Last Friday, many hundreds of us swarmed downtown Durham after several branches of city government warned that the Ku Klux Klan might march to the old county courthouse. The courthouse had become a flashpoint the previous Monday night, when activists took down a Confederate memorial statue erected in 1923. According to proliferating rumors, the Klan was to march at noon and again at five, or at four, or was already on its way; we were eagerly or anxiously or grimly prepared to confront them. In Durham, a person can be one degree away from antifa and two degrees away from a Klan member—one such person told me the Klan had planned to march, but then gave up. Others said that they were never going to come in the first place.
We were gathered around the empty pedestal where the Confederate soldier had stood. A multi-racial group, led by women of color, had pulled the soldier down in full view of the police. The yellow strap hung around his neck made him look like a symbolic sacrifice—an answer to the lynchings of the Jim Crow era that erected him. As expectations of a Klan invasion relaxed, the mood became celebratory. We said a pledge of allegiance, promising our ancestors that we would defend the courthouse as a space liberated from white supremacy. (I allowed myself to make the promise to a couple of Union soldiers among my great-great grandfathers.) It was a consumingly hot day, and the sun was brutal, especially for people who had worn long sleeves in anticipation of being gassed or pepper-sprayed. The crowd was younger and more diverse than what you often see at left-of-center rallies and vigils in this town.
Newspapers say there was “at least” one heavily armed anti-racist at the start of the rally—he was taking advantage of North Carolina’s open carry law. But some activists who’d been present in the morning had the impression that he wasn’t the only one: they’d seen armed activists manning the perimeter of the impromptu planning session and taking over traffic control at a nearby intersection. Or had they? It was a day of rumor and uncertainty. Anyway, one visible semi-automatic rifle is enough. The militia-style activists were identified as Redneck Revolt—a left-wing, anti-racist group associated with the John Brown Gun Club and other “community self-defense” organizations.
I was anxious to the point of distraction as I hurried downtown. I knew the Klan would be expecting violence if it came. I grew up with guns, and I have been haunted all my life by the sensation of a .30-30 hammer slipping from under my thumb and clicking onto a live shell in the chamber—just a hair too lightly to send a bullet into the leg of my best friend, who was sitting across from me, preparing for a deer hunt. There is nothing like a gun for the illusion of power and control, joined to the total incapacity to control what happens once the first shell explodes.
The presence of armed protesters is a change on the front lines of North Carolina activism. The Moral Mondays/Forward Together movement, still the largest gathering of progressives in the state, has always practiced traditional civil rights respectability politics. Guns and axes at a Moral March are unimaginable. Yet the change, if that’s what it is, has also been a long time coming: police, who treated Moral Mondays arrestees respectfully, have responded much more aggressively to Black Lives Matter actions, which include activists who are far more confrontational and anti-police than the Moral Mondays line. Redneck Revolt, not usually visibly armed, has been present at other anti-racist events.
In an illuminating essay, William Clare Roberts recently captured one crux of the disagreement between liberals and radicals about antifa and violent resistance:
Fundamentally, liberals don’t want private individuals making judgment calls about when physical violence is appropriate. And they don’t want this because they think such private judgments are both unaccountable and given to indefinite expansion.
I understand this liberal perspective. I don’t want unaccountable people making decisions about the meting out of physical violence, either. But I also think that liberals (a) overestimate how accountable the public authorities are for the violence they mete out, and (b) underestimate the checks that Antifa ideology and organization place on Antifa violence.
Leaving the policing of violence to the authorities is not, in the world we actually live in, leaving it in democratically accountable hands.1
I find myself talking a lot about this with fellow teachers who feel very strongly that it is never okay to use violence outside the law, especially to force decisions outside of official processes, like taking down the Durham statue. I also find myself talking with, and standing shoulder-to-shoulder with, activists who respond that this liberal position ignores the ways that the law itself is already shot through with violence—much of it racialized and class violence. This position, the activists say, abdicates moral responsibility by treating white supremacy as a legitimate moral and political position that can take its place in the political mix, rather than the anathema it should be.
In a way, each side is saying that the other isn’t taking violence seriously. It isn’t a game, says the liberal: the whole point of law and politics is to organize decisions in a way that keeps even the strongest disagreements short of bloodshed. If you give that up, no one is safe and no decision is legitimate.
Listen, liberal, we know it isn’t a game, responds the radical: because we’re taking it seriously, we understand that the state’s monopoly on violence is pervasively inequitable. We are telling you that it is already true that no one is safe and that, for those who are made unsafe by state violence, no decision is legitimate.
One of the impressive and now oft-remarked ironies of the present fights is that the people who are accused of wanting to “erase history” are doing more to remind others of history than Ken Burns’s entire oeuvre could do lined up end-to-end. I wonder whether something similar might be happening with the law: that the people who are accused of ignoring and defying it will end up instructing everyone else about how it works.
Law is inseparable from violence. Behind the Constitution lie an insurrection, the torture of British troops and Loyalists by American revolutionaries, and the expulsion of the remaining Loyalists from the American colonies. (This is not to mention the genocide of Native Americans.) Behind the Reconstruction amendments, which put the principle of equality in the federal constitution for the first time, are Gettysburg and Appomattox. But the same goes for anti-discrimination statutes: in the end, it is a cop who will tear down the whites-only sign. This is very close to the heart of what makes it law: the capacity to command “legitimate” (circularly enough, “lawfully begotten”) violence.
