Revolution #227, March 20, 2011



Editors' Note: The following is an excerpt from a recent talk by Bob Avakian, Chairman of the Revolutionary Communist Party, USA; this is one of a number of excerpts from that talk that are being published in Revolution. The first eight excerpts appeared in Revolution #218–#225. The entire talk is available at This has been edited, and footnotes have been added, for publication.

Constitutions and Laws, Property Relations and Class Interests

Now I want to move on and speak to some important questions regarding Constitutions and laws, and the exercise of political power (or sovereignty as it's sometimes called).

Constitutions, where there is a necessity for them and they play an indispensable role, establish the basic framework, principles and provisions (or, more baldly, the "rules") for how a government can and must function, how state power shall be exercised. Constitutions, of whatever kind, both give definition to and institutionalize rights and at the same time limit such rights in various ways. This is a reflection of the contradictory nature of reality in general, and more specifically of the contradictory nature of society—of the contradictions between freedom and necessity, between the economic base and the superstructure, contradictions within the economic base and within the superstructure, between different social groups and different interests in society. This applies in socialist society as well, even while it is already radically different from all previous societies in which there are class divisions, and is at the same time a transition to a classless society.

On the basis of a Constitution, laws embody and involve both protection and coercion, in regard to members of society and their rights. As I spoke to earlier, in socialist society for example, you can't go and decide that somebody has something that you want and it's unfair for them to have it, so you're just going to arbitrarily take it. There are laws which will prevent that. Those laws, in turn, are rooted in a Constitution, and there is still a state apparatus which, when necessary, enforces those laws through coercion, including physical coercion when that is what's required and nothing else works (and things like arresting and prosecuting people, and sometimes imprisoning them if they are convicted of a crime are, after all, precisely that—physical coercion).

So we have to understand this once again as materialists: As long as you have laws, and as long as you have a Constitution setting rules, this is going to involve both the protection of rights and the protection of people in society and, at the same time, coercion in regard to individuals and generally the members of society. This, once again, flows from a materialist understanding—it reflects where we are and where we have not yet gotten. Even when we have made the leap to socialism, it reflects where we are and where we have not yet gotten in terms of the social relations and in fundamental terms the production relations, but also the role of the superstructure in such a socialist society.

The Social Content of Law and Its Interpretation

Now, at the same time, all law has a definite social content: Law is a part of the superstructure and is ultimately an expression of the dominant social—and, most fundamentally, production—relations in the given society. I spoke to that earlier in terms of capitalist society, but it's true in socialist society as well. Marx made the point, speaking of law, that it is an expression of the prevailing property relations—or, we could say, of the more underlying production relations of which those property relations are in a sense an outward expression. I've spoken about the fact that, under the rule of the bourgeoisie (capitalist class) and with the dynamics of the capitalist system, there cannot be a law which grants people the "right to eat"—or, if there is such a law, it is not a law that can be effected and enforced without undermining those basic dynamics of capitalist society. This is another way of expressing that basic point of Marx's that we keep coming back to—that right can never be higher than the economic structure of society and the culture conditioned thereby.

In a society ruled by an exploiting class (or classes), such as the U.S. throughout its history, along with the basic content of the law and the way in which this reflects the prevailing property and fundamentally production relations, there is also a matter of the interpretation of the law, particularly by the dominant judicial institutions—above all, in the U.S., the Supreme Court—interpretation which itself will fundamentally reflect and serve the prevailing social relations (and again above all the production relations) and the interests and needs of the ruling class, interpretation which may change with changes in the particular ways those relations and interests find expression and are understood by various representatives of the ruling class—always, however, within the basic framework of this system of exploitation and its underlying dynamics.

Even supposedly fundamental Constitutional rights throughout the history of the U.S. not only can be—but particularly in times of "stress" or actual crisis in the system often are—sacrificed to the needs of the ruling class. We see this all the time, when there are rather stark judicial rulings that basically say that the interests of the state trump supposed rights, even basic rights. Look at what was recently done with Lynne Stewart—a lawyer who was prosecuted (in fact persecuted) and convicted of acts which supposedly aided someone condemned as a terrorist, who in fact happened to be Stewart's client. Here is a classic example where basically a higher court, representing more conscious representatives of the ruling class, said to the judge who had handed down her original sentence when she was convicted: "You didn't punish her enough." They demanded a harsher sentence. Really, and rather nakedly, this had nothing to do with Constitution and law—it was just stark exercise of dictatorship: "You didn't punish this person enough, take it up again and punish her more."

There are all kinds of decisions, even less crude than that, where it is said in rendering the decision: the interests of the state dictate (whether the word "dictate" is actually used or not, that is the essence) that this or that right be superseded, the interests of the state must prevail over this or that right which is supposedly enshrined in the Constitution.

