Vision & History
Some People got hopes and dreams
Some People got ways and means
– Bob Marley and the Wailers, “Survival”
We have to recognize the fundamental social realities behind our most pressing crises, in order to have any hope of ever facing and dealing with them. Summer 2020 saw a righteous global awakening against structural racial injustice and death. Summer 2021 as well as 2022 terrifying onslaught of floods, drought and killing heat, adding up to an awakening to the imminent disasters – not mere “risks” – of climate catastrophe. As the late, great John Trudell[i]taught us, sometimes it’s in our interests to deal with the things that are in front of us. Yes, let’s. First some new language for new challenges.
I’m thinking about “normality” as defined by racial capitalism in the 21st century. The exact opposite of where we need to be. Ecocide and structurally violent social relations massively violating our human rights – those of women, front line communities, People of color, workers, children – everybody stranded in the planetary lifeboat on the rough and rising seas of the capital/anthrop-ocene era. Emergencies like this can be very revealing about critical things needed for our survival, including a vision of “normal” transformed. I want to try and unpack this, in terms of our water, our power and our if-any-imperiled future.
“Declaring a deer a horse”
The horse manure is piled very deep, so this may take a while. In early summer 2021, a New York Times guest essayby Yi-Zheng Lian, recognizing the 100th anniversary of the Chinese Communist Party, names the ancient political art of “declaring a deer a horse”. Dear Leader says a thing, not because it’s true, but so that followers can demonstrate their subservience by signifying that they believe his nonsense.
I’m quite sure I’ve heard things like this in our US domestic context as well. Even before horse deworming veterinary medicine called ivermectin was declared a covid cure that became all the rage in rightwing QAmok circles experiencing mass death in summer 2021.
Thomas Jefferson coined the word “twistification” to describe the constitutional work of his federalist arch-rival, US Supreme Court Chief Justice John Marshall. The current Chief Justice of the US Supreme Court, John Roberts, is a Jedi Master of twistification. His opinions are usually incomprehensible, without reading one of the liberal minority justices’ dissenting opinions to understand what the case is even about!
Roberts arguably bears the awesomely competitive title of the most dishonest man in Washington. Senate Majority Leader Mitch McConnell seems to be more forthright about what he’s doing. Which indicates the high level of mendacity Roberts employs, a lifetime corporate shyster seeking to preserve his ludicrous rep as a judicial statesman, while effortlessly issuing seemingly endless rationales for an obscene campaign to re-inscribe racist voter suppression and authoritarian class power in the US Constitution, for the benefit of a death cult.
Even when Roberts distances himself from the other five Republican-appointed justices, as he did on September 2, 2021 in the court’s shocking “shadow docket” facilitation of a plainly unconstitutional anti-abortion ‘fugitive slave-mother’s law’ in Texas, Roberts limits his ineffectual stand-apart from his Republican-appointed associates’ self-serving lies to trivial technicalities. No scorching Judge J. Michael Luttig jeremiads against the reckless and injudicious constitutional sabotage by his own five protegés on the Handmaid’s Supreme Court.
Skillfully orchestrated, politicized decisions undermining voting rights, feeding ancient racial and sexual pathologies, enriching the firearms industry, etc., “work” politically for their Republican team. Their political bias is obvious as horse sense. Advanced mass psychic hypnotics like declaring a deer a horse and twistification – particularly when these techniques are wielded by adept practitioners like Roberts and his late dark arts master Antonin Scalia – undermine resistance to illegitimate power, with obscuring, misdirecting and loyalty-signaling mass effects. Claiming to find it in an invented constitutional “original intent” is only part of where the endless Big Lies begin!
Such elite legalistic legerdemain runs thru all US constitutional history It is not limited to the murderous Jim Crow era of lynching, prison-contract labor and sharecropping barely better than chattel slavery. In effect, extremist ideological perversions of justice like today’s US Supreme Court majority sanctify with toxic legal authority the crassest political partisanship and most brutal exploitation. These intentionally confusing mystifications of illegitimate power and injustice deserve a lot more critical attention than we give them. If that need wasn’t clear from a critical understanding of the intergenerational propaganda clown show generated by skillful, well-paid professional liars from Ed Bernays to Mark Zuckerberg and beyond, even before the “beer belly putsch” insurrection of January 6, 2021, it should be emergently understood now.
