What is the psychological impact on the children for whom their agency over their own bodies is violently ripped away from them, whose bodies are disfigured against their will, and their identities and very humanity denied them by friends, family, and society? These mechanisms of social abuse lead many trans people to attempt suicide. Rather than treat us as victims of social violence, reactionaries proudly tout “41%”, referencing the trans suicide attempt rate. It is of course nonsense to assert that being trans makes us suicidal, rather than the issue of the above denial of our fundamental humanity, and denial of our access to life-saving medical care, and denial to community, love, support, and respect, that produces suicidal individuals. It’s social murder. But that is naturally the aim of these policies. The cruelty is the point. They want us dead. This is a deliberate policy of genocide, which we have written about before (Transition or Death, Total War and Trans Liberation, Death Before Detransition: In Solidarity with Jaia Cruz). This assertion is in no sense hyperbole or exaggeration. Trans people are under genocidal assault by the settler state.

The proponents of this policy are well aware of this, and consider this forcible imposition of their own values onto the bodies of children to be “protecting” them. Protecting them from what? From the freedom to choose, which naturally builds on the innate drive to resist infringements on that choice. If children are permitted agency over their own lives, then what guarantee is there that girls will grow up into submissive subservient women, obediently serving the interests of abusive patriarchal fathers, husbands, and the state? What guarantee is there that boys will grow up to take their place in the home, workplace, and state as the violent enforcers of the patriarchal order? If given a choice, children can choose anything, and as far as the settler-colonial system is concerned, that is unacceptably dangerous. These children will be ruthlessly punished for choosing “wrong”, and so in a twisted sense stripping away their freedom to choose certainly does “protect” them.

It should be stressed that this danger perceived by the transphobic reactionaries is in fact real. We are a threat. By simply existing out in the open, trans people, particularly trans women, threaten the continued enforcement of transmisogynistic violence which undergirds the very fabric of the cispatriarchal regime and consequently the material reproductive base of the settler colonial occupation of Turtle Island. We lay bare the crying contradictions of this societal death cult. We exemplify in action as well as in words that you really do have a choice, you don’t have to submit, you can live the life that you want for yourself, you can be the person that YOU want to be. By demanding respect for our humanity and our agency, we demand in the same breath respect for everyone’s humanity and everyone’s agency.

The existence of trans people then is an irreconcilable contradiction, a revolution in process against the hegemony of patriarchy. This as-yet-incomplete revolution forces compromises by the regime. It begins to accept our existence, but only in part, in incomplete form, and it demands at the same time compromise from us. The forms of these compromises are varied, ranging from “stealth” where our existence as trans people is accepted only so long as we remain invisible and indistinguishable from cis people, to “respect” for our “identities” wherein our humanity is treated as a relatively harmless aberration, a “delusion” to be tolerated and humored, or a “mental illness” to be pitied rather than a revolution to be feared. But the fear is there nonetheless. We’re depicted in the news media and mythologized in horror movies as grotesque brutish caricatures of women, bent on the predation and murder of “real” (cisgender) women. A cold gripping terror of trans women is woven into the very fabric of this society. We are the worst thing you can possibly be, repulsive to all decent upstanding people. At least, that’s how the bourgeois media likes to present us, as a cultural boogeyman to be reviled. And as the empire’s grip on power declines, as its legitimacy in the hearts of the people falters, the fear turns to panic, and it begins clawing back what little it gave us. The empire itself is terrified of us and killing our trans children because of it.

Trans people, particularly trans women, have always been at the forefront of the Queer liberation struggle. From the Stonewall riots to STAR’s collaboration with the Black Panthers, trans women have consistently been on the bleeding edge of militant struggle, cutting into the heart of the empire. Today the Communist movement finds itself disproportionately represented by trans women. Nearly every org has us, and some of our orgs are majority trans. And the reason is simple: we’re marked for death by a society which has never had a place for us and never truly will. When our very lives are forfeit, we have absolutely nothing left to lose but our chains. We’re drawn to Communism because the settler colony leaves us no choice: revolt or die. Make no mistake, this assault will continue and it will escalate. The support by Communists for the Palestinian liberation struggle will be pointed to as evidence of “transgender terrorism”, necessitating additional crackdowns, surveillance, imprisonment, and disappearing. Cutting off trans children from lifesaving healthcare is accompanied by banning the discussion of trans issues among all children. We face punishment, arrest, and even death for simply talking to kids about this. They will begin to consider us unfit parents and those of us who have kids will face the reality of the state’s willingness to kidnap them in order to break the generational continuity of our revolutionary resistance. Don’t believe us? Disabled people already routinely face this, and are being pushed ever further into the margins of society where they can be left to die with nobody watching. 

This is nothing new. The AIDS epidemic was left to run rampant, deliberately exacerbated, research was blocked, and trans and queer people began to waste away and disappear, because they were afraid of us, because they wanted us dead, and those deaths set the revolutionary movement back by a whole generation. The genocide against us destroyed and continues to destroy countless lives and their accumulated experiences, knowledge, culture, and traditions of resistance. But this tendency towards genocide, and the tendency to target children, goes back even further—it is baked into the structure of settler colonial society. The empire’s genocidal hunger for control over this land faced militant resistance by the Indigenous nations for centuries, until finally the policy to “kill the Indian to save the man” was implemented. The state kidnapped children from their Native parents, forcing them into brutal reeducation camps disguised as “residential schools.”