So even fundamental Constitutional rights can be—and especially in times of "stress" or actual crisis in the system often are—sacrificed to the needs of the ruling class. And we see this all over the place today in the context of the so-called "war on terror." You have a trampling on habeas corpus—not only under Bush but under Obama as well. You have the invention and continuation of the "enemy combatant" status, where people can be held essentially without any rights in permanent detention. You have torture which is continuing under Bush—I mean under Obama. It has always been carried out by this ruling class and its state, but this was raised to an explicit level and openly justified under Bush; now it's still carried out under Obama. What happened to all those indictments that were being talked about, in terms of the people who wrote torture memos and carried out torture during the Bush years? We haven't seen any such indictments yet—but in any case the torture continues. And you have the Obama Administration openly declaring its right to authorize and, if it can, effect the assassination of American citizens whom it classifies as "terrorists."

In the "popular culture," through the seemingly endless "cop shows" and in other ways, there is a relentless assault on Constitutional rights, including something as basic as the right to legal representation. I think we should have a contest to see if anyone can name a cop show in which what are supposed to be fundamental Constitutional rights are not repeatedly spit on and stomped on. Think of the phrase that is continually used in these shows: "lawyering up." Translation: exercising what's supposed to be a basic Constitutional right to legal representation. This is repeatedly denigrated and assaulted with the pejorative phrase sardonically spit out: "Oh, you're going to lawyer up."

And one of the biggest travesties in American society—something which is also constantly trampled on in the "popular culture"—is the supposed presumption of innocence, which is totally inoperative. And now we have this whole phenomenon where people are tried in the media before they ever get into the courtroom, in a completely one-sided process where the defense has its hands tied. This is totally weighted in favor of the prosecution, even if and when competent advocates for the defendant might be able to get on the media—which sometimes they are prevented from doing by "gag rules" handed down by judges, which supposedly also apply to the prosecution, but it doesn't matter because you have prosecutors in the form of pundits sitting on the TV prosecuting. We've seen this over and over again: somebody is "guilty" before they ever get to the courtroom. They've already been convicted in "the court of public opinion"—and this has a general effect while also specifically influencing potential jurors.

Here I'm reminded of a story that my father used to like to tell about when he was a judge and in a particular criminal case they were having voir dire with a jury—the process whereby they see if the jurors are qualified and don't have prejudices, and so on. So one woman, a potential juror, was being questioned by a defense attorney, and he asked her: "Now, you do understand the presumption of innocence, right?" And she said, "Yes, I think so." "Well, you understand it means that, if my client is not proved guilty beyond a reasonable doubt, then you have to find him not guilty." "I think I understand that, yes." "In other words, if the prosecution doesn't make its case beyond a reasonable doubt, you're willing to just let him get up and walk a free man right out of this courtroom?" Then she paused and said, "Yes... But what if he does it again?"

Now, this speaks volumes to how the presumption of innocence is inoperative in this society—how in reality people are presumed guilty walking into the courtroom, in fact from the time they're accosted and arrested by the state and accused. All this, as I've been alluding to, is being taken to new depths with the epidemic of tabloidism in this society. And by the way, tabloids are not politically and socially neutral—just check them out some time—in general they have a very reactionary social and political content. This tabloidism is overwhelmingly bound together with reactionary social and political content. And there is, more specifically, the whole "subculture" of what I was just referring to—"media prosecution": Nancy Grace, that very sick person, and all the rest of it, where they repeatedly just hammer and hammer and hammer before people are even arrested, trying to get them arrested, and then hammer and hammer again to get them convicted.

The link between legal rulings and ruling class interests—some lessons from history

But besides these contemporary examples, let's pull the lens back a bit and look at the broader, historical sweep of things and how it illustrates the basic point I'm making here—that not only do the laws reflect the prevailing property and fundamentally production relations but so, too, does the interpretation of the law at various stages. Without going into great detail, let's just touch on a few striking historical examples.

A prime example is the contrast between Plessy vs. Ferguson at the end of the 19th century (1896), which upheld segregation as Constitutional, and the Brown vs. Board of Education decision in the middle of the 20th century (1954) which overturned it. Nothing fundamental affecting this had changed in the Constitution: the 13th, 14th and 15th Amendments, which codified the end of slavery and important related changes, had been passed well before Plessy vs. Ferguson—and between Plessy vs. Ferguson and Brown vs. Board of Education there were no changes in the Constitution which clearly prohibited segregation—but the ruling class, and its prevailing representatives, in the Supreme Court specifically, saw its interests one way in one historical period and another way in another historical period.