The Obscurity of Power
With due regard for the congressional select committee’s diligent defense of their branch of government, what can one commentator even say about the Rump-orchestrated coup’s attempt to disrupt certification of the 2020 presidential election results, that hasn’t been said already? One thing – relevant to our clusterfuck time of climate, pandemic, and authoritarian violence crises – might be the unacknowledged roles of symbolism in constructing reality, and the life-and-death importance of reconstructing it as democracy. Blood was shed on January 6, 2021 in the halls of congress, terminating the US history of peaceful federal government power transitions. What does it mean that such historically significant killings arose in the formerly obscure context of the symbolic legislative ritual formally accepting electoral reality?
Thomas Paine said “In America the law is king.” The old idea was: law is exceptionally, even uniquely constitutive of US power. Because we never had hereditary aristocracy to structure our society. The historic power, that the Constitution encoded The Law into, and facilitated, a new world-historic, legitimate social structure of democratic self-government. (more on this core concept later)
That original American constitutional myth has recently been twistificated into a shiny new version of the ur-capitalist, virtually unlimited, sovereign self. Think the picture of the guy sitting in Pelosi’s chair with his feet up on her desk. A radical, violent usurpation of basic humanity has so distorted our image in the funhouse mirror of our ideological and racial domination discourse, that refusing safe and effective vaccination during a deadly global pandemic has been insanely framed as some kind of freedom of personal choice. This reflects the ideological and psychic core of a deranged, violent empire on the way down. The mob’s deadly rampage in congress calling to hang Mike Pence was not simply evidence of the chaos engulfing our reality; it was also the debut of a new fascist political culture on a new, enhanced stage. The point of this meandering discussion is to try and get a better handle on this deep and broad crisis.
Today the image, identity, socially and unconsciously constructed hot takes, memes and bon mots of individual, depoliticized consumers are exceptionally powerful. They may determine history. Political mouthpieces declaring a deer a horse, like judicial twistification, roll on under the froth, powerfully regulating the volume and control of the microphone in the mass reality, creating wants and selling objects of desire, commodifying everything and claiming it’s “The Law”. Horse shit! Absence of memory, reflection, critique or meaningful dialog closes down alternatives needed for survival. This situation has reached major, terrifying crisis proportions.
A recent book review credits cultural theorist Frederic Jameson with the insight that we’ve regressed from a world of class struggle to one of “virtue and corruption, an 18th century world” (which might at least offer an opportunity to reimagine how we are all “created equal” in forthcoming dialogues with the religious fanatics dominating the Supreme Court!). What we usually think of as “politics” in the USA is now more a matter of aestheticized personal branding and symbolic gestures by individuals than anything resembling public policy resolution of real world social challenges.
The “progress” generated by the world wide web and its social media bastards, like the relationship between state policy and social justice under conditions of late racial capitalism, has been inverted. Because of the systems we live in and under, we are denied and deprived of what we need to survive and thrive. As noted at the outset, unless we recognize the fundamental social reality behind our most pressing crises, we have no hope of ever facing and dealing with them.
This is not some arcane academic debate. Our world suffers under crises of ideology, psychology, meaning, trust, political agency, governance and truth. They rage alongside, all around and throughout serious material threats to life: climate catastrophe, inequality, militarism, racism, imperialism, armed street violence and the other basic abusive elements of racial capitalism as a comprehensive social system. With no shared understanding of reality, class and white supremacist power take advantage of every crisis to reproduce their own power, enabling even more profitable and dangerous abuses.
The refusal in 2021 of large portions of the US People to get free, safe and effective vaccinations, even while denying them to the inhabitants of the global south, in the face of a plague that’s already killed millions, is a blatant demonstration of these injustices of power. Obscuring power for more power and profit is what power under racial capitalism does, a bloody “free market” [sic] system’s basic dynamic, playing out in real time thru distorting headlines, declaring a deer a horse for followers, twistification for leaders, and lies told to schoolchildren between active shooter drills.
Having hopefully clarified my perspectives & cleared away some theoretical underbrush, with apologies to undoubtedly confused readers, there is a point here.
What I’m trying to say can be broken down into three densely interrelated categories of elite “power-over” society:
+ Framing issues to influence public opinion;
+ Strategic political implementation of legal and other powers; and
+ The nature of political power.
