On Violence and Politics

Guest Blogger

  For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). 

Khiara M. Bridges

 Jack Balkin’s The Cycles of Constitutional Time is stunningly expansive and wholly wonderful. My analysis focuses on just a sliver of the massive theoretical undertaking that Balkin accomplishes in the book. Here, I will train my focus on Balkin’s understanding of “constitutional crisis.”

Balkin argues that although the past four years have been equal parts surreal, chaotic, and maddening, they have never laid claim to a constitutional crisis. According to Balkin, we did not enter a constitutional crisis when the Trump administration ineptly rolled out its travel ban in early 2017 and created impromptu detention camps in airports across the nation. Neither did we enter a constitutional crisis in mid-2017 when Trump fired the director of the FBI, James Comey, who appeared to be competently investigating claims that Trump had colluded with Russia to secure an election victory. Balkin contends that none of the numerous episodes in the past four years that have convinced scores of reasonable people that this country is on its last legs have been a constitutional crisis. Balkin’s conclusion, of course, follows directly from his definition of constitutional crisis.

Balkin defines a constitutional crisis as an event that demonstrates that we have “reach[ed] a point in which the Constitution is about to fail, or has already failed, at its central task – of making politics possible” (39). He identifies three moments in which constitutional failure, and a constitutional crisis, occurs:

The first is when political officials—including, most distressingly, the President—“simply announce that they will no longer abide by the rules of the Constitution. Political leaders—or military leaders—might argue that things have gotten so bad and the country has strayed so far off course that they can no longer possibly stay within the boundaries of the Constitution.” (38) This, of course, has not happened in the last four years. Indeed, this type of constitutional crisis has rarely happened in the history of the nation because it requires more than a violation of the Constitution by a political official. Rather, in Balkin’s formulation, the official also has to admit that he is violating the Constitution. Further, no lawyer has to be willing to argue that the official’s action does not amount to a constitutional violation. In Balkin’s words, this iteration of constitutional crisis is a rarity because “lawyers are usually able to come up with creative interpretations so that politicians can assert that they are being faithful to the Constitution; at that point the dispute becomes a conflict over interpretation that is settled either in the courts or through the give and take of ordinary politics” (39). So, Trump’s having avoided a constitutional crisis during his presidency is due to his willingness to lie (and lie and lie) about having violated the Constitution, in some cases, and his utter obliviousness as to what the Constitution requires, in other cases. And, of course, if ever he is forthright about having broken a rule or five, there is always an apologist with a JD who is willing to argue otherwise.

According to Balkin, the second type of constitutional failure occurs “when everybody thinks that they are following the Constitution, and the result is disaster” (39). This failure occurs when the Constitution demands that people act in a way (or fail to act at all), and disaster ensues. It also occurs when people believe that the Constitution offers no guidance for how to deal with an issue, and disaster ensues because no one deals with the issue. Balkin notes that, due to the expansiveness of the human imagination, this type of constitutional crisis almost never happens. “When people find themselves in a predicament … they will usually be able to reinterpret the Constitution to get out of the predicament” (39).

The third type of constitutional crisis that Balkin identifies is the one that is most interesting to me. He writes that this iteration of constitutional crisis occurs

when people disagree about what the Constitution means, and they disagree so strongly that they do not simply confine themselves to legislative votes and litigation, or to op-eds, tweets, press conferences, and protests. Instead, they take to the streets and riot. They engage in violence. They engage in secession. Or they engage in civil war. Now that’s a constitutional crisis. The Constitution has failed to keep political struggle within its proper boundaries—that is to say, within the boundaries of political competition set by the Constitution. (39).

I’m interested here in the categories that Balkin draws. Balkin identifies a category of miscellanea that do not evidence crisis, but rather ordinary politics: “legislative votes and litigation,” “op-eds, tweets, press conferences”… and also “protests.” And there is another category of miscellanea that do not evidence ordinary politics, but rather constitutional crisis: “secession” and “civil war,” but also “riot[s]” and “violence.” These mutually exclusive categories prompt two sets of questions.

