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Caselist.CitesClass[3]
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1 -The standard is national sovereignty.
2 -The actor in the resolution is countries not individuals. Individuals transfer their will to their governments who then act on their behalf. Individual morality cannot resolve cosmopolitan duties, only governments obligations can, Jack Goldsmith writes, Jack Goldsmith, Professor of Law, University of Chicago, May, 2003 “Liberal Democracy and Cosmopolitan Duty,” STANFORD LAW REVIEW. 55 Stan. L. Rev. 1667
3 -“we cannot properly attribute cosmopolitan duties to individuals. He reaches this conclusion on the basis that "commonsense morality" n18 in the global context is impeded by the "phenomenological features of individual agency." n19 Three important features of commonsense morality are that individuals, and not *1672 groups, are the "primary bearers of responsibility"; that individuals have greater duties with respect to acts than omissions; and that individuals have "special obligations" and thus give priority to the near over the remote. n20 The commonsense conception of morality is a restrictive one that precludes the ascription of responsibility to individuals for the problems of global injustice.”
4 -The government guarantees a space for individuals to exercise morality. Without such a space, people would be in anarchy and morality would be meaningless, Pichler explains: Pichler, Hans. “The Godfathers of 'Truth': Max Weber and Carl Schmitt in Morgenthau's Theory of Power Politics.” Review of International Studies. Vol. 24, No. 2 (Apr., 1998), pp. 185-200. Cambridge University Press. http://www.jstor.org/stable/20097517.“Morgenthau believes in the existence of universal moral values and argues that 'it is the moral duty of people of the mind today to preserve the eternal moral ethical values in a clear conceptual order'.68 Yet, in the anarchic and violent international system dominated by the struggle for power, there is no room for altruistic action and a moral life. Such a life is only possible within the state, where sanctions guarantee the respect of moral norms and laws. Through the existential security it offers the individual and society, the state thus constitutes the only moral space in an amoral world. If the state perishes, however, this moral realm also disappears. It follows that the preservation of the state is a moral act in itself. Indeed, for Morgenthau the state is not allowed to pursue any other end than its own self-preservation, even if this can be achieved only by immoral means.
5 -Denuclearization is an imperialist strategy imposed by hegemonic states. They assert that all other countries are irrational and dangerous. The goal of imperialism is ideological colonization. Biswas 14 Biswas, Shampa. Prof of PoliSci @ Whitman, Nuclear Desire: Power and the Postcolonial Nuclear Order. Minneapolis, US: Univ Of Minnesota Press, 2014. ProQuest ebrary. Web. 8 August 2016. Premier How does this international community enforce its will? The military option— the ­ willingness by the United States and Israel to preemptively strike Iran’s nuclear facilities— has ­ not been used but has remained on the table. But the United States and Israel have already successfully collaborated on more clandestine forms of intrusion— ­he t smuggled computer virus Stuxnet brought Iran’s centrifuges to a halt in 2010, and five nuclear scientists were assassinated in broad daylight on Tehran’s streets between 2009 and 2011. Even more forcefully, sanctions imposed by the international community have been steadily expanded to virtually paralyze the Iranian economy, with devastating consequences for ordinary Iranian citizens. Iran, it is fair to say, is truly desperate. The P-­5 plus 1 has offered to begin loosening the noose of these sanctions ever so slightly, if Iran is willing to halt its ambitions to acquire nuclear weapons. This is a minimal easing, President Obama has assured all, and easily reversible; the United States is willing to ratchet up the pressure in the future if need be. We are reminded time and again by reasonable, thoughtful, concerned interlocuters that “we are all safer in a world with a denuclearized Iran.” But who is this “we”—­ this mythical international community that speaks of peace and well-­ being for all made possible by reigning in this nuclear upstart? What kinds of questions about nuclear order and disorder are precluded when we invoke this “we”? Iran’s current ability to produce even a single missile-­ deliverable nuclear weapon is fairly limited. Every single member of the P-­5 (and Israel) has a sizeable nuclear weapons stockpile and considerable ability to deliver weapons. Each considers nuclear \ weapons as essential to its security, and none has ever engaged in any serious negotiations to eliminate its own nuclear ambitions. Nobody may be better off with Iranian nuclear weapons, but from what kinds of questions about the global nuclear order does this exaggerated attention to the disorderly conduct of Iran deflects attention? But also, who is the “we” that talks in the form of the state at these international negotiations? For whom do the “well-­ mannered, Western-­ educated” representatives speak when they speak to each other? The current accord places certain limitations on Iran’s ability to make and possess uranium enriched to a capacity more easily translated into weapons. But during the negotiations, Iran stood adamantly on demanding recognition from the international community of its “right to enrich uranium.” This demand has been put on hold for now; at least on this question, the United States has been willing to agree to disagree. But what kind of right is the right to uranium enrichment, and who gains from that right— whether ­ it be for the unremarkable case of the United States or for a so-­ called rogue state such as Iran? If sanctions are finally lifted, and Iran resumes its “peaceful” nuclear program with international approval, who will profit and who may be damaged from those pursuits?
6 -Fossil Fuels are an imperialist strategy—nuclear power plants provide countries with energy sovereignty. Cherp 12 Aleh; Professor of Environmental Sciences and Policy, Central European University; 2012; “Chapter 5 – Energy and Security. In Global Energy Assessment – Toward a Sustainable Future”; Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria; pp. 325-384Premier Launching or expanding national nuclear energy programs may also be viewed as a sovereignty strategy. Although few states can build and manage a nuclear power plant and the related nuclear fuel cycle on their own, they typically feel that there are fewer uncertainties beyond their control once the facility is up and running. Nuclear power can also be considered a diversification strategy for states relying on fossil fuels. For example, several Gulf States are import-independent but excessively relying on oil and gas for their electricity generation (Jewell, 2010 ). Another example is Belarus, whose electricity sector almost entirely depends on imported Russian natural gas. Belarus’ planned nuclear power plant will be manufactured from Russian parts and most likely use Russian fuel and expertise, thus not reducing the country’s dependency on its neighbor. However, it will provide the much-needed diversity in terms of related technologies, markets, and institutions so that disruptions of natural gas supply will not necessarily be devastating for the country’s electricity sector.
