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Protest and the Post-Legitimation State

In the wake of the killing of George Floyd by Minneapolis Police Officer Derek Chauvin, protests have spread across the United States (and the world). These protests force us to confront the question of state legitimacy in the United States today in a way that we have not considered in over fifty years. They also allow us to discern the thread connecting the Occupy Wall Street (OWS) and #BlackLivesMatter (BLM) movements.

Demonstrations against police abuse of force, the disproportionate policing of black and brown people, and the disproportionately lethal policing of black and brown people have proliferated since George Floyd was killed by Minneapolis police in late May. Disproportionately abusive policing of these protests also proliferates, from the violent attack on peaceful protesters using chemical irritants and flashbangs in Lafayette Square so Donald Trump could have a pointless photo-op, to the multiplying videos of abusive acts of violent retribution by police against those protesting the killing of Floyd, Breonna Taylor, and so many others. If we look back further in time, the response to the Ferguson protests expressing outrage at Darren Wilson’s killing of Michael Brown was notoriously militarized. The NYPD deployed an LRAD (Long Range Acoustic Device, also known as a sound cannon) against demonstrators protesting the failure to charge Daniel Pantaleo in December, 2014, and then used either undercover officers, confidential informants, or both to surveil BLM between December, 2014 and January, 2015, according to NYPD records made public under New York’s Freedom of Information Law (FOIL). Despite the protests and the disproportionately violent police responses to these protests, unjustifiable police killings persist. How should we understand this? What does this say about the state and state power today?

Fifty years ago, the National Advisory Commission on Civil Disorders, better known as the “Kerner Commission,” issued its Report on the causes of riots that occurred in major urban areas during the 1960s. The Report found that deep-seated frustration over economic and racial injustices became riotous when triggered by instances of excessive use of force by the police. What is significant about the Report is that economic and social inequalities, as well as lawlessly abusive policing, were identified as inconsistent with democratic values. They threatened the legitimacy of the state.

In the late 1960s through the early 1980s, scholars like Jurgen Habermas and Claus Offe explored the “legitimation crisis” of the state. The state in social welfare democracies was understood to be caught in a seemingly inescapable legitimation quandary. The association of democratic values and the rule of law with the state legitimized inequalities produced by capitalist economies. If such inequalities became excessive, those inequalities threatened the state’s legitimacy by suggesting the state was not guided by the democratic value of equality in reality, that the value was a ruse. The state had to reduce material inequalities to avoid a potential uprising and to make good on its professed commitments to the value of equality at the root of democracy. If capital perceived the state as doing too much to reduce the gap between the value of equality and material reality, if capital believed that state policies unacceptably limited corporate profitability, then capital might rebel. Not only did the state need capital’s acquiescence to provide the resources necessary to ameliorate inequality, capital needed the symbolic power of the state committed to democratic values to legitimize the inequalities it produced, thereby safeguarding its profits from popular attack. Scholarship theorized the legitimation crisis as an inherent condition of social welfare democracies seeking to balance commitments to both democratic values and to capitalism.

If we consider the persistently growing economic inequalities criticized by Occupy Wall Street (OWS), can we still say that the state is concerned with legitimacy? Likewise, BLM points to the continuing pattern of police needlessly killing an ever-lengthening list of black people. If the state can kill us with the nonchalance of Chauvin’s knee on Floyd’s neck or a Trump golf outing when Covid deaths approached 100,000, does state legitimacy even matter anymore?

During the 1970s, cities in the United States suffered an “urban fiscal crisis.” When Wall Street refused to purchase New York City’s debt, President Ford chose to make a national example of New York and would not help the City until the City committed itself to severe austerity measures. Public hospitals, clinics and daycare centers were closed, the City University of New York ceased to be tuition-free, subway fares were raised, and public employees were laid off in droves. Money for urban programs was cut by about two-thirds during the Reagan-Bush years. Cities became directly exposed to markets, and were compelled to become market actors themselves. Cities were forced to become neoliberal.

Cities responded to the urban fiscal crisis, federal cuts, and limits on revenue raising imposed by state governments by reorienting infrastructure away from residents and towards potential visitors as sources of revenue. They created hospitable environments for finance, insurance, and real estate industries (the FIRE industries). Cities invested in shopping, sports stadia, museums, performing arts, aquariums, historic or other themed districts, and fine dining. They invested in the capacity to host conventions. They invested in promoting the kind of image that bond rating agencies would look favorably upon. Cities became invested in markets and capital. These urban investments in a neoliberal, post-Fordist (that is, post-mass production manufacturing) economy change the state’s legitimation calculus.

New York City hosted the Republican National Convention (RNC) in 2004 to symbolize it was “open for business” and recovered from the September 11, 2001 attacks. Many City residents believed, like many people around the United States, that the Bush administration’s policies were antithetical to their wellbeing. They organized protests that threatened to disrupt the RNC’s and New York City’s joint symbolic production. Not only were the RNC’s interests at stake, but so too were the City’s investments in place branding. New York City arrested about 1,800 people during the RNC. Most were protesters, though some were just residents who got swept up in an indiscriminate mass arrest. The NYPD had devised a mass arrest processing plan that would foreseeably lengthen the period of detention for RNC arrestees under dirty, demeaning, and hazardous conditions. Arrestees were detained for 24, 36, and in several cases, for over 50 hours, although state standards limit custody incident to an arrest to 24 hours. Over 90 percent of RNC arrestees would have their charges dismissed later. Their arrests—and extra-legal punishment while in excessively lengthy custody—were not legally legitimate.