Consider even the peaceful legal process of decision-making. Some set of rules, as clean as a simple referendum or as strange and junked-up as the Electoral College, results in a decision that counts as final. This decision is a substitute for settling the question by force. Of course, if you continue to resist that decision, what you get is . . . force—official force. What law does, then, is guide, limit, and launder violence by tying it to rules and procedures, and classifying it as legitimate within those rules, lawless outside it.
This “laundering”—a deliberately provocative word—is necessary in a complex and organized society. Yet laundered violence can never be entirely legitimate, either measured by its own principle (it will always betray its own claims to be fair and restrained—so people who have reason to be afraid of the police and the legislature see the “legal process” very differently from those who don’t) or by the hearts and bodies of those who have to live with it (people will always doubt, refuse, and resist it). It answers questions, but it does not resolve them.
Law is partly a peace treaty, arranged on unequal terms. The end of the Civil War was literally a peace treaty between white victors and the white vanquished, and subsequent history, especially the Jim Crow period when most of the Confederate statutes went up, rehabilitated the vanquished at the expense of their non-white victims. No wonder anti-racist resistance has often included arming one’s self and one’s community against the Klan and other vigilantes, in the Jim Crow period and in the civil rights era.
Race isn’t the only fault line here. Law is also an unequal treaty between capital and labor, so it isn’t surprising, given the terms of that treaty, how often union organizers and workers armed themselves in the strikes and other conflicts of the late 19th and early 20th centuries (and right up into the 1980s, at least in the West Virginia coalfields). When extra-legal action is part of a movement that succeeds, it tends to get narratively laundered, washed out of the story of peaceful principle. It is easy to lose sight of, say, civil rights activists who armed themselves—easy to divide the black freedom struggle of the 1960s and 1970s into the purity of the NAACP and early SNCC movement against the violence of Black Power. But the facts were never so clean.
As might be expected, I myself find non-violent resistance charismatic—I have a thing for Quakers and Mennonites. My own arrest, with the Moral Mondays movement, was the most civilized affair imaginable; the officer who put me in zip cuffs first handed my king-size umbrella to a colleague, who carried it with extravagant, non-ironic care as they escorted me from North Carolina’s legislative assembly. This had everything to do with my being a professional-looking white man in the company of a mixed-race group of clergy, teachers, and students, all of us scrupulously polite. But non-violent disobedience is part of law’s myth, an embodiment of a purity that doesn’t really exist. There are, roughly, three origin tales about the law: that it comes from God, from the body of the people, and from the state. When we Moral Mondays protesters presented ourselves for arrest, we were confronting the state with a purified version of the people and of God. But the historical people share an inconvenient quality with the historical God: all are genocidaires. Dissent from law in the name of law does not jump over the law’s shadow of violence.
This is all the harder because the definition of violence has become vaguer every decade, and for good reason. If violence is an intrusion that shocks or breaks your body, what about the pollution that gathers in poor and non-white neighborhoods, or the traumas that vulnerable kids absorb and carry, sometimes disablingly, for the rest of their lives? When institutions and silent social structures determine so much of how our lives go, why must violence come abruptly, or at the end of a brawny arm? Structural violence and environmental “slow violence” are standard activist vocabulary, and they should be. These concepts press the question: what is so different about a little fast personal violence, or just the hint of it, in Durham?
Seeing violence everywhere—and being right in that—doesn’t make peace treaties less important. It means the opposite. But it does throw the detail of any particular treaty into question. And it shows a reason, the kind of reason a non-radical might understand, that radicals’ first impulse in controversy is often to defer to a speaker from a vulnerable or marginalized group. That standpoint doesn’t give anyone a special claim on truth, but it does often mean an (ironically) privileged vantage on the lies and exemptions of the current regime.
The physical courage of the protesters who took down the Confederate statue, in full view of the police, was remarkable. They were arrested at press conferences, among other places, later in the week, and arraigned on charges of incitement to riot, but the action looked more like anti-racist infrastructure maintenance. (I cannot begrudge the people who ran up afterward to kick the statue, which, after all, was erected as an emblem of open white supremacy.) The activists’ relative composure and orderliness gave their action the look of civil emphatic speech, not destructiveness.
To my mind, the law should treat it as such. “The law,” in the first instance, is the elected district attorney of Durham County. He is not obliged to bring charges; this is the famous discretion of prosecutors, not usually associated with social justice. Although destroying public property is not protected speech, what the protesters did was a lot more speech-like than some of what the First Amendment does protect, such as massive (and corporate) election spending and contributions, the marketing of tobacco, and selling doctors’ prescription records to pharmaceutical companies. The statue was nobody’s property, let alone anybody’s body, and unlike a playground or a drinking fountain it served no material need. Its only purpose was symbolic, to announce the perspective of the county. Standing in front of the courthouse, it suggested the kind of justice one might find inside.
The political process for deciding the statue’s fate is shaky here. Durham County, 40 percent black and reliably blue, does not want the memorial. In 2015, mindful of such sentiments, the state legislature passed a law forbidding the dismantling of historical monuments. This legislature specializes in right-wing identity politics, such as the notorious anti-trans “bathroom bill,” and racially targeted legislation, including voter-suppression laws and electoral gerrymandering that federal courts have recently found unconstitutional. It is, of course, preserving the work of a 1920s political system based on open and systematic racial disenfranchisement. You do not have to favor lawlessness to see the point of taking the country’s memorial policy into very local hands. There is a clear case that the activists who removed the statue were enforcing constitutional values, and that they should walk free to the welcome and thanks of their communities.