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1 -Chris Rodger
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1 -Greenvalley SK
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1 -Loyola Wickham Neg
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1 -ImpeREALism
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1 -Meadows
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1 -The AFF’s state-centered approach to politics is derived from a concept of sovereignty that no longer exists—power is centered entirely in capital, of which the state is merely another product Lazzarato 13-sociologist and philosopher, Researcher @ Matisse / CNRS (Paris I University), member of the International College of Philosophy in Paris Maurizio, “Governmentality in the current crisis,” March, 2013, translation by Arianna Bove, lecture delivered in Berlin in 2013, http://www.generation-online.org/p/fp_lazzarato7.htm, DKP
2 - Governmentality (of which liberals are nothing but one of the subjective modalities) first entailed a composition of this heterogeneity, then a subordination and a reconfiguration of the state principles in line with the process of capitalist valorisation. ¶ One of the most important aspects of this process of subordination is the formation of a social state, which Ordo-liberals and Carl Schmitt radically theorise in the clearest way. The introduction of the German constitution of the social state has historical and current significance, in so far as the building process of European institutions and of the Euro seem to refer back to these Ordo-liberal techniques of development of a new kind of state. Carl Schmitt, the author who was used to promote the ‘autonomy of the political’, is someone who, on the contrary, demonstrates that the social state signals the irreversible decline of the ‘sovereign’ state as Europe had known it. The social state has no longer any political autonomy because it is occupied by the social and economic forces of capitalism. Now the state is entirely traversed by class struggle, its conflicts and interests, and for this reason it can no longer represent the general interest, the ‘destiny’ of a people, the ethics of a nation. It can no longer be super partes because it is also the object of political economic struggles and conflicts. The neoliberals do not oppose the state merely to defend the freedom of society; they also work to mould it, to transform it from top to bottom, so that it can perfectly suit capital and its accumulation. This new sequence in the transformation of state capitalism is perfectly described in The Birth of Biopolitics through an analysis of the relationship between the Ordo-liberals and the German state at the time of its re-foundation after the war. Here we simply interpret it differently, in light of Deleuze and Guattari’s analysis and what the crisis allows us to see clearly.¶ The defeat of Bismarck’s state in World War One and of the Nazist state in World War Two opens up a new field for the foundation of a ‘new kind’ of state, as Carl Schmitt named it. Foucault asks: ‘Given a state that does not exist, how can we get it to exist on the basis of this non-state space of economic freedom?’. Through its permanent genealogy, ‘a permanent genesis of the state from the economic institution’, so that ‘the economy creates public law’ (5). This beginning is not spontaneous. Such a state needs to be built with an anchor to the functioning of the market, and this is the main task of governmentality, according to Ordo-liberalism. The economy, rather than being other from politics, is its generative force, what leads and legitimates it. The market, rather than limiting itself to being a self-regulating automatism, is the founding political ground on which the sovereignty of the state rests. ¶ ‘The economy, economic development and economic growth, produces sovereignty; it produces political sovereignty through the institution and the institutional game that, precisely, make this economy work’. (6) The economy must not be understood in economistic terms, and reduced to a mechanism of production (factory) and automatic exchange (market), but as a centre or centres of power, or more precisely as a power relation amongst powers. Foucault does nothing but confirm the analyses Schmitt put forward at the very moment of the constitution of the social state: the sovereign state, the nation state, the transcendent state, is dead, and in its place is built an ‘economic state’. ‘In contemporary Germany we have what we can say is a radically economic state, taking the word “radically” in the strict sense, that is to say, its root is precisely economic’(7). ¶ And here we can see the emergence of a new concept of sovereignty, where the economy of the state, political power and the power of capital are indistinguishable. The sovereignty of the new state does not derive from the people, democracy, or the nation, but from capital and its development, which gives rise to a radical renewal of the concept of ‘state capitalism’. Rather than ‘governing as little as possible’, governmentality must aim to build the ‘social state’, an economic state at the service of a valorisation that invests primarily society.¶ Germany and Japan did not witness the economic miracle because they had to fund an army (the military-industrial complex never prevented capitalist valorisation, on the contrary, the realisation of surplus value finds fertile ground in these investments); more probably, they did because they built a state that, after WWII, was completely ‘compliant to the exigencies of the market’. In contemporary Europe, the German ‘model’ prevails and is at the foundation of the Euro. We hear talk of the German economy, but the economy is inseparable from the state, or, rather, in contemporary capitalism one cannot distinguish the state and the economy from society. These three realms are transversally invested by capital, and governmentality works towards making them combine and cohere. ¶
3 -Belief in some true form of justice within the Court System is false, media representations of justice are used for capitalist consumption that distort our perception of the court. Wamp 15: Wamp, Bailey Miller, "Spectacle, Consumer Capitalism, and the Hyperreality of the Mediated American Jury Trial: the French¶ Perspective on O.J. Simpson, Casey Anthony, and Dominique Strauss-Kahn. " Master's Thesis, University of Tennessee, 2015.¶ http://trace.tennessee.edu/utk_gradthes/3418 BS
4 -Beyond depictions of the courtroom in cinema and small-screen drama, images of the¶ jury trial transmitted by the media—thanks to events like the “perp walk” and the permission of¶ cameras in the courtroom—situate American justice within the domain of Guy Debord’s neoMarxist¶ notion of spectacle. In Society of the Spectacle, Debord characterizes spectacle as “a¶ social relation among people, mediated by images” (Debord 6) that occurs within postmodern,¶ consumer capitalist culture, like that of United States. In such a society, capitalism reaches its¶ “absolute fulfillment” in spectacle, where it assumes the form of an image (Debord 36). While¶ Debord’s revolutionary Neo-Marxism contrasts with Baudrillard’s nihilism regarding¶ postmodern society, the transition of mediated jury trial images into Debord’s realm of spectacle¶ can be taken to correspond with their movement into Baudrillard’s third image phase, both of¶ which ultimately funnel into hyperreality. In the third image phase, the media spectacularizes¶ images of the jury trial, masking the absence of the pursuit of justice, which has been replaced by¶ the pursuit of spectacle. From a sociological perspective, Pierre Bourdieu examines the¶ implications of mediated spectacle in his book, On Television, where he explores both the¶ media’s use of spectacle for its own capital gain and the demand for spectacle by American¶ consumers. In order to illustrate spectacle’s consumer capitalist role in jury trial mediation, this¶ chapter will feature the French perspective on the Dominique Strauss-Kahn affair, whose¶ spectacular “perp walk” provoked outrage across France, and the O.J. Simpson trial, which¶ illustrated the “spectacular” impact of consumer capitalism on the pursuit of justice.
