Abstract
Excerpted From: Brandon Hasbrouck, Democratizing Abolition, 69 UCLA Law Review 1744 (September, 2023) (247 Footnotes) (Full Document)
Abolition won't just happen because it ought to. It won't just happen because the people in power do a little bit better every year. It won't just happen because we ask nicely. Abolition will happen only when determined people with a clear vision make it happen.
I am reminded of Killmonger, Michael B. Jordan's character in Black Panther. While Killmonger's penchant for violence is a serious flaw, his motivations and strategic vision bear examination. In the film, Killmonger seeks to use the technological superiority of Wakanda to bring about global Black liberation. He recognizes the folly of turning away from the world to protect only those we are closest to. Unwilling to invest in subtle and gradual improvements in hopes that former oppressors will reform and embrace their victims as equals, he instead pursues a plan of direct action to quickly overturn systems of oppression. This echoes, in part, the efforts of enslaved Black people who refused to labor for their oppressors and took up arms against them throughout the Americas. Killmonger was not content to wait for the moral arc of the universe to bend--he was out to bend it himself.
As we engage in our own struggle to bend the moral arc of the universe--hopefully with significantly less violence than a blockbuster action film--we should contemplate the shape of the more just world we will help realize. Abolition is not merely the removal of oppression; it is also the construction of life-affirming and democracy-affirming institutions to replace those that do not serve our vision. An abolitionist public safety would eschew police violence in defense of private property. Instead, it would protect those who cannot protect themselves from the private violence and exploitation of the powerful, universal security in our food, shelter, and health, and the deliberate application of technology to benefit all rather than merely enrich the few. Rather than a compromised vote for the more palatable half of an ultimatum, an abolition democracy would be a flourishing conversation between people as equals across their social, economic, and civic lives. Now that is a vision worth bending the universe's moral arc toward.
American political identity is inextricably tied to notions of liberty and liberation. Patrick Henry called for revolution with the rallying cry of, “[G]ive me liberty, or give me death!” Union soldiers sang, “As He died to make men holy, let us die to make men free,” both they and their opponents marched to variations on “The Battle Cry of Freedom.” We refer to the president as the leader of the free world. Activists seeking advancement of a myriad of social causes--everything from women's rights to lower taxes to prison abolition to the ability of employers to block unions in the workplace--claim to do so in the name of freedom. This Article proceeds with an understanding of freedom and liberation rooted in abolition democracy and rejects notions of freedom perpetuating the inequities of the “majestic equality” of the law.
Abolition democracy, as described by W.E.B. Du Bois, is the establishment of democratic institutions that ensure that all citizens be provided with the respect, education, economic security and resources, civil rights, and franchise necessary to be free, informed, and active participants in all significant aspects of public life. Though Du Bois does not directly define the term, its central use in Black Reconstruction in America is clearly connected to his socialism while tempered by his understanding of the historical participation of the petit bourgeoisie in the push for abolition democracy during Reconstruction. While a modern push for abolition democracy need not explicitly adopt socialism--or any other particular economic position--it is decidedly a concept which must embrace labor over capital, inclusion over exclusion, and equality over domination. Democracy fundamentally embraces a notion of equality where no individual can exert power over others asymmetrically in any field of social interaction. Abolition democracy further refines this notion of equality with an understanding of justice grounded in material equity.
Previous scholars of abolition democracy have engaged with equity as a basis for justice, but those examinations have been largely grounded in critiques of criminal law and the problem of violence. Professor Allegra M. McLeod correctly surmises that abolition democracy must address “the systemic bases of inequality, poverty, and violence.” While some of the organizations McLeod discusses are engaged in material mutual aid operations, these material efforts at economic justice get short shrift in comparison to violence intervention programs. This Article advances these prior explorations of abolition democracy by examining the relationship between prior liberationist and counterrevolutionary social movements and their contemporary ideological heirs in order to identify the institutional restructuring necessary to ensure the liberty and safety of all.
The understanding of dignity and economic security as necessary to free participation in a democratic society was widespread in the aftermath of the Civil War, but is not unique to that era. The women's suffrage movement at the turn of the century understood the connection of economic security and dignity in their call for political equality, embodied in the slogan, “Bread for all, and Roses too.” Franklin Roosevelt's Four Freedoms of the 1940s included both freedom from want and freedom from fear. The Black Panther Party's Ten Point Program of the 1960s focused on dignity and economic security, often as intertwined concepts. The Program's call for housing accused landlords of providing dwellings unfit for human beings. The demands regarding prison and criminal trials focused on the economic inequalities of criminal justice in America. Bread and Roses, the Four Freedoms, and the Ten-Point Program can inform modern liberationist movements in the pursuit of abolition democracy.
Because those who most strongly resist the vision of an abolition democracy often have significant advantages in resources and clout that amplify their power, proponents of a more just society have to organize in opposition. This Article examines how the history of popular social movements in America can inform modern movements such as those for racial justice, environmental protection, labor rights, fair electoral districting, and prison abolition. Historic social movements often achieved massive successes, only to find that the forces of reaction all but erased them within a generation. While those forces of reaction also rely on social movements to promote their political agenda, this Article focuses exclusively on movements generally seeking to promote equality and liberty--specifically a notion of liberty which is generally applicable rather than only benefitting the few at the expense of the many. I will discuss these movements as liberationist movements to distinguish them from movements with conflicting or tangential goals and methods.
Part I examines the methods and effects of reactionary politics in eroding the gains of four historical movements: the abolitionist, women's rights, civil rights, and labor movements. While the precise reactionary elements involved vary, they share common themes which modern liberationist movements should recognize. Part II then explores three lessons that modern liberationist movements can take from their forebears about the structures that enabled their enduring successes and the failings that left them open to reactionary attacks. Viewed as a whole, these lessons about the insufficiency of incremental but unsustained changes can inform modern liberationist movements of the breadth of change necessary to ensure persistent impact.
Part III discusses strategic conclusions to be drawn from past movements' failures with a particular eye to the need to ensure simultaneous advances on legislative, judicial, and constitutional fronts. The discussion centers a legislative agenda aimed at reconstructing American society, contextualized within existing structures of government. Such an agenda must break the hegemonic antidemocracy of propertied interests, and instead power must inalienably lie in the hands of the people. Abolition democracy requires that the outer bounds of our exercise of power not be simply the votes of the currently enfranchised but that we also wield a force that empowers the marginalized to shatter their own restraints. This necessitates cooperation of institutions that reach into nearly every aspect of society, offering a “compelling and material effort to realize justice--one where punishment is abandoned in favor of accountability and repair, and where discriminatory criminal law enforcement is replaced with practices addressing the systemic bases of inequality, poverty, and violence.” Such abolition cannot come down as a command from on high, but must be democratized, its strength rooted in the people themselves. An abolition democracy will not be easily obtained, but it is within our reach.
[. . .]
We live in capitalism, its power seems inescapable--but then, so did the divine right of kings. Any human power can be resisted and changed by human beings. - Ursula K. Le Guin
Reactionary interests in America will not cease resisting the gains that liberationist and egalitarian movements achieve. Such movements must proceed with an understanding of this continuing resistance and structurally reinforce their gains while refusing to slip into an establishment posture. Incremental legislative or litigation victories will not produce the conditions of abolition democracy so long as reactionary interests retain the power to stock legislatures with extremist politicians protected by gerrymandered districts, and the judiciary with judges committed to twisted constitutional interpretations and mercenary applications of stare decisis. The radical nature of abolition democracy and the changes it will require once again brings Killmonger to mind as his life is a microcosm of abolition. From his childhood, orphaned in the projects, he was thrust into the war machine of American imperialism before turning his whole being to the project of uplifting all Black people using Wakanda's superior technology. Abolition democracy will similarly not be possible without a radical restructuring of American economic, political, and social life.
Radical restructuring is possible but will require a persistence eclipsing even that of the labor and civil rights movements, an utter unwillingness to compromise on issues of liberation, and a broad approach to enacting changes in law. Reconstructing America into an abolition democracy will require political power on a generational scale. Legislatures will need to unmake oppressive legal regimes and replace them with life- and liberty-affirming ones. The executive power will need to be applied to abolitionist ends, particularly within the administrative state. The courts will need to be stocked with movement judges to protect those changes. Hardest of all, we will need a new constitutional vision. Whether that comes from amending the current Constitution, restoring abolitionist interpretations of the Reconstruction Amendments, or adopting an entirely new constitution, the current constitutional order cannot be relied upon to sustain abolition democracy. A successful reconstruction will require more sweeping measures than the previous failed attempts.
With class consciousness and sufficient solidarity, liberationist movements can reconstruct America. The appointment of movement judges and reallocation of electoral power to ensure the equitable representation of marginalized people will not ensure that abolition democracy becomes the law of the land, but it will provide time and the ability to work in that direction. So long as there is sufficient will to do so, such a political environment could allow the restructuring of American society to eliminate the inequities of privilege and the restructuring of our economy to ensure that the needs of all can be met.
The true constituency of reaction in America is a slim minority of our society and relies on fostering hostility among groups within the bulk of Americans to retain its power. Reactionary interests have been so successful in maintaining this division that their power at times seems inevitable. It is not, though. If we would see the emergence of abolition democracy, we must resist that power together. If we will fight for it, we can have peace a democracy, if we can keep it.
Associate Professor of Law and Director, Frances Lewis Law Center, Washington and Lee University School of Law.
