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States of Exception

Manufacturing Dissent: The DC Insurrection and the Cycle of Law-Preserving and Law-Making Violence

We are shocked. Morally outraged. How could a US president tout “law and order” to incite a blatant attack on “American democracy” and “the rule of law,” encouraging his supporters to storm the US capitol? Commentators decry such hypocrisy, stating the obvious contradiction between US constitutional law and violent coups. My contention in this essay is that no such contradiction exists.

We are shocked. Morally outraged. How could a US president tout “law and order” to incite a blatant attack on “American democracy” and “the rule of law,” encouraging his supporters to storm the US capitol? Commentators decry such hypocrisy, stating the obvious contradiction between US constitutional law and violent coups. My contention in this essay is that no such contradiction exists. Rather, “the rule of law” and extralegal coups (of the right-wing variety) are two sides of a US-minted coin. What we witnessed on January 6th, 2021 was the culmination of a manufactured impasse between two kinds of violence: neofascist law-making and neoliberal law-preserving violence. I suggest that the anatomy of this impasse’s manufacture (and the delineation of a third alternative) can be found in a particularly challenging essay, “Critique of Violence,” written exactly a century ago by one of the greatest political theorists of the twentieth century, Walter Benjamin. 

The title of this intervention, of course, references a more recent work by other political philosophers—Edward Herman and Noam Chomsky’s Manufacturing Consent. They argue that the media’s job in Liberal democracies is to forge agreement with state policies. What the DC insurrection and other recent events make clear is that, instead of consent, the manufacturing of disagreement is more important to governance in many Liberal democracies today. On the one hand, “alt righters” define themselves as dissenters from a mainstream (neo)liberal establishment and the machinations of the “deep state.” On the other hand, a disparate, contested, and evolving assemblage of Neoconservatives and center-right Democrats define themselves through a shared disagreement with Trump and the alt-right. In this way the hegemonic sides of the political spectrum can coopt oppositional politics. These mass-mediated oppositional politics manufacture dissent in order to mask governing power with a US ethos of anti-authoritarian “democracy.”  

What does such dissent consent to? A certain global project of US imperialism, framed in anti-authoritarian terms but geared toward economic hegemony based in military domination. Right now its chief enemies are China and Russia, as the current Biden administration continues to ramp up military and economic threats. This is morally palatable because China and Russia are, according to the manufactured oppositional politics of the media, authoritarian foils for US freedom. Yet, it would be more accurate to say that the military-economic-state-media apparatus of the US simply has a different style of manufacturing consent—one based in the production of marketable alternatives and a disestablishment ethos. It is important to understand these alternatives not as oppositions to an establishment but as self-sustaining fictions of autonomy that support authoritarian violence. Rather than looking at how this violence sustains itself through the manufacture of consensus, it is more important than ever to look at how such violence replicates itself through an apparent opposition between neofascist law-making and neoliberal law-preservation. This is precisely the opposition that Walter Benjamin’s “Critique of Violence” unmasks as a self-sustaining cycle.    

It is important to remember that Benjamin, then at the height of his interest in Jewish mysticism, wrote this essay in the midst of the Weimar Republic—the political context that saw the rise of the Nazi party. More than one contemporary political theorist has asserted that the recent coup attempt in DC marks the United States’ entrance into its own Weimar era, with others comparing the current situation to the burning of the Reichstag that brought the Nazi party to power in Germany. Benjamin wrote his “Critique of Violence” in this shared context.

But this essay remains essential for understanding the current situation not simply because it was written in Weimar Germany. Rather, it identifies a manufactured impasse that haunts liberalism and liberal democracies. Fascism is an appropriate marker for the violence that culminated in the storming of the US Capitol. Yet, as in Weimar Germany, fascism is only a symptom—one side of a seeming impasse between fascist law-making violence and liberal law-preserving violence. Like a century ago when Benjamin wrote “Critique of Violence,” this impasse remains part of amuch larger, self-perpetuating cycle. To talk of fascism is also to talk about the problems that its ostensible opponent— liberalism— also evokes. Neither Nazism nor Trumpism mark the beginning of fascism in Germany or the US Rather these two movements represent a breakdown of the partition between the fascist violence of imperial foreign policy and domestic discourses of liberalism. Just as Germany’s colonial genocide in southwest Africa came home toroost with the rise of Nazism, so too is the United States’ unwavering support for right-wing coups in other countries (no matter the party in the White House) no longer an export-only commodity. As in Weimar Germany, this crumbling partition presents itself as a domestic opposition between liberal constitutionalism and fascist law-making violence, but Benjamin shows how this ostensible linear opposition is really a circle. 