5 -Court practices are consistently defined by a protection of ruling class interests – reforms lend legitimacy to a corrupt apparatus that has empirically refused any meaningful restraint on its power. Tigar, 14 (Michael, emeritus professor of the Duke Law School and American University, Washington College of Law, “The National Security State: The End of Separation of Powers,” Monthly Review, 66:3, July/August, http://monthlyreview.org/2014/07/01/the-national-security-state/)
6 -No one could sensibly claim that these principles of transparency and accountability were uniformly applied in the decades after they were first formulated. These were promises that the new regime made to the people generally. As promises, they were hedged about with limitations and conditions at the outset, and then in practice proved to be difficult to enforce. These were promises fashioned as instruments of bourgeois state power, setting out an idea that the state would stand as neutral guardian of principle, when in fact it was prepared to acts as an instrument of social control. But while the promises could never be wholly realized, keeping them gave state power its perceived legitimacy. That, in general terms, is the way of parliamentary democracy. Organs of state power remain open to influence; a set of declared rights is more or less guaranteed. It is not, therefore, surprising that Chief Justice Marshall himself wrote the Supreme Court opinions that denied judicial review to Natives Americans and African slaves. After all, the Constitution itself accepted the institution of slavery and provided that: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” That is, a slave was three‐fifths of a person for the purpose of allocating Congressional seats, though without a vote or any of the political rights defined in the Constitution. Native Americans did not exist for purposes of taxes and representation, although the Congress would certainly legislate as to their status. In the early nineteenth century, Native Americans sought to assert their rights. As I wrote in Law and the Rise of Capitalism: The Cherokee Nation of Georgia adopted a written constitution and asserted sovereignty over its land. The Georgia legislature responded by declaring Cherokee laws and customs void and opening Cherokee land to settlement. The federal Congress, at the urging of President Andrew Jackson, passed legislation seeking to compel Native Americans to give up and move westward. Georgia authorities arrested, tried, and hanged a Cherokee for an offense allegedly committed on Cherokee territory. The Cherokee Nation sought relief in the courts. They were, after all, a nation. They sought to restrain the enforcement of Georgia laws which “go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force.” The Cherokees’ lawyer invoked the Supreme Court’s power, saying that the lawsuit was between a foreign nation—the Cherokee— and the state of Georgia. Under the United States Constitution, the Supreme Court could exercise its original jurisdiction over such a lawsuit without waiting for lower courts to decide it and then hearing the case on appeal. Chief Justice Marshall looked to the constitutional grant to Congress of the power to regulate commerce with “foreign nations, and among the several states, and with the Indian tribes.” He found the Cherokee to be “a domestic, dependent nation” that was “in a state of pupilage,” like “that of a ward to his guardian.” It was not, he said, for the Court a true “foreign nation.” Thus, the Cherokee Nation had no legal existence. It could not even come to a federal court to vindicate its treaty rights. The Supreme Court decided Cherokee Nation v. Georgia in 1830, over the dissents of Justices Story and Thompson. Two years later, in Worcester v. Georgia, Chief Justice Marshall retreated a bit, and held that Georgia did not have the right to regulate activities on the Cherokee lands. He did not reach this result by recognizing the position of the Cherokee Nation, but by denying the right of a state such as Georgia to interfere in matters that are essentially federal. That is, the national government had the constitutional power to deal with Native Americans and the states had only a limited role to play. Marshall spoke for the Supreme Court on the issue of slavery in an 1825 case, The Antelope. The Constitution had forbidden Congress to regulate importation of “persons” until 1808. In a statute that took effect January 1, 1808, the Congress prohibited importation of slaves. Nonetheless, the slave trade continued, and in 1820, a U.S. coast guard vessel boarded and seized a ship, The Antelope, that was carrying 225 African slaves. The Antelope was taken into port on suspicion that the slaves were destined to be imported into the United States. Here was a chance for Marshall, who acknowledged that slavery was “contrary to the laws of nature,” to translate this sense of injustice into a judicial command. However, he noted that “Christian and civilized” nations still engaged in the slave trade and that it could not therefore be said to be unlawful; the slaves were not to be set free but rather returned to their owners. Marshall’s failure to find controlling international law is the more surprising because the United States had agreed in the 1814 Treaty of Ghent to seek an end to the international slave trade. For Marshall and his colleagues on the Supreme Court, Native Americans did not exist as holders or bearers of rights, and the status of slavery was not an issue that the law could address. To complete the story, one must note the Court’s 1841 decision in The Amistad. Between 1825 and 1841, treaties and customary international law had shifted the legal landscape. The Amistad was a Spanish ship carrying forty‐nine slaves. The slaves took command of the ship, which eventually anchored off Long Island. The legal proceedings eventually reached the Supreme Court. The Spanish and British governments tried to exercise influence on the case: the British said that the capture of the slaves in Africa violated a treaty between Britain and Spain. Spain said the slaves were property and should be returned. The Supreme Court argument, led by John Quincy Adams, stressed that judicial review and not executive branch concerns should be the guiding principle of decision. On March 9, 1841, Justice Story delivered the Supreme Court’s opinion holding that the slaves must be freed. Any hope that was kindled by the Amistad decision was extinguished by the Dred Scott decision in 1857. The Supreme Court’s decision that Dred Scott was not entitled to freedom from slavery despite having been taken into free territory was based upon an assertion that echoed the rationale of Cherokee Nation v. Georgia. African slaves and their descendants could not be “citizens” of any state and were therefore not entitled to be heard in federal court. They were, the Court said, “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” That is, it was not only the political institution of slavery that forbade judicial review, but a theory that those of African descent were inferior beings destined to be ruled without voice as to their condition. Chief Justice Taney, who wrote the majority opinion, and President James Buchanan, who was given advance notice of what the Court would do, thought that the Dred Scott decision would end the controversy about slavery. Of course, it did nothing of the kind, but rather made a military solution inevitable. Thus, in 1857, for white male citizens, judicial review of governmental action was presumptively available. However, judicial review but stopped short when a litigant challenged a system of social relations. The conquest and subjugation of Native Americans was a fundamental tenet of British, French, Spanish, and then U.S. occupation of the Eastern seaboard and then of Westward expansion. By definition Native Americans were not to be considered as bearers of rights that could be enforced against the state. And Taney’s statement came at the end of a long pseudo‐historical analysis that justified the institution of slavery as a part of the social fabric. T h e S e p a r a t i o n o f P o w e r s A f t e r 1 8 5 7 The Civil War amendments to the Constitution abolished slavery and provided for equal protection of the laws. It would be nearly a century before the promise of those amendments began to be fulfilled by the Supreme Court. For African‐Americans, the Court’s ruling in Brown v. Board of Education recognized the promise that the 14th Amendment equal protection clause indisputably made. The Marbury‐Gilchrist‐Burr model, as limited in Cherokee Nation and Dred Scott, posits a right of access to review of governmental action. Presumptively, the courts will provide review. In a narrow class of cases, that review must be obtained through a political process. Nobody can rationally claim that either of these avenues of redress is efficient. Most of the significant cases about “rights” have been brought and litigated by labor, civil rights, and civil liberties organizations—the cost of what passes for justice is too great for most people. Of course, those who wind up in court testing their rights as criminal defendants will have counsel provided but the deficiencies of that system are well‐known. The electoral political process is dominated by money, and is in many ways impossibly corrupt. The point, however, is that the state has assiduously maintained the fiction that both of these avenues of redress are in fact viable. In order for this fiction to have any semblance of credibility, the institutions of redress must be seen to have some utility. The lawyer for the oppressed points to the promises and principles in the legal ideology of the dominant class, and argues for their application in ways that may contradict the interests of that class. Significant victories have been won for workers, women, people of color, political dissidents, and gay and lesbian people—in the judicial, executive, and legislative arenas. The courtroom battles for these rights produced significant victories in the 1950s, ‘60s, and ‘70s, and helped to empower movements for social change. In the midst of these battles, there were disturbing signs that Patrick Henry’s forebodings—a President at the head of an army, and therefore indisposed to heed the commands of a Chief Justice—would be realized. And what if a President’s refusal to “do what Mr. Chief Justice will order him” was a problem compounded by Mr. Chief Justice’s timidity and moral obliquity? That is, what if Mr. Chief Justice—in the pattern of Marshall in Cherokee Nation or Taney in Dred Scott—were to acquiesce in declaring a “no law” zone because of the character of a claim or of the claimant? In such a case, the structure of separation of powers might crumble, not by conquest—but by surrender. By way of example, the Supreme Court upheld the internment of Japanese‐Americans during the Second World War, yielding to an exercise of Presidential power that was later held to have been improper and based upon false assumptions. Some of the Court’s decisions on freedom of expression and association during the Cold War period failed to respect freedoms of speech and association. Yet, there were bright spots, as when the Supreme Court upheld the academic freedom of Monthly Review editor Paul Sweezy. The years since September 11, 2001, have witnessed a significant shift in the role of the executive and judicial branches. In the militarized national security state, the dismantling of the constitutional separation of powers has largely come to pass. We can see how this has happened, as a matter of state power and legal ideology. Two legal devices have been deployed to shut off accountability for governmental wrongdoing. The first of these is a judicially created doctrine of non‐decision—the “political question doctrine.” The second is the state secrets privilege, the invocation of which forestalls all accountability because the rationale and details of government conduct are hidden from public view. Let us examine these in turn.
