ON SUNDAY, June 13th, people occupied the intersection of Lake Street and Girard Avenue in Minneapolis to hold a vigil for well-known community organizer Winston Smith, killed by sheriff’s deputies ten days earlier. Shortly before midnight, a car drove into the crowd at high speed, injuring several and killing Deona Marie Knajdek Erickson. The National Guard was summoned to the Twin Cities and choppers flew low over downtown. Again.
This tragedy is one whose second tragedy is its familiarity. The elements by now feel like the building blocks of a grim folktale told across generations, resonant with racialized terror: the unjustifiable police killing of a Black person, the ensuing protest and taking of the streets, the violent attack on the protesters. The entrance of the citizen driver ready to kill has its own resonance, most immediately with the white supremacist James Fields driving his Dodge Challenger into a crowd of protesters in Charlottesville in 2017, injuring many and killing Heather Heyer.
The specter of citizen attacks against protesters has grown increasingly ominous over the last few months, as state after state has proposed legislation immunizing drivers who harm protesters blocking the road. In Oklahoma, a bill granting immunity to drivers who “unintentionally” injure or kill protesters, while penalizing protesters with up to a year in jail, has already been signed into law; more are to be expected, as states proffer their tacit approval for such attacks.
These bills are part of a broad, unprecedented swath of anti-protest legislation introduced in the wake of January 6th, when insurrectionists stormed the Capitol in an attempt to prevent Joe Biden from taking office. More than five months behind us, those events still supply the lead story every night on CNN and MSNBC, providing special after special, news anchors spluttering with ratings-minded fury over the perfidy of the mob. The pundits remain hypnotized by what has proved for many observers to be that day’s most confounding feature: The far right—bootlickers time out of mind whose constitutive enthusiasm for the police had only intensified since the uprising that followed George Floyd’s death last year—suddenly had boots on the ground ready to fight the cops. Figures swathed in Thin Blue Line flags hurled themselves against the thin blue line.
It is this dissonance that summons every available Capitol cop onto cable news, where the hosts linger over every insult verbal and physical suffered by the officers, righteously calling for redress. But their fretting over the seeming hypocrisy does not accurately capture the antagonism between insurrectionists and cops that played out last winter at the Capitol, nor does it correctly apprehend the wave of anti-protest laws that followed. The insurrectionists—largely members of the white middle class, many living adjacent to growing non-white populations—exemplify, despite the spectacle of disorder, the party of order. Indeed, it was their perfervid panic over the perceived disordering of society—the threat that Black Lives might Matter, that gender might be fake or at least mutable, that communists had seized the deep state—that stoked their fury. This is an odd way to interpret the reality of US decline, a process increasingly fatal even for those historically sheltered by their social position. But it was ever thus for the party of order, and by the end of last year it was clear that their president, who promised the far right the one thing they wanted—the restoration of hierarchies of race, class, gender, and citizenship they believed to be breaking down—had failed as well.
January 6th, from the perspective of the insurrectionists, was a desperate effort to reverse this. And in the moment, the police—professional guarantors of the social order, from the slave patrols and strike busters of the 19th century to the armed gangs of Minneapolis and Louisville—failed too, to the extent that some fraction of the conspicuously thin blue line acted as bodyguards to the politicians purportedly undermining that order, rather than turning on their traitorous bosses. For those who arrived on the steps of the Capitol, then, the cops became a temporary enemy. The problem was not that they were police, but that they were not police enough.
In this light, the new set of anti-protest laws should not be understood as a rebuke to the insurrectionists but as a peace offering from the state to the faithful, offering a matched set of gifts: On the one hand, it positions the partisans of the George Floyd rebellion, millions of whom filled the streets last summer, as the true enemies at home. On the other, it says to American patriots: happy hunting. And the hunters, in a dreamlike inversion given the ceaseless recounting of their maleficence, are none other than the belligerents of 1/6.