At first pass, Benjamin’s essay might seem like a condemnation of liberalism’s central ideals of “the rule of law” and constitutional proceduralism. Indeed, this is probably why the Nazi juridical theorist Carl Schmitt wrote Benjamin to congratulate him on his essay. While it might seem strange for a Nazi to write a congratulatory note to a German Jew, the letter articulated a partially shared critique of liberalism (and this is precisely why intellectuals on the left have increasingly taken up Schmitt in recent years to critique neoliberal policies). However, Schmitt and Benjamin could not be farther apart from each other in their political and intellectualprograms. In fact, a closer reading of Benjamin’s essay reveals a wicked indictment of Schmitt and other fascist theorists. The difference between Benjamin and Schmitt’s critique of “the rule of law” is absolutely decisive in interpreting the recent neofascist coup attempt in DC. 

Basically, Schmitt and Benjamin were critiquing liberalism for entirely opposite reasons. Schmitt decried the paralysis of the liberal Weimar establishment and longed for a sovereign that could trump constitutional proceduralism and make Germany great again. Reading Schmitt is thus essential for understanding the global resurgence of the right today, as he describes a Trump-like sovereign that flouts/transcends rules to “get things done” and to restore hierarchical “law and order.” Schmitt’s model for this sovereign is the God of his conservative Christianity, so if you’re still wondering why many on the US Right would seem to forgo their “Christian values” to embrace a toxically masculine sovereign, look no further.

Benjamin’s article is precisely a critique of this fascist critique of liberalism. Crucially, Benjamin’s political theology is inspired by his studies of Jewish Kabbalah and messianism, while Schmitt (who is recognized as coining the very term “political theology”) draws on his conservative Christian convictions. To put it simply, Benjamin sees the fascists’ desire for a law-making transcendence of law as central to the system of liberal democracy they ostensibly oppose. This fascist desire for “law-making violence,” which breaks the law to impose “law and order,” is typically met by another kind of violence: “law-preserving violence.” Law-preserving violence often portrays itself as nonviolent and neutral; it is the sovereignty of rules, constitutional procedures, and objective processes. It promises to unite rather than divide, to establish consensus rather than disagreement (this is the discourse of Biden, whose oppositional politics is defined against neofascist dissensus).  The confrontation between fascist law-making violence and liberal law-preserving violence was precisely what characterized the impasse of Weimar Germany (and, I am suggesting, the impasse that the US currently faces). That is why almost every anti-Trump pundit responds with a law-preservingoutrage at the events of January 6th, and why Democratic congress members repeatedly uphold “the rule of law” as the sacred order they are protecting from tyrant Trump. But such responses are a symptom of the disease rather than a potential cure, as Benjamin goes on to show by refuting the opposition between law-preservation and law-making violence. 

Benjamin’s brilliant and decisive blow to both fascists and the liberal (today we might say “neoliberal”) establishment lies in his assertion that law-preserving and law-making violence are inextricable. The problem, Benjamin points out, is that the liberal democratic ideals associated with the rule of law, enshrined in constitutions around the world, havealways been dependent on law-making violence that flouts systems of law. Domestically, US systems of law, at federal, state, and local levels, have not often worked to ensure universal voting rights (the recent Georgia laws being but one example). While the situation is perhaps better today than one hundred years ago, when African Americans were massively disenfranchised and White women had just received the right to vote, there are still massive amounts of people who cannot vote—even though they permanently reside in the United States and (unlike Trump and many large corporations) pay significant portions of their income in US taxes. This category includes felons and undocumented residents, both of whom are disproportionately non-White.

In terms of foreign policy, the situation is perhaps more dire. In practice, this country does not acknowledge the right of voters to choose their own governments and regularly nullifies elections using covert and overt means. In the twentieth and twenty-first centuries, this cornerstone of US foreign policy has not significantly altered with changes in electoral politics. Democrat and Republican regimes have both overseen military, juridical, and economic coups in other countries—incursions that blatantly abrogate what liberal ideals would call “the rule of law.” 