Obscuring the dynamics of power increases its beneficial, and harmful, effects on power holders, and the relatively powerless, respectively. Doing “law”, on the basis of abstract, supposedly “neutral” principles derived from a dialog that excludes the stories of those violently excluded from “We the People”, and excluding real life and death facts, kills. Especially black and brown People. Exposing these dynamics can help us fight back. It’s a first, at least conceptual step toward building up our own “power to” get at the things we need.
Lying systematically about what (outside the corporate world) is known as “class struggle” obscures things that cannot be named in any legitimately authorized discussion of power. Mischaracterizing and denouncing “critical race theory”, as a slogan violating all standards of truth, will do as well. Such systematic lying has assumed the form of sophisticated mind control tactics, and whole campaigns, from the Supreme Court bench to the mass and social media, advertising industries, and the schools. All of it loaded both culturally and psychologically by the tired isms, wasms and identity conflicts of our perilous moment.
This is the terrain for modern twistified declarations of horse reality as deer-ness. We are fucked, well and truly. But while we’re living we fight this shit! Strong progressive policy must be combined with thorough strategizing and aggressive direct action tactics. Is that plain enough?
Water Infrastructure and Commons
Such undertheorized dynamics of social, legal and political power, evaluated thru a lens of racial equity in terms of public policies governing water in southeast Michigan, offer clear strategic direction to grassroots political movement for transforming water policies, and everything else.
This suddenly became clear in March 2020, as the covid pandemic provoked the first round of physical distancing in the US, and the state of Michigan finally stepped in to end the cruel, anti-public health, neoliberal policy of mass water shut offs against the poor who are simply unable to pay continually rising water rates. Suddenly the demand that Detroiters had been making desperately since 2004 was recognized as an essential measure for the sake of public health. Asking why the human right to water and sanitation suddenly matters, and answering because of covid, begs deeper, essential questions that are now on the table of how power operates and can be forced to change course.
If we collectively and clearly understand better why governments do things – things that create and increase harm, as well as sudden, beneficial changes like the moratorium on water shut offs – from today’s infrastructure wars to whatever may (or may well not!) be left tomorrow, depending on our choices – it can help us figure out what collective movements for structural change must do. I can imagine no more significant groups of questions to ponder.
Declaring a Deer a Horse, Revisited
People walkin’ up to ya
Singin’ glory hallelujah
And they’re tryin’ to sock it to ya
In the name of the Lord
– Joe South, “Games People Play”
New York Times columnist and Nobel laureate Paul Krugman analogized to a current example: opposing mandatory vaccination against the covid pandemic has nothing to do with science or public health. It’s all made to be about signaling whose side you’re on in a culture war. This is declaring a deer a horse.
Partisan deer declarations abound; “green infrastructure” has recently been all the rage. Green infrastructure usually refers to managing stormwater overflows naturally, using gravity and land terracing among other techniques, to minimize flooding and contamination by sewage and other pollution. In terms of this topic of the arts of framing issues to influence public opinion, let me be clear: I have nothing against green infrastructure per se. Neither the perma-cultural potential of holistic agricultural land use, planning and bottom-up democracy, nor their ancient roots in indigenous wisdom, should be denied or minimized. I’m all for green infrastructure and investments in it, but not as an excuse for racial capitalism to continue pillaging the Earth under a “green” fig leaf!
Such general strategic and resource-driven policies, like developing green infrastructure, should never be claimed as some kind of panacea, beyond the ecologically sound contributions they concretely make to what Oakland County’s 20th century water & sewer takeover leader called the “multi-multi-billion dollar” proposition of managing these sprawling infrastructure systems. That’s our commons they’re cashing in on.
Concretely speaking, after the crash of 2008 Detroit’s regional water systems turned to green infrastructure; mostly as a cheaper alternative to spending another billion dollars on traditional, engineered “gray” infrastructure to eliminate the last 10% of regional combined sewer overflows (CSOs) that pollute and flood our communities and the Great Lakes. We spent a bit more than a billion for the “gray” tunnels and cisterns in recent decades after passage of the Clean Water Act, to eliminate 90% of the CSOs. The market supports some interventions more than others. Some cost more than others. There are a lot of extractive opportunities in infrastructure, whether of the gray or green varieties, which will become clearer all the time moving forward after 2022 under the Biden infrastructure funding programs.