THE INSURRECTIONISTS’ DESIRE—to be at once the police and beyond the police, to be order freed from law—is at the heart of 10,000 comic books. The antiheroes who front these stories are tasked with fulfilling the police mission but without the constraints a cop might encounter on means, on violence, on sociopathy. They exist beyond order because that is necessary to impose the proper ordering of society. This is the essence of Batman. But it is perfected in the Punisher—ex-Marine, family avenger, Marvel embodiment of vigilante mayhem—who first appeared in 1974 at the onset of US decline. His skull mask logo is displayed proudly by the most bloodthirsty military personnel and by those cops who would like you to know that they are a little extra: not just workaday thugs but jump out boys and quick-draw killers, the ones who understand that their job is to redline social hierarchies in blood. The logo is a way for police to signal they are police enough to their kin in the Oath Keepers, the III Percenters, Patriot Prayer, the Proud Boys, QAnon, Atomwaffen, and so on.
The state would like in on the signaling too. This is the import of the protest suppression laws recently planned, proposed, and passed across the country, appearing alongside the recent wave of voter suppression measures (though the former outnumber the latter by far; draw your own conclusions about the state’s fears). As of April, according to The New York Times, there are more than 80 in motion, a historically unprecedented number. They feature intensified penalties for doing crimes at a demo, the most common of which is just not leaving when the loudspeaker says to leave (often after being blocked by police from doing so). This is now a ticket to hard time in Florida. Similar measures expand qualified immunity for all police and specific protections for riot cops (Iowa); increase penalties for taking down monuments (Alabama); exclude rioters from public employment, including elected office (Indiana); and deny student loans to anyone arrested and convicted at a protest (Minnesota). Kentucky, in a spasm of blue fragility, took a shot at making it a crime to taunt cops and plans to try again.
In purportedly progressive Portland, Mayor Ted Wheeler declared his intent to “unmask” protesters and “hurt them a little bit.” But his police will not do it alone. Last year, Wheeler outsourced the restoration of order to the National Guard; a federal task force summarily executed Michael Reinoehl, a Portland protester accused of killing a fascist in self-defense. Wheeler now implores his constituents to turn in whoever they might, to report anyone disguising their identity, to inform on any overheard conversations, and the like. The state of Oregon itself is prepared to make blocking the road a felony. Five years in jail, $125,000 fine, all for getting in the street. It is the age of traffic panic.
It is hard to overstate the significance of such legislation, which responds to an ongoing shift over the last few decades in how people fight back. As the worker’s movement, despite heroic efforts, has waned dramatically in the era of deindustrialization, we have seen the rise of so-called “circulation struggles” defined not by withdrawing labor from the workplace but through actions driven by people who have been pushed out of work or off of traditional lands—while remaining dependent on market goods and intensively managed by police and jails. These actions might look like interrupting the circulation of commodities, occupying public space, fighting back against cops, or protecting the land against despoliation.
As struggles oriented by the unemployed, the dispossessed, and the excluded have become the dominant mode of contesting existing social arrangements, they have inevitably attracted new levels of ire from lawmakers: In four states, for instance, pending legislation would step up punishment for pipeline blockades, and we should expect more of that to come. Blocking traffic is a central part of efforts to claim public space and public power, as in 2014 when protesters, acting in solidarity with the people of Ferguson, spontaneously seized roads and highways across the nation. These days it is less spontaneous than it is expected. The legislation empowering vehicular vigilantes has appeared in the midst of this ongoing transformation.
The entanglement of automobiles and citizen policing goes back a long way. As the legal historian Sarah Seo has documented, policing and car culture evolved together across the 20th century and into the present. This is evident in the parallel ascent of police power and their black-and-white fleet; it is equally evident in the ways that drivers have been intensely but unevenly policed. The role played by the traffic stop alone in the history of American white supremacy cannot be considered without saying the names of Rodney King, Philando Castile, Sandra Bland, Daunte Wright, and so many others. But the current wave of anti-protest legislation promises a reversal of at least once aspect of this history, in which the revved-up mobility of the police broke a collaborative bond with the citizenry. A century ago, Seo notes, the police “shared the task of enforcing the criminal laws with citizens and private patrol services,” but the arrival of a mechanized and supercharged police force diminished the role private citizens were permitted to play in law enforcement. Today, that role is back with a vengeance.
