The Counterpublic Papers vol. 8 no. 2 (The Ballot or the Bullet)

So when I started this newsletter several years ago, newsletters weren’t really a thing. Substack didn’t exist. The idea of paying for a newsletter either from the producer or the consumer end was kind of bonkers. But the landscape has changed. Significantly. I’ve been using Tinyletter for the entire run, and I just received word that it’ll sunset on Feb. 29, 2024.

What does this mean on my end?

Well I’m committed to writing this and getting this out to folks one way or another. I just haven’t decided what that looks like yet.

On your end what this will mean is that sooner or later you’ll probably get an email of sorts verifying that you want to continue to read this, from some other entity. At least one of you dug this out through spam and I want to be sure that folks who are still interested in reading have the capacity to do so.

(And as far as payment….my second book is called Knocking the Hustle for a reason. I believe writing a newsletter like this constitutes a certain type of public good. I didn’t just take this job because I was uniquely unqualified to take a check from someone doing anything else…I took this job because I believe there’s public value in knowledge generation and dissemination. I’ll write more about this later, but I’m not really one of the “black tax/undercommons” folk so as hard as the gig can be, I understand I’m put here for a reason and part of that reason is a certain type of public service. I feel weird about the idea of charging folk for it, or offering more content for loot, or any of that. Further, given that every issue I release has at least one typo, it keeps me from banging my head against the wall even harder after the fact. Finally as I plan to write these on more or less a once a week schedule, not collecting anything means I can do that “more or less” thing.)

….

I’ve been thinking a lot about the 13th, 14th, and 15th amendments, both on their own and against the vision proposed by the 1st and 2nd amendments in particular—I read the latter as generating a vision of the state and the nation which tends to benefit capital and tends to produce a conception of for lack of a better term “whiteness” that at best leads to a herrenvolk democracy, while the former tends to contest capital and produce a conception of for lack of a better term “blackness” that at best leads to an abolition democracy.

(Now of course this is all complicated. Organizations like the Deacons for Defense relied on the 2nd Amendment in their use of arms to protect civil rights protests and protestors in the sixties. Corporations gained “personhood” based on a (problematic) reading of the 14th Amendment. But there’s a reason why you’d be hard pressed to find organizations on the Right use what I’ll call the Abolition suite of amendments in their arguments.)

In two pieces, one in The Washington Post, and another in The New York Times, Sherrilyn Ifill (former head of the NAACP legal defense fund) and Mark Graber (UMd Baltimore Law Professor) tackle this. Ifill’s piece argues that the reason no court has (as of yet) used the 14th amendment to keep Trump off the presidential ballot is because of its radical nature. Graber argues that those who suggest that keeping Trump off the ballot through judicial means runs the risk of tainting the election miss the point of Section 3 (which prevents insurrectionists from running for office).

Both pieces are worth reading, but I’m interested in Ifill’s new role. She’s heading to Howard Law School to start The 14th Amendment Center for Law and Democracy. Last April I gave a talk at a conference on racial capitalism sponsored by the Law and Political Economy Project. In Movement Visions for a Left Legalism, Amna Akbar, Sameer Ashar, and Jocelyn Simonson  make a case for a movement driven approach to the law that clearly demarcates itself from previous approaches that at best offer up legal support for movements or at worst simply use movements as the grist for legal study. Neither the authors nor I are suggesting that there is no benefit to these approaches, but we both suggest that these approaches take both the law itself and the relationship between lawyers (and relatedly law professors) and subjugated communities for granted.

The project is and should be deconstructing and reconstructing the law and the relationships citizens have with the law, rather than simply reproducing the status quo.

But focus on this specific passage:

I agree with this…with an important caveat. There’s a temporal element and to an extent a geographic element that I want to draw your attention to.

The temporal element is the assumption that the moment we are in now, a moment constituted both of left organizations and social/political movements, is a moment that will continue. Whether or not it is true (I do not believe it is but could be wrong), functioning as if it were true has one  consequence that bears examining.

The geographic element spatially locates the left political agenda largely outside of formal legal and elite academic spaces.

Now if we work on the assumption that social/political movements are not necessarily permanent but rather are temporary…then how does that change the stated relationship?

As far as the geographic element goes, I’d suggest that even if this should be grounded largely outside of formal legal and elite academic spaces, it’s still important to consider what the role of that element inside of formal legal and elite academic spaces should be.

That is to say that Akbar et al do not suggest that the left political agenda have no relationship at all with legal and elite academic spaces, only that the relationship be….small. Which covers the scope, but not the nature.

There are a few things that make law schools important.

First they train lawyers.

Second they shape the law.

Third they endure over time.

In these three roles, law schools play an under examined role in both creating the conditions for contemporary shifts in the political terrain, they play an under examined role in potentially reducing the time between nadirs, and they play an under examined role in not only retaining the memory of previous movements but developing the capacity to extend contemporary movements and to innovate in the face of contemporary challenges.

Charles Hamilton Houston, who took Howard University’s law school, what used to be a night law program, and transformed it into the most important civil rights law unit in the 20th Century, understood this. Although I wish Ifill’s scope were a bit broader—I wouldn’t focus on the 14th but rather the 13th, 14th, and 15th in tandem—it seems as she gets this as well. (As an aside if I ever end up taking this idea and doing something more with it the tentative title is The Ballot or the Bullet.)

On that note, this is the first day I can feel the cold in my bones. If you’re reading this and feeling this take a sip of hot apple cider, tie a knot, and keep hanging.