Native children were abused and tortured into adopting the colonizer’s language, religion, and culture. Their spiritual and philosophical understanding of the world was beaten out of them. Their hair was cut short, their clothes were destroyed and replaced with what the colonizer deemed acceptable. Any “confusion” about gender roles (which the Indigenous nations had very different views on), was violently stamped out. Their very names were stolen from them, replaced with names suitable for “Christian” society, and unspeakable sexual violence was inflicted on them as a disciplinary measure. In breaking the Indigenous cultural continuity, the traditions and experiences of resistance were shattered. Traditional communal practices and modes of organization were erased, and the very language of resistance was lost (a process referred today as epistemicide).

This is why they are targeting trans kids first. Not because there’s any “reasonable scientifically-grounded” argument for blocking lifesaving healthcare for children, not because children are “threatened” by trans education, or by sex education, but because the empire itself is threatened by our tradition of resistance. It is terrified that we are forming part of the leadership of the revolutionary struggle that will overthrow it, and it is seeking to erase our history, culture, and knowledge through both exterminatory and “cultural” genocide. Similarly, the targeting and extermination of Palestinian children by the zionist occupation is far from an accident, but a deliberate measure to break the continuity of resistance, to stave off the revolution for generations to come. 

The Black, Indigenous, trans, and queer revolutionaries of yesterday were crushed by coordinated campaigns of genocidal propaganda, state terrorism, assassination, and biological warfare. Palestine faces the brunt of the current wave of the genocidal onslaught, (as of this writing the occupation is killing 150 Palestinians a day) but the violence won’t stop with them. The fate of colonized peoples everywhere, from Palestine to Turtle Island, is bound together by the violence of settler colonialism; and as a group fundamentally incompatible with the settler regime, the fate of trans people too is bound up with theirs, as is the fate of disabled people. We aren’t in this struggle alone! It is the solemn duty of the Communist movement to center and uplift the struggles of the most oppressed, to center the Black liberation struggle, the Indigenous/Palestinian liberation struggle, the Queer liberation struggle, the trans liberation struggle, the disability liberation struggle, the women’s liberation struggle. These forces can and will be united, they must be for all of us to survive. These are the forces of the revolutionary proletariat, whom Communists must weld together into a united class capable of leading the Revolution. Together, we will take the future into our own hands, by force, and carry forward the banner of humanity, marching hand-in-hand over the flaming wreckage of this most ruthless and destructive of empires, towards a shining future of peace and equality for all.

It won’t be easy, but it will be worth it. Let’s get to work.

By 1965, the old slave power had managed to beat back Reconstruction and establish itself as a constellation of terror-states in the U.S. South. While the capitalist ruling class in the North was content to hide or mystify the national oppression the U.S. system relied on, for the defeated Southern planter class and their petty-bourgeois hangers-on, this sublimation wasn’t enough. They were either ideologically incapable or materially incapable of joining the northern capitalists in adopting grand-sounding language about equality while maintaining the national oppression of New Afrikans and Indigenous Peoples; their deep-seated ideological commitments required them to constantly express their white supremacy in overt and terroristic ways. Sitting atop a semi-colony of brutally oppressed people, the ruling class in the U.S. South had, as the slaver Jefferson said, “the wolf by the ear.” In order to feel safe in that great prison, the Southern ruling class had to maintain absolute, fascistic, political supremacy over the Black population.

Indeed, the southern whites had been more or less permitted to do just that in the long period between the overthrow of radical Republican Reconstruction in 1877 (the period known to the Southern whites as “Redemption,” that is, redemption of the white supremacist power and the defeat of New Afrikan self-governance) and the alliance that emerged between Black World War II veterans returning to the South and the growing Black petty bourgeoisie. This period lasted from roughly 1877 until 1950.

In 1941, the racist policies of the FDR administration were challenged by A. Philip Randolph and his Black March on Washington; in 1954, the Supreme Court ended the legal basis for segregation in public schools when it decided Brown v. Board. Northern capitalists were insistent on bringing the southern slaveocracy into the modern day, not for moral reasons, but for economic ones. In 1957, the federal government passed the Civil Rights Act, the first signed into law since 1875. These decrees from on high were motivated by the need to free up labor in the Black Belt from the regressive agrarian prisons that the colonial relations still kept them in; but none of these decrees changed the balance of power in the South. Black New Afrikans in the semi-colonial states were held in a vice of property and labor theft, rape, arson, lynchings, and undisguised murder. In the U.S. South, the state ruled by terror. Despite the promise of the amended U.S. constitution, Black people who registered to vote took their lives in their hands.

At the end of the 1950s, the militant streams of Black resistance gained more and more currency and began to unite. These were often spearheaded by Black veterans or radical Black students, many of whom were explicitly Communists — Marxist-Leninists or otherwise. This period saw the rise of Malcolm X, the Black Panther Party, and of the Southern Christian Leadership Conference.