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10 -Prefer the slow violence over big-stick impacts – cap produces suffering unrecognizable by traditional yardsticks of measurement Nixon 11
11 -(Rob Nixon, a Professor of English at University of Wisconsin at Madison; has a PhD from Columbia University “Slow Violence and the Environmentalism of the Poor”, Published 2011, pages 65-67)
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13 -Looking back at Chernobyl, Hiroshima, Nagasaki, and Bhopal, Petryna laments how "many persons who have survived these large-scale technological disasters have been caught in a long-term and vicious bureaucratic cycle in which they carry the burden of proof of their physical damage while experiencing the risk of being delegitimated in legal, welfare, and medical institutional contexts."59 Such people, the illiterate poor above all, are thrust into a labyrinth of self-fashioning as they seek to fit their bodily stories to the story lines that dangle hope of recognition (possibly, though elusively), even recompense. In so doing, the poor face the double challenge of invisibility and amnesia: numerically, they may constitute the majority, but they remain on the margins in terms of visibility and official memory. From an environmental perspective, this marginality is perpetuated, in part, by what Davis terms "the dialectic of ordinary disaster," whereby a calamity is incorporated into history and rendered forgettable and ordinary precisely because the burden of risk falls unequally on the unsheltered poor.60 Such disasters are readily dismissed from memory and policy planning by framing them as accidental, random, and unforeseeable acts of God, without regard for the precautionary measures that might have prevented these catastrophes or have mitigated their effects. At stake here is the role of neoliberal globalization in exacerbating both uneven economic development and the uneven development of official memory. What we witness is a kind of fatal bigotry that operates through the spatializing of time, by off-loading risk onto "backward" communities that are barely visible in the corporate media. Contemporary global politics, then, must be recognized "as a struggle for crude, material dominance, but also (threaded ever closer into that struggle) as a battle for the control over appearances."61 That battle over spectacle becomes especially decisive for public memory—and for the foresight with which public policy can motivate and execute precautionary measures—when it comes to the attritional casualties claimed, as at Bhopal, by the forces of slow violence. We have seen, in recent years, some excellent analytical books about the plight of the international urban underclass by Davis, Jeremy Seabrook, and Jan Breman, among others. However, the kind of visibility such books afford is very different from the visibility offered by a picaresque novel. For even the most eloquent social scientific accounts of the underclass, like social scientific accounts of environmental disaster, veer toward the anonymously collective and the statistical. Such accounts thus tend to be in the same gesture humanizing and dehumanizing, animating and silencing. The dilemma of how to represent the underclass, the infrahombres, stands at the heart of the picaresque tradition. Like GraceLand, Chris Abani's superb picaresque novel about ingenious desperation in a Lagos shanty-town, Animal's People stages a disaggregated irruption of a vivid individual life. Animal, speaking his life story into the Jarnalis's tape recorder, is all charismatic voice: his street-level testimony does not start from the generalized hungers of the wretched of the earth, but from the devouring hunger in an individual belly. If the novel gradually enfolds a wider community— Animal's people—it does so by maintaining at its emotional center Animal, the cracked voiced soloist, who breaks through the gilded imperial veneer of neoliberalism to announce himself in his disreputable vernacular.62 His is the antivoice to the new, ornate, chivalric discourse of neoliberal "free trade" and "development." Through Animal's immersed voice, Sinha is able to return to questions that have powered the picaresque from its beginnings. What does it mean to be reduced to living in subhuman, bestial conditions? What chasms divide and what ties bind the wealthy and the destitute, the human and the animal? What does it mean, in the fused imperial language of temporal and spatial dismissal, to be written off as "backward"?63 In Animal's day-to-day meanderings, the impulse for survival trumps the dream of collective justice. Yet through his somatized foreign burden— and through the intrepid, blighted lives around him—Sinha exhumes from the forces of amnesia not just the memory of a long-ago disaster but the present and future force of that disaster's embodied, ongoing percolations. The infrahombres—those who must eke out an existence amidst such percolations—are, the novel insists, also of this earth. Through his invention of the environmental picaresque, Sinha summons to the imaginative surface of the novel the underclass's underreported lives, redeeming their diverse quirks and hopes and quotidian terrors from what, almost half a millennium ago, Lazaro recognized as "the sepulcher of oblivion."64
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16 -The Role of the Ballot goes to whoever best proposes an anti-capitalist pedagogy, re-evaluating education tactics is the only way to end the anonymization of workers the capitalist mindset engrainsZizek and Daly 04Glyn. Lecturer in International Studies at the University College Northampton; Slavoj Zizek, world famous philosophy on psychoanalysis and capitalism; Conversations with Žižek. 14-19
17 -For Žižek it is imperative that we cut through this Gordian knot of postmodern protocol and recognize that our ethico-political responsibility is to confront the constitutive violence of today's global capitalism and its obscene naturalization/anonymization of the millions who are subjugated by it throughout the world. Against the standardized positions of postmodern culture - with all its pieties concerning 'multiculturalist' etiquette - Žižek is arguing for a politics that might be called 'radically incorrect' in the sense that it breaks with these types of positions and focuses instead on the very organizing principles of today's social reality: the principles of global liberal capitalism. This requires some care and subtlety. For too long, Marxism has been bedevilled by an almost fetishistic economism that has tended towards political morbidity. With the likes of Hilferding and Gramsci, and more recently Laclau and Mouffe, crucial theoretical advances have been made that enable the trascendence of all forms of economism. In this new context, however, Žižek argues that the problem that now presents itself is almost that of the opposite fetish. That is to say, the prohibitive anxieties surrounding the taboo of economism can function as a way of not engaging with the economic reality and as a way of implicitly accepting the latter as a basic horizon of existence. In an ironic Freudian-Lacanian twist, the fear of economism can end up reinforcing a de facto economic necessity in respect of contemporary capitalism (i.e. the initial prohibition conjures up the very thing it fears). This is not to endorse any retrograde return to economism. Žižek's point is rather that in rejecting economism we should not lose sight of the systemic power of capital in shaping the lives and destinies of humanity and our very sense of the possible. In particular, we should not overlook Marx's central insight that in order to create a universal global system the forces of capitalism seek to conceal the politico-discursive violence of its construction through a kind of gentrification of that system. What is persistently denied by neo-liberals such as Rorty (1989) and Fukuyama (1992) is that the gentrification of global liberal capitalism is one whose 'universalism' fundamentally reproduces and depends upon a disavowed violence that excludes vast sectors of the world's population. In this way, neo-liberal ideology attempts to naturalize capitalism by presenting its outcomes of winning and losing as if they were simply a matter of chance and sound judgement in a neutral marketplace. Capitalism does indeed create a space for a certain diversity, at least for the central capitalist regions, but it is neither neutral nor ideal and its price in terms of social exclusion is exorbitant. That is to say, the human cost in terms of inherent global poverty and degraded 'life-chances' cannot be calculated within the existing economic rationale and, in consequence, social exclusion remains mystified and nameless (viz. the patronizing reference to the developing world). And Žižek's point is that this mystification is magnified through capitalism's profound capacity to ingest its own excesses and negativity; to redirect (or misdirect) social antagonisms and to absorb them within a culture of differential affirmation. Instead of Bolshevism, the tendency of today is towards a kind of political boutiquism that is readily sustained by postmodern forms of consumerism and lifestyle.