The refreshed collaboration between police and populace takes its place in a tangled legal history of acts regulating domestic use of force and prescribing how civilians might become cops for a day—a history beginning long before the advent of the auto. Like many juridical traditions in the US, this one reaches back across the Atlantic—particularly to the English invention of the sheriff and the so-called “posse comitatus,” a common law concept referring to the drafting of locals to put down lawlessness. These edifices together, notes the scholar Seeta Chaganti in her essay “Gray Ghosts,” “create the possibility in the US for extrajudicial violence and legal procedure to collude in similarly violent designs upon those most disenfranchised.” As the US embarked in earnest on its genocidal course westward, it passed the two Militia Acts of 1792, a year after the Northwestern Confederacy of native peoples crushed the US Army in a battle known as St. Clair’s Defeat. The paired bills were known more poetically as the “Calling Forth Act.” They empowered the president to summon militias from every state, and to conscript every “free able-bodied white male citizen” from 18 to 45 into these militias. While this legal tradition (including 1878’s Posse Comitatus Act, which imperfectly prohibited federal forces from enforcing domestic policy—a decision the government generally seems to regret) has undergone numerous shifts and transmutations, it has always implied a violent but informal body ready to do the state’s dirty work toward preserving especially racial hierarchies. It is impossible to look at the current legal tide and not think of a posse. Or a militia.
As car attacks on protesters have borne out, recent anti-protest legislation effectively creates a new version of the Calling Forth Acts. The laws are not truly about cars, and do not merely provide some liability protections for agitated commuters. They are a Bat Signal, or really a Punisher Signal. They do not signal to just anyone. Harkening back to the militia acts, they are in every regard a call to white people to impose the racial order, fatally if necessary. Indeed, the lawyers for various parties arrested at the Capitol have already argued that the elaborate preparations for the insurrection were in truth defensive trainings for an anticipated showdown with antifa. “Many alleged rioters,” reported NPR, “spoke of antifa as if the movement were an enemy combatant in a war, court documents show.” They were just, you know, trying to help.
W.E.B. Du Bois famously described the “wages of whiteness,” a “public and psychological wage” that served as additional compensation for white laborers. Less well remembered is the following specification: “The police were drawn from their ranks, and the courts, dependent on their votes, treated them with such leniency as to encourage lawlessness.” This seems a clarion thumbnail of the Calling Forth Acts—the original ones and their new incarnations. They invite white people into freelance policing, and commit the courts to official leniency. The new anti-protest laws implicitly accept the defense offered by the insurrectionists’ lawyers—and indeed reward the insurrectionists for their actions by deputizing a phalanx of James Fieldses, a company of Kyle Rittenhouses licensed to kill. It points them at the next rebellion and sets them loose, trusting they will bring their own weapons and be more police than the police. For free. It is nothing if not cost-effective.
There is here an unbroken skein. The Capitol insurrection reminded us for the thousandth time that the true source of politicized violence, aside from the state itself, is white nationalists, the party of order’s armed wing. And yet no sum of reminders will ever be enough for the magic of American forgetting. The dramatic legislative effort to recast demonstrators against the police state as the true domestic terrorists ensures that this truth will be forgotten again.
But this is not to say that the balance of social forces promises that the white nationalists are bound to win, to reimpose their order. For all these resonances with the militia conscription of two centuries past, it is worth remembering that in the trajectory of American empire, going down is not the same as going up, even if we find ourselves at roughly the same altitude. If we have returned sotto voce to the unsheathed barbarism of empire ascendent, we nonetheless should not misrecognize the empire in growing disarray. The decline of the United States, and the accompanying social volatility, will not reverse. The management of this volatility will require enemies both foreign and domestic as justification for the increasingly violent preservation of the present order. Joe Biden and Kamala Harris, career law-and-order zealots, are no less likely to pursue this path than was the previous administration. Having transformed every substantial protest into a showdown between the New Terrorists and the New Posse, the state—organizing this arrangement on behalf of capital, on behalf of the racial order, in the name of a couple more fat decades for the overclass—can fade into the background.
The new Calling Forth Acts are a stratagem of desperation. They bespeak a racialized fear, without a doubt. They admit the fragility of the social order, just as surely. Perhaps most importantly, they register the power seen last year. Those who gain the most from the present order know that they will need newer and better ways to suppress the next rebellion and the next. Their perfect inversion of the George Floyd Uprising and the capitol riot means to sell us winter for summer; winter is all they have.
Joshua Clover is the author of Riot.Strike.Riot, which has been translated into seven languages; his book Roadrunner will be published in September. He can be found on Twitter @thetwoproblems.
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