas to Thomas Jefferson et al, it implied white men who owned property. Another good example is rapture, an offence for which Chaucer was once convicted. Today we don’t think of rape and rapture as synonymous, though perhaps we should.

More importantly here, all language is a system of difference, of differences, so that the meaning of any given word lies not inherit within it – this is the source of the humor within onomatopoeia – but only in reference to its position within the entire system. The system of 1789 included the active acceptance of slavery, with all that implies, including the separation of families, the rape of women and children, the disposal of property through murder. No reference to women appears in the Constitution until, in the 20^th century, the 19^th amendment states that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” Slavery is mentioned only in the 13^th amendment, and note that it is specifically permitted “as a punishment for crime.” Mass incarceration, which got started during the Reagan years and really picked up steam during Bill Clinton’s presidency, needs to be understood as an attempt to overturn the fundamental result of the Civil War.

This is the duplicity underneath the looser interpretation of originalism. What it implies is that any statute or executive order ought to be interpreted in ways that best preserve the regime of white male privilege under which every law written has been enacted. Again, consider the language of the 19^th Amendment: its presumption is that the rights of citizens may be denied or abridged, and that this is normal behavior. The Constitution only forbids this on the narrow grounds of sex, a term that is otherwise undefined.

The problem here is not that originalism is a silly notion whose seriousness is plausible only in the beer-soaked environs of a man cave, but that it is being proposed with a straight face (pun intended) by the Federalist Society as an approach to governing. The reasons for this are transparent enough. White males make up something like 31 percent of the American population. Anyone can see the handwriting on the wall if the increasing diversity of the American population is accompanied with increasing power shared by groups that were not conceived by Thomas Jefferson some 242 years ago under the category of “men.” The goal of originalism is to afford a mantle of legal respectability to a regime of rights suppression that will keep white males firmly in charge for as long as possible.

Of course, if originalists meant what they claimed for the law, the Second Amendment would be read as interpreting that the constitution allows for the possession of arms as that term was understood in 1789: single round, buckshot rifles and blunderbuss pistols.

It was both technical innovation and the preservation of slavery that gave rise to the Colt 45 revolver, a gun that would enable a slave holder to outgun any rebellion of servants. The test of originalism as I see it turns precisely on what its proponents say about the Second Amendment. If, as seems to be the case with the GOP today, it means that any psychotic has the right to an AR-15, then you are not an originalist. But if you say you are in spite of all evidence, what does that mean precisely?

If ever there were an administration of the unreconstructed white male it is the Trump presidency, a small potatoes crime family posing as a government. But if white male rage at increasing political impotence is the fuel of this process, just as originalism might be its legal figleaf, it is capital that benefits, which gets us around to the architect of this whole shebang, the biggest capitalist on the planet, the one whose wealth is so great that he is not included in any of Forbes lists of billionaires, our good friend Vladimir Putin. I think Putin understands full well the pressures and strains on American society that having a government that is out of touch with its people can bring. And even if he does not – Russia is no paragon of anything, even kleptocracy – clearly he benefits from a US that looks increasingly like Russia. Further, capitalism itself benefits from a less progressive United States. Which is why the Republican Party, that cabal of white males, is so eagerly looking the other way.

The Brett Kavanaugh nomination is merely an important chess move in a very large game in which the legal system of  the US is a crucial part. From Putin’s perspective, having the US thrashing about in social turmoil under an incompetent boob is itself the victory. I doubt that any Russian official expected too much in the way of obedience from its abused puppy of a politician. Russia merely wants incompetence and boy howdy has that effort been a success.

This means that I think that Mueller will find that the amount of real collusion between Russia and the US was minimal, even if the Trumponauts tried mightily to make it so during the election and are still willing to go after a Bruce Ohr to make Moscow happy. I just don’t think the Russians are stupid enough to think that Donald Trump is a reliable anything. But, yes, they hacked and they used social media and the inherent anti-democratic nature of the electoral college to put their pawn into play at the White House.

What this means to you and me is all bad news. We are in for a period in which the courts become a major blocking point preventing the US from reaching its potential as a diverse modern democracy, because to do so would mean having to curtail the white male privilege that is being so profoundly defended. I would not be surprised to see the Trump administration operating more and more like the Nazis or the reaction in the streets to be an even more violent replay of 1968 than the original, complete with assassinations, riots and tanks in the streets. The handmaids are right on target with this, and that makes me fear, especially for the fragments of a world that my children will have to deal with.

All the while, global capital gets a pass. The one rule is that capital always accumulates – it’s a logic by which someday one guy (probably not Jeff Bezos, Mark Zuckerberg or Vladimir Putin) has all the money and the rest of the planet lives in one giant favela. In the past 30 years we have seen the richest men on the planet go from $30 billion to over $100 billion and some people estimate Putin’s personal wealth at twice that. We already have two corporations worth one trillion dollars. The gross domestic product of this entire planet is under 300 trillion. And we are seeing the likes of Elon Musk buying their own personal islands as escapes in case the locals make too much noise about the unfairness of it all.

Crippling the best parts of the American experiment serves a lot of agendas, and borders, white nationalism, the use of carbon-based energy and the notion of originalism all contribute to this crippling. As a member of the New American Movement when it merged with Michael Harrington’s Democratic Socialist Organizing Committee to form the Democratic Socialist of America (DSA), I am heartened by the likes of Alexandria Ocasio-Cortez, Elizabeth Warren, Bernie Sanders and Ayanna Pressley coming to the fore of political life in this country. Organization is essential. No battle is too small, no group too marginal to matter. It all matters. But the battle that lies ahead of us will prove to be much more difficult than merely stopping an unjust war in Vietnam, and we can expect to experience horrific defeats along the way.