18 -Voting negative refuses the affirmative in favor of Historical Materialist Pedagogy. International inequality is sutured by the unequal circulation of capital. Without revolutionary theory, there can be no revolutionary moment. Only starting from the structural antagonisms produced by wage labor can lead to transformative politics. Ebert ‘9 Teresa, Associate Professor of English, State University of New York at Albany, THE TASK OF CULTURAL CRITIQUE, pp. 92-95
19 -Unlike these rewritings, which reaffirm in a somewhat new language the system of wage labor with only minor internal reforms, materialist critique aims at ending class rule. It goes beyond description and explains the working of wage labor and the abstract structures that cannot be experienced directly but underwrite it. Materialist critique unpacks the philosophical and theoretical arguments that provide concepts for legitimizing wage labor and marks the textual representations that make it seem a normal part of life. In short, instead of focusing on micropractices (prison, gender, education, war, literature, and so on) in local and regional terms, materialist critique relates these practices to the macrostructures of capitalism and provides the knowledges necessary to put an end to exploitation. At the center of these knowledges is class critique. Pedagogy of critique is a class critique of social relations and the knowledges they produce . Its subject is wage labor, not the body without organs . An exemplary lesson in pedagogy of critique is provided by Marx, who concludes chapter 6 of Capital, " The Buying and Selling of Labour-Power, " by addressing the sphere within which wages are exchanged for labor power and the way this exchange is represented in the legal, philosophical, and representational apparatuses of capitalism as equal . He provides knowledge of the structures of wage labor and the theoretical discourses that sustain it. I have quoted this passage before and will refer to it again and again. Here is the full version: We now know how the value paid by the purchaser to the possessor of this peculiar commodity, labour-power, is determined. The use-value which the former gets in exchange, manifests itself only in the actual usufruct, in the consumption of the labour-power. The money-owner buys everything necessary for this purpose, such as raw material, in the market, and pays for it at its full value . The consumption of labourpower is at one and the same time the production of commodities and of surplus-value. The consumption of labour-power is completed, as is the case of every other commodity, outside the limits of the market or the sphere of circulation. Accompanied by Mr. Moneybags and by the possessor of labour-power, we therefore take leave for a time of this noisy sphere, where everything takes place on the surface and in view of all men, and follow them both into the hidden abode of production, on whose threshold there stares us in the face "No admittance except on business . " Here we shall see, not only how capital produces, but how capital is produced. We shall at last force the secret of profit making. This sphere that we are deserting, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to himself. The only force that brings them together and puts them in relation with each other, is the selfishness, the gain and the private interests of each. Each looks to himself only, and no one troubles himself about the rest, and just because they do so, do they all, in accordance with the pre-established harmony of things, or under the auspices of an all-shrewd providence, work together to their mutual advantage, for the common weal and in the interest of all. On leaving this sphere of simple circulation or of exchange of commodities, which furnishes the "Free-trader vulgaris" with his views and ideas, and with the standard by which he judges a society based on capital and wages, we think we can perceive a change in the physiognomy of our dramatis personae. He, who before was the money-owner, now strides in front as capitalist; the possessor of labour-power follows as his labourer. The one with an air of importance, smirking, intent on business; the other, timid and holding back, like one who is bringing his own hide to market and has nothing to expect but-a hiding. Materialist critique is fundamental to a transformative feminist politics. Through critique the subject develops historical knowledges of the social totality: she acquires, in other words, an understanding of how the existing social institutions (motherhood, child care, love, paternity, taxation, family, . . . and so on ) are part of the social relations of production, how they are located in exploitative relations of difference, and how they can be changed. Materialist critique, in other words, is that knowledge practice that historically situates the conditions of possibility of what empirically exists under capitalist relations of class difference-particularly the division of labor-and, more important, points to what is suppressed by the empirically existing: what could be, instead of what actually is. Critique indicates, in other words, that what exists is not necessarily real or true but only the actuality under wage labor. The role of critique in pedagogy is exactly this: the production of historical know ledges and class consciousness of the social relations, knowledges that mark the transformability of existing social arrangements and the possibility of a different social organization~-~-one that is free from necessity. Quite simply then, the pedagogy of critique is a mode of social knowing that inquires into what is not said, into the silences and the suppressed or the missing, in order to unconceal operations of economic and political power underlying the myriad concrete details and seemingly disparate events and representations of our lives . It shows how apparently disconnected zones of culture are in fact linked by the highly differentiated and dispersed operation of the systematic, abstract logic of the exploitation of the division of labor that informs all the practices of culture and society. It reveals how seemingly unique concrete experiences are in fact the common effect of social relations of production in wage labor capitalism. In sum, materialist critique both disrupts that which represents itself as natural and thus as inevitable and explains how it is materially produced. Critique, in other words, enables us to explain how social differences, specifically gender, race, sexuality, and class, have been systematically produced and continue to operate within regimes of exploitation-namely, the international division of labor in global capitalism-so we can change them. It is the means for producing politically effective and transformative knowledges . The claim of affective pedagogy is that it sets the subject free by making available to her or him the unruly force of pleasure and the unrestrained flows of desire, thereby turning her or him into an oppositional subject who cuts through established representations and codings to find access to a deterritorialized subjectivity. But the radicality of this self, at its most volatile moment, is the radicality of the class politics of the ruling class, a class for whom the question of poverty no longer exists. The only question left for it, as I have already indicated, is the question of liberty as the freedom of desire. Yet this is a liberty acquired at the expense of the poverty of others. The pedagogy of critique engages these issues by situating itself not in the space of the self, not in the space of desire, not in the space of liberation, but in the revolutionary site of collectivity, need, and emancipation. The core of the pedagogy of critique is that education is not simply for enlightening the individual to see through the arbitrariness of signification and the violence of established representations . It recognizes that it is a historical practice and, as such, it is always part of the larger forces of production and relations of production. It understands that all pedagogies are, in one way or the other, aimed at producing an efficient labor force. Unlike the pedagogy of desire, the pedagogy of critique does not simply teach that knowledge is another name for power, nor does it marginalize knowledge as a detour of desire. It acknowledges the fissures in social practices-including its own-but it demonstrates that they are historical and not textual or epistemological. It, therefore, does not retreat into mysticism by declaring the task of teaching to be the teaching of the impossible and, in doing so, legitimate the way things are. Instead, the pedagogy of critique is a worldly teaching of the worldly.