This example shows how New York City’s investments in marketing itself as mega-event capable, and as recovered and open for business, meant acting against the interests of many of its residents. In terms of a legitimation calculus, the neoliberal state is not balancing the interests of capital and the people. It is invested in capital against the people. By targeting those protesting the RNC for arrest, the state rebels against the idea that a state’s legitimacy is rooted in the consent of the people.

Many cities around the country, like New York City, have adopted the ”Broken Windows” concept of zero-tolerance, order maintenance policing. This approach to policing creates an antagonistic relation between the city government and its residents. George Kelling’s and James Q. Wilson’s 1982 Atlantic essay, “Broken Windows,” urges police to target the “disorderly” to prevent crime. Who are the disorderly? They are “panhandlers, drunks, addicts, rowdy teenagers, prostitutes, loiterers, the mentally disturbed.” These are the visibly poor. As we know from the NYPD’s stop and frisk statistics reported in Floyd v. New York City or the Department of Justice’s Investigation of the Ferguson Police Department, those whom police perceive to be “disorderly” or “disreputable” are also overwhelmingly people of color. As Kelling and Wilson themselves acknowledge, these are not “violent people, nor, necessarily, criminals.” They are “disreputable” people who cause others to feel discomfort or “fear.” “Broken Windows” is post-legitimation because it unmoors policing from law enforcement.

“Broken Windows” is the policing adjunct to post-fiscal crisis neoliberal austerity politics. The target of “Broken Windows” policing is the visibly poor. Its purpose is to manage the perceptions of tourists or those invested in real estate so they will feel less fearful in a city where inequality is growing. “Broken Windows” represents a shift in the state’s legitimation calculus because it is a form of policing that forcefully manages growing inequality to accommodate neoliberal, post-Fordist shifts in urban political economy. “Broken Windows” policing reflects urban government’s investment in markets against its residents. Not only is the “Broken Windows” concept of policing post-legitimation because it de-links policing from legality, it is post-legitimation because it is policing for a state that has invested in markets against the people.

This link between a state that has given up on the good of the people and the democratic value of equality, and the “Broken Windows” concept of zero-tolerance, order maintenance policing, clarifies the interconnections between OWS and BLM. OWS protested growing inequality, social neglect, and political corruption, but its message was diverted by the NYPD’s harshly authoritarian policing. Media attention focused on arrests and pepper spray rather than inequality. The NYPD’s abusive policing, though, was a problem that had long preoccupied those who had been organizing around the killing of Amadou Diallo or “stop and frisk” in New York City. The BLM mobilization targeting racially degrading, hostile, and lethal policing practices also revealed how the carceral state impoverishes people with fines, bail, the loss of employment due to jail or prison time, and the costs of maintaining familial relations when a loved one is incarcerated. BLM’s critique of the carceral state cannot be addressed without taking on OWS’s concerns with social and economic impoverishment, and OWS’s concerns with inequality cannot be addressed without taking on violent policing and the carceral state.

The protests across the United States are what we can expect to see when the state has thrown off basic legitimation concerns—when the state has invested in capital against the people. When Trump called protesters “scum” or “terrorists,” when he called for armed force to dominate the streets, Trump expressed the truth of the post-legitimation state. Domination, not legitimacy, is the truth of the post-legitimation state that has been taking shape since the 1970s. And domination is what OWS and BLM experienced during the Obama era—it was in New York City under Democratic Mayor Bill de Blasio and his first NYPD Commissioner, “Broken Windows” advocate William Bratton, that BLM was subjected to an LRAD and disturbing surveillance after Daniel Pantaleo killed Eric Garner and was not prosecuted.

Have the protests have caused a fracture in the post-legitimation state? Military forces have been forced to withdraw. Curfews have been lifted. Police, in many cities, are staying away from protesters, and the result is less violence. Minneapolis is considering abolishing its police department as beyond reform. In other cities, there is serious talk of defunding the police so more money can be available for social services like mental health, housing, and education. When marching in a demonstration, few things are as inspiring as when one huge march turns a corner to converge with another. Are we witnessing a convergence in the streets today, one anticipated by the OWS and BLM movements, compelling the reappearance of the people’s right to wellbeing in a way that we haven’t seen in over half a century? Or, will this convergence turn another corner to confront the antagonism of a state that continues to insist on domination without concern for legitimation? Recent reforms, such as the NYPD’s recent announcement to reassign officers out of a notorious anti-crime unit or the House Democrats’ proposal to ban chokeholds, merely seek to reframe the current crisis as “justice in policing.” They suggest we face a continuing struggle against the cruelly violent post-legitimation state and its commitment to an immiserating political economy, both of which have proved particularly deadly to black lives.