The passage of the Voting Rights Act was the result of a tightening labor market in the U.S. at the same time that militancy was increasing and the consciousness was widening for the support of a Black national movement.¹ Economic pressure joined with the Black drive for liberation. There was a real fear in the halls of power that the U.S. state could face a Black domestic insurrection and an increasing desire to see the fragments of the Southern planter class and their dependents defeated entirely, to consummate the triumph of free labor, as opposed to low-productivity sharecropping and semi-slave labor that still reigned in the South. Even the former planters themselves had begun to realize that they couldn’t continue to manage their sections of the country by relying purely on terror. They realized they needed to find a way to accommodate the form and appearance of equality while maintaining the white supremacist content of the slaveocracy.²

The VRA established a relation between the planters and the federal government that was similar to that of Reconstruction. Its general provisions under section 2 of the law prohibit state and local governments from enacting any law or rule that denies or abridges the right of any citizen to vote on account of race, color, or membership in a language group. Other general provisions outlaw literacy tests and poll taxes. The special provisions granted the federal U.S. Attorney General and the District Court for DC power over Southern elections, redistricting plans, and so forth, that essentially put the Southern states into a kind of federal receivership for the purposes of voting.

The War on the Voting Rights Act

Although the VRA was a necessary concession to save the capitalist state by creating a veneer of participatory democracy in the US South, it wasn’t fully implemented all at once. This gave the ruling class time to find ways to empty the vote of its power. There remained, however, a significant faction within the broader US capitalist class itself for whom the VRA remained ideologically intolerable. Existence of international pressure from the Soviet Union and the national liberation and Pan-African movements forced the US to maintain this veneer. With the fall of the USSR and the declining world-position of the US ruling class, this clique of ideologically devoted racists has gained more and more adherents from their bourgeois colleagues. 

The Federalist Society is one of the bastions of the movement to reverse the changes in the US legal landscape and return to the early 20th century when capital openly ruled the courts.³ In 2013, the US Supreme Court, that bastion of ruling-class power,⁴ nullified the powerful special provisions of the VRA in Shelby Counter v. Holder. In the 2021 decision Brnovich v. Democratic National Committee, the Supreme Court weakened the general provisions of section 2 of the VRA. Now, the court is poised to rule on the constitutionality of section 2 as a whole. The legal war waged by the growing right-fascist bloc for half a century is nearing its conclusion. We must ask: does it matter if section 2 is struck down? If it does, why and how? Is there any way we can agitate around this issue? Does it mean we Marxists must join hands with Democrats and other fragments of the ruling class?

To briefly answer each in turn: firstly, yes; secondly, it is a sign of how advanced the imperialist decay is; thirdly, yes again; and, finally, absolutely not!

What Will Be the Outcome?

Despite the fact that the VRA in and of itself cannot guarantee anything, and despite the fact that its passage was an accommodation that was fashioned as part of an overall effort to pacify Black militancy and disarm the Black national revolutionary consciousness of the 1950s and 60s, it is actually of great importance to us whether or not the fascist court strikes it down. Oral arguments in Louisiana v. Callais have already signaled that the court does intend to roll back this final element of the VRA. This is part and parcel of the right-fascist drive to restore capitalists to open and undisguised power in all aspects of political and legal life. It dovetails with the same right-fascist attack on the administrative state presently being carried out under the guise of the shutdown, a political “conflict” in which the left-fascist Democrats are playing the role of useful idiot.⁵ Given the disposition of political forces and the economic situation (increasing inflation and unemployment) it is likely that the VRA’s section 2 will be struck down.

The fate of the VRA is a bellwether for the degree of decay of the old US imperialist system that prevailed from 1991 until today as well as the balance of power between the left- (Democratic/Progressive) and right- (GOP and MAGA) fascist cliques within the ruling class. If the VRA is struck down, Democratic Party operatives will ceaselessly and breathlessly fund raise and proclaim their old doctrines about emergency organization in the face of “Trumpist” fascism and the need to permit people from both sides of the color line to participate in and enjoy the capitalist system. In private, of course, they will signal more cynically that it’s just good strategy to give the nationally oppressed the illusion of democracy. After all, they will say to their donors in closed-door dinners, it’s not as if the masses of Black people — or for that matter, any working-class voters — actually have any way to influence the important policies of the US state.

If the VRA is struck down, it signals the right-fascists are extremely advanced on their path toward carrying out the genocide of the nationally oppressed that they have been preparing for Black and Indigenous people in the US.⁶ Striking down the VRA would remove entire layers and battlefields of intra-bourgeois political struggle — layers that are “wasteful” in the eyes of the ruling class, just like the “waste” of the administrative state that they are dismantling — but would also strip away the illusion that the US state can be altered by the oppressed voting in any meaningful way.

What Is Our Task?

If the VRA is defeated, the Democrats will attempt to lead the movement that organically emerges in reaction. Many will rightly be afraid of what the loss of the final provisions of the VRA mean for the nationally oppressed and other groups openly targeted by the right-fascist government. We cannot allow this to happen. Democrats will naturally frame the question as one of government participation. They will start new voter registration drives, demand mobilization to defeat the right-fascists at the ballot box, and exercise a full-court press for the election of Democrats to the Congress and in local government.

We must instead first agitate against the new terror-government directly, then propagandize to expand the consciousness of the masses to connect the striking down of the VRA with the entire rotten system. It will be clear to many that there are no self-correcting measures available. With the open and legal disenfranchisement of Black voters in the South and other right-fascist strongholds, the layer of mystification that promised government responsiveness to the people will be gone.

Now is the time to prepare for the VRA to be removed. Now is the time to lay plans. If it is not, and the right-fascists instead uphold the remaining section to buy more time before carrying out a direct assault on the ballot box, then our preparations won’t have been in vain; we can still carry out agitation and propaganda on the basis that the VRA could have been struck down, and likely will be struck down in the near future. We must broaden the call to include other landmark rulings and laws that were offered during the heyday of empire — Griswold v. Connecticut, Lawrence v. Texas, Loving v. Virginia, Brown v. Board, and Obergefell v. Hodges — and warn that they too stand to be struck down by the right-fascists.

The moment is ours; the Democrats must not be allowed to stand at its head.

Footnotes

1. The tightening labor market put the pressure on to mobilize and “free” tied up labor; business interests wanted to draw from the pool of sharecroppers in the Black Belt.
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2. “By the 1950s the language of white supremacy was gradually softening in some quarters, becoming less shrill in an attempt to gain respectability for racism. Phrases like ‘states’ rights’ and concepts such as the need to protect ‘constitutional liberties’ from communist subversion and federal intervention were becoming stand-ins for raw racial rhetoric.” Cobb, Charles E. Jr. This Nonviolent Stuff’ll Get You Killed: How Guns Made the Civil Rights Movement Possible. Duke University Press, 2015.
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3. See The Society Behind the Supreme Court’s Fascist Blitzkrieg in the Clarion.
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4. See Capital’s Supreme Defender in the Clarion.
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5. See This Land Ain’t Your Land: The US Government Shutdown in the Clarion.
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6. See DC Occupation: Coming to Your City Next in the Clarion.
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It wasn’t. Warren’s politics were class peace and reform. He treated Communists as class agitators, but he also ruled consistently to “soften” the excesses of capital.

The Warren court went on to decide some of the most important cases in modern Statesian jurisprudence. Brown v. Board of Education, ending legal segregation, Loving v. Virginia, outlawing antimiscegenation laws, Griswold v. Connecticut, establishing the right to birth control, and four major criminal cases that established the rights we think of as fundamental to the criminal process: Gideon v. Wainwright, the right to a court-appointed attorney, Brady v. Maryland, the right to be given exculpatory evidence held by the state, Wong Sun v. United States, granting the right to suppress evidence that was obtained by the police illegally, and Miranda v. Arizona, the right to be informed of your rights when you’re arrested, the famous Miranda warning.

Among these progressive expansions of individual rights was Robinson v. California, the case that the current Supreme Court has just limited to its facts and robbed of any precedent-establishing power. What did the Warren court hold in Robinson? That it was cruel and unusual punishment in violation of the 8th amendment of the federal constitution to criminalize a “status” over which a person has no control. In that case, the court struck down a California law making it a crime to be addicted to drugs. The fascist court of John G. Roberts, Jr., has just held, in the newly issued City of Grants Pass v. Johnson, that the Robinson ruling doesn’t apply to the homeless. This is just the latest in the Roberts court’s piecemeal march against established Warren precedents, and represents nothing less than the sharp contraction of the U.S. empire.

Warren and the Apogee of Empire

By 1953, the war had been over for eight years. Europe lay devastated. In 1948, Truman enacted the Marshall Plan, pumping U.S. capital into areas Washington’s elite thought might be vulnerable to Communism. It was a kind of economic GLADIO, a stay-behind program (and if you don’t recognize GLADIO, that’s worth reading up on). The world war hadn’t ended before the Cold War began, and the U.S., its domestic production untouched by the conflict, stepped out of Great Britain’s shadow to claim hegemony over the West and proclaim itself the sword and shield of the Euro-American capitalist class.

Eisenhower was the first truly post-war president to preside over this new American empire. In a sense Warren and his court, which lasted until 1969, was an extension of the ruling class politics of the age. What was this policy? The expansion of New Deal-type programs — which Warren had attacked before taking the bench — and the creation of a new Pax Americana. Under Eisenhower, post-war imperial wealth flowed from all corners of the globe and it was used to establish social security, the interstate highway system, and NASA. Instead of the growth of social democracy and the welfare state, as seen in Europe, class struggle was suppressed in the U.S. through the expansion of public infrastructure and the goodwill (read: self-preservation) of the capitalist class, which gave out robust pensions, employer-provided health insurance, etc. These benefits fell primarily to the “white” workers, which by now included formerly “non-white” ethnicities from Europe such as the Irish and Italians. The class struggle was thus forced underground during this period, and it manifested explosively in the struggles for national liberation that shook the country from the mid-50s until the end of the 1970s.

We needn’t prove Warren’s personal motivations as Chief Justice to make our case. In fact, from all outside appearances, he genuinely believed in the principles he espoused through his decisions. But such is the case with many bourgeois politicians. They earnestly believe their class ideology. The fact that it serves a class purpose operates on a level below their conscious understanding. It is typical for members of the ruling class to be thoroughly seduced by the self-justifications and illusions that make up their class morality.

Above all, it is this legacy of bourgeois morality that the ultra-fascist majority on the Roberts court have set as their target. As arch-reactionaries, they are working to roll back the clock and restore the early 20th century pre-Warren legal landscape. They are ushering in an era of naked class domination, stripped of the comfortable fat provided by the loot of empire.

Grants Pass is a Return of Labor Discipline

To understand Grants Pass we have to look at the direct precedent that the Roberts court has overturned. The case in question is Martin v. Boise, a 2019 decision concerning unhoused people that was issued by the Ninth Circuit federal Court of Appeals. The Ninth Circuit covers the geographical area of Washington state, Oregon, Idaho, Montana, Nevada, California, and Arizona. According to the 2022 Annual Homelessness Assessment Report released by the federal Department of Housing and Urban Development, 40% of the country’s entire unhoused population lives within the Ninth Circuit’s jurisdiction. As the fascist justice Gorsuch, author of the majority opinion in Grants Pass, noted, “homelessness in this country has reached its highest levels since the government began reporting data on the subject.”