First: what is a “protest”? What is a “riot”? What is “violence”? Where is the line between “protests” and “riots”/“violence”?

Second: if something is not ordinary politics—when it evidences constitutional crisis—what exactly is its relationship to politics? Is it outside the realm of the political?

            Early in summer 2020, a white police officer in Minneapolis, Derek Chauvin, kneeled on the neck of George Floyd, a black man, for close to nine minutes. Floyd died. Many people—especially black people—understood Chauvin’s execution of Floyd to be a synecdoche for the brutal racial hierarchy that currently exists in the United States. They believed that, surely, the Constitution does not condone racial oppression. They took to the streets to demand the dismantling of the various systems that kill black people and reduce the quality of their lives. They stayed in the streets for days that became weeks that became months. In the course of those days, weeks, and months, property was destroyed. Lives were also lost. The events made some people long nostalgically for the days when demonstrations over racial injustice took the form of a professional football player quietly taking a knee during the national anthem.  

            So, Balkin dichotomizes “protests” and “riots”/”violence.” I am ultimately uninterested in inquiring into Balkin’s understanding of “riot” because “riot” is usually a conclusion. It is the user’s way of condemning the thing being described. Compare Fox News’ characterization of this summer’s demonstrations with that of, say, the Intercept. The detractor’s “riot” is the empathizer’s “uprising” or “rebellion.”

            More interestingly, Balkin situates “protests” in opposition to “violence.” What then is “violence”? We have to know what “violence” is so that we can know when we have left the world of “protest” and ordinary politics and arrived in a world of constitutional crisis. When people who have taken to the streets in outrage over an inhumane racial hierarchy smash windows out of buildings, is that “violence”? When they set fire to a building, or a police car, is that “violence”? I feel confident that when they kill, that is “violence.” My question, instead, is about the demonstrations that have resulted in no loss of life, but rather in loss of property. Are those demonstrations not “protests,” but rather “violence”?

            I should out myself and admit that I tend to have a fairly capacious understanding of violence. I believe that poverty is violence. I believe that putting millions of people in cages as “punishment” is violence. I believe that allowing black people to die from pregnancy-related causes at three to four times the rate of their white counterparts is violence. I believe that passing immigration laws that render millions of people “illegal” and, therefore, exploitable is violence. I see violence everywhere in an unjust social order. Consequently, I am comfortable concluding that demonstrations against racial injustice that result in loss of property are “violent.”

As “violent,” then, what is their relationship to the political? According to Balkin, the violence that characterizes the demonstrations banishes them from the realm of ordinary politics. So, what are they? Are they extraordinary politics—a category of politics that Balkin does not theorize in his book? My worry is that Balkin imagines that because some demonstrations have been violent, they are no longer part of politics. Instead, they are outside the ambit of political discourse. 

I believe that the demonstrations that we have witnessed this summer evidence a constitutional crisis. They indicate a constitutional crisis because, in Balkin’s words, “the constitution has not channel[ed] disagreement and dispute into peaceful solutions” (40). Activists for racial justice have engaged in all manner of peaceful, ordinary politics. We have pursued legislation and litigation. We have written op-eds. We have tweeted. (Oh, how we have tweeted.) We have held press conferences. We most certainly have protested. But, people of color are still being killed.

Balkin likely would agree with me up to this point. But, where our agreement ends, I believe, is with my conclusion that the demonstrations, albeit violent, remain political. They are a form of political discourse—pursued as a last resort by people whom ordinary politics have failed. To arrive at this conclusion is to conclude that violence has a place in politics. This is a conclusion that will make many uncomfortable. But, hopefully, this discomfort pales in comparison with the discomfort produced by simply knowing that one lives in a country that has fallen so embarrassingly short of the commitments to equality contained in its Constitution.

Khiara M. Bridges is Professor of Law at UC Berkeley School of Law. You can reach her by e-mail at khiara.m.bridges@berkeley.edu