This article originally appeared in Revolution Newspaper, revcom.us
The rule of law is under serious attack—and this is part and parcel of a fascist restructuring of society.
Trump and his cabal are packing high-level courts with fascists and fascist-enablers, all the way up to the Supreme Court. And they are discrediting, bullying, and whipping up their base against, and threatening to simply ignore, court orders that get in the way of their aims.
Trump’s assault on the rule of law is overt. After courts issued temporary injunctions against his ban on Muslim immigrants and refugees, his henchmen issued threats like “[O]ur opponents, the media and the whole world will soon see, as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.” This is Hitler talk.
Or, this tweet from Trump’s close ally, Christian fascist and former Arkansas governor Mike Huckabee: “Hoping @POTUS tells Hawaii judge what Andrew Jackson told overreaching court – I’ll ignore it and let the court enforce their order.” Huckabee was invoking the infamous stand of Andrew Jackson who, as a genocidal, Indian-killing, slave-holding president, defied a U.S. Supreme Court ruling that would have interfered with the government violently seizing Native lands to expand slavery.
Less obvious, perhaps, is how this frontal assault on the courts meshes with packing the courts. Trump and the Republicans have declared they will pull out all stops to push through the nomination of Neil Gorsuch to the Supreme Court. Gorsuch was on a list of potential Supreme Court candidates Donald Trump released during the campaign. That list was prepared by, and cemented his alliance with, traditional Christian fascists who have made overturning the right to abortion a sine qua non (a deal breaker). And Trump and the Republicans who control both houses of Congress are in position to fill hundreds of top-level federal court positions with judges on the same wavelength as Gorsuch.
Demeaning and threatening to defy the courts, and packing them with fascist enablers, is a one-two punch. If Gorsuch, as reported, told a Democratic senator that Trump’s attacks on judges were “disheartening and demoralizing,” this could be in part a public relations move, but also an expression of a division of labor between implementing Trump’s agenda through defying the judiciary and using the judiciary to put a stamp of “legitimacy” on it.
Attacking Rule of Law
Trump’s attacks on the judiciary are of a piece with a multifaceted attack on rule of law—that is, an attack on the concept that nobody is above the law. He has called for protesters at his events to be “carried out on stretchers.” His attorney general Jeff Sessions is a lifelong enemy of civil liberties. In a country where police terror and murder in oppressed communities is virtually unchecked as it is, Trump told leaders of the Fraternal Order of Police, “We will always support … the incredible men and women of law enforcement. I will always have your back—100 percent.” (emphasis added)
All this is aimed at both shredding rights supposedly guaranteed to people at large by the U.S. Constitution, and to steamroll over opposition within the ruling class, in part through concentrating absolute and unchallenged power in the executive branch (the presidency, agencies of violent repression like the FBI and CIA, and the federal administrative agencies), and bulldozing the ability of the courts to get in the way of Trump’s agenda.
The essence of the matter is not Trump’s personality. Trump has been brought forward as a product of profound crises facing this system. He is backed by powerful forces in the ruling class whose political objectives are expressed by the Republican Party. And he is implementing a fascist agenda.
What Is “Rule of Law” and Why Is Trump Out to Shred It?
Basic democratic rights in this system exist within a framework of ongoing domination and plunder. And they are defined by the interests of the capitalist-imperialist ruling class. As Bob Avakian has repeatedly pointed out, there will never be and could never be a right to eat under capitalism. Why? Because what rights exist in this society are constrained by the defining reality that this is a dictatorship of the capitalist-imperialist class. This class alone controls the right to use the instruments of force and coercion (the armies and police, prisons, courts, etc.) and the executive branch against any section of people, group or country that impinges on their interests; it is within that framework that some rights are extended to other sections of the people.
Even more essentially, the kinds of rights defined in the U.S. Constitution serve to resolve conflict between different factions of the capitalist class, and to maintain control over people, through forms like the courts, elections, and so on. “Freedom of the press” in this society, for example, first and foremost means the freedom for powerful factions of the ruling class to contend in the “mass media” to influence public opinion. Over time, and with the growth of U.S. imperialist domination of the world and its ability to use that plunder to provide privilege to different sections of the masses, such rights have been extended at times to provide a certain level of formal civil liberties.