The Martin ruling made it unconstitutional (within the Ninth Circuit) for a state to enforce criminal penalties on public camping if the city in question lacked sufficient shelter beds to house its unhoused population. The legal rationale is dull, but in essence the court held that it was a violation of the 8th amendment’s prohibition against cruel and unusual punishment to jail houseless people simply because they had nowhere to stay, especially if the city lacked sufficient public relief. The Martin decision was predicated on the Warren court’s Robinson ruling, where the court held it to be a violation of the 8th amendment’s cruel and unusual punishment clause to criminalize addiction.

City of Grants Pass arises from a Martin injunction brought by Gloria Johnson and John Logan, who challenged the city’s public-camping laws. They brought a suit as a federal class action, representing “all involuntarily homeless people living in Grants Pass.” A panel of the Ninth Circuit found that Johnson and Logan faced a credible threat of punitive action from Grants Pass and that all unsheltered people in the city were “involuntarily homeless” because the city’s unhoused population exceeds available shelter beds. The city, desperate to retain its punishment power and other tools of state repression, sought a rehearing en banc by the entire court; it was denied. 

Grants Pass filed a petition to the Supreme Court for certiorari (certification that the issue be heard by the Supreme Court of the United States). The cities of Albuquerque, Anchorage, Chico, Chino, Colorado Springs, Fillmore, Garden Grove, Glendora, Henderson, Honolulu, Huntington Beach, Las Vegas, Los Angeles, Milwaukee, Murrieta, Newport Beach, Roseville, Saint Paul, San Clemente, San Diego, San Francisco, San Juan Capistrano, Seattle, Spokane, Tacoma, and Westminster, the National League of Cities (representing over 19,000 other American cities and towns), the League of California Cities (representing California’s 477 cities), the League of Oregon Cities (representing Oregon’s 241 cities), the Association of Idaho Cities (representing Idaho’s 199 cities), the League of Arizona Cities and Towns (representing all 91 municipalities in Arizona), the North Dakota League of Cities (representing 355 cities), the Counties of Honolulu, San Bernardino, San Francisco, and Orange, the National Association of Counties (representing all 3,069 counties of the U.S. empire), the California State Association of Counties, the Special Districts Association of Oregon, the Washington State Association of Municipal Attorneys, the International Municipal Lawyers Association, the District Attorneys of Sacramento and San Diego Counties, the California State Sheriffs’ Association, the California Police Chiefs Association, the Washington State Association of Sheriffs and Police Chiefs, California Governor Gavin Newsom, San Francisco Mayor London Breed, and 20 other states (Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and West Virginia) all joined the city to support the petition for certiorari.

All the lackeys of law and order, all the petty bourgeois strivers and graspers, all the pigs and their captains, all the fascist forces of the Western United States, put their names on the petition and many of these wrote briefs in support of Grants Pass, begging for Martin to be overturned. The Roberts court was only too happy to oblige.

The Unhoused: Proletarians and the Reserve Army of Labor

The unhoused generally fall into one of two categories when it comes to class. Either they are themselves working class proletarians, who work by wage labor, or they are sub-proletarians, thrown out of the labor force entirely and denied any means of support. These are people who would otherwise live by wage labor, who have no substantial property or investment in the machinery, land, or other tools by which society produces the commodities that are its lifeblood. Many unhoused people were sheltered proletarians or even petit-bourgeoisie only a short time before they became unhoused. With the dismantling of the feeble safety nets erected during the imperial apogee by the “liberal” crowd of Clintonites in the 90s, it has become easier than ever to fall out of the sheltered working classes and enter the ranks of the sub-proletariat, the great unhoused.

The unhoused already suffer a number of critical disabilities inflicted on them by “civil society” before we reach the question of criminalization. Lacking a permanent address and in many times deprived of a stable telephone number, the unhoused are generally prevented from voting by registration requirements. This means the lofty list of cities, towns, counties, etc., that filed to support the City of Grants Pass in its bid to criminalize homelessness were elected without input from the very population they want to police. This is what we mean by class domination. (In the case of the rest of the working proletariat, this relationship is slightly more disguised; because we can technically cast a ballot, and we are often duped into thinking the ballot matters.)

Marx calls those who are kept out of work the relative surplus population (meaning, those people who are, relative to the active work available, kept as extra or surplus without employment) or the industrial reserve army. By limiting the number of jobs available and ensuring that every proletarian and sub-proletarian who isn’t working lives in squalor and near-death, the capitalist class “forms a disposal industrial reserve army, that belongs to capital quite as absolutely as if the latter had bred it at its own cost…. [I]t creates, for the changing needs of the self-expansion of capital, a mass of human material always ready for exploitation.” Capital, Volume 1, Chapter 25, Section 3. At the same time, this industrial reserve army creates a source of extra labor with which to break strikes and serves as a club to discipline the labor force. 

Imagine, for instance, that you work in a McDonalds or an Amazon warehouse. The conditions are atrocious in this particular location. Wages are being docked or withheld illegally, people are being disciplined for nothing, and you aren’t being allowed to take your breaks. You decide to unionize to force the owners to the table; after all, if everyone threatens to walk off the job, they’ll have to make concessions. If you’re in a city where there is a very large unemployed or under-employed population, the owners might simply say “Fine,” discharge you and all your fellow would-be unionizers, and hire replacements from that unemployed labor force — that industrial reserve army.

This helps keep down wages even before we begin to account for the widespread U.S. practice of utilizing basically free prison labor. Criminalization gives capitalists the chance to make use of that free labor because the habitually unhoused will be arrested again and again, and eventually be given sentences of imprisonment that turn them into a state workforce. This is state-labor-for-hire without compensation, all perfectly legal under the 13th amendment to the constitution, which outlaws slavery except as punishment for a crime. After all, about one-third of all California’s firefighters are judicial slaves.

The effect of this ruling on wages and benefits occurs purely by operation of the underlying political economy that will result. It doesn’t require an active conspiracy on the part of the court, the cities, the sheriffs and police, or anyone in the entire chain of command that will ultimately enforce the punitive bans that wind up criminalizing homelessness. Even if, at each step in this process, the agent of the state is merely expressing an honestly-held dislike of “public vagrancy” (and the Gorsuch opinion is brimming with classist descriptions of public defecation and children wading through used needles), it will have the same ultimate effect. More enforceable criminal penalties means more prisoners; it means more court fees; it means, therefore, in states where inmates are forced into slavery, a larger free laboring population. This means the cost of labor will fall relative to its value as more laborers enter the market. Businesses will have the choice between hiring free workers, who might be disobedient, agitate for a rise in wages, etc., or paying the state money to make use of a captive work force. The market price of labor will therefore fall. This, while we are experiencing the sharpest rise in cost of living since the inflation crises at the close of the 1970s, ensures that more workers will be made unhoused as their wages fall, and a downward pressure will continue to be exerted on wages.

The more precarious a workforce is, the more subject to random arrest and search or other punitive measures, the less likely it is to seek redress through unionization and organization. That lesson was demonstrated by the poultry industry when they simply had their unionizing workers deported en masse.

Marching Counter Clockwise

This decision is part of the court’s broad assault on the Warren-based state, the administrative state (that is, the delegation of rulemaking authority from Congress to the administrative agencies), and, critically, the legal regime of unionization. The ultra-fascist justices have rejected a century of precedent and appear intent on ushering in an era of labor-discipline that resembles the U.S. of 1900, before the labor struggles that established the legal right to unionization and prior to the creation of the National Labor Relations Board. The Grants Pass decision fits neatly into this plan to march backwards, into a pre millenarian century.

The door now stands open for the re-establishment of the debtor’s prison in name as well as form. Although the judicial system has long practiced a kind of debt imprisonment in actuality, in form the debtor’s prison is often seen as a quaint Victorian curiosity. There is much less need for covert imprisonment-for-debt now that the highest court in the country has ruled that it is permissible to make homelessness illegal. Yes, certainly, there is an act that these laws proscribe (sleeping in public), but the act is inextricably tied to the status that Gorsuch claims they aren’t criminalizing. The Supreme Court has legalized the debtor’s prison, has given its blessing to the mass incarceration of the unhoused, and has created the conditions for a massive reactionary backlash.

We can see it in the language the majority uses, through Gorsuch. He disdainfully complains that a Chico, California homeless shelter wasn’t sufficient under Martin, even though it “included protective fencing, large water totes, handwashing stations, portable toilets and a large canopy for shade…. Why? Because, in that court’s view, appropriate shelter requires indoor, not outdoor spaces.” Gorsuch has described a concentration camp for the unhoused and mocked a court for holding it insufficient.

This is the future imagined by the Roberts court. Of course Gorsuch defends the concentration camp. When the Supreme Court issues a decision, it isn’t merely making a legal ruling, it is communicating with the parties and potential future parties. The parties to this case weren’t merely the City of Grants Pass, Gloria Johnson, and John Logan, but also every one of the thousands of cities and counties, sheriff’s associations, police groups, district attorneys, state’s attorneys, and other agents of the bourgeois state apparatus. The lurid language that Gorsuch uses is a signal. Justices choose their words carefully. We must be prepared. The state is. They are preparing labor camps for the houseless, “shelters” with protective fencing and a canopy for shade. Taken in the light of the other rulings the Supreme Court recently decided, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, which we discussed when the year began, the intention of the court is clear. They aim to strip administrative agencies of their power, destroy the NLRB, and subject working people throughout the country to a regime of labor discipline by police control.

The liberal process-worshippers immediately deployed their spin doctors to explain why their so-called liberal justices on the court, including Ketanji Brown Jackson, whom this paper has already explained was appointed as a sop from Biden to the left wing of his party, also voted to keep Trump on the ballot. Despite the fact that the pro-Biden chorus has consistently made the claim that Trump and his ilk are a “threat to democracy” (they mean bourgeois democracy!) their appointed justices closed their eyes, held their noses, and voted to leave this “threat to (bourgeois!) democracy” on the ballot in Colorado.

Factions at Play

The ruling class is divided into groups, factions, and cliques. It has never been homogeneous, and the geographical layout of the U.S. Empire has played into the division of interests. As crises grow more acute and the contradictions sharpen — that is, as the divisions become more and more pronounced and the system of U.S. imperial capitalism decays — the ruling, capitalist class will be riven apart by its own internal contradictions and then, as the threat of losing power becomes real, will suddenly be welded together again into a single fighting force.

What are the factions currently on the stage? Obviously, we have the Democratic Party and the Republican Party, which at one time represented functionally different interests and ideologies within the ruling class. However, as we have seen, these names — Democrat, Republican — no longer correspond in any meaningful way to policy positions by the ruling elite. They are, more and more, losing their attachment to the real world.

So, then, we have 1) the Democratic-centrist faction, embodied in President Biden and the DNC and 2) the Republican Old Guard centrist faction. Biden is the president of compromise between these two groups. Each party then has its flanks — on the left, weakening and atrophying within the Democratic Party, are the so-called “progressives” and on the right of the GOP are the growing and strengthening MAGAcrats. The Democratic-centrist faction dominates the Democratic Party, while the MAGAcratic faction dominates the GOP.

Colorado Takes Action

Last September in the lead-up to the Colorado primary election, Republican voters in Colorado filed a petition against Trump to the effect that the 2021 January 6 putsch made him constitutionally ineligible to serve as the president of the U.S. Empire for another term. The legal theory, which is less important than the fact that the Colorado Supreme Court agreed with them, relies on Section 3 of one of the Reconstruction amendments to the U.S. imperial constitution. Section 3 of the Fourteenth Amendment, passed in the wake of the U.S. Civil War and designed to prevent treasonous Confederates from holding office, states that “No person shall… hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States… to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”

The Colorado Supreme Court agreed by a 4 to 3 vote. All seven of those justices were appointed by Democratic governors of the state, and only two are registered Republicans. However, the Colorado Supreme Court is, by and large, a club of former Assistant Attorneys General and District Attorneys. The four judges that voted to strike Trump from the ballot were Richard Gabriel, Melissa Hart, Monica Marquez, and William Hood. The three who disagreed were chief justice Brian Boatright, Maria Berkenkotter, and Carlos Samour.

Richard Gabriel was a private business lawyer in Colorado; his wife is a Federal public defender in Denver, Colorado.

Melissa Hart is a Harvard law graduate, a former U.S. Department of Justice attorney, and Associate Professor Law at University of Colorado Law School.

Monica Marquez is a Yale graduate who clerked for federal judges and then worked as an attorney in Colorado’s Attorney General’s office for eight years. She was president of the Colorado LGBT Bar Association and board member of the Colorado Hispanic Bar Association before she was elevated to judgehood in 2010.

William Hood is a former prosecutor who worked for the D.A. in Colorado for ten years before becoming a District Court judge in Denver.

Maria Berkenkotter was a member of the Colorado Attorney General’s office before becoming a judge.

Carlos Samour is another former prosecutor, who worked for the district attorney’s office in Denver for a decade before becoming a judge.

Brian Boatright. The chief justice of the Colorado Supreme Court and a registered Republican, he worked as a prosecutor for nearly a decade, and then was appointed to be a judge.

We can see the intraclass battle being waged here amongst representatives of the ruling bourgeois elite. On the one hand, the centrist Democrat-aligned justices have every reason to want to exclude Trump from the ballot and, even more, those who have significant vectors of social oppression have an added incentive to see Republicans broadly disempowered. Keep in mind how the Colorado Supreme Court ruled, because this is how a party must and should act to retain power.

On the other hand, the Republicans of Colorado are divided into two groups. Overall, Republican politicians are generally weak in Colorado, and have been in a sharp decline. Indeed, after the 2022 midterm elections, a Republican state representative said “Colorado Republicans need to take this and learn the lesson that the party is dead. This is an extinction-level event.” The majority of the rump Republican party is very far to the right in Colorado, and has embraced MAGA-Republican far-right positions.

However, just as there exists a federal-level “left” wing of the Republican party — the old guard who want a return to the vaguely bipartisan system of suppressing the workers together with the Democrats in a friendly sparring match over policy and the distribution of money — there exists a much smaller “left” wing of the Colorado GOP. Norma Anderson — the Anderson of Trump v. Anderson — is a former state lawmaker and a “diehard Republican,” which should give you an idea of the animosity on the Republican right between MAGAcrats and the old guard.

The Supremes Say No

Every “progressive” “left-wing” justice (!) on the Supreme Court of the United States had less courage than their Colorado counterparts Gabriel, Hart, Marquez, and Hood. The Democratic party spin machine is repeating SCOTUS’ own tortured logic: that the decision to enforce the 14th Amendment is one that has to come from a federal body, not a state one.

The majority, excluding Republican Barrett and Democrats Sotomayor, Kagan, and Jackson, went on to decide that only the U.S. Congress can disbar someone for seeking office under Section 3 of the 14th Amendment — that no court, no agency, and no other authority has that power. This makes Section 3 a dead letter as there will never be an alignment of political forces that permits both chambers of the Congress to act together to ban a candidate for office, short of a single-party coup of the government.

These “progressive” justices did not act to preserve party power the way the justices in Colorado did. Why not? Because at the federal level the Democratic Party is unable to give to the left in any meaningful way. The potential of the party to act to smooth harsh conditions created by the decay of the U.S. imperial order has been totally exhausted. In essence, had the Democratic justices been successful in keeping Trump off the ballot the federal party would be forced to use further effective political tactics to give working people, students, immigrants, and the increasingly-exposed groups of the socially oppressed, who are all in peril, some kind of relief. It would prove that they, the federal-level Democrats, are capable of acting outside the barriers of propriety, and then they would be asked to do that for the benefit of their supposed constituents.

They know they can’t.

Fault Lines

We are seeing a division opening up between the state-level Democratic parties and the federal Democrats. The Colorado party is substantially more progressive and sits to the left of the federal party; it embodies the local interests of local bourgeoisie within Colorado, of which the elite financial/imperialist bourgeoisie play a very small part. With this smaller strata of imperialist bourgeoisie, the needs of the upper and middle ranks of the petit-bourgeoisie are much more strongly expressed, and thus we can see that state party politics in Colorado trend toward petit-bourgeois vacillation rather than open bourgeois reaction, which is the current trend in the federal party. 

The petit-bourgeoisie are business owners and professionals. Anyone who both owns the means of production (shops, specialized technical skills, small capital) and also works to support themselves are members of this class between classes. They have interests in common both with workers and with owners, which explains why their political consciousness tends to be confused. These include middle and small-time lawyers, accountants, etc. The big bourgeoisie are those who own big capital — major firms, investments, etc. — and who do not work. Petit-bourgeois political consciousness trends toward that brand of liberalism that demands equality for women by calling for “more women prison guards!”

The lower bourgeois/petit-bourgeois makeup and ideology of the state Democratic parties means these parties trend toward faux-progressive stances. They are now progressive, now regressive in turns, because the petit-bourgeoisie is caught between the truly progressive interests of the working class and the reactionary interests of property. Open bourgeois reaction is embodied by the Biden-”left” GOP alliance, and outright counter-revolution is embodied in the MAGAcrats.

At the state level, there is still some flexibility for the dying Democratic machine. There are funds to redistribute, there are enemies to expropriate from, and there are bases of power that don’t rely directly on the imperialist ruling class of the U.S. Empire to draw from. The glacial fracturing and break-up of the Democratic Party will see increased tension between state-level Democrats and their federal counterparts as their interests diverge.

Nevertheless, the federal party is still in the driver’s seat, as the outcome of Trump v. Anderson demonstrates. There may yet be a benefit in showing state-level Democrats that they do not have to align themselves with the corpse of their federal-level party. This is something that the masses of working people in the U.S. are more and more coming to realize: that the Democrats themselves must be rejected if the working people are ever to see relief.

The Supreme Court of the United States issued its decision in Arizona v. Navajo Nation last Thursday, condemning the Navajo people to surrender their treaty rights to water from the Colorado River and the other tributaries, streams, and sources that feed the Navajo reservation. This follows directly on the heels of the court’s Haaland decision which, as the Clarion predicted, marked not a high-water mark in the recognition of Indigenous sovereignty, but rather the beginning of a long-planned onslaught against the Indigenous peoples within the prison-house of the U.S. Empire.

Water is a precious commodity in the American West. Future desertification of the whole growing region is almost inevitable. The Navajo nation has been battling state governments for decades over the allocation of water in the region and the federal government for at least as long, looking for recognition of the rights that were promised by treaty.

In its duplicitous and cowardly Navajo Nation decision, the U.S. Supreme Court recast the issue; the treaty, they whine, only guarantees the Navajo Nation the right to water that flows into the reservation. If anyone were to redirect the water away from the reservation, then that’s just too bad. That water, they say, between the lines, has more use elsewhere — watering cash crops. As long as the $5 billion worth of agricultural industry is kept intact, so what if the Navajo people starve as a result?

The bulk of the opinion is actually an attack on the principle of the so-called “trust” that we discussed on Monday, the idea that the U.S. imperial state owes anything to the Indigenous peoples it has displaced, murdered, and betrayed. While Haaland made hay from the idea of the “trust relationship” in order to uphold Congress’s power to pass laws that govern Indigenous persons, Navajo Nation explicitly states that the trust relationship is non-existent. Justice Thomas dismisses the idea entirely in his concurrence. “[T]he idea of a generic trust relationship with all tribes — to say nothing of legally enforceable fiduciary duties — seems to lack a historical or constitutional basis.” Gorsuch and the three left-liberal justices alone — Sotomayor, Kagan, and Jackson — return to the treaty rights, to the sovereignty of the Indigenous peoples. But let us not forget that Sotomayor, Kagan, and Jackson also signed on to the main opinion of the court in Haaland, where the reactionary justices made it clear that the “period of treaty making” had ended and that the Indigenous peoples would be governed not from a sovereign to a sovereign but rather by the fiat of Congress, whose powers over them are “plenary,” an unassailable, hegemonic domination. Gorsuch clearly and plainly states the perfidy of the federal government:

The Navajo have tried it all. They have written federal officials. They have moved this Court to clarify the United States’ responsibilities when representing them. They have sought to intervene directly in water-related litigation. And when all of those efforts were rebuffed, they brought a claim seeking to compel the United States to make good on its treaty obligations by providing an accounting of what water rights it holds on their behalf. At each turn they have received the same answer: “Try again.” When this routine first began in earnest, Elvis was still making his rounds on The Ed Sullivan Show.

The Navajo reservation is the largest Indigenous reservation in the U.S. Empire. It encompasses over 17 million acres, and the tribe has enrolled over 300,000 members. The average non-Indigenous American citizen uses 82 gallons of water a day. The average Navajo person uses 7 gallons. In parts of the reservation, as much as 91% of the households lack access to water.

The court remains today what it has always been — the sword and shield of U.S. settler-capital. The decisions in Haaland and Navajo Nation could not appear more different on their surface, but if one looks beneath, it will become clear that they serve the same purpose: to grind the millstone of disenfranchisement and genocide.