The same applies to the application of the 14th Amendment to the U.S. Constitution, which basically extended certain rights in the first 10 Amendments to the domain of the states and their powers and authorities, specifically prohibiting the states from denying people certain rights, including due process of law and equal protection under the law. This was particularly important in the aftermath of the Civil War, and this Amendment (the 14th) was obviously intended, in the period of Reconstruction right after the Civil War, to apply to former slaves especially. But how did the Supreme Court interpret it for a period of decades? Especially in the latter part of the 19th century, and into the 20th century, this was, to a very significant degree, interpreted on behalf of corporations. It was, in effect, interpreted to say that corporations constituted "corporate individuals"; and rulings were made on behalf of corporations in opposition to restrictions that were being imposed (or which might be imposed) on corporations. And we see an echo, or a revival, of this in the recent Supreme Court decision on corporate funding of elections, where the same sort of logic was applied, in which the rights of free speech of individuals are applied to corporations as, in effect, "corporate individuals." This was not the original intent of the 14th Amendment but, after Reconstruction was defeated and reversed (in the 1870s), and the interests of the ruling class were being directed in a certain way by its prevailing institutions and political operatives and leaders, this is how, to a large degree, the 14th Amendment was re-interpreted and applied.

All this also has to do with the particular—and peculiar, if you will—historical evolution of the United States. Today, we say this as one entity (almost as one word), but actually it has real historical significance: the "United States" of America. This is a reflection of the whole historical development of this country and of the bourgeois state (or the bourgeois/slaveowners' state for a certain period in this country, up until the Civil War in the 1860s) out of 13 colonies, which were to a significant degree separate and distinct entities and had to go through a process, a halting and difficult process, marked by a lot of conflict among them, before they were able to form themselves into one unified nation-state, if you will. This peculiar historical evolution in the U.S. is different than other bourgeois societies where separate states or provinces don't have the same prominence and influence as they do in the "United States"—just think of that phrase—the "United States" (not always so united) of America.

To get a unified state power for the whole country, and to have that embodied in their Constitution, was a process of real struggle. If you read The Federalist Papers, for example, you can see this being struggled out, with the polemics that are being waged around this by people like Madison and Hamilton, arguing why the Constitution of the United States (replacing the Articles of Confederation) should be adopted.

The Peculiar History of the United States: Slavery, "States' Rights" and the Federal Government

And there is, along with this, the peculiar phenomenon in the history of the U.S. that—especially in the period after the Civil War, and particularly in the period of the New Deal with Roosevelt in the 1930s, and then again with Johnson's Great Society in the 1960s—the federal government has played the role of stepping in not only to, in effect, "save this system from itself" but more specifically to prevent certain local or state governments from carrying out acts which, in the context of the country and the world overall, might be injurious to the interests of the ruling class as a whole. For example, it is the federal government which—even under Eisenhower, a Republican president—sent troops to Little Rock in the 1950s, when there was a revolt on the part of the state government in Arkansas against the integration of the schools. The same thing happened in regard to George Wallace when, as the openly white supremacist governor of Alabama, he tried to prevent integration in that state in the 1960s.

In general, it has been the federal government that has made concessions to oppressed and "marginalized" people in this country. That has been the form in which those concessions have largely been made—the federal government acting to do this, frequently in opposition to local and state governments and the more particular interests they represent.

This is one of the reasons why in the U.S. the fascist movements that have developed have a strong anti-federal government posture—that whole "anti-Washington" thing, and the assertion of "states' rights," in opposition to the federal government as the embodiment of all evil. This, to a large extent, is an expression of the particular role of the federal government in relation to the state governments in the history, and even in the present time, within the U.S. As I'll speak to more fully later, in talking about some of these fascist movements, it is perfectly fine with them for the federal government to spend lots of money, and even to go into great debt, to wage wars and for other purposes which are in line with how these forces see their interests; but to them it is an abomination for the federal government to do anything, spend any money or act in any other way, to make concessions to groups to which these people see themselves in opposition and antagonism. In fact, those drawn to these fascist movements in particular—although, unfortunately, this is a broader phenomenon in American society—have to a large degree defined themselves, in a real sense, in opposition to oppressed people in the U.S., especially Black people. This is essential to their identity as white Americans.

So this is a peculiar phenomenon that we should understand about the history of this country, the exercise of state power by the ruling classes and the conflicts within that—and why it is that many of the oppressed see, and are encouraged to see, the federal government as the recourse of last resort. It is a common occurrence, for example, that when the police murder somebody—and, as we know, the victims of this police murder are overwhelmingly Black people, as well as Latinos—and, as almost always happens, the police get away with this (either they are not charged with a crime at all, and it is simply declared "justifiable homicide," or in the rare cases where they are accused of a crime and tried, the trial is generally a farce, with the judge, openly or at least in the content of legal rulings, siding with the cop or cops on trial, and the prosecution conducting its case on terms and in a way that makes an acquittal more likely, as we saw yet again recently in the case of the cold-blooded murder of Oscar Grant in Oakland) there is then a call for the federal government to step in and prosecute the cop (or cops) involved for violation of the civil rights of the person who was murdered. It is important to understand the particularities, and the complexities, of this in order to be able to correctly "navigate" these contradictions and win people to see the real forces and interests involved, what the fundamental relations are, what the real problem is, and what the real solution is.

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