Like Cain, I now behold this chain of events that I must break
– Bob Dylan, ”Every Grain of Sand”
Dues for the Capital/Anthrop-ocene will be very heavy. Much more than shifting investments from gray to green surface water management techniques. In 1870, the State of Michigan tried legislatively to take over Detroit’s water and sewer systems’ infrastructure, governance, and lucrative social policy levers (People ex rel Leroy v Hurlbut, 24 Mich. 44; 1871 Mich. LEXIS 149) for the first time. The great 19th century Michigan Supreme Court Justice Thomas Cooley said the case involved “a question of the highest interest and concern, which cannot be answered without a careful scrutiny of the structure of our government, and an examination of the principles which underlie free institutions in America.”[ii] In seeking to answer whether state or local control of Detroit’s water was consistent with such fundamental principles in that case, he further asked “what is constitutional freedom?”. Why?
The essence of the dark legal arts as applied to water under discussion here and in 1870 include: the connections between local self-government (or sovereignty, more broadly); and constitutional freedom as a living reality, not merely (or fraudulent) formalism as words on paper based on a ginned-up “emergency”. These obscured powers, the deep, structurally racist constitutional powers denied blacks the promised 40 acres and a mule, then put on sheriff stars by day and white hoods at night. Now they model Wall Street financial speculation that mandates mass water shut offs (as well as poisoning Flint!), in violation of the human right to water and sanitation. The intimate connections underlying fundamental principles and powers of constitutional freedom in the context of water justice in Detroit have only become more vital, and even determinative of life or death, in the 150+ years since Hurlbut.
In the late 19th century the Michigan Supreme Court would not have entertained any questioning of public health vaccinations on the basis of personal choice or freedom. An emerging “self-correcting market” ideology was only beginning its evil work transforming American law. The states exercised a “police power” (which, like the “free market”, never really meant what ideologues in 20th century corporate media claim it meant). The federal courts had barely begun their empire-shaping work of undermining the great post-civil war constitutional amendments that sought to: abolish slavery (13); establish “freedom national” based on national citizenship, due process, equal protection and the privileges and immunities of citizens (14); and protect voting rights on behalf of the newly emancipated, formerly enslaved blacks (15).
Words can transform their own meanings even before realities they seek to describe. “Common” in the dominant legal discourse of the 19th century essentially meant “public”. What was ours. To share publicly and use beneficially without injuring others. How we got from there to here, what it means for us today, and most important what to do about it now requires actual politics and further analysis, not merely mass acts of virtue signaling in declaring deer horses, and elite twistification in service of established power. It requires among other things fighting for the rights of all People to have equal rights. Some things never change.
Twistification, Slight Return
The judicial acts of Chief Justice Marshall that President Jefferson objected to were less mere rhetorical invocations of deer-ness than brilliantly calculated ideological distractions that Marshall interposed to control the agenda, discussion and decisions. We can see a lot of this subtle distinction in the recently divergent agendas and praxis of Chief Roberts and his 5 Federalist Society bomb-throwing affinity groupthinkers on today’s out-of-control Supreme Court.
In today’s terms and our water justice debates, righteously declaiming that “water isn’t free” is twistifying the whole question of the state’s fiduciary responsibilities for the material necessities of our existence. “Water isn’t free” isn’t about either water or price at all. Like abortion isn’t really about “privacy”. The high level twistification comes in when governing elites with power over the water and sewer infrastructure define their role as solely maintaining access to debt to fund the systems on reasonable terms, even to the point where depriving thousands of poor People of access to water is the means of demonstrating their brilliant leadership. We have turned reality on its head in service of greedy and unprincipled elites. And we have to untwist the racial capitalist and patriarchal contradictions and misleading rationales if we ever have any hope of establishing more just policies for our People’s access to water and life.
