The pre-democratic American Constitution

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Discussions about the American political system often seem too…exact. The foundation of law and source of political norms in the United States is portrayed as entrenched, and the Constitution set up as laying out the politics of today in detail.

For instance, the statement “America is a two-party system”. Most facts about the modern American political system are codification through improvisation. It’s because the United States has a pre-modern, pre-democratic Constitution.

Sitting at the core of American law is an archaic foundation, that we spend a lot of time pretending isn’t a dead albatross that we have to drag around. One school of legal thought is that because the Constitution is so short and vague, it can evolve with the times. Whether this is because it is a living document, or that the wisdom of the Framers is seen as a matter of political opinion. Yet the Constitution has not aged well. Modern America is held together with legal gaffer tape.

So, what is the Constitution not equipped to handle? Competitive elections (so, democracy as we know it today). Political parties. Interest groups. Money in politics. A society in which people other than white landowners had value. The welfare state. Modern monetary policy. Economic integration. Cultural shifts on civil rights based on sexual orientation, gender identity, and sexual choice. The Industrial Revolution. Multilateral treaties and international cooperation.

The vagueness has often not been a benefit at all. There is nothing in the text that says women are allowed to vote, but it took a constitutional amendment to specifically make that a right. The Constitution is not adaptable if its general principles must be updated by legally binding alteration.

In practice, the Constitution is dragged into each new era by common law. But this means that the decisions of a small, homogeneous judicial clique decides what are new rights. And there’s nothing to have reversals that go in the opposite direction of progress. Judges essentially create a substantial portion of the law from whole cloth- given the vague nature of their source material, rather than giving a yes/no decision, they have to create new standards.

Now a constitution need not be updated every year, but basically no other constitution in the world predates the basic norms of how democracies govern.

This is hardly an original view. There has been one substantial effort to reconcile the 18th century worldview with principles recognizable in 2016. Franklin D. Roosevelt’s Second Bill of Rights was proposed as a way to deal with one of the most fundamental shifts in American society- that is, economic rights that aren’t directly related to property. The proposal was nothing left than a complete revolution in the role of government. Most of the ideas in the Second Bill of Rights have never been implemented and may never will.

Besides economic rights, no procedures are supplied for how American democracy should work. The Framers willfully refused to regulate party politics, so when partisanship erupted, the rules were improvised. But the well is even drier here, because instead of vague principles, there’s just…nothing. America is a two-party state in practice, but it’s a zero party state in fundamental law.

It is frustrating that many all but worship the Constitution, while ignoring the problems caused by its continued existence. It feels like we’re playing blackjack, but using rules from a book about bridge.

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Bernie Sanders and the Graveyard of Social Movements

In the final hours before the Iowa caucuses, it’s productive to take a step back and look at the Democratic presidential primary from a structural perspective.

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Sanders at a rally in Charleston, South Carolina. August 2015.

American presidential campaigns used to be managed exclusively by machine bosses. There were no democratic primary elections- there was a convention, the candidate was often a compromise made in a smoke-filled room. Money and patronage were divvied among those who could mobilize resources. Popular participation did play a role, but party leadership counted for a lot- and much of the mobilization was under political machines controlled by said bosses.

All that has really happened since the 19th century convention-based system is that there are now primary elections. Of course that’s a big addition to the process, but the old forces haven’t been replaced. Party elites still try as much as possible to make the primary elections a coronation process; they also have the advantage that those with the most party loyalty are the main electorate. Thus even in a competitive race like 2008, the party structure was not threatened. A couple people got mad and said they wouldn’t vote for Obama, but otherwise unity was quick and very few people in power changed ideology as a result.

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Lance Selfa on the role of the Democrats since the 19th century (The Democrats: A Critical History, Haymarket Books, 2008)

 

This is a meandering way of getting to the relationship of Bernie Sanders and the Democratic Party. As Matt Karp writes today, the inner core of the Party has been nearly unanimous in endorsing Clinton, or at least not endorsing Sanders. Even second and third-tier primary candidates of elections past got at least a small handful of national figures, even if they never polled in the double digits.

