Liberal Faith in Checks and Balances Betrays Deeper Investment in Law and Order

As most of the federal government has declined to “check” the Trump administration over the past three months, a new imbalance has been established — one that favors the autocratic rule of a megalomaniac and the oligarchs who have purchased his favor. The failure of formal checks and balances to significantly stymie Trump is painfully clear. It is also not unprecedented. As Lisa Miller illustrates, checks and balances have been routinely weaponized to obstruct efforts to improve the lives of everyday people, maintaining a system of vast inequality in which policy favors the ultrawealthy.

We would only extend her argument by noting that faith in checks and balances tends to stem from an even more fundamental faith in “law and order.” This faith too is misplaced, yet it is even more pernicious, since it justifies the government institutions responsible for two of the most spectacular and entrenched forms of inequality in the United States: policing and prisons. We agree that mass movements are the only real antidote to Trump’s malevolence and the only path to true democracy. But tweaking our constitutional order without dismantling these inherently corrupt and unjust instruments used to enforce authoritarian rule will only leave the heart of our liberal fascist system intact. Checks and balances won’t save us — and rule of law, as we know it, won’t either.

The prison industrial complex is already a fully functioning system of disposal. It strips years from the lives of those it ensnares, who are forced to live in torturous conditions while the system’s evils are largely rendered invisible. Fascist forces already have the means to cage and surveil massive numbers of people — and the infrastructure is expandable. Trump is currently seeking $45 billion to expand ICE jails. And as we have seen in recent months, local police can be deputized to unleash terror on immigrant communities.

Trump’s abduction and incarceration of permanent residents and visa holders, including the political targeting of students like Rümeysa Öztürk and Mohsen Mahdawi and the disappearing of Kilmar Abrego Garcia, are certainly dire escalations. But the words of a plainclothes officer who participated in Oztürk’s abduction — “We are not monsters. . . . We do what the government tells us” — should ring forebodingly in all of our ears. These kinds of actions are far more routine than most Americans are willing to admit. Trump may be particularly shameless and brazen in making a spectacle of authoritarian cruelty. But justified outrage should not keep us from seeing that his administration is not an absolute rupture from the past. On the contrary, Trump is sharply and rapidly intensifying the U.S. state’s long and bipartisan history of abduction and caging, deploying these powerful, incredibly well-resourced instruments of repression for overtly fascist ends.

As anti-authoritarian thinker and strategist Scot Nakagawa has argued, “The expansion of America’s carceral state since the 1970s is not solely about prisons and policing — it represents the exercise of power and control in service of the preservation of unjust and anti-democratic hierarchies.” Just as neoliberalism encased markets — insulating capital from the impacts of labor organizing, government interventions, and the will of the people — so has the carceral state entrenched the norms of inequality. As the country’s social safety nets have been slashed over the course of decades, huge investments have been made in police and prisons. Nearly 2 million people are incarcerated in the United States — more than any other country in the world — and almost half a million are confined by electronic shackles. Upon release, they are saddled with even deeper poverty. Even social services, educational systems, health care, and other forms of state-sponsored support are now pervaded by policing and surveillance.

From the criminalization of poverty, homelessness, and acts of survival and despair to the incessant targeting of social movements, prisons and policing have suppressed challenges to the system as the rich amassed obscene concentrations of wealth. The first U.S. police departments grew out of slave patrols, anti-immigrant vitriol, and the suppression of labor organizing, and that legacy — the protection of property and hierarchy at all costs — continues. While working-class people have faced increased precarity and uncertainty, an order ensuring stability at the top and immiseration for the rest has been violently maintained.

The result, as Andrew Krinks has argued, is “mass devotion” to criminalization in the United States, leading even many exploited people to “put their faith in the pseudo-divine power of cops and cages to make safe, which is to say, to save, in the midst of the existentially threatening disorder that colonial racial capitalism itself creates.” But a system that disposes of people and enforces inequality will never function in the service of our liberation.

Moreover, the fetishization of law and order as the foil to fascism falls flat when so many of the U.S. government’s deadly injustices are legal, from routine deportations to mass incarceration to military “aid.” Condemning Trump and his ilk as “felons” and “lawbreakers” is not just the mirror image of Trump’s characterization of immigrants and student protesters as gang members and terrorists. It lends credibility to a thoroughly unjust regime of punishment while dehumanizing people caged in our prisons and betraying those whose efforts to survive, self-determine, care for themselves, or act in opposition to fascist edicts will render them “criminals.”

This is not to say that law has no role to play in resistance. It is crucial to use every tool at our disposal to defend against fascism, and that sometimes means engaging with the legal system through defense work, class action lawsuits, and legislative advocacy. The important work of organizations like the National Lawyers Guild, Palestine Legal, Movement Law Lab, Transgender Law Center, Just Futures Law, Transformative Justice Law Project, and many more remind us that dismantling death-making systems must include reducing immediate harms to human beings and communities. But engaging with the law in order to mitigate harm and change policy is a very different project from the “rule of law” reverence that goes hand in hand with criminalization and policing.

Rather than catering to that mythology, we must dismantle the lie that criminalization safeguards democracy and ensures our safety. The death-making potential of the public’s faith in criminalization has now reached an inflection point. If we maintain our faith in these mechanisms of surveillance, control, stigmatization, and disposal, we are worshiping at the altar of our own destruction. We are faced with the ultimate surrender of our humanity, our freedom, and ourselves.

To mobilize people in mass opposition to fascism, bring forth a true social transformation, and usher in ways of living and governing ourselves that will not be conquered, bought, or co-opted by men like Musk and Trump, we need to embrace a truly liberatory vision. What decarceration, anti-deportation, and activist defense initiatives can we grow? What mutual aid efforts can we engage in? What community-building projects can we foster, to keep each other safe? What creative and journalistic endeavors can we undertake to inform and spark action? What radical shifts can we imagine that prioritize the redistribution of wealth and opportunity? What irresistible projects can we dream up to usher forth a future that leaves no one behind?

It’s long past time to renounce the mass devotion to punishment, stigmatization, and disposal that helped create and continues to fuel this moment. In its stead, we need a movement of movements — a collaboration that recognizes our shared humanity and makes collective liberation its spiritual center.