It is perfectly understandable that this statewide dispute over control of Detroit’s water resources has been raging for over 150 years. Strategic political implementation of legal and other powers only arises in particular material contexts, like our community’s crisis of the human right to water and sanitation, in the midst of a late capitalist, racially ranked republic with global imperial reach and its arsenal of democracy located in the very heart of the greatest fresh water resources on the planet. A huge part of the degeneration of American democracy over the last 50 years has involved erasure of history, fraudulent claims of constitutional liberty, and self-enrichment (“emergency management”) via critical public necessities: water, work, capital, education, health and so much more. If we don’t get ahead of the twistification curve now, facing imminent ecological catastrophes on all sides, we will never get anywhere. The time has come to speak plainly and take direct action!
In that spirit, our truly desperate public health, climate, political and security challenges call for alternative legal principles that collectively point toward the new, oppositional view of racial justice and policy reforms we desperately need. A few initial contributions to the work and struggle of future generations:
+ Water shutoffs against People who are too poor to pay the full rates violate the very basis for having water infrastructure. They are wrong.
+ Water is a public trust, provision of water is a public good, and water is not a commodity subject to privatization; it’s a public commons and the infrastructure is in trust for the People.
+ Water policy must be based on justice, equity, and fact-based analysis and legal rules that can serve as an engine of justice , rather than as a force of oppression confusing economic power with legal rights.
+ Water justice and strategy in southeastern Michigan must be an even longer game than Supreme Court litigation, international human rights struggle, and reparations for centuries of structural and systemic racism.
There were 2 basic rules that governed the pre-civil rights legal order when Michigan actively started trying to seize Detroit’s water: 1) The welfare of the People is the supreme law (Salus populi); and 2) Use your own so as not to injure others (Sic utere). Modified and applied as the intended elements of a true public interest “golden rule” militantly opposed to the rule of gold, and crucially, as modified by the post-civil war amendments and the 20th century’s civil rights revolution’s deepest convictions and highest aspirations, so they don’t discriminate within or between class or identity categories based on power for purposes of exploitation. Study it. Speak up. Take action to save the commons and our water. If there are rules for that, I support them. The welfare of the People is the supreme law.
We can’t afford to shut off water to poor People any more. Politicians talking resilience, sustainability and social justice out the left side of their mouths, while implementing authoritarian emergency mismanagement, austerity, structural and systemic racism, and mass water shut offs with their right hands, have long passed their sell-by dates. That’s how we got a crazy, extremist US Supreme Court packed with rightwing political hacks appointed by Trump. We need and demand new leadership, policies, and therefore hope for a future we can live in. Use your own so as not to injure others.
On top of those 19th century bedrock legal and moral values, we have constitutional and human rights derived from diverse international, cultural, written and unwritten legal, spiritual, and natural law traditions that we insist on respecting. Equal protection. Due process. Necessity of dignity as well as relief for subordinate classes, as well as for billionaires. The human right to water and sanitation. Policy and legal rules transforming our relationship to our water along these lines, and moving on to face out other existential challenges, will be critical to whatever future we can seize from today’s crises.
The Obscurity of Power, Exposed
“False-hearted judges dying in the webs that they spin
Only a matter of time ’til night comes steppin’ in…”
– Bob Dylan, “Jokerman”
“If we know all we say we know
About the problems
Why can’t we do something
To try and solve them?”
– Gil Scott-Heron, “Save the Children”
It’s no accident that this discussion will not have a section subtitled “Back to Normal”. Because continuous, bloody class struggle and race wars, from Reconstruction and [sic] Redemption in the 1870s to the 1970s stalemate between Black Power and Nixon’s racist War on Drugs, the racially disparate death and suffering of covid, thru the blood of Trayvon Martin, George Floyd, Patrick Lyoyo and all the rest, has been normal America. Enough of all that already!
Greening the Black Urban Regime, Alesia Montgomery’s brilliantly insightful reading of the emergency mismanaged bankrupting of our city, exposed the power of the unholy public private partnership between Jones Day and the state to conduct macabre socioeconomic experiments on a mass population without consent. The Peoples Welfare, William J. Novak’s astonishing, encyclopedic rememory of 19th century golden rule jurisprudence, reminds us that human rights were ever sacrificed to property interests, defiantly sacrificing lives and sabotaging rights via legalistic gobbledygook. Both works diversely assess the legal terrains for comparative Michigan water grabs more than a century and a half apart. Both shove aside the shadow and its lie, to describe essential elements of the fundamental, underlying conflict in the real world between racial capitalism – as I hope I’ve thrashed it to death in this essay – and the Beloved Community that is our only realistic and viable future.