To take some recent examples, under the Obama administration, the US supported a military coup that removed Honduras’s democratically elected Leftist leader, eventually installing a right-wing president associated with narcotrafficking, violent suppression of domestic opposition, and election rigging.  This administration also spearheaded the NATO bombing that led to regime change in Libya. These coups have made those two countriesunlivable places, directly contributing to “refugee crises” in the US and Europe (and providing those imperial countries with workers who cannot vote). Iraq is still trying to recover from a US regime change operation under the second Bush that killed over a hundred thousand people. Meanwhile, the Trump administration has (with less success) supported a number of recent right wing coup attempts—in Bolivia by nullifying their elections through the OASin Honduras by funding and certifying the controversial right-wing regime; and in Venezuela through covert operations, massive financial assistance for the right-wing sector of the opposition led by a self-proclaimed president, attempted nullification of existing constitutional and electoral processes, unilateral denial of humanitarian aid during the pandemic, and brutal economic sanctions that were estimated to have killed 40,000 people (as of April 2019, one year prior to the pandemic). These policies are unlikely to change significantly under a Biden presidency, with attempted coups or economic sanctions against Venezuela features of the Bush II, Trump, and Obama administrations. In fact, while signing a number of much-needed domestic executive orders on his first day in office, Biden and his appointee for secretary of state vowed to continue their recognition of the self-proclaimed right-wing president, keeping intact the previous administrations’ hard-line approach toward Venezuela.

In sum, the US system of law and government is not opposed to right-wing coups; it has consistently supported them no matter who is president of this country. The events in D.C on January 6th were not simply the result of deranged conspiracy theorists or a deranged leader; they reflected a deeper truth. At the heart of American democracy, with its law-preserving constitutional ideals, is the law-annulling violence used to maintain this system. After weathering several US-sponsored coup attempts, the Venezuelan foreign minister was quite incisive in his commentary on the DC insurrection: “with this unfortunate episode, the United States is experiencing what it has generated in other countries with its policies of aggression.” 

So what is to be done? Unlike many academic essays, Benjamin is not satisfied with simply dismantling both sides of an argument. He goes further, by offering a third alternative— a hope, if you will—that he calls “divine violence.” This nonviolent violence opposes fascist law-making violence without falling into the trap of rallying around law-preserving rhetoric. Benjamin’s prototype for such divine violence is the “general strike.” Such a show of non-cooperation across sectors of society, he notes, differs from the kind of strikes enacted by the bargaining power of recognized unions (a limited power that does not even exist in many parts of the United States). Bargaining power represents an attempt at reform and amelioration while staying within the agreed-upon rules of negotiation and conflict. Divine violence, in contrast, abolishes or annuls accepted rules and laws. And unlike law-making violence, which violates law in the name of “law and order,” divine violence does not aim to establish another regime of authoritative law. Within this framework, I would suggest, god(s) are more like roadblocks than  heavenly sovereigns. They are defined as much by what they cut short as what they do. In Afro-Caribbean traditions (and many other traditions), I would wager that divine violence is the path-altering impasse—the affliction—that is a sign of divine presence rather than its lack. In this way, the moral divide between divine agency and its enemy, which structures contemporary forms of spiritual warfare, gets obviated.

To put this in terms that would apply to our contemporary political situation in the US, law-preserving violence would embody a stance of reform, seeking to liberate us from the evils of violence through laws. In response to attempts at overturning the 2020 election results, we need to rally behind US democracy and perhaps reform it by getting rid of the Electoral College or partisan control of elections (both of which would be totally unacceptable in most avowed democracies). As an answer to Black Lives Matter movements against racialized police brutality, we need to reform the police, investing more money in training or body cameras. A position of divine violence, however, is not one of reform; it would insist that the system of law itself is inherently violent and must be dismantled. It does not necessarily say what we would build in its place, but it says we must stop and begin anew. In response to police brutality, it calls for abolition of existing systems of policing and imprisonment. In response to an attempted coup, it does not call for a strengthening of security and surveillance measures (which will certainly be an outcome of this incursion) or the perfection of the system (if only we followed the rules). It would call for the construction of an entirely new system ofpower and a withdrawal from the current one. 

It would seem that the US empire can never be free of law-making violence no matter how much it reforms its domestic policing or electoral systems.  If the Biden administration’s current unilateral air strikes in Syria and posturing against Iran are any indication, the US will continue to condemn the “impunity” of its enemies while seeking to impose order through its own punitive extralegal violence. Tellingly, however, such blows will be rationalized by Liberal law-preserving rhetoric rather than law-making sovereignty. Whereas Trump’s escalation of military and economic tensions with China was done under the sign of a rules-busting masculine sovereignty, the Biden administration’s current threats against China invoke a Liberal respect for rules and proceduralism. In the recent and acrimonious US-China summit, Secretary of State Blinken proclaimed that escalating US threats against China were motivated by China’s own threat to “the rules-based order that maintains global stability.”  Whether the rationale is law-preservation or law-making, the effects of this continuing New Cold War on military spending, nuclear arsenals, and foreign policy are the same.  We will remain within this cycle of law-preserving and law-making violence, with divine violence a horizon of abolition rather than absolution.  The first step is seeing these two forms of violence not as opposed ideologies but as a cycle of manufactured dissent—one that yields consent to empire dressed up as freedom and reform.

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