Sanders is far from the first major candidate that the leading cadre have despised. The Democrats did have a chance to move leftward (to essentially the social-democratic politics that Sanders triumphs) in the late 60s and early 70s, but conflict with the conservative establishment caused so much chaos that there was little time to, ya know, campaign and win elections. If you’re wondering whether the Party will ever embrace a truly different direction, ask whether the people that control it would benefit from higher corporate taxes, more regulation, and eliminating industries like private health insurance.

So the institution doesn’t like him because of his politics. A factor that I’ve yet to see someone articulate clearly is an issue for both officials and primary voters. Bernie Sanders is not a Democrat and has never been one. I’ve run into plenty of people for whom party identification is a core part of their personal identity. They are Democrats. Their parents and grandparents, going back to the New Deal, were Democrats. Partisanship has an ideological component, but it also has the same nationalist substitute you get with sports teams and Kirk v. Picard. The instant Sanders decided to run as a Democrat he entered foreign turf that he doesn’t fit into well.

If history is our guide, the Sanders movement is not going to fundamentally change the structure. My stance on the Party has been consistent to the point that friends are surprised when someone else invokes it- “the graveyard of social movements.” The radicalism of groups since the 19th century has been neutered to the point that once the most militant of working class organizations run away from any genuine progressive politics. Clinton, who has never supported a $15/hr minimum wage, won the endorsement of the SEIU. Currently, their signature campaign is Fight for 15. Much of labor has been so institutionalized that its leadership will choose party loyalty, even if it undermines fast food workers who have lost their jobs advocating for $15.

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From Mike Flugennock: sinkers.org/stage/?p=1707

So as this primary season begins, the question of change needs to be separated. Can Bernie Sanders win despite near-universal Party opposition? Maybe, I don’t know. My concern is that even if he wins, the Party is not the vehicle to achieve progressive change. We have seen how much a President can be handcuffed by Congress- the opposition, yes, but also within the delegation.

I’ve seen people make the argument that Clinton v. Sanders is a battle for the soul of the Democratic Party. I don’t buy that interpretation (Don’t Believe the Hype!), nor any analysis that says the Party is destined to end up at this or that ideology. The best predictor of the future is the past, and the Democratic Party has been around for about two hundred years now. American party politics has flipped multiple times, but the Democrats were never radicals. When the Democrats fought in the 1890s over the Pullman strike, a Democratic president overrode a Democratic governor to crush it. Attempts to form a progressive, radical opposition has never lasted. Odds are that the Democratic Party will continue doing what it’s been doing, with no substantial change.

It is good to see more independent organizations liked National Nurses United bucking the trend of contradicting policy goals and endorsements. In their last post about the Sanders campaign before the caucuses, a nurse going door-to-door said

“We talked about what it means to have someone who is a champion, but also has a movement behind him. You have to have both to achieve change.”

She’s right. You need both. But is that movement to come from a Party run by his opponents and funded by many of the same heinous corporations that fund the Republicans? Perhaps these buried organizations need to rise from the dead.

Because despite claims to the contrary, I think people power still has some life left in this country.

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Thomas Paine: an always-relevant radical

The birthday of Thomas Paine just happened, January 29th on the Julian calendar. But since he doesn’t turn 279 years old until February 9th on our Gregorian calendar, there is still time to pen a retrospective!

As a political figure, most Americans learned in middle school US History that he wrote something called Common Sense, and it was a big deal when everything was starting to pop off in the Thirteen Colonies. The trajectory of his life after 1776 showed how different his political philosophy was with the bulk of Founding Fathers. A feature in Jacobin written last year emphasized that until his relatively recent rehabilitation, Paine was the icon of rogues and radicals only. If the establishment hated you because you wanted to abolish slavery or have a trade union or whatever, you probably looked to Paine as a source of wisdom.

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Paine, before injustice gave him grey hair. Portrait by Matthew Pratt

What stands out with Paine, and makes him a superior model compared to fatally compromised thinkers like Jefferson, Adams, and Madison, is his consistent denunciation of all systems of exploitation. His argument in Common Sense was for independence, yes, but it was more importantly an argument aimed directly at the monarchy and aristocracy. Many Founders fought a war against a monarchical colonial power, but they weren’t necessarily republican in their thinking. The Declaration of Independence is an indictment of a particular king; Common Sense is an indictment of the whole idea of kings. Indeed, there was much ambiguity about the new American executive initially, with many wanting Washington to become king, or at least king-like. Gordon Wood talks about this aspect of the early republic, additionally his chapter “A Monarchical Republic” in Empire of Liberty is a summation of how conservative many Founders and Framers were about the break from hereditary rule.

So even in this first step, Paine was outpacing most of the other Founders. After colonial rule, he took on a whole spectrum of society. He went after the institutional church in The Age of Reason. He defended the democratic revolution in France, almost ending up a casualty in the purge-y portion. Agrarian Justice is the most substantial critique of private property and institutional privilege of its generation. He was one of the early abolitionists. And he stood against the majority of the National Convention that wanted the King executed- because he saw the death penalty as another archaic injustice not suited for a democratic age.

Indeed, Paine’s consistency is refreshing. Not only compared to Jefferson’s incoherent views on freedom and slavery in his own time, but today. Many people call themselves lovers of liberty, but only advocate for a part of Paine’s philosophy. Conservative Americans love the talk of liberty above tyranny in Common Sense, the irreligious enjoy the broadsides against Christianity in The Age of Reason. And it’s easy for liberals to like Paine’s argument for a welfare state in Agrarian Justice. Of course, this was the case in his own time- he was loved and reviled by the same people at different times. Even today, with many progressive developments, Paine remains radical. Where other Founders have calcified into marble, his fight is not yet finished.

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Paine seemingly never wrote anything that didn’t make at least some powerful people mad.

The living character of his writing made him one of the few figures that benefitted from 1960s-era historical revisionism. In my generation, the pedagogy of the Founding has been complicated- how can the Virginia planters that dominated politics be lauded, when their leisure was the result of human bondage? Even now, the critique is hesitant and usually after-the-fact. Paine is in full color, waiting to be embraced.

So I believe that the question of Paine’s place in the traditional Founders isn’t worth debating. He fits in with the Founding Fathers that represent the rest of the spectrum of the American people. Harriet Tubman. Sojourner Truth. Frederick Douglass. Lucretia Mott and William Ll0yd Garrison. And even John Brown, who despite his troubling nature still was willing to die to make “all men are created equal” something other than a statement of hypocrisy. Their revolution was about more than white men and their property rights. I suggest a promotion to hang out with a much more fitting pantheon.

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Is the anti-abortion movement truly non-violent?

Last week, my campus was the site of the Genocide Awareness Project, a traveling display of graphic images about abortion. At two stories high, and long as a large bus, it was by far the most elaborate monument to anti-abortion thinking I had ever seen. It occupied prime space on Library Walk, the main artery of UC San Diego campus. Very few people knew it was coming, so the first day it was met by an ad-hoc group of women’s resource center people and activists.

The second day was much more organized, with close to a hundred people at its peak. The number ebbed and flowed over several hours as people left for class and returned. People chanted “My body! My choice!”; one student protested topless, feeling anti-abortion crusades are only one of several movements that want to dictate what women can do with their bodies.

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Pro-choice counter-protest, Library Walk, UC San Diego (1/20/2016)

There are a lot of things wrong with the Genocide Awareness Project, besides the usual shock-value pictures and culture of intimidation. Posters equated abortion to the Holocaust. Another had a picture of Eric Garner captioned “I Can’t Breathe” alongside an aborted fetus. As you can see in the above image, the trope of abortion being ‘black genocide’ was invoked. The entire display rests on problematic (and often offensive) connections being drawn to link abortion (which American society is split on) to the Holocaust, a self-evident mass injustice. In the end, I found last week troubling. In particular, there’s no evidence that the Genocide Awareness Project was invited by a student or student group. Looking through the online space reservation system, the space was allocated to the group behind the Project- the Center for Bio-Ethical Reform.

Traditionally, Library Walk is divided between the central portion, for student groups or canvassers (for Southern Poverty Law Center or Save the Children usually), and the two ends, which are free speech zones for anyone. Non-student anti-abortion protestors last year were allowed to set up on one end of the Walk by the library, but this year had six slots worth of space front-and-center. This, along with a lack of due notice to students- who may have wanted to avoid that part of campus for personal reasons, or allowed time to organize the larger counter-protest, made the whole experience feel uncomfortable.

That said, I would like to dive into a related conversation that came about during the counter-protest. There were sign-making materials on site on Wednesday, so I took advantage and made this sign:

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I felt it necessary to go beyond talk of a right to choose and deal with the most disturbing part of the anti-abortion movement to me. Namely, how militant the rhetoric of groups have become, and how violence against patients, doctors, staff, and security in one form or another is common. Claims that abortion is an ongoing Holocaust, if believed sincerely, justify murder as righteous action. Right-wing hate crimes, including incidents like the 2008 shooting at a Unitarian Universalist church in Knoxville, Tennessee, show how extreme speech can convince certain kinds of individuals that they have a God-given duty to kill.

At one point, I was told that my poster was unfair to tie these murders by to the movement as a whole. A majority of activists practice non-violent struggle.

To some degree, I agree with that critique. It is unfair to assign an entire movement moral complicity in murder (and more numerous lesser crimes, like assault and vandalism). However, I also think that claiming non-violent methods does not mean a lack of connection to any violent acts automatically. In the modern developed world, almost every civil society groups will espouse non-violence. That does not mean that they are equal  What follows is a few things that should be considered when evaluating the anti-abortion movement as nonviolent.

Activists claiming to be non-violent may condone violent acts done by others. Many individuals against abortion praise killings and assault of doctors and patients. After last year’s shooting that killed 3 and wounded 9 in Colorado, many took to social media in support of the crime. Randall Terry, founder of Operation Rescue and long-time leader of the movement, stated the following when Dr. George Tiller was shot and killed at his church in 2009:

“George Tiller was a mass-murderer. We grieve for him that he did not have time to properly prepare his soul to face God. I am more concerned that the Obama Administration will use Tiller’s killing to intimidate pro-lifers into surrendering our most effective rhetoric and actions. Abortion is still murder. And we still must call abortion by its proper name; murder.

“Those men and women who slaughter the unborn are murderers according to the Law of God. We must continue to expose them in our communities and peacefully protest them at their offices and homes, and yes, even their churches.” (source)

I don’t see this as a statement endorsing non-violence. Instead, I see it as using non-violence to deny responsibility, but still support violent action. This strategy devalues peaceful strategy by connecting it to the use of force.

The tactics of the movement are fundamentally violating. Since 1973, the anti-abortion movement has taken two paths. The first is political, including the passage of the Hyde Amendment and restrictions on abortion clinics. The second, which we all think of when picturing the conflict, are attempts to block, intimidate, and trick women from entering clinics.

I don’t see tactics of intimidation, which includes things like the Genocide Awareness Project, as truly non-violent. If we take the narrow definition of violence, which it is the absence of force, then the movement describes itself accurately. However, it’s limiting and inaccurate to exclude actions that are violating by their nature. Yelling at a woman that she’s a murderer and waving a gory picture in her face is not non-violent action. The rhetoric is aggressive enough that those who commit crimes to stop abortions don’t need to do much ideological shifting.

Traditional examples of nonviolence are different from the characteristics of those against abortion. A big issue are ties made between those that oppose abortion and the campaigns of Nelson Mandela and Martin Luther King Jr. Both became known for non-violence, but their struggles were about the powerless against the tyrants. The relationship between activists and the system were inferior-superior. There is no great tyrant in the abortion debate- the principal population attacked are vulnerable women. Well-funded groups and conservative politicians are those with tyrannical power.

Ideologies and movements are never strictly violent or non-violent. They exist in a conversation between physical force and moral force. While the anti-abortion movement may adhere to non-violence at some surface level, it is built on a fundamentally violent premise.

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First thoughts: campus mental health

 

This post is to mark the beginning of  How Are You at UC San Diego, a student mental health overhaul instigated system-wide by the UC Student Association (UCSA). Mental health for students, from elementary school on through graduate education, is in crisis on a structural level. The toll of mental illness has always been underestimated, and thus few schools have services to match need. Nationwide studies find sharp increases in college students seeking counseling.

Dr. Victor Schwartz in the linked article outlines two potential reasons that campus services are being overwhelmed. Number one, that college students as a population are having more issues than before. Number two, more people with existing issues are seeking treatment, so it’s not the density of the problem but the response rate.

I’m firmly in the camp that thinks reason two is the key issue. In my previous post on student health, “The fantasy of perfection,” I wrote about the crisis that appears when mental illness is viewed as weakness. Society waking to the reality that mental health problems, both acute and chronic, are common features of the human experience is a huge development. So while the present is a challenge on a resource level, it is at the same time an incredible opportunity.

So I’m just going to list nine things that should be considered by the How Are You campaign at the UC schools, and campus mental health campaigns in general.

The introduction of mental health resources to new freshman and transfer students. Existing orientations tend to lump all resources together- first-generation college students, sexual assault counseling, centers for racial and ethnic groups, reporting discrimination, with psychological services and disability services mixed in among them.

Identification of students who may need help. In particular, the training that RAs, graduate assistants, professors, and student leaders have, and the criteria by which they intervene.

Outreach to special groups. This can be split into vulnerable populations at risk of dropping out, and those coming from a culture where mental illness is a taboo subject. This includes having diversity in personnel, as in America counseling often defaults to white women.

Handling of acute crises. Some students need to see someone more or less now. There needs to be slack in the system to deal with an irregular number of special cases.

Handling of chronic cases. Each new person with a chronic need aren’t filling up one slot, but several each term. This leads to:

Referral. At some point, a delay for someone with chronic need becomes excessive, and off-campus help is preferable. The system needs to provide a sufficient variety of options- not only diversity of practitioners but choice easily accessible by students without a car. This includes student health insurance being accepted at most practices, and referrals being timely.

Connections with disability accommodations. Under the Americans with Disabilities Act, people with chronic psychological conditions have special rights and can qualify for accommodations to make academics easier. However, the stigma of mental illness is distinct from the stigma of having a disability. Thus additional outreach must be made. The counseling office and disability office need to be well-connected.

Faculty education. In particular, making sure that accommodations students receive for a psychological issue are respected. Professors may resist making changes to their routine, such as letting students take a test at a different time. This needs to be restated as a civil rights issue.

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Letting peers tell their own stories. Having experience with a speaker’s bureau, I can attest to the power of having people with mental health issues open up. Having the ability to educate is empowering. People dealing with mental illness should be able to self-liberate.

Onwards and upwards.

 

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Donald Trump: populist? fascist? Neither.

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Jan-Werner Mueller has written an excellent editorial for Al Jazeera America, entitled “Trump is a far right populist, not a fascist.” I like this analysis because it goes into a few distinct and important areas when talking about politics, especially to an American audience. Essentially, it’s an attempt to counter the easy ‘fascist’ descriptor with something more rooted in history and ideology.

While the term ‘populist’ has a progressive connotation in the United States, in Europe is applied to race-baiting demagogues like Marine Le Pen of the National Front in France. Populism itself is not an ideology. It’s an approach to politics, relying on relating to the struggles of the common people and rallying them towards a goal. This goal can be anything- Bernie Sanders and Donald Trump can both be considered populists in their anti-establishment stance. In the late 19th century, the People’s Party gained traction by stirring up farmers to oppose urban finance capital that exploited them. All the variation in populism comes from who the villain is. For the Trump campaign, Latinos were the initial target. Now it’s expanded to Muslims, both groups being linked by their ‘foreignness’. Trump appeals to poor whites, the same who have been behind the spike in popularity of far-right groups like the National Front, along with Golden Dawn in Greece and the Danish People’s Party.

As with populism itself, “people’s party” reflects tactics rather than ideology.

But calling the Trump campaign populist is problematic. On the surface level, his rhetoric fits the bill. Yet the entire structure of the campaign is different. American populism grew at the grassroots level- it was a bunch of broke common people up against a small clique of bankers and politicians that created this inequity in the first place. Zach Carter is right to deem him a ‘plutocrat populist.’ I don’t think of Teddy Roosevelt and Huey Long when Trump floats into conversation. I think of Charles Foster Kane, a man who has profited from exploitation and claims that as experience for office.

His campaign apparatus has been slow in becoming anything other than a planning team for rallies. In populist fashion he stirs up his followers, but their zeal doesn’t carry. Big turnout, yes, but a noncommittal base. There has been no effort to change this; for a front-running campaign there is no systemic gathering of data and follow-up. What makes supporters of populist parties and figures distinct is their commitment above and beyond the normal politics of voting. In America, they battled the banks over monetary policy, and many fought and died in labor actions against mining and timber interests. Far-right supporters in Europe often engage in street protests and sometimes open conflict with political opponents. Despite the left and right selling very different ideas of what a just society is, and who is keeping it unjust, populism creates rabid followers. I don’t recognize what we call populism at anything beyond a surface level.

Even with mass support, this is still a Trump vanity campaign. His political shifts haven’t been justified by new experiences or ideas. Right-wing rhetoric is just the easiest way to get noticed- especially in a Republican Party that lacks high-caliber figures that could steal the spotlight. Thus just like ‘populist,’ the label ‘fascist’ also falters beyond a surface basis. Yes, in Italy and Germany there was physical violence between true believers and the opposition. Xenophobia was strong then and continues to be. Be that as it may, fascist ideology was complex and sophisticated, and those that crafted it were serious about everything they said and did. Trump’s politics are scattershot and shallow- the xenophobia is present, but it’s not directed in any way.

I don’t get the feeling that if he was elected, the fascist-seeming aspects of his stump speeches would be formalized and put into law. Some people advocate extreme ideology because they believe mainstream politics has failed and radical measures must be taken to reforge society. Others use it to gain attention and power, because they are no different in mindset than the discredited mainstream. Trump seems to be the latter.

So I take a third option on who Donald Trump is in this election cycle. His campaign isn’t the work of common people at all, and while his nominally populist outlook draws big crowds, it hasn’t created the warriors for the cause. While Trump rallies do often resemble fascism, or something just as odious, there isn’t any ideas about the role of the state and the nation. Trump is a consummate opportunist who taps into the energy of an alienated white working class, but not for any larger purpose. Populists, then and now, used these tactics to further a particular cause. Movements were populist and then something else. He is just one shade of the fallout from gridlock and corruption in the mainstream. Hollow demagogues have the same opportunity to harness popular anger as everyone else.

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The culture of ‘imminent threat’

 

In my current home of San Diego, a man named Fridoon Rawshan Nehad was shot this spring by a police officer. While there was a surveillance video of the shooting, its release was blocked by much of the political apparatus, most notably District Attorney Bonnie Dumanis.

The video is obviously graphic, and is available here. Officer Neal Browder arrives on scene around four minutes in, with him opening fire about 25 seconds later. In this screenshot Nehad is in the foreground, and the white flash is a gunshot.

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I won’t go into the details of the video itself, since it seems discussion of systemic state violence gets bogged down into a ‘was the victim threatening’ discussion for each case. What I will say is that Nehad did not have a knife (he actually had a pen), he was experiencing a mental health episode, he was not moving any faster than a casual walk, and though he was walking towards Browder he was not walking at Browder.

That this situation even happened is testament to how people fall through the cracks- Nehad suffered from serious mental illness and houselessness for many years prior to his death. Despite the prevalence of mood disorders and schizophrenia, most police departments have no understanding of how to deal with individuals who are unable to understand and comply with police demands.

District Attorney Dumanis and the police leadership are selling the same justification as usual- the idea that as the victim was an imminent threat, lethal force is justifiable.cjones11292014

This thinking ties the domestic to the international. Drone strikes, airstrikes, and the wholesale invasion of nations are all justified based on imminent threat ideology. With the militarization of the police, calculations about the use of lethal force by American institutions sound the same no matter where on Earth you happen to be.

But the thing is, the definition of an imminent threat can only be stretched so far. Nehad was erratic, but he was not in any sense threatening. Most of the body count from drone strikes had no connection to threats against the US or the West. The structures of power, at any level, want the maximum amount of autonomy and the minimum amount of accountability. Eliminating threats is only the stated purpose. Gaining power by setting precedent and pushing against any and all limitations is the key. With DA Dumanis (known for being corrupt) as an ally to prevent judicial oversight, the police rise above the law.

Many cases since Mike Brown throughout the United States were even more egregious than Nehad- they lacked even the foundation of a defense. But almost nobody goes to jail. Police security culture makes investigation and prosecution- even if the courts are willing, all but impossible.

The list of those killed by city and county police in San Diego is long. The answer to ‘who polices the police?’ is pretty simple- it’s you. Agitation at the grassroots level have made sweeping lethal police shootings under the rug far more difficult. Popular opinion since Ferguson has shifted radically. The idea that America is not a color-blind, egalitarian society is creeping into the mainstream. Police power grows best in the shadows, and the institution never expects dedicated resistance.

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