At the same time, most people in this country, most of the time, are used to living with certain rights. Protests are permitted under certain conditions. Some of these legal rights, like formal equality for Black people, were only granted in the context of heroic struggle that went well beyond protest considered legal by this system. Remember: even for a Black person to refuse to sit in the back of a bus in the Jim Crow South meant breaking the law. So, limited as they are, there has always been extreme inequality in how these rights are respected and whether they are even granted.
The rights that are granted to the people, including voting rights, do not mean that the people exercise power or are “the masters of the government.” These rights—such as they are—serve both as a “safety valve” through which discontent and outrage can be channeled into forms that don’t threaten the existing order, and to draw masses of people into thinking that they have a stake in things, everybody has the same rights as everybody else, etc.1
The Profound Crisis of the System and the Fascist Response
Capitalism-imperialism—whether in a fascist or “democratic” form—is always a form of the dictatorship of the capitalist-imperialist ruling class which, under all circumstances, maintains a monopoly on the allowable use of violence. But fascism is a drastically and radically worse form of that rule. Fascism has gained strength through a succession of Republican regimes, from Reagan, through the Bushes, and now, on a qualitatively higherlevel with Trump. The impetus behind moving to a fascist form of rule lies in profound crises this system confronts, and for which—in the eyes of what are now dominant sections of the ruling class—there are no solutions within the “normal” (bourgeois democratic) form of rule.
Today, the ability of the U.S. empire to plunder people and resources all over the planet is constrained and seriously hampered by the rise of global rivals like Russia and China, regional adversaries like Iran, “wild cards” like North Korea, and pernicious reactionary fundamentalist Islamic Jihad. Intense global competition has undercut decades where more privileged strata came to expect a comfortable lifestyle as “their share” (of the plunder of the U.S. empire—but that of course is never stated). What large sections of white America have taken to be “social norms,” like the subjugation of women, the oppression of nationalities, and traditional gender roles, have been under fire from mass struggles or eroded by changes in demographics, economics and culture. And for some time, different factions within the ruling class have not been able to successfully struggle their differences out through the system’s institutions and normal channels—expressed in governmental paralysis.
Under these conditions, to break the “stalemate,” and decisively deal with these contradictions, a section of the ruling class headed by Trump has consolidated around a need to impose fascism and destroy much and perhaps all of what have come to be considered democratic rights, protections and procedures. Instead, they aim to deploy the instruments of violence of the state, and fascist mobs, to openly repress both their rivals within the ruling class, as well as any who would oppose them among the masses, and whole populations of those they have deemed to be outside the “protection” of law (for example, Muslims, immigrants, etc.).
What Do We Do Now?
For the ruling class, respecting supposed democratic rights is a matter of expediency. But for humanity, and particularly for those aiming to get beyond a world of exploitation and oppression, it matters whether such rights are preserved. It will be immeasurably harder to mount any kind of struggle for a better world if people are violently smashed the minute they raise their heads, and if the oppressed themselves are kept in qualitatively worse conditions and barely allowed to breathe (with the threat of literal “final-solution-style” genocide hovering in the background and—depending on how things develop—looked at by the rulers as a real option). And for revolutionaries—and, yes, for all of humanity—the objective must go beyond the defeat of this attempt to impose fascism and toward revolution.
It is critically important to defend the rule of law and to defend all who are violently repressed or railroaded by the fascists, including even members and institutions of the ruling classes themselves. At the same time, there is a way to go beyond the system that got us here in the first place—a system which in its normal workings has “given” us mass incarceration and genocidal persecution of Black and other oppressed peoples… the subjugation of women… the plundering of the environment… the super-exploitation and persecution of immigrants… and not least of it terrible wars that in just the last few decades have taken millions of innocent lives. There is a Constitution for the New Socialist Republic in North America that provides the guideline to overcome and supersede that society, and where the very concept of freedom is far richer, even as individual rights are protected in a way that has never been and can never be seen in this current society.
1. See, for instance, Communism and Jeffersonian Democracy by Bob Avakian, the section “‘Competing Elites’—and Moving Beyond ‘Elites’” and in particular the sub-section “What does—and does not—happen through elections… what is—and is not—meaningful political activity.”