Government vs. Constitutionality: On the Subject of Due Process
Introduction
In May 2015, in the middle of the night, three students in Berkeley were stopped by local police a few blocks from campus. They were walking home after late-night studying for finals. Two of them, a man and a woman, were black; the third was a white woman.1 When the man asked why they were being stopped, they were told they were stopped for having jaywalked a few blocks back toward campus. In response to the man’s incredulous objections, he was handcuffed. The black woman then protested this treatment of her friend, loudly charging the police with racial profiling and harassment. They told her to sit down on the sidewalk. She left the scene, and ran when chased. The cop who chased her, beat her when he caught her. In a video of the incident, one can hear her screaming in pain in the distance.
The arbitrary nature of the police action (stopping them far from any alleged offense) is the clearest indicator of its racial component (“walking while black”). The demand for absolute obedience (handcuffing as a response to objection) signifies an assumption of institutional impunity. The black man’s question can be seen as wholly rational in the context of growing racial harassment of black people by authorities throughout the US (now given social recognition as never before through the prevalence of video). The students were then arrested, as if to justify the violence of the police (handcuffing and manhandling) – reminiscent of an officer routinely saying he “felt threatened” after shooting an unarmed person.3
The routineness of such cases reveals a juridical element that is hidden within the incident, namely, that the subject has been deprived of liberty without due process – a deprivation all the more horrendous for those killed by the police (deprived of life). Insofar as such deprivation has become habitual as well as routine, there seems to be no recourse at either level.
Ordinarily, for an infraction like jaywalking, the police simply write a ticket or give a warning. It is well known, however, that black people get stopped three times as often as white people (even in Berkeley), and are often detained while police go through extensive computer checks. One frequently sees black drivers standing beside their car while three or four officers stand around ostensibly waiting for the computer checks to finish. This minor degree of harassment is itself a deprivation of liberty, exercised with impunity. Indeed, the impunity of the police, their ability to demand obedience, and their continued practice of racial profiling, all depend on withholding due process.
It is the routineness of the act of handcuffing that is of interest here. In the US, handcuffing is assumed, so much so that it ceases to be seen as arbitrary violence. Most people imagine that if the police do it, they must have a reason. When it is a person’s sense of self-respect that leads to a violent response from the police, however, there is a dual violation of personhood. The person is punished for speaking up, and due process is withheld. In the simple act of handcuffing, a universe of power and anti-constitutional practice is revealed.
The constitutional principle of due process is that no person shall be “deprived of life, liberty, or property without due process of law” (Fifth Amendment). Can this black person be deprived of liberty simply because the cop embodies the law and therefore also embodies due process? Or is the cop "seizing" the law by putting the man in chains?[3] Is this just a detail of police operations (law enforcement), or does it have deeper import that hides in the raciality of its use? The procedure is certainly familiar and accepted throughout this society (in novels, TV shows, movies, etc.). Yet if each officer is sworn to uphold the Constitution, and its routine violation is given general approbation, the consequences are earthshaking, far beyond mere legality. If governmental institutions and their agents are by definition accountable to the Constitution, and there is a broad violation of constitutionality, then a serious contradiction between government and its constitutional legitimacy emerges.
Let us examine the fundamentals of the “due process” concept, and follow their logic to its social and political conclusions. Our task is to examine why the deprivations of due process have become accepted. To do this, we must look at what such deprivations actually entail. We shall cast aside the concept of "efficiency" and even administrative necessity in order to see where the concept of due process leads us.
What is due process?
Due process of law” means that a judicial hearing of some sort occurs in which those persons to be deprived (of life, liberty, or property) are given the same standing, in their ability to defend themselves, as the institution seeking to deprive them. It is important to note that the Constitution refers to persons, not "citizens," whenever it speaks of "rights." It refers to "citizens" only when addressing electoral procedures. In other words, one does not have to have special status, such as citizenship or whiteness, to have access to one’s rights, or to due process. Immigrants, foreign visitors, black people, transvestites, women, or the homeless must all be granted the same procedural rights as the white male citizen. And though this list may seem a bit strange, each item names a social domain in which due process is routinely withheld.
One aspect of the constitutional concept “due process of law” that may be seen as unclear is whether it requires a seated judge to preside, or if the procedure has a more general nature and can be presided over by any neutral party. What the Constitution affirms unequivocally however is that no deprivation can occur without some form of procedure "due" to the person to be deprived. It does not limit where or by whom such due process can or need be applied. Thus, elected officials, duly legislated institutions, ad hoc committees or private individuals are not excluded from fulfilling a facilitating role. The principle is simply that no institution (like the police, or government in general) can deprive a "person" of liberty (or life, or property) without a hearing. In other words, whatever the situation, all persons must be granted equal standing to speak and “make a case” in their own interest.
In light of the inherent inequality between institutional power and personhood, due process must be understood as a necessary process of equalization. It is a principle that forces institutions to confront individuals on an equal footing. Equalization means equal protection not only by the law but from the law. This was the essence of the 14th Amendment’s repetition of the principle of due process, stated as “equal protection under the laws.”4 To withhold equality or the ability to defend oneself against institutional power testifies to a subjection to power without recourse (usually known as tyranny).
Now, there is an essential temporal element to due process that cannot be ignored. The Constitution says that no person “shall be deprived,” implying that due process precedes the deprivation. That is, it comes first. This is not always the implication in the Constitution’s use of "shall." In other Amendments, it can be seen simply as a statement of obligation. The First Amendment states, “Congress shall make no law … abridging freedom of speech, etc.” Here, the “shall not” construction is a clear prohibition. There is no temporal dimension. It is simply a statement of what is the (juridical) case. In the Fourth Amendment (“the right of the people to be secure in their persons [etc.] shall not be violated”), there is clear prohibition as a social condition. Prohibition is negative obligation. The term "shall not" refers to negative obligation. One is duty bound or legally bound to not do something.
But there is a specific aspect to the stated right to due process that separates it from this reading of the term "shall" “or "shall not," and sets it apart from the other rights, within the Constitutional syntax. When we read that “no person shall … be deprived of life, liberty, or property, without due process of law,” we encounter a double obligation. There is a negative obligation that only prohibits when the positive obligation to provide something remains unfulfilled. This is the power of the term "without." Without the provision of something (due process), that which is desired (depriving the person of life, liberty or property) remains under negative obligation, that is, prohibited. "Without" means “in the absence of.” That is, its "presence" must be extant before the prohibition provided by the clause may be lifted. The constitution does not say “without eventually providing due process,” nor “without later providing.” It simply says "without." Therefore the provision, the extant existence, the presence of due process is obligated by the constitution in order for the prohibition of deprivation of life, liberty, or property to cease to be in effect. Due Process must come first, temporally because ontologically. In short, due process means that an equalizing procedure is "due" a person before something done to them becomes legitimate.
This temporal element is confirmed in Black’s Law Dictionary, for instance, which is explicit on this question.5 Due process is defined as
the conduct of legal proceedings … for the protection of private rights, including … a fair hearing before a tribunal with the power to decide [judiciously where a] deprivation of a significant life, liberty, or property interest will occur.
The future tense used here is quite definitive. It implies that hearings concerning a deprivation must occur before any deprivation in fact.
This is no mere detail. Nothing testifies more to the absolute necessity of taking this temporal aspect to heart than the matter of life and death that arises too often in police actions. A person shot to death by police would be alive were this concept applied.
This temporal aspect of due process has two direct implications for police operations. First, in order to use handcuffs or any other form of restraint (including the command to stand or sit in place), the officer would have to explain to the satisfaction of a third party the reason restraint was necessary, in whose presence the subject would have equal time and ability to counter the officer’s reasoning. The paradigm shift this would impose on policing will be addressed later in this essay. Second, it implies that nothing less than the direct observation of an actual offense or infraction (certainly beyond mere suspicion) could reasonably authorize the police to put a person in restraint.
Rationality is of the essence here. Many recent instances have demonstrated the irrational use of arrest power by the police. On June 15, 2015, in Austin, Texas, Breaion King, a black school teacher, was arrested for resisting arrest after a traffic stop. Though a car in motion may be stopped by the police under “implied consent,” any deprivation of a driver’s liberty beyond the issuance of a citation requires the perception of more than a traffic violation. If the crime for which she was arrested was “resisting arrest,” her resistance is then positioned as a reason for arrest before her arrest. This means that there had not yet occurred an arrest for her to resist. To “arrest a person for resisting arrest” without there having been another observable offense for which to arrest the person is thus patently irrational, and hence an open act of impunity.
Nevertheless, King was dragged from her car and thrown to the ground. It could only have been for something she said, since one’s actions are severely limited while seated in a car. Beating or manhandling a motorist for whatever the motorist might say is nothing less than criminal assault on the part of the police (as also seen in the case of Sandra Bland, which resulted in her death). Without a warrant, such treatment has no basis. Though the police may desire to deprive a person of liberty, the person must be free to leave.6
In these instances, the officers have determined that defense of personhood (whatever was said through the driver’s window) is to be criminalized in situations created arbitrarily by the police. That is, it is police-engendered "criminality." That is what is then punished by beatings, manhandlings, or other forms of violence. In “stop and frisk” procedures, for instance, an officer’s act of suspicion becomes an act of criminalization, against which the person has no extant recourse. The principle of due process is what would compensate for that absence by standing between police rule and the rights of autonomous personhood. As such, it shows itself to be an essential concept for any pro-democracy movement in the US.
In sum, there is nothing simple or marginal about the principle of due process. It includes the social categories of liberty, rights, temporality, democracy, personhood, equality, institutional power, the concept of policing, and the structures of racialization. All this is found in the jaywalking incident, whose dictatorial aspect was evident in the screams of the woman as she too was thrown to the ground and handcuffed.
There is a difference between due process and other rights, however. Rights inhabit the humanity of each person. To deprive someone of a right requires physical or political force, an act that one can hypothetically resist in some fashion. Due process, on the other hand, refers to a relation between individuals and institutions whose deprivation requires no force, but only a withholding. Its absence constitutes its violation, producing a more subtle form of tyranny insofar as an absence cannot be "resisted." In other words, due process is a procedural right as opposed to a human right. Where human rights are monologic in their inherency to personhood, due process is a dialogic right (pertaining to an egalitarian relation).
Examples of the violation of due process
To more fully appreciate the role and importance of the due process principle, let us look at some examples in other domains of this society.
A landlord who goes to court to evict a tenant is duty-bound to give that tenant a chance to provide his/her side in the matter before an eviction notice is warranted (eviction is a deprivation of property that the tenant has contracted with a landlord to hold under mutual consent). Millions of tenants have been evicted, however, without any such due process. Often, this occurs simply through negligence in notifying the tenant of a court date, resulting in a “failure to appear.” Should the court fail to sufficiently insure that the tenant is notified of the court date (for instance, by leaving such notification to the landlord), it would signify collusion with the landlord and an absence of judicial neutrality – something which occurs in far too many cases.
Foreclosure on a mortgage routinely occurs without due process because the house is collateral, and thus already accounted as the bank’s property. A bank simply shows the proper officials that mortgage payments have not been made, and obtains a warrant. What is seized is the equity that the homeowner had projected as emergent from the mortgage debt.
When the police break up a homeless encampment, they confiscate the property of the people they remove from the site, and trash it. (Though that is against the law in California, they do it anyway.) The confiscation, along with the raid against the encampment, occurs on police orders. The encampment members get no day in court, while losing their property without appeal. This marks a wanton criminality on the police part – beyond the autocracy of the operation. The seized possessions (clothing, sleeping bags, blankets, tents, etc.) are essential for surviving exposure to the elements. Without them, a homeless person faces possible sickness or death. To threaten a person with death by whatever means is a felony. It is a felony that the police commit every time they confiscate the property of the homeless. Denial of due process has real effects.
The police commit this same criminality in their violent responses to disobedience. Many persons have been beaten or shot in the back while moving away from a police command. One such incident was graphically recorded by a police lapel-cam. A pregnant black woman was picking up her daughter at a grade school. A white woman told her to move aside, and they argued. When someone called the police, the officer automatically approached the black woman without any briefing on the situation, and demanded her ID. She said he had no right to approach her, and she didn’t have to show ID (in which she was correct). He insisted, however, and she said she would call someone to see if he was right. She took two steps away from him while dialing, and he grabbed her, threw her to the ground, and handcuffed her.
This insistence on absolute obedience to police commands has been given legal authorization in most states.7 Yet such ordinances stand in violation of the Constitution because they impose a militarization on society. The police assume the role of commanding officer toward all in civil society with a power to regiment that is characteristic only of military organization. To adopt such a position (of “commanding officer”) places civilians in a military organizational framework without their consent. Thus, it is a deprivation of liberty without due process.8 There is an inherent and arbitrary violence in it, beyond the injury or death incurred by so many for having disobeyed a police order.
Asset forfeiture and police impunity
One of the most severe violations of due process practiced today in the US (aside from shooting and killing people on the street) is “asset forfeiture.” Asset forfeiture laws give the police the right to confiscate property belonging to anyone they may arrest if they suspect that this property has been involved in or results from criminal activity. It doesn’t matter if the person is eventually acquitted of any charges, or left uncharged, or if the officer’s suspicion proves to be unfounded (or invented for the purpose); the property remains confiscated. An officer’s suspicion is sufficient for confiscation. Those who think the confiscation is unjust are invited to appeal.
The rationalizations given for such procedures are unending.9 One is that the property represents (was purchased using) ill-gotten gains; another is that the property, used to commit one crime, can be used for another. A third is that the value of the property will be used by the defendant to defend himself against any forthcoming indictment (testifying to a fairly cold-blooded prosecutorial desire). Though a contortion of logic inhabits each of these rationales, none compare to the illogic of the forfeiture’s actual legal basis.
The concept originated in 1827. The US government had seized a ship it claimed had been involved in piracy. The owner of the ship appealed the seizure, having been acquitted of any charges. In ruling the seizure legitimate, the court found that though the owner had committed no crime, the ship itself had, as a thing. Insofar as it had been used for piracy, it had itself committed the crime. It was the object itself that was being arrested.10
In “western” jurisprudence, we generally conceive of law as only making reference to human behavior. Only humans can have knowledge of right and wrong. Yet this concept, that property can commit a crime, still retains its legal validity after 190 years.
The historical context to which it refers makes one shudder. It harkens back to that "alternate" foundation for this society, the slave system. Those enslaved were both rendered objects and deemed capable of committing criminal acts (the most iniquitous being a refusal to obey any command).11 It is not surprising that the same legal system that could produce the Dred Scott Decision would find in actual objects a form of malevolence. To maintain that attitude up to the present, however, signifies something of that slave past that the current legal culture simply refuses to relinquish. It bestows on law a power not only to regulate human relations but to condition how governance can contort all elements of the social universe (even the Constitution).
This power given to law (to dominate over Constitutionality itself) finds its many extensions in such things as police impunity (acting as judge and executioner), the imposition of a military organizational framework on civil society, and an enormous system of victimless crime laws (such as drug possession) under which long prison sentences have been imposed, and whose only rationale is government control over social life.
The warped logic revealed by the forfeiture concept is also reflected in the false equation of "appeal" with due process. The only recourse for the victim of asset seizure is to appeal for restitution of property. For the police and the courts, this right to appeal constitutes “due process.” But in light of the temporal aspect of the concept, it cannot be. An appeal is for the undoing of a wrong. Due process is for the prevention of a wrong. The equation of the two marks a prioritization of law and police institutionality over individual human existence. The need to appeal, as a substitute for due process, is a direct reduction of one’s claim to social standing, and thus a covert form of oppression.
We can fully grasp the difference in those concepts when a person is deprived of life by the police.12 For such a person, no appeal is available. Clearly, it would have no value. Only due process prior to being killed by the police would have any value. It is this that marks the seriousness of the issue raised by handcuffing.
Though the students in the jaywalking incident survived, that is unfortunately not always the case. It was the process of forcibly handcuffing that resulted in Kayla Moore’s death at the hands of Berkeley police. She was going through an emotional crisis at home. An acquaintance called for mental health assistance. The police responded. They barged into her apartment, ordered her to stand up, and when she refused, threw her to the floor and sat on her while they handcuffed her. She died of suffocation. She did not even have the right to talk to them, to discuss the matter with them. The police entered her home without due process, established themselves as commanding officers, thereby reducing her civil status without due process, proceeded to deprive her of her liberty by handcuffing her without due process, and in the process deprived her of her life. Moore did not have the right to say "no" to the police in her own home, let alone refuse to admit them.13
It’s not an unusual case. It has happened to thousands. It happened to Kenneth Chamberlain on the other side of the country. His medical alert apparatus emitted a false crisis signal to his medical care facility, and they called the police rather than medical personnel since it was the middle of the night. The police demanded entry, though Chamberlain assured them through the door that he was okay. They broke in and shot him to death.14
The ability to say "no," to make an argument for one’s position, and to have that claim heard is at the core of the principle of democracy, not just of due process. No democracy is possible without it. Its suppression makes it an issue of utmost urgency for civil society with respect to governmental power.
Asset forfeiture is but one of the domains that the courts have set aside from constitutional protection by legitimizing a deprivation of due process. Racial profiling is another. The insulation of the police from social oversight and accountability by the Patrolman’s Bill of Rights (whose legitimacy has been affirmed in court) is a third. The effect has been to legitimize the ability of the police to torture (using tasers and pepper spray) and to shoot members of civil society.15
The acceptance of police impunity represents the hegemony of legislated law over constitutionality. Wherever there is impunity, there is a withholding of due process. Wherever there is a withholding of due process, there is a need for equalization. And whenever there is a need for equalization, it is because impunity has been imposed and implemented. This is an unjustifiable elevation of law, and of executive dominance, over constitutionality, against which an insistence on the general principle of due process would be salutary. In this sense as well, the principle of due process becomes a central figure for any pro-democracy ethos or movement.
Due process in legal theory
Power in the name of law, though in violation of constitutional terms, has become the foundation for an ethos of unaccountability and insularity of the police (and of government in general). Given the extremity of social crisis to which habitual and licentious state violence has given rise, one would expect that there would be serious legal objection, at least in the realm of the theory of law and justice. After all, violation of constitutionality traditionally raises extensive controversy. One would expect the theorization of due process to have been a major concern. This has not been the case. Failure in this regard might indicate an abdication on the part of legal theory. While theorization has occurred, legal theorists have tended to regard the concept pragmatically, as merely a problem of procedure, rather than of democratic principle. They have tended to content themselves with questions such as “what process is due?” or “to what is a person as such entitled?”
Cynthia Farina addresses this sense of self-constraint when she asks, “Why do we seem to make no progress toward getting procedural due process right?”16 She focuses her critique on the propensity of many legal scholars to restrict themselves to “entitlement analysis,” and sees the narrowness of that approach as a tendency to adopt the perspective of institutionality rather than of individuals. From an institutional standpoint, relational rights take a back seat to monologic rights, such as free speech. Discounting an individual’s "entitlement," she suggests, erodes the notion of "liberty" because it ignores the need for equalization, the need for individual reaffirmation against institutionality. The erosion of due process, that is, the failure to “get it right,” opens the door to the institutional production of inequality.
Judith Resnik takes an interesting step beyond this by not only recognizing the priority of relationality but suggesting that due process is in reality a tripartite relation.17 Structurally a third party must be assumed to facilitate due process if it is to be relied on to generate acceptable social outcomes. For her, that “third party” need not be limited to members of the judiciary (judges, etc.) but could be the public. That broadening of possibility would shift the issue from judicial liberty to social fairness, while raising the critical question of practical implementation.
We might ask, under what conditions could the public be called upon? Could neighbors sign up for duty to preside over issues of handcuffing on their block, or be empowered to interfere with a cop beating or pulling a gun on someone from the neighborhood? How might that be incorporated into police procedure as both facilitation and constraint? The political questions concerning how this might neutralize police impunity, and remove their insulation from accountability are today more than relevant in their urgency.
Resnik doesn’t address these questions. Her focus is on the issue of violence against women. And she casts a critical eye on procedures that too often give the accused (a man) more rights than the accuser (the woman assaulted). Discussion of precisely this kind of problem had emerged during investigations at Harvard University into a spate of assaults on women.18 To the extent that individual women, in seeking justice, confront an institution as well as a cultural structure in which male presumption of entitlement to women (still) exists and infuses the investigation, there is a deprivation of due process. Individuals confronting police brutality are in a position similar to that of women seeking redress against institutions colluding with traditional patriarchal bias. The protection given that bias by institutional insulation (the insistence on self-investigation) normalizes the inequality between individual and institution without appeal.
One would think that the issue of due process, in its role as equalizer, would be of great interest to theoreticians of justice, in light of its extant violation. But in John Rawls’s Theory of Justice, where one might expect to find considerable attention to such a question, there is only a single minor reference. It is listed in the index simply as “due process of law.”19 Nothing is suggested concerning the issue of denial of due process or its complicity in institutional injustice. Similarly, in Ronald Dworkin’s major work, Taking Rights Seriously, the expression itself does not appear.20
Rawls’s discussion around the notion of “due process” occurs in a chapter on “Equal Liberty,” in a subsection entitled “The Rule of Law.” His treatment corresponds to the approach that Farina had criticized, positioning due process with respect to liberty (as procedural) rather than equalization (as relational). For Rawls, the concept pertains to guidelines for preserving judicial integrity, viz. the orderly conduct of trials and hearings. The “rule of law” requires a “process reasonably designed to ascertain the truth as to whether a violation has taken place” (239). But to limit due process to oversight or monitoring reduces it to mere instrumentality while narrowing its preventive capacity to the determination of untruth rather than the abuse of power. Though investigations must prioritize a quest for truth, what must be prioritized in granting due process is the legality, legitimacy and justification of a deprivation (of life, liberty, or property). Thus, in Rawls’s discourse, there is a slippage of legitimization between institutional comportment and the unconstitutional, ignoring the latter in order to rationalize the former.
What is ironic in Rawls’s discourse is that what obstructs his ability to theorize the withholding of due process is his presumption of equality as a prior principle. For him, liberty is a monologic condition of individuals divorced from their relation to institutionality. But this ignores the fact that political or social inequality is something done to people; it doesn’t just happen. And the withholding of due process is one of the ways it is "done." Reducing due process to an instrumentality removes it from its role as protection against the production of inequality (not just untruth).
Rawls does recognize, however, as does Resnik, the necessary existence of independent and impartial judges for any truth-finding quest. Recognizing that tri-partite principle, however, should lead him to apply it to the police. When the police stop a person on suspicion, that is, without involving a complainant, and without involving a third party, they become self-judging agents, enforcing the rule of the police rather than the rule of law. The involvement of other people (e.g. the surrounding community) would both preserve the "rule of law" and provide a mode of communal or restorative justice by giving a "suspect" a voice equal to that of the officer under the purview of a tri-partite structure.
If we take to heart the notion that, as a principle, due process resides at the core of the democratic spirit, we should find it of at least broad philosophical interest, rather than simply pragmatic concern. We are left with an uneasy feeling that the essential role that due process plays in US society has been thrust aside in favor of the priority of institutionality, not only by the police but by government as a whole.
This priority has now taken on global proportions. In the context of globalized corporate operations, the political necessity to regiment society for the acceptance of that priority is what has been given to local police operations. The violence of the police, for which the routine withholding of due process is central, now plays a destabilizing role in civil society, fracturing cultural cohesion at the community level in order to achieve regimentation. For the police themselves, this takes the form of a precedence of procedure over any sense of justice. It is in this framework that non-compliance with commands becomes cause for violence, and for the immediate need to punish, regardless of the criminality of means.
Thus, a massive abuse of power has become widespread and routine under the withholding of due process. Each instance of asset forfeiture, warrantless search, police invasions of homes on the personal suspicion of an officer, not to mention SWAT team raids, amounts to an expunging of equality before the law in the name of the rule of law – equality expunged in the face of institutionality. This is not just a semantic point. If there is a line on one side of which the routine withholding of due process is an abuse and on the other side of which that withholding is seen as legitimate, then the line represents an interface between two political cultures, one human-oriented, and the other a corporate culture.
Against this priority given to institutionality (of state, corporate structure, and police) to the detriment of human rights, human equality, accountability, and democracy, all pro-democracy movements become projects for structural change. Indeed, a pro-democracy movement that centered its demands and its practice on the absolute guarantee of due process in all theaters of social life would effectively dissolve the function of the police as a class institution.
Due process in the political domain
There is a political source to the abuse of power. For each instance of police abuse (asset forfeiture, invasiveness, SWAT raids, etc.), there is an insulation against accountability engendered by legislative codification. Insularity, which negates civilian oversight, is the condition for impunity, the means by which each "officer" becomes “a law unto himself.” When institutional insularity is established, regardless of what reference to constitutionality may be deployed, its legitimization of obedience to police command directly renders each police officer both lawmaker and judge. These transformations, evolving from the withholding of due process, take place most emphatically in the local socio-political arena. It is there that the withholding of due process attains an immediacy and "everydayness" that masks its cultural profundity.
In most charter cities, the primary avenue for influencing city council policy is through comments made in public hearings. The structure of the hearing process, however, acts against its own participatory purpose. In a hearing, people line up to speak in turn, usually having two minutes to make a statement or to argue for a position. If a lot of people show up to speak on a specific issue, the time allotted to each one is shortened – to one minute. The line-up of speakers fragments their collective argument, dividing it into short individual presentations. Each speaker, arriving at the podium, though addressing the same issue as others, must begin again at a new beginning. The collective position of the group loses cohesion to that fragmentation, and it loses coherence to the imposition of sequentiality and time-limits.
In short, the hearing paradigm condemns a group to producing a disjointed sequence of monologues, often merely a cacophony of statements, with very little influence on the council. While the council will claim it must limit comment to preserve time for other business, it is, in reality, substituting pragmatics for democracy. At the same time, it induces neighborhood groups to bring more and more people to plead their case, substituting numbers for their ability to make a complete argument. Ultimately, in voicing their concerns, speakers discover they have been reduced to cyphers (the clerk simply tallies how many speak on one side of an issue or the other). The quality of collective thought is demoted to mere quantity. This in effect reduces a group’s attempt at advocacy to a form of begging for attention.
For this reason, participating in city council is often a humiliating and frustrating experience, devoid of the respect that should accompany citizen concern. Far from a participatory avenue, the hearing paradigm becomes its opposite, a deeply anti-democratic structure at the heart of representation.
There is a second side to council hearings, however. Those who are invited by the council to provide testimony receive very different treatment. These invitees are generally staff members, institutional agents, or representatives of corporations or professional groups. Their role is to provide data, information, or expertise on an issue. They get to sit at a table, make extended presentations, and enter into dialogue with the council. Their presentations are honored, their ideas incorporated into council’s deliberations, and they participate in formulating policy.
A structural distinction is thus created between the institutional agents invited to foster council interests, and those who come from real constituencies with problems needing attention. And this distinction produces an unfortunate inversion of function. The constituents whom the council is duly bound to represent, and who will be socially affected by the policy to be decided, are denied the ability to engage in dialogue with the council on those policies. Those who are not electoral constituents are brought into the policy-making process and given a policy-making interest.
Thus, the fundamental principle of democracy, namely, that those who will be affected by a policy should be the ones to articulate its issues and decide how to resolve them, is violated. The constituents find themselves disenfranchised by those they elect to represent them, while those with institutional connection gain a franchise superseding their non-constituent character. There is an exclusion of the "represented" from policy making in the name of “giving input,” and an inclusion of institutional "interest" through dialogue that transcends representation. Those who have an interest in representation are deprived of it while those who represent themselves are granted participatory privilege.
The political effect of this disenfranchisement is to create and maintain a hierarchy between institutions and constituents (referred to above as a “priority of institutionality”). Insofar as this hierarchy constitutes a norm disguised as democratic procedure or "input," it produces an actual deprivation of political liberty at the hands of governance. What is therefore needed is equalization, an implementation of due process. Insofar as such an implementation would be a stage toward democratization, it would constitute a structural transformation of the political "norms" that foster hierarchy – and indeed, a subversion of hierarchy. Insofar as the disparity of structural treatment persists, it produces a “political class” distinction between constituents and institutionality, a creation of hierarchy for which a deprivation of due process is the method.
One structural alternative might be a dual-level council procedure that could accommodate constituents attending in large numbers by shifting council meetings to an ad hoc "townhall" format. This would allow real dialogue between the people and the council members, as well as debate between the people and the invited "experts." Such a modification itself, by equalizing constituent standing with that of the "interested" institutions, would be the granting of political due process. And by protecting against impunity and privilege, it would re-enfranchise the council’s constituents.
Neighborhoods vs. corporate developers – a political class struggle
A process of political equalization, however, would not simply represent a modification of political procedure. As an element in a pro-democracy movement, its effects would be far-reaching, even to the point of resisting gentrification and the impunity of housing developers.
Any large-scale plan to build new housing will seriously transform an urban landscape by threatening the very existence of low and moderate income neighborhoods with dislocation and dissolution. The trajectory by which community decimation occurs is neither labyrinthine nor exotic. It is driven by landlord greed, real estate speculation, and corporate finance.
Any city plan promising major housing development will attract speculators. They buy houses above market values in anticipation of an overall rise in such values. With an eye toward eventually much higher future real estate values, their purpose is to both gain property ownership by outbidding competition, and initiate the process of value augmentation itself. Their ability to change tenancy in the buildings they take over and to charge higher rents leads other landlords to act accordingly, boosting rent levels in general, and pushing the regional “market rate” for rentals beyond that affordable by most families. Many low and moderate income families suffer harassment from landlords to force them to move out of their homes in order to raise the rent on the unit. Those who suffer this form of “economic eviction,” finding no housing they can afford in this “gentrification zone,” leave town.
What follows, as the new housing projects are built and occupied by wealthier tenants, is a general rise in the cost of living, in property taxes, and in economic stress levels. Rent-increases on commercial space, keeping pace with residential increases, drive out businesses that formed the economic infrastructure of the original neighborhood. Many spaces remain empty as landlords wait for enterprises that can pay the higher rate. Loss of local infrastructure then raises the cost of living for low and moderate income homeowners as well as renters. Many avail themselves of the opportunity to sell, and join the growing exodus. And the sense of community erodes.
This is the inception of what becomes a massive dislocation of neighborhood residents, which is the real housing crisis. As their exodus gains momentum, whole neighborhoods undergo a class transformation.
Large-scale construction of housing units will not stem the crisis. It is not a crisis of supply and demand in general. It is a crisis of supply and demand for low and moderate income families, who cannot afford “market rate” housing. Only the construction of affordable housing will stem the real crisis by providing residence for those driven out of their former homes by unconscionable rent increases.21 If we understand the term “affordable” in the sense standardized by HUD to mean rent set at no more than 30% of a tenant’s income, it marks a paradigm shift in the nature of rental housing. It removes rent levels from determination by an impersonal market, and relates them directly to the humans involved. This is a necessary shift if a society is to take seriously the idea that housing is a human right.
Yet a city must turn to corporate developers if it doesn’t have the funds to finance affordable housing itself, and that means the construction of “market rate” housing. The reason that corporate developers insist on building “market rate” housing is not only owing to their profit motive. It has to do with their ability to resell their property if they encounter economic problems, such as an inability to fully finance completion of their project, or if they fall into a liquidity crisis. In such cases, they face a need to recapitalize the land and construction project in order to unburden themselves of their debt obligations (for bank loans by which they finance their operations). This means that they need the most unobstructed status for the project. To include "affordable" units makes reselling or recapitalizing more difficult insofar as the project is in part tied to government regulation, as well as uncertainty of income. Yet, for the neighborhoods targeted by the gentrification process (usually poor neighborhoods where land values are lowest, and thus real estate profit highest), what is needed to stem the crisis is affordable housing. And this defines a conflict of material interests between neighborhoods and developers, of neighborhoods against corporate gentrification. It is a political class conflict.
In the face of gentrification, the city must walk a fine line between these two kinds of interest. It will speak of meeting the supply and demand disparity while acting to permit construction of market rate housing. The supply of “market rate” housing will be affordable only by the wealthy, while the demand (which constitutes the crisis) is for low and moderate income housing. Thus, the rhetoric of “supply and demand” becomes sleight-of-hand. Ultimately, gentrification means driving entire neighborhoods out of existence without recourse.
Politically this means that, for city housing development, the neighborhoods affected must be excluded from the planning process. Their opposition to corporate plans, by demanding housing in their own interest rather than the developer’s, would disrupt the developers’ financial arrangements. The city then must place itself on the side of the corporate developers in this political class conflict.
Gentrification thus constitutes a massive withholding of due process in the political realm. Due process, on the other hand, would imply that neighborhood associations be given a seat at the planning tables for each proposed project, with a vote. Their participation would have to be based on prior discussions and decisions within the neighborhoods, necessitating a network of neighborhood assemblies. Thus, the simplest and most basic resolution of a housing crisis would mean a subversion of the representationist system by a form of direct democracy, engendering power in the neighborhoods. The application of due process to a housing crisis would thus precisely parallel its application to all police operations.
The role that due process plays in economic dysfunction (through its withholding), as well as its centrality to real democracy (the equalization between humans and institutionalities) shows that due process cannot simply be considered an instrumentality. It is of the very essence of democracy.
Conclusion
Social hierarchy, political privilege, the withholding of due process, and the formation of political classes are all interwoven with each other. The concept of political class has meaning insofar as it highlights the interaction of political hegemony and the social needs of people, brought about by a political environment that deprives people of due process at many different levels of social existence. In this socio-political landscape, the conflict between democracy and the corporate structure is a political class conflict, as is the confrontation now in progress in the streets of the US between the people and the police. We could add that the disparity of influence between the two major parties and any "third parties" also constitutes a political class distinction.
The concept of political class should not be confused with “economic class,” though it extends the forms of privilege characteristic of capitalist class relations. Economic classes are formed by distinctions and oppressions that are inherent in the economic structure, such as the difference between owning capital and working for it. The production and accumulation of profit, the economic instrumentalization of political procedures, and the corporate control of domestic or foreign policy, are all expressions in daily life of the economic structure.
Political class distinctions, on the other hand, are marked by the political establishment of privilege, which arises through the deprivileging of identified groups treated with exclusion or reduction to subordinate status. That is, political class distinctions are always an expression of social and political domination, such as the exercise of property rights over the unpropertied (“profits over people”). Resistance to domination within those hierarchies takes the form of social justice movements, trade unions, tenants’ unions, neighborhood assemblies, urban resistance to gentrification, environmental movements, and mass opposition to police brutality. That is, the concept of political class conflict is one of the ways of understanding the eruption of social justice struggles, especially where the economic underpinning is not immediately apparent.
For instance, the racial dimension of police brutality cannot be explained by rhetorical reference to the police as the “agents of the capitalist class,” nor to racism as a “divide and conquer” strategy. That just doesn’t touch the feeling that every black person now has in the US that they are, in some arbitrary sense, a target for ambush. People of color now form a political class established by the impunity of the police; they are deprived of due process by the political structure of policing.
In the perspective of popular movements of resistance, the principle of due process becomes both a lens through which to see political power engendering and maintaining hierarchies, and the mechanism by which to subvert them.
The people rising against injustice and demanding democracy, equality, and due process, might be from a wide variety of economic or social classes. But their coalescence around a pro-democracy movement unites them in a political class defined by the activity that oppresses and excludes them.
The metric of oppression in these class conflicts (around housing or police brutality) is not a rate of exploitation but a political contradiction between humanity and institutionality. When it expresses itself as a struggle against privilege, a form of due process becomes a central weapon. The principle of due process provides a lever against hierarchy. To invent a form of due process where it has not traditionally been practiced (in police stops on the street or at city council hearings) is to subvert, in the name of democracy, the sanctity of hierarchies not previously questioned.
In this sense, due process presents itself as a principle of transformation serving the same political purpose for current social justice movements as the demand for voting rights played for the civil rights movements in their struggles against racial discrimination.
Notes
1. Steve Martinot, “The Political Anatomy of ‘Walking While Black’,” in Berkeley Daily Planet, May 26, 2014.
2. This has been the essential structure of many police killings. We see it in the murders of Amadou Diallo, Gary King, Oscar Grant, Alan Blueford, Walter Scott, Ramarley Graham, Kenneth Chamberlain, and on and on, into the thousands over the last two decades. Gary King’s threatening gesture was to walk away; Diallo’s, to pull out his wallet; Chamberlain’s was to refuse to open his door. Each incident, initiated by the police, moves from profiling to command to violence in response to disobedience. Cf. Steve Martinot, “Probing the Epidemic of Police Murders,” Socialism and Democracy 61, Vol. 27(1), March 2013.
3. There is a long list of Supreme Court decisions justifying the use of handcuffs under a spectrum of different police situations. In the most recent, Muehler vs. Mena (2005), the court upheld the police right to handcuff individuals encountered during the service of a "dangerous" search warrant. In Graham vs. Conner (1989), the court found that the police did not use excessive force in handcuffing an arrestee who objected and thus could be considered to be resisting. These cases all involve the existence of a warrant (ostensibly a stand-in for due process), which represents a prior decision to arrest. For that reason, the principle involved in each case was the 4th Amendment, which protects against “unreasonable searches and seizures,” not the 5th Amendment’s guarantee of due process. These cases refer back to Terry vs. Ohio (1968), which legitimized racial profiling as possible “reasonable suspicion” for an “investigatory stop.” Cf. Michelle Alexander, The New Jim Crow (New York: New Press, 2010).
4. There is an interesting corollary to the fact that the concept of due process appears in two amendments but nowhere in the body of the Constitution. Historically, the amendments were initiated (at the time of original ratification) to augment the democratic character of the political structure being constituted. Their existence is then a tacit admission that the main body of the document is insufficiently democratic.
5. Black’s Law Dictionary, ed. Bryan A. Garner (St. Paul: West Publishing Co.), 210-211.
6. The case of Sandra Bland has become so well known as an example of police brutality that it has its own Wikipedia entry, http://en.wikipedia.org/wiki/Death_of_Sandra_Bland. For one of the videos, see www.bbc.com/news/world-us-canada-33613783. There is a video of the brutality toward Breaion King at https://www.youtube.com/watch?v=Z3sMpfm59hc.
7. For instance, in the Nebraska State Code, sect. 9.08.050, it simply states, “It shall be unlawful for any person to intentionally or knowingly refuse to comply with an order of a police officer made in the performance of official duties at the scene of an arrest, accident, or investigation.” The officer has simply to decide for himself that something needs to be investigated, and the persons he addresses become subject to this military paradigm.
8. The Supreme Court has ruled that obedience statutes, which underlie “stop and frisk,” handcuffing, etc. are constitutional. The ideological grounds invoked for legitimizing them (against superseding constitutional provisions) assume a "reasonableness" for the “law and order” harshness that restricts equalization. Due process is then reduced to a minor judicial instrumentality, leaving little standing between civil society and police rule. Cf. Terry v. Ohio, 392 US 1 (1968); Brown v. Illinois, 422 US 590 (1975); and most recently Utah v. Strieff, 14-1373, June 20, 2016.
9. These rationalizations are often used to cover up or avoid the scandal that some police departments have consciously and routinely augmented their personal and departmental incomes or appropriations by means of wanton seizure of property. Forbes Institute for Justice has treated a number of such scandals, as has the ACLU. See http://www.forbes.com/sites/instituteforjustice/2014/03/12/cops-use-traffic-stops-to-seize-millions-from-drivers-never-charged-with-a-crime/#4e131a4146ae/; http://www.aclu.org/issues/criminal-law-reform/reforming-police-practices/asset-forfeiture-abuse/
10. Leonard W. Levy, A License to Steal: The Forfeiture of Property (Chapel Hill: UNC Press, 1996). See also Chip Mellor, “Civil Forfeiture Laws and the Continued Assault on Private Property,” Forbes Magazine, June 8, 2011.
11. The thingness of the enslaved was implicit in the view of "race" as a noun, naming an inherent characteristic of the "object." But "race" is more properly understood as a verb. It is something that one group of people does to others. The verb is “to racialize.” In the US, it is something that white people do to others, whether through institutional codes, attitudes, or actions toward those others. Thus, people of color are placed in the "object" position of the verb while whites assume the subject position.
12. An unlawful (and unappealable) deprivation of life occurs every time a cop shoots and kills a person on the street. In 2015, over 1100 people, mostly people of color, were killed that way. That averages out to more than three a day. In general, the cop will claim he “felt threatened.” He can easily assume that his department will approve, since it now gives officer protection a higher priority than the protection of civilians. See http://killedbypolice.net/; also http://www.theguardian.com/us-news/2015/jun/09/the-counted-police-killings-us-vs-other-countries.
13. www.berkeleycopwatch.org/resources/Peoples_Investigation_Kayla_Moore_2013.pdf
14. http://en.wikipedia.org/wiki/Killing_of_Kenneth_Chamberlain,_Sr.
15. To beat a person with a nightstick, or use a taser or pepper spray because of their disobedience, is to torture that person. The acceptability of doing so, of torturing in order to inculcate obedience, or to punish “civil disobedience,” has its origin in the slave system. Though such “state sanctioned torture” is in violation of international law, which should supersede Supreme Court decisions, and be their very basis (Article 6 of the Constitution establishes all ratified treaties as the “law of the land”), the court has legitimized police non-accountability for acts of brutality. See http://en.wikipedia.org/wiki/law_enforcement_officers_bill_of_rights
16. Cynthia Farina, “Conceiving Due Process,” Yale Journal of Law and Feminism (Vol. 3, No. 2, 1990).
17. Judith Resnik, “Due Process: A Public Dimension,” Yale Law School Faculty Scholarship Series, paper 915. http://digitalcommons.law.yale.edu/fss_papers/915
18. Martha Minow, Resolution Agreement, Harvard Law School OCR Complaint #01-11-2002 (www2.ed.gov/documents/press-releases/harvard-law-agreement.pdf). See also, “Harvard Law Gave More Rights to Accused Students,” Huffington Post, Dec. 30, 2014 (www.huffingtonpost.com/2014/12/30/harvard-law-harassment-title-ix_n_6396350.html).
19. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).
20. Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977).
21. Because corporate developers insist on building “market rate” housing, cities are left with the responsibility to raise money for affordable housing. The time lag in that process would mean that, as a cure for dislocation, it would come too late, long after dislocation had run its course. Only a moratorium on rent increases, and on market rate housing that is the cause of those increases, will stem the crisis. See Steve Martinot, “Corporate Economics and Development,” October 9, 2015; and “City Council’s Double Bind,” November 6, 2015, in Berkeley Daily Planet.