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1 -Qualified Immunity protects Police Officers from unjust persecution. Schwartz 13 (Supreme Court Fortifies Qualified Immunity for Law Enforcement in Warrant Cases)http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1659andcontext=scholarlyworks
2 -Qualified immunity shields state and local law enforcement officers from personal monetary liability under §1983 so long as the officer acted in an objectively reasonable manner. An officer will be found to have acted in a reasonable manner so long as she did not violate clearly established federal law.3 Thus, an officer who acted unconstitutionally, but did not violate the plaintiff’s clearly established constitutional rights, will be protected from liability by qualified immunity. Although less potent than the absolute immunities, qualified immunity is a very formidable defense and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’”
3 -Qualified Immunity plays a pivotal role in crime deterrence and cost efficiency Rosen 05 (A Qualified Defense: In Support of the Doctrine of Qualified Immunity in Excessive Force Cases, With Some Suggestions for its Improvement.Golden Gate University Law Review) http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1899andcontext=ggulrev
4 -It is hard to deny that the more time police officers spend at trial defending their conduct, the less time they spend patrolling the streets, the more money their departments expend in their defense, and the more frequently the officers will second-guess certain behaviors in the heat of the moment. These drawbacks may well be justified for the sake of society's prevention of tortious and unreasonable conduct on the part of law enforcement agents. Nevertheless, police agencies, Supreme Court justices, and some scholars highlight the important role that qualified immunity can play in reducing unnecessary costs and in improving deterrence of crime
5 -Qualified Immunity limits frivolous lawsuits against the police, any limiting opens the flood gates for biblical levels of litigation Rosen
6 -Michael M. Rosen, "A Qualified Defense: In Support of the Doctrine of Qualified Immunity in Excessive Force Cases, With Some Suggestions for its Improvement", Golden Gate University Law Review, Volume 35, issue 2, Article 2, p. 145-146
7 -
8 -In its amicus brief in support of the Saucier petitioner, NAPO addressed several concerns related to costs and deterrence.47 It began by asserting that officers currently face too many lawsuits related to their conduct, litigation that generally is resolved in their favor and therefore wastes taxpayer time and money! It pointed to an "ever increasing number of lawsuits against law enforcement officers" and the threat that increase poses to the general public interest.49 The increased threat of lawsuits, according to this argument, deters effective police performance, thereby diminishing public safety:o NAPO referred to Justice Scalia's assertion in Anderson v. Creighton5l that permitting frivolous lawsuits against law enforcement to go to trial "entails substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties."·2 Several scholars echo NAPO's concerns. Richard Fallon and Daniel Meltzer describe the fears of the Supreme Court in Harlow v. Fitzgerald,53 explaining that such litigation works its evils by deterring officers through the threat of personal liability. Barbara Armacost notes that such liability begets poor law enforcement, which in turn harms the very people the officers are sworn to protect. 54 The chief of the Federal Bureau of Investigation Academy's Legal Instruction Unit echoes these sentiments. 55 Thus, at least in theory, the proliferation of lawsuits appears to involve serious risks to agents as well as the public.
9 -In the Status Quo, the Supreme Court has already established precedent for Qualified Immunity, any more cases detracts from Juduicial power and increases court cases Callahan ’16 Mike Callahan, "Protecting cops from frivolous lawsuits: Qualified immunity, explained", Policeone.com, 04/29/2016
10 -The Supreme Court’s decisions in Brosseau and Mullenix are significant for several reasons. First, they once again demonstrate the Court’s continued determination to give police officers the benefit of doubt when reviewing their split-second life changing decisions from the entirely safe contours of judicial chambers. Second, they reaffirm the Court’s willingness to use the qualified immunity defense to adjudicate police use of deadly force cases at the pre-trial stage of litigation and spare officers from the monetary and emotional burdens of protracted discovery and trial. Third, they demonstrates the extraordinary value of the qualified immunity defense to police officers who use deadly force in the performance of their duty, even in cases where the need for such force was not absolutely clear cut and obvious. These cases were by no means “slam dunk” victories for the involved police officers. Nonetheless, the Supreme Court evaluated the efficacy of the officers’ assertion of qualified immunity in the particular circumstances of each case and ruled that their conduct did not violate clearly established law. The value of the qualified immunity defense to law enforcement officers in use of deadly force cases cannot be understated. It is crucial for attorneys representing officers in civil rights litigation to completely understand the full contours of the qualified immunity defense and use it to successfully defend their police officer clients.