In this iteratively reframed, incredibly complex, multiply layered reality, what is “legal” and indeed the very idea of “law” itself, are much-and-fiercely-contested terrain. Get used to it, instead of getting used by it. Reality is simply an expression of power, but a lot of water and a lot of other complex, noxious things go under the bridge between the cruel, unhealthy water shut offs regime on this bank and our water commons making possible our future of real justice, equality, Peoples welfare and human rights across this bridge. On the long march toward a desperately needed new, world-historic, legitimate social structure of authentically democratic self-government.
How Europe Underdeveloped Africa, Dr. Walter Rodney’s pathbreaking, prescient analysis of emergency management as the basic mode of colonial domination, documents “return to normality” after World Wars I and II, in terms of the empire’s opportunity for self-immolation via unaccountable power and greed! About 75 years ago, with the defeat of Nazism, the newly dominant imperial hegemon US faced – and made – choices about returning to “normal”, after what was in effect a 30-year European civil war that devastated the planet. Nuclear, petrochemical, ballistic, medical and other scientific, social and cultural revolutions swept the world, in what Dr. Rodney calls the neocolonial era, what scholars of empire reckon to be the US Godfather’s neo-imperial golden peak of 1947-72.
What did US leaders do with their burdensome golden opportunity? Proto-planetary emergency management. Support and even fund French imperial power in Asia and North Africa. Build out the military industrial complex President Eisenhower warned us about. Foment the original cold war, and in the long 1960s – most significantly – undertake that insane corollary & consequence of cold war return to “normality”: the Vietnam / US war. They dragged the leading world power and all of us down to the base line of immoral national behavior, arguably above only the mass bestiality of Stalin and Hitler, killing millions of essentially defenseless men, women and children painfully and under cover of brazen, racist lies. That’s the kind of groupthink disasters that come from reflexive returns to “normal”.
Now we are supposed to relish returning to “normal” after the covid collapse and in the face of the climate catastrophe? Racial capitalism makes “normal” deranged and deadly. That should be our anti-racist and -genocidal lesson in the face of new old cold war thinking and reflexive return to “normal” lies, as the generally accepted basis for our social existence. We need to transform ourselves and our world by reversing the processes of othering and underdevelopment. We need to resist, expose, and transform so-called normal life under racial capitalism, and live. The alternative is even more suffering and dying children. It will end only with the collapse of this evil giant-triplet empire anyway, so let’s throw it out and do better.
 E.g., Shelby County v Holder (Voting Rights), Citizens United v FEC (corruption), Rucho v Common Cause (gerrymandering), part of a list of political hot potato cases too long to comprehensively review in this format, but with such obvious, extreme partisan bias that several of the Republican-appointed justices have recently had to expressly deny it, as their legitimacy is being shaken. The Federalist Society has been packing the federal courts for decades seeking such one-sided, result-oriented jurisprudence in service to corporate and racial/patriarchal power. Chief Justice Roberts’ feeble attempts to live up to his notorious ‘umpire’ analogy bait, supposedly a neutral caller of balls and strikes, is belied by the whole massive right wing ideological court takeover switch he has helped lead, while Democrats generally slept at this switch as usual.
[i] Particularly at around 7 minutes of the linked masterpiece.
[ii] Unlike Samuel Alito and abortion, I’m not cherry-picking historical authorities here. As recently as 2020, the National League of Cities issued a report on home rule cities, which specifically cited Justice “Cooley’s famous concurrence in” Hurlbut as the font of a line of nineteenth-century cases that recognize “an inherent right of local self-government independent of state law”. Which begs the question of what the specific legal source of such critical inherent rights is.
The names and work of Terry Lodge, Henri Giroux, Derrick Bell, Arthur Kinoy, Ernie and Dick Goodman, Julie Hurwitz, Sandra VanBurkleo, Peter Hammer, David Whitaker, Jamie Peck, Laurie Penny, and Peter Linebaugh should be acknowledged as having been so deeply and comprehensively influential on this meditation regarding the nature of the right to have rights, in the context of life-and-death crisis, that I can’t find any specific places to cite them! To all of them and those many others not mentioned, my sincere thanks and apologies. The errors, omissions, excesses and stylistic oddities are mine alone.