Samir Chopra's Blog, page 44

Robespierre On The Iraq War

In 1792, Revolutionary France debated, and prepared for, war. It was surrounded by monarchies who cared little for this upstart viper in the nest; and conversely, a sworn “enemy of the ancien regime” could not but both despise and fear what lay just beyond its borders: precisely the same entity in kind as was being combated at home. War often seemed inevitable in those days, and it would come, soon enough, on April 20th, when France declared war on Austria. But Revolutionary France, true to its spirit, devoted considerable time and energy to debating the decision to continue politics by such means.

Some, like the war’s most “categorical…passionate [and] persuasive” proponent, Jacques Pierre Brissot, “imagined war rallying the country behind the Revolution and forcing the duplicitous King [Louis XVI] either to support the war and the Revolution or reveal his counterrevolutionary intentions.” But just as important, was the “crusading” aspect of the war:

War would carry liberation to the oppressed peoples of Europe, groaning still under the despotism France had thrown off. [Jordan, pp. 84]

The most passionate opponent of the war was Maximilien Robespierre. His denunciation of war plans had many dimensions to it. They remain remarkably prescient and insightful.

First, Robespierre noted that “during a war the people forget the issues that most essentially concern their civil and political rights and fix their attention only on external affairs.” Because war is conducted by the “executive authority” and the military, during war, the people direct “all their interest and all their hopes to the generals and the ministers of the executive authority.” Such slavish devotion to those in power–especially since in conducting the war, Revolutionary France would have been “fighting under the aegis of the Bourbon Monarchy”–results in a characteristically eloquent denunciation: War is “the familiar coffin of all free peoples.”

But it was the “crusading” and “utopian” aspect of the war that seemingly most troubled Robespierre, for in it he could detect an internal incoherence. The vision of lands and peoples invaded by Revolutionary France welcoming their conquerors struck him as risible:

The most extravagant idea that can be born in the head of a political thinker is to believe that it suffices for a people to enter, weapons in hand, among a foreign people and expect to have its laws and constitution embraced. [It is] in the nature of things that the progress of reason is slow [and] no one loves armed missionaries; the first lesson of nature and prudence is to repulse them as enemies.

Robespierre did not waver from this conviction. A year after France had entered that period of its history which would be characterized by almost incessant outbreaks and declarations of war, Robespierre wrote that “One can encourage freedom never create it by an invading force.”

The historical illiteracy of those who declared war on Iraq is oft-commented on; here is yet more evidence for that claim.

Note: This post is cribbed from David P. Jordan‘s The Revolutionary Life of Maximilien Robespierre (University of Chicago Press, 1985, pp. 82-86; all quotes and citations originate there.)

The Acknowledgments Section As Venue For Disgruntlement

In The Revolutionary Career of Maximilien Robespierre  (University of Chicago Press, 1985) David P. Jordan writes in the ‘Acknowledgments’ section:

With the exception of the Humanities Institute of the University of Illinois at Chicago, whose fellowship gave me the leisure to rethink and rewrite, no fund or foundation, agency or institution, whether public or private local or national, thought a book on Robespierre worthy of support. [pp xi-xii; citation added]

Shortly after I had defended my doctoral dissertation, I got down to the pleasant–even if at times irritatingly bureaucratic–process of depositing a copy with the CUNY Graduate Center’s Mina Rees Library. The official deposited copy of the dissertation required the usual accouterments: a title page, a page for the signatures of the dissertation committee, an abstract page, an optional page for a dedication, and lastly, the acknowledgements. The first four of these were easily composed–I dedicated my dissertation to my parents–but the fifth one, the acknowledgements, took a little work.

In part, this was because I did not want to be ungracious and not make note of those who had tendered me considerable assistance in my long and tortuous journey through the dissertation. I thanked the usual suspects–my dissertation adviser, various members of the faculty, many friends, and of course, family. I restricted myself to a page–I continue to think multi-page acknowledgments are a tad self-indulgent–and did not try to hard to be witty or too effusive in the thanks I expressed.

And then, I thought of sneaking in a snarky line that went as follows:

Many thanks to the City University of New York which taught me how to make do with very little.

I was still disgruntled by the lack of adequate financial support through my graduate studies: fellowships and assistantships had been hard to come by; occasional tuition remissions had somewhat sweetened the deal, but I had often had to pay full resident tuition for a semester; and like many other CUNY graduate students, I had found myself teaching too many classes as an underpaid adjunct over the years. I was disgruntled too, by the poor infrastructure that my cohort contended with: inadequate library and computing resources were foremost among these. (During the last two years of my dissertation, I taught at NYU’s School of Continuing and Professional Studies and so had access to the Bobst Library and NYU’s computing facilities; these made my life much easier.)

In the end, I decided against it; my dissertation was over and done with, and I wanted to move on. A parting shot like the one above would have made felt like I still harbored resentments, unresolved business of a kind. More to the point, the Graduate Center, by generously allowing to me enroll as a non-matriculate student eight years previously, had taken a chance on me, and kickstarted my academic career. For that, I was still grateful.

I deleted the line, and deposited the dissertation.

Note #1: An academic colleague who finished his dissertation around the time I did dedicated his dissertation to his three-year old son as follows:

Dedicated to ‘T’ without whom this dissertation would have been finished much earlier.

Fair enough.

Chelsea Manning’s Bad Luck With The American Polity

In The Passion of Bradley Manning: The Story Behind The Wikileaks Whistleblower(Verso Press, New York, 2013) Chase Madar writes:

If any lesson can be drawn from the Manning affair, it’s that leaks can make a great difference if there is organized political muscle to put them to good use. Information on its own is futile; as useless as those other false hopes of the global center-left, international law and its sidekick, the human rights industry, all of which have their uses, but are insufficient to stop wars and end torture. This is not to denigrate the achievements of the person who have us this magnificent gift of knowledge about world affairs. If the disclosures have not changed US statecraft–yet–the fault lies not in the cables, but in the pathetic lack of political organization among those individuals who don’t “have a position” in Halliburton stock–the 99% if you will.

There are two theses presented here by Madar: a) information is sterile unless coupled with political organization and action, and b) international law and the ‘human rights industry’ are ‘insufficient to stop wars and end torture’–they are ‘false hopes.’ (The former claim may be understood as a variant of Marcuse‘s praxis + theory axiom of politics.)

The seeming inefficacy of Chelsea Manning‘s leaks of a veritable treasure trove of revelations about the conduct of US foreign policy and warfare now becomes explicable; those seeds fell on infertile ground. Manning’s leaks were fed to a polity that is at heart conformist and accepting of authority, and whose most suffering faction–the staggering 99%–is disorganized, apathetic in large sectors, and all too easily resigned to a fate characterized by endless wars and a Nietzschean endless recurrence of the same cast of political characters and ideologies ruling the roost. ‘On its own’ information has no political valence; it is only when it serves as the premise of a political argument that it acquires traction.  At the risk of invoking the wrath of those who dislike military metaphors, perhaps we can think of information as ammunition; indispensable, yet insufficient without the right sorts of blunderbusses. (That pair of ‘false hopes of the global center-left, international law and its sidekick, the human rights industry’ are similarly indicted: both, on their own, decoupled from the capacity to enforce and from organized political muscle, are reduced to platitudes, mouthed in predictable time and fashion by the usual suspects. No enforcement authority backs them up; and the political realism of the postivisitic conception of both law and rights appears ever plausible.)

America got lucky with Chelsea Manning; but the luck only went in one direction. Manning didn’t get lucky with her nation; she was feeding information to a polity that didn’t know what to do with it (and which instead, called her a ‘traitor’ and imprisoned and tortured her.) The reception to the Panama Papers, which despite the initial furore, and even the odd resignation or two, is best described as equal parts yawn and shrug, provides further confirmation for this claim. Artful dodging of local jurisdictions to enable ‘fraud, kleptocracy, tax evasion, and evading international sanctions’ is old hat; and there is nothing we can do about it anyway.

Back to rearranging chairs on deck.

Chase Madar On American ‘Anti-Authority Posturing’

In The Passion of Bradley Manning: The Story Behind The Wikileaks Whistleblower (Verso Press, New York, 2013) Chase Madar quotes Ray McGovern, ‘a retired CIA analyst’ and admirer of Chelsea Manning, as saying that “he who isn’t angry [in the face of injustice and evil] has an ‘unreasoned patience [and] sows the seed of vice….Bradley Manning had the strength to be angry….But in America today we have far too much passive acceptance of injustice. We need more righteous anger.” Madar then goes on to make note of a curious feature of the American ‘character:’

We Americans can pride ourselves all we want on our anti-authority posturing, but a 2006 poll from the International Social Survey Programme of national attitudes towards individualism and authority tells a very different story.

In 2006, the ISSP asked the question “In general, would you say that people should obey the law without exception, or are there exceptional occasions on which people should follow their consciences even if it means breaking the law?” At 45 percent, Americans were the least likely out of nine nationalities to say that people should at least on occasion follow their consciences — far fewer than, for example, the Swedes (70 percent) and the French (78 percent). Similarly, in 2003, Americans turned out to be the most likely to embrace the statement “People should support their country even if the country is in the wrong.” [from: Claude Fischer, “Sweet Land of…Conformity? Americans Aren’t the Individuals We Think We Are,” Boston Globe, June 6 2010.)

This ‘curious feature’ is worth revisiting now as America hurtles toward its electoral encounter with Trumpism–and perhaps Clintonism–this November. One candidate promises to be authoritarian, to ride roughshod over the rights and civil liberties of fellow Americans, to eviscerate the US Constitution, to commit war crimes (like killing the noncombatant families of ‘terrorists’), all to ‘make America great again’–and he is cheered on by a squad that only grows louder. Another bids us be complacent, to reckon that America is already great and only needs tinkering around the edges, some incrementalist change perhaps–not the kind promised by raving old white-haired men who threaten to make college free and deliver universal single-payer health insurance. The former seems to have shut down the consciences of those who would support him, even if he is patently in the wrong; indeed, for him to be wrong is the new right. The latter appeals to the ‘unreasoned patience’ that induces ‘passive acceptance of injustice.’

Bizarrely enough then, even though Trump and Clinton appear radically dissimilar candidates, their successes in the primaries of the 2016 election season seems to find their groundings in their common resonance with the attitudes Madar points out above.  Both candidates seemingly rely and thrive on a keen understanding of this acceptance of authority by Americans (it is the authority of Clinton’s technocratic credentials and ‘experience’ after all that most effectively shushes the passion and energy of Sanders supporters, describing it as ‘unrealistic’ and ‘destructive.)

Chelsea Manning was perhaps trying to save a country that isn’t angry enough, or angry at the right things, to be saved by him.

Brooklyn College And CUNY Owe Reparations To Student Activists

Yesterday, I made note of my attendance at a disciplinary hearing conducted by Brooklyn College and the City University of New York; the ‘defendants’ were two students accused of violating the Henderson Rules because of their participation in a ‘mic check’ at the February 16th Faculty Council meeting. Yesterday, I received news from the students’ counsel–the folks at Palestine Legal–that the students had been acquitted of three of the four charges. The one violation was of Henderson rule #2, and for that they received the lightest penalty: ‘admonition.’ A formal written ‘judgment’ will be issued next week. And this farce will come to a long-awaited close. But CUNY and Brooklyn College should not be let off the hook.

During my testimony, I was asked if the students had caused any ‘damage’ or ‘harm’ by their actions and speech. I emphatically denied that they had. Now, let us tabulate the damages and harms caused by Brooklyn College and CUNY’s administration. This is a charge-sheet the college and the university administrations need to answer to:

The students protesters were immediately, without trial, condemned in a public communique issued by the college president and the provost. It accused them of making “hateful anti-Zionist and anti-Jewish comments to members of our community.” As I affirmed, no such comments had been made. Anti-Zionism is a political position; it is not hate speech. And nothing remotely anti-Semitic was uttered by the students. More to the point, the two students on the stand had not even chanted ‘anti-Zionist’ slogans. This condemnation by the college administration resulted in hate speech and abuse being directed at one of the students, a Muslim-American woman, one of our best and brightest, literally a poster child for the college because she appears on posters all over campus advertising our Study Abroad programs. The stress and fear this provoked in her can only be imagined; when she brought her concerns to the college administration, little was done to help her other than making note of the incident and asking to be informed if anything else happened again.
The student protest occurred in February; the hearing was conducted yesterday, three months later, a week before graduation. Three months of stress and tension, and uncertainty about their academic fate for the students–because expulsion was on the cards. Three months of embroilment in a ridiculous charade that in the words of the Brooklyn College president Karen Gould, was supposed to teach the students that ‘actions have consequences.’ Yes, great wisdom was imparted to the students: that speaking up for causes near and dear to you, engaging in political activism, thinking critically–especially if you are a student of color, as both these students are–will provoke retaliation from insecure college administrations, unsure of the worth of their academic mission.
Considerable CUNY resources were marshaled to prosecute the students: CUNY’s legal department was at hand yesterday, an external ‘judge’ had to be brought in from another college to chair the meeting, and at least a dozen faculty members spoke either against the students–for shame!–for for them. We could have spent yesterday reading, writing, attending to scholarship; instead, we had to spend hours waiting in sequestration chambers. I’m glad to have spent that time for a good cause, but it infuriates me that it was ever required.

The true ‘damage’ and ‘harm’ to CUNY and its community has been done by Brooklyn College and CUNY’s punitive and mean-spirited action against the students. Acquittals don’t address this damage; reparations are due.

Brooklyn College’s Punitive Retaliation Against Student Activists

On February 17th, I wrote a blog post here about the student protests at Brooklyn College that took place during the monthly faculty council meeting held the day before. Today, I attended a disciplinary hearing conducted by Brooklyn College–to determine whether two of the students who had participated in the protests should be ‘disciplined’ for ‘disrupting’ the meeting by violating the so-called Henderson Rules. (As Palestine Legal notes, they are charged with “violating Rules 1, 2, 3, and 7 of the City University of New York’s (CUNY) code of conduct, or the Henderson Rules. The charges against the students range from intentional obstruction and failure to comply with lawful directions to unauthorized occupancy of college facilities and disorderly conduct. The students may face penalties ranging from admonition to expulsion.”) My attendance at the meeting was as a ‘witness for the defense’: I testified on behalf of the students.

At my testimony I made the following points (in response to questioning by the students’ defense team from Palestine Legal): the student protest was brief; it was not disruptive because Faculty Council work could easily have continued once their protest was over; no damage was done to college business because the pending items on the agenda were either voted on at the next meeting or taken care of by a special committee; the meeting was adjourned too quickly by the council chairperson; most faculty members remained in the auditorium and were still present even as the student protest ended quite soon after the adjournment was hastily announced; many student protests–some of them including ‘mic checks,’ which are now a prominent feature of most protest actions conducted nation-wide–have been conducted on campus, and Brooklyn College has never taken disciplinary action on those occasions; on one occasion, students conducted a loud procession through the corridors of our buildings before staging a protest chant outside the college president’s office, and they were not disciplined then; that protests against ‘Zionism’ had not been a feature of the protests I had made note of; and finally, that these students–both of them extremely bright and academically accomplished–should not be disciplined as that would be punitive and retrograde.

That last point is, of course, crucial, and exposes the fundamental dishonesty and hypocrisy behind the Brooklyn College administration’s decision to penalize these students: these students are being punished not because they protested on campus–many do that; not because they were loud and disruptive–many do that; not because they caused ‘damage’ to administrative work–they didn’t. No, the sole problem with their protest was that one student–not one of the charged pair–had raised the slogan ‘Zionism out of CUNY’ or ‘Zionism off campus.’ As I noted in my original post, “all kinds of protests are allowed on American university campuses, except for one kind.” Then too, I had noted that:

More bothersome is the Brooklyn College administrative response, which seeks to lower a legal boom on its own students, an intimidatory move seemingly designed to quell further student activism on campus.

Brooklyn College’s response was, and is, a classic prosecutorial move: load up the charge-sheet with a long list of accusations and charges and hope some will stick. Other student activists–worried about possible expulsion, denial of graduation etc–will be more fearful about joining protests now.

It is worth noting too that Brooklyn College’s administrative response to complaints about the ‘disruption’ of the faculty meeting was to immediately issue a public condemnation, one whose most unpleasant ramification has been that one of the charged students–a Muslim woman–has received death threats and abuse. That is harm; that is a disruption. No apology has been forthcoming from the Brooklyn College administration.

Our students here at Brooklyn College are our wards; we encourage them to think critically, to exercise their political judgment, to speak up. And then when they do, the administration conducts these punitive exercises in retaliation in an attempt to browbeat and intimidate them. (To add insult to injury, the supposedly ‘open’ hearing was closed at the last minute so that the many interested parties–faculty and students alike–from the college community could not attend.) What is the Brooklyn College administration scared of? That this ridiculous exercise in demonstrating the awesome power of the institution, which has necessitated the students seeking legal counsel, is actually and sincerely concerned with restoring ‘order’? Shame on Brooklyn College and CUNY for putting their own students on trial, for exposing them to such harm through the administration’s premature rush to judgment.

Drop the charges; apologize to the students.

‘Straight Outta Compton’ And Ambivalence

A couple of weeks ago, I finally watched F. Gary Gray‘s Straight Outta Compton, the cinematic biography of N.W. A. (More accurately, I saw the ‘Unrated Director’s Cut,’ which features an additional twenty minutes not found in the theatrical release.) Since then, many tracks from the N. W. A, Ice Cube, Dr. Dre, and Eazy E oeuvre on my Spotify playlist have received extended playtime; the music is as astonishing as it ever was. And yet, as I listen to these tracks I’m reminded again about my deep and abiding ambivalence about gangsta rap, and the unease it perennially stirs in me.

Tracks like ‘Straight Outta Compton,’ ‘Fuck tha Police,’ ‘No Vaseline‘ ‘Ain’t Nothing But A G Thang,’ ‘Real Compton City Gs‘ are exhilarating. There is defiance and unbridled energy, mordant social commentary (no one is better on police brutality), some exquisite verbal styling and delivery of lyrics, a dazzling fusion of varied musical styles–the whole package. These tracks–and many others like them–are irresistible in many dimensions. (If you feel like getting charged up for a tough day at work, ‘Straight Outta Compton’ or ‘Fuck the Police’ are great tracks to play as you get dressed and head out the door; woe betide that annoying co-worker who tries to get under your skin that day. Lyrics like “Boy you can’t fuck with me/So when I’m in your neighborhood, you better duck/Cause Ice Cube is crazy as fuck” will do that to you.) It is small wonder they found so much playtime on radio stations and television channels–even if in some venues they had to be sanitized. Which brings us to an enduring problem with them.

Quite simply, there is little room to maneuever, to offer exculpation, when confronted with lyrics like these:

Now I think you a snitch,

throw a house nigga in a ditch.

Half-pint bitch, fuckin’ your homeboys.

You little maggot; Eazy E turned faggot.

With your manager, fella,

fuckin’ MC Ren, Dr. Dre, and Yella.

But if they were smart as me,

Eazy E would be hangin’ from a tree.

With no vaseline, just a match and a little bit of gasoline.

Light ’em up, burn ’em up, flame on…

Or:

I find a good piece o’ pussy, I go up in it

So if you’re at a show in the front row

I’m a call you a bitch or dirty-ass ho

You’ll probably get mad like a bitch is supposed to

But that shows me, slut, you’re composed to

A crazy muthafucker from tha street

Such examples can be multiplied effortlessly. There is misogyny, homophobia, anti-Semitism, violent death threats–another comprehensive package of sorts. The defense of these lyrics is a familiar one: these tracks are not promotions or endorsements of the lifestyles and attitudes noted in them; rather, they are reports of an existent state of affairs, a grim reality, in precincts unknown to most Americans. The contestation of this defense has resulted in an enduring debate, one facet of which was visible in the the sharp accusations of misogyny that made the rounds once again during Straight Outta Compton’s theatrical release. That case is damning, and rightly so.

And so, I find myself perplexed once again: the musical qualities attract, but many ‘messages’ within it repels; there is no way to listen to this music without that tension present.

On Avoiding Conversations With Children

Yesterday afternoon, as I rode back from Manhattan to Brooklyn to pick up my daughter from daycare, I noticed three children board the subway car I was seated in. One of them was a friend’s son, all of nine years old; he was accompanied by two younger children. An older woman, clearly their chaperone or caretaker, stood near by. I smiled in recognition (even as the young lad’s back was turned to me) and thought of standing up and walking over to say ‘hi.’ But I didn’t.

A sudden doubt–followed by apprehension–had afflicted me. It had been a few months since I had seen young ‘E’; my time with him then had limited, as he had spent most of his time then playing with several other children; indeed, in general, I had only had limited contact with him over the past few years, and I was not entirely sure whether he would recognize me instantly if I greeted him. My knowledge of his name would reassure him that I was not a perfect stranger but that delayed recognition could be problematic. For ‘E’ was not alone; he was escorted by an adult, one who would not find too palatable the the idea of an strange man on the subway striking up a conversation with her ward. Of course, I would be able to name ‘E’s parents, and talk about them in familiar terms, and convince her–and perhaps ‘E’ as well–that all was well, but that initial minute held out of the promise of being excruciatingly uncomfortable.

I stayed quiet and remained sitting in my seat. If ‘E’ had turned and recognized me, I would have responded to his greeting; but I was not about to initiate contact. I contented myself with the thought that I would write to his mother later in the day, saying something like “Guess what? I saw ‘E’ on the Q train today, riding back home.’

My reticence reminded me of a cultural lesson that I had been instructed to imbibe before I migrated to the US from India almost three decades ago. Those who had been to the US before me–high school and college mates who had begun their studies there–had warned me that my cultural predilection for greeting and talking to the children of perfect strangers in public spaces would have to be attenuated by some realities of American life: American parents did not approve of such contact; it was considered a social taboo; and woe betide you if some parent caught you talking, no matter how innocently, with their unescorted child. In Indian public spaces, it was common for strangers to talk to the children of other strangers and sometimes even display a kind of cheek-pulling affection; such behavior would not go down well in American precincts. Keep your assessments of cuteness to yourself; resist the temptation to spark up conversations with a toddler; and so on.

I listened, and I internalized those lessons. I do not talk to a child unless the parent is present. (Even when I escort my daughter to the local playgrounds; once a young girl began talking to me at a playground, and I walked away from her; perhaps an overreaction, but I was not about to take any chances.) Of course, I can empathize; after all, I’m a parent too. Still, there is occasion for some sadness here, that our societies are as afflicted as they are to make such caution necessary.

Lessons From A Vision Of A Funeral Pyre

My grandfather’s funeral was the first I attended of a significant family member. It was also the first time I witnessed a cremation, that fiery return to the ashes–and possibly eternal cycles of becoming and passing away–which signals the end of a Hindu’s life. As we prepared for it, I was aware, even through the haze of my grieving for a man who had assumed such a vivid and dominant presence in my life, that I was about to undergo a transformative experience of one kind or the other.

It was not long in forthcoming. After the preliminary prayers had been chanted, and my grandfather’s body wrapped in a white shroud and placed on top of the pyre, my uncle–my grandfather’s eldest surviving son–stepped up and brought a burning taper to it. The wooden logs caught fire quickly and long tongues of flame moved up and through their thickets, rapidly turning into a fierce blaze. I stood on the other side of the pyre; I could see my grandfather’s feet pointing toward me, suddenly exposed, sticking out from the under the sheet that covered the rest of his body.

As the flames grew, so did the radiant heat, and I took a step backward. As I did so, I noticed that my grandfather’s feet had blackened, charred by the fire that turned skin into soot. And then, abruptly, without notice, the blackened skin peeled, exposing an ivory-white flesh below, which began to melt and drip off the the now exposed bones; a bony, skeletal foot began to emerge. I instinctively winced, and started forward; I wanted to protect my grandfather from this horrible, agonizing, consignment to the flames. He was trapped and helpless; pinned under by the weight of the logs.

I didn’t, of course. There was nothing to protect. My grandfather was gone; he was beyond pain and sensation and feeling and suffering. I was staring at the remnants of his body, now lacking the appropriate relationship to the totality I had called my ‘grandfather.’ It could feel nothing, sense nothing. Old instincts died hard; standing there, in that April heat, as the Central Indian sun beat down on me, I could scarcely believe this all too evident fact.

The pyre continued to blaze; the bones in my grandfather’s feet had now started to crack and crumble under the still raging flames. All around me, a sombre group of family and friends gazed on. I had received news of my grandfather’s worsening health a mere twenty-four hours before; we had dashed to his home by overnight train in an effort to meet him, and on arriving, had learned he had passed away the previous night itself. I had spent the morning in a daze, scarcely believing this larger than life figure was gone, never to return.

But now there was no doubt about it; I had received confirmation that the time had come for my grandfather to ‘return’; this cremation had quickly and efficiently prepared his physical remains for the next stage of their transformation and further utilization in this world’s ongoing becoming.

Mass Incarceration And The ‘Overfederalization’ Of Crime

America’s mass incarceration is the bastard child of many. Among them: racism, the War on Drugs (itself a racist business), the evisceration of the Constitution through ideological interpretive strategies, prosecutorial misconduct, police brutality, and so on. Yet other culprits may be found elsewhere, in other precincts of the legal and political infrastructure of the nation.

In ‘The Balance of Power Between The Federal Government and the States’ (in: Alan Brinkley, Nelson W. Polsby, Kathleen M. Sullivan eds., New Federalist Papers: Essays in Defense of the Constitution, , WW. Norton, New York, 1997), Kathleen M. Sullivan writes:

[T]here may be reason for the courts to draw outer limits to federal power when the structural, political, and cultural safeguards of federalism break down and the federal government encroaches needlessly upon areas traditionally and sensibly regulated by the states. The worst example in our recent politics is the overfederalization of crime. The Constitution names only three crimes: counterfeiting coins or securities, piracy on the high seas, and treason. But Congress has created more than three thousand federal crimes under the power to regulate interstate commerce. There are many crimes that should be federal, such as bombing federal buildings or sending explosives through the mail. But should it also be a federal crime to grow marijuana at home or to hijack a car around the corner? Federal crimes have proliferated not because it is good crime policy but because it is good politics: as Chief Justice Rehnquist has observed, “the political combination of creating a federal offense and attaching a mandatory minimum sentence has become a veritable siren song for Congress,” loud enough to drown out any careful consideration of the comparative advantages of state and federal crime control.

Shifting crime control from the states to the federal government in purely local cases diverts the work of federal investigators, prosecutors, and judges from areas of greater federal need. It also fills federal prisons with non-violent and first-time offenders who occupy space that could better be used for violent, career criminals whose operations cross state lines. There is no reason why the new federal crimes may not be handled by the states, as they have been traditionally, unless they involve multistate enterprises or intrastate enterprises so vast as to overwhelm the resources of state authorities.

The federalization of a particular crime acts as a ‘promotion’ of sorts: it elevates the perceived undesirability and dangerousness of the crime; it thus clears the way for harsher sentencing. As Rehnquist’s remark above suggests, the legal system’s response to a particular crime may be viewed as qualitatively and quantitatively inferior till the time it federalizes it and adds a harsh minimum sentence; only such a combination will assuage the retributivist impulse that so seems to animate the punishment policies of our penal system. Moreover, the current state of affairs lends itself to a situation where a conservatively inclined Supreme Court could, under the guise of tilting this balance of power back to the states, strike down progressive legislation. As Martin Garbus noted in Courting Disaster: The Supreme Court and the Unmaking of American Law (Henry Holt, New York, 2002, pp. 128-130) the Supreme Court struck down, precisely as part of an ideological anti-federalist strategy, in United States vs. Lopez, “the first United States Supreme Court case since the New Deal to set limits to Congress’s power under the Commerce Clause of the United States Constitution“, an act of Congress criminalizing possession of a handgun at school.

The Supreme Court’s Commerce clause rulings helped unite the nation, but as the history of mass incarceration shows, it has helped create a nation within a nation too, one locked up and discriminated against for life.