11 -Increased court clog collapses the Federal Judiciary. Oakley ’96: The Myth of Cost-Free Jurisdictional Reallocation John B. Oakley Annals of the American Academy of Political and Social Science, Vol. 543, The Federal Role in Criminal Law (Jan., 1996), pp. 52-63 Published by: Sage Publications, Inc. in association with the American Academy of Political and Social Science Article Stable URL: http://www.jstor.org/stable/1048447
12 -Personal effects: The hidden costs of greater workloads. The hallmark of federal justice traditionally has been the searching analysis and thoughtful opinion of a highly competent judge, endowed with the time as well as the intelligence to grasp and resolve the most nuanced issues of fact and law. Swollen dockets create assembly-line conditions, which threaten the ability of the modern federal judge to meet this high standard of quality in federal adjudication. No one expects a federal judge to function without an adequate level of available tangible resources: sufficient courtroom and chambers space, competent administrative and re- search staff, a good library, and a comfortable salary that relieves the judge from personal financial pressure. Although salary levels have lagged—encouraging judges to engage in the limited teaching and publication activities that are their sole means of meeting such newly pressing financial obligations as the historically high mortgage expenses and college tuitions of the present decade—in the main, federal judges have received a generous allocation of tangible re- sources. It is unlikely that there is any further significant gain to be realized in the productivity of individual federal judges through increased levels of tangible resources,“ other than by redressing the pressure to earn supplemental income.“ On a personal level, the most important resource available to the federal judge is time.” Caseload pressures secondary to the indiscriminate federalization of state law are stealing time from federal judges, shrinking the increments available for each case. Federal judges have been forced to compensate by operating more like executives and less like judges. They cannot read their briefs as carefully as they would like, and they are driven to rely unduly on law clerks for research and writing that they would prefer to do themselves.“ If federal judges need more time to hear and decide each case, an obvious and easy solution is to spread the work by the appointment of more and more federal judges. Congress has been generous in the recent creation of new judgeships,” and enlargement of the federal judiciary is likely to continue to be the default response, albeit a more grudging one, to judicial concern over the caseload consequences of jurisdictional reallocation. Systemic effects: The hidden costs of adding more judges. Increasing the size of the federal judiciary creates institutional strains that reduce and must ultimately rule out its continued acceptability as a countermeasure to caseload growth. While the dilution of workload through the addition of judges is always incrementally attractive, in the long run it will cause the present system to collapse. I am not persuaded by arguments that the problem lies in the declining quality of the pool of lawyers willing to assume the federal bench“ or in the greater risk that, as the ranks of federal judges expand, there will be more frequent lapses of judgment by the president and the Senate in seating the mediocre on the federal bench.” In my view, the diminished desirability of federal judicial office is more than offset by the rampant dis- satisfaction of modem lawyers with the excessive commercialization of the practice of law. There is no short- age of sound judicial prospects willing and able to serve, and no sign that the selection process—never the perfect meritocracy—is becoming less effective in screening out the unfit or undistinguished. Far more serious are other institutional effects of continuously com- pounding the number of federal judges. Collegiality among judges, consistency of decision, and coherence of doctrine across courts are all imperiled by the growth of federal courts to cattle-car proportions. Yet the ability of the system to tolerate proliferation of courts proportional to the proliferation of judges is limited, and while collapse is not imminent, it cannot be postponed indefinitely. Congress could restructure the federal trial and appellate courts without imperiling the core functions, but the limiting factor is the capacity of the Supreme Court to maintain overall uniformity in the administration and application of federal law. That Court is not only the crown but the crowning jewel of a 200-year-old system of the rule of law within a constitutional democracy, and any tinkering with its size or jurisdiction would raise the most serious questions of the future course of the nation.
13 -Global rule of law consensus solves extinction – collapse turns the case and magnifies structural human rights abuses Nagan 1 (RESEARCH SCHOLAR PROF U FLORIDA, LAWYER ROLES, IDENTITY, AND PROFESSIONAL RESPONSIBILITY, 13 FLA. J. INT’L L. 131)
14 -Lawyers may be critical "engineers" in the restructuring of command, corrupt and inefficient economies. This is because governance that honors a minimal rule of law concept will prescribe rules for transparency, accountability and responsibility. These "values" are critical for working, effective markets. How are such economies in fact being reorganized? In other words what exactly will be the role of lawyers in the new vision of global economic order? The emphasis on lawyer roles in development should not obscure the challenge for lawyer roles for other problems inherent in the concept of globalism. These are listed for the sake of brevity as follows: Law and Global apartheid or global poverty (development, poverty, income distribution, economic equity, population policy, etc.) Law and the Global Public Health Crisis (HIV/AIDS) Law, emerging markets and the trend toward "harmonization" Law and Proliferation and threat of nuclear arsenals Law and the global war system (arms race, armed conflict, ethnic conflict, etc.) *141 Law and basic human rights (the epidemic of gross abuse of human rights and human atrocity) Law and global constitutional order Law and the crisis of the rule of law (failed states, corrupt states, drug controlled states, terrorists states, garrison states, authoritarian states, totalitarian states).
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1 -Racism is Systemic and Institutionalized in US Police. Walcott ’15.JAMES WOLCOTT. The Other Cultural Forces Behind Police Brutality. Vanity Fair. JULY 2015http://www.vanityfair.com/culture/2015/06/police-deaths-baltimore-ferguson-james-wolcott
2 -Black Lives Matter was the protest message adopted after the acquittal in 2013 of George Zimmerman in the shooting of the unarmed 17-year-old Trayvon Martin. It swelled into a movement as open season seemed to be declared on black males and tragedies multiplied. Black lives matter in America, but white lives rule. Self-styled, homegrown, beef-jerky Red Dawn “Wolverines!” Open Carry showboats can preen about with AR-15s strapped to their backs without meeting kingdom come, and a psycho-killer such as James Eagan Holmes can be apprehended in one piece after conducting a massacre in an Aurora, Colorado, movie theater that left 12 dead and 70 wounded, while a black father of four, Rumain Brisbon, can be shot for holding a vial of pills mistaken for a weapon, another can be shot for handling a pellet gun at Walmart (John Crawford, aged 22), and a 12-year-old black child can have his future erased for playing with a BB gun, shot by an officer who may not have been aware the boy was holding a toy gun. (The victim, Tamir Rice, died the next day at the hospital and six months after his death had still not been buried, denied even that dignity. His family finally decided to have him cremated.)The latitude of response allowable to a black suspect is razor-thin to nonexistent. Resist, like Eric Garner, surrounded by a scrum of cops for the quality-of-life offense of allegedly selling individual cigarettes, or “loosies,” and you can find yourself in a choke hold that leaves you gasping, “I can’t breathe,” until the last breath goes. Flee and you may get shot in the back, like Walter Scott, felled by a South Carolina officer whose fairy-tale account of the incident collapsed when video showed him performing his fatal marksmanship, or like Eric Harris, who uttered, as he lay dying from a gunshot wound, “My God, I’m losing my breath,” to which one of Tulsa County’s finest responded, “Fuck your breath.” Or you may get tossed into a van and reduced to a bag of broken body parts, like Freddie Gray, whose death ignited a raging tempest in Baltimore. Seemingly surrender and you can still get killed point-blank, as happened to Jerame Reid, who emerged from the passenger side of a car at a traffic stop in New Jersey with his hands raised. Six shots later, he was history.It’s no great revelation that racism is rife in many police departments, even those in a city renowned for its liberal cosmopolitanism such as San Francisco, where a toxic spill of text messages between policemen (the most flagrant offender shared this handy health tip: “Cross burning lowers blood pressure! I did the test myself!”) led to officer dismissals and the review of thousands of cases. Such slur-slinging is sometimes defended as a combination of gallows humor and fraternal hazing, a Friars Roast on squad-car wheels that expresses camaraderie and releases job pressure, but the torture claims of nearly 200 black men at the hands of a white police commander and detectives in Chicago over the course of decades show that racial slurs emerge from embedded supremacist attitudes.
3 -The Aff is pure legal fantasy, the assumption that QI is the panacea to all our problems ignores the empirical reality of the court system, that such defenses don’t matter and officers still get off free Reinert 11’ Alexander A. Reinert “Does Qualified Immunity Matter?” 2011 University of St. Thomas Journal Volume 8.3 Spring 2011
4 -Thus, despite its broad potential, most commentators view Bivens liability as more powerful in theory than in practice. This is due partly to the Court’s continued hostility to “extending” Bivens to new constitutional contexts and partly to the barriers to success built into recognized Bivens causes of action. Thus, both academics and judges assume that Bivens litigation is generally unsuccessful as a practical matter.80 Commentators offer many explanations for this relative lack of success, but most agree that Bivens plaintiffs are disadvantaged because the personal defense of qualified immunity is an imposing barrier to recovery from federal officers.81 Supporting this general view that qualified immunity plays a significant role in the resolution of Bivens actions are empirical studies that have suggested that, when introduced as a defense, it is highly successful.82 These studies, however, were based entirely on reported decisions, which at the district court level may exclude over 95 of judicial decision-making.83 A study that I conducted of all district court decisions and dockets over a three-year period within five varied judicial districts revealed that only 2 of Bivens cases were resolved via qualified immunity defenses.84 While these data themselves are limited, they at least suggest the possibilty that it is misleading to look only to published cases to determine the role that qualified immunity plays in Bivens litigation. So, let us assume that qualified immunity plays a much less significant role in the outcomes of run-of-the-mill cases than has previously been assumed. Nonetheless, the defense still could have a significant impact on Bivens litigation for many reasons. First, because qualified immunity focuses on those cases in which the law is hazy, the defense is most logically going to do its most significant work when a claim for relief is novel or unanticipated by prior precedent. These cases may be a small subset of the overall universe of Bivens claims, but they may also be more significant to the public and the legal community precisely because of their precedential and political significance. Indeed, this may explain the difference between the reported role of qualified immunity in published and appellate decisions and its reported role in a broader range of decisions. Second, qualified immunity may be important as a release valve because it may provide courts with an opportunity to affirm that a particular plaintiff was wronged, even if it is unfair to hold an individual defendant personally liable for that wrong. John Jeffries has made arguments along this line, essentially maintaining that the rights-remedy gap qualified immunity creates is a net positive because it frees courts to announce new rights going forward without imposing retroactive liability on government officials.85 It is worth noting that for qualified immunity to play a role in either of these scenarios, cases in which a qualified immunity defense may be raised must be filed with the courts. Courts cannot take advantage of qualified immunity as a pressure valve if every filed case involves legal principles so commonly accepted that there is never a need or opportunity to announce new legal principles. In this sense, at least where the law is unclear, there likely is an optimal amount of cases involving novel legal principles in which qualified immunity may be an appropriate defense. If very few or no cases are filed in which qualified immunity may play a dispositive role, that may limit the power of federal courts to announce prospective rules moving forward, even if underlying constitutional violations have transpired.
5 -There is no legal recourse for police violence, in particular, and structural vulnerability, in general – the affirmative’s faith in the court distracts from the affective matrix of antiblackness Sexton 2007Jared, African American Studies Program, University of California Irvine | "Racial profiling and the societies of control," Warfare in the American homeland: Policing and prison in a penal democracy, ed. Joy James, pg.198-202
6 -A Genealogy of Policing In the contemporary United States, the police operate as the unaccountable arbiters of lethal violence, the agents of a domestic militarism that underwrites all expansionism and interventionism. They are, as a rule, afforded impunity in their discretion to use what we continue to euphemize as “excessive force,” which really means any manner of brutalization whatsoever, including so called unjustified shootings. In each case, the police enjoy a virtual immunity from prosecution and rarely experience even interruptions in salary. This free rein is not only practical, however—the effect of negligent judicial oversight or disorganized civilian review boards—it is also codified as what the legal scholar Janet Koven Levit terms “constitutional carte blanche.” There is simply no legal recourse against the violence and violation of the police; police departments are, according to a recent Human Rights Watch report, agencies “shielded from justice.”⁵ At this point of extremity, the power of life and death rests clearly in their hands, granted by official decree. Before the police, we do not live under constitutional (or other) protection of any sort. We are, in short, “naked before the state.”⁶ Under such conditions, it should surprise no one that “racial profiling” as an institutionalized practice of the agencies of the police is not only possible or pervasive but entirely legal. There is nothing hyperbolic about my argument here. Reading the legal scholarship on racial profiling, one gets a distinct sense of vertigo. What one finds there is an infinite regress around the standards of “probable cause” set forth in the Fourth Amendment protection against “unreasonable searches and seizures.” A number of scholars have amply demonstrated how, for instance, the recent cases of Illinois v. Wardlow (2000) and United States v. Whren (1996) effectively circumvented the standard of “reasonable suspicion” that previously governed the conditions under which the police might stop and frisk pedestrians or motorists during routine traffic stops.⁷ That earlier standard of reasonable suspicion was established in Terry v. Ohio (1968), the case from which the well-known “Terry stop” takes its name. However, on even cursory examination, one sees that Terry itself instituted a loophole around the Fourth Amendment definition of probable cause, all of which enabled the police greatly during its war on drugs, as Reagan declared it in 1982.⁸ We might lament this persistent whittling away of the standards of suspicion, yet if we look closely at the doctrinal history of Fourth Amendment protections, we find again that probable cause itself reduces down to an equally vague and problematic standard of protection. As H. Richard Uviller remarks in Virtual Justice: Probable cause is not a very apt term; it has little to do with probability and nothing whatever with causality. But it is the term chosen by the Framers to describe the degree of suspicion requisite for the government to move into the citizen’s private spaces. It means “damn good reason to believe,” that’s all. Not certainty beyond a reasonable doubt, not even more likely than not. But just more than a hunch or mere suspicion. That’s the best we can do to define it.⁹ Of course, the Fourth Amendment was intended to preclude the use of the “general warrant” or “writ of assistance” carried by British colonial officers before the Revolution, which sanctioned the search and seizure of anything and everything in the home or on the person of a given “suspect.” In other words, the parameters of search and seizure were at the discretion of the colonial police and not subject to any judicial review. It is safe to say that the police today have regained the general warrant, such that under present circumstances “we all become susceptible to the arbitrary whims and unsupported hunches of police officers.”¹⁰ The pretexts available to stop and frisk any pedestrian or motorist they so choose are as numerous as they are unavoidable. In a motor vehicle, any infraction of the traffic code, however minor, can lead to full-scale search and arrest. Given that “no one can drive for even a few blocks without committing a minor violation,”¹¹ one is imminently open to police encounter on the streets and highways. Simply walking away from the police is now grounds for a stop and frisk, despite the supposed constitutional right to do so. Standing still is also grounds for a stop, either in particular designated “high-crime areas” or in any setting in which the police judge your presence “incongruous.” In theory, everyone in the United States (and many outside its boundaries) is subject to these rules of engagement. Yet, as Ira Glasser, former director of the America Civil Liberties Union (aclu), recently noted, while the police could, say, randomly raid apartment buildings on the Upper West Side of Manhattan and yield fruitful results, they clearly do not. As he puts it, “They don’t do it because most of the folks who live in those apartment buildings are white. They don’t do it because if they tried to do it, the outrage would become so big, so fast that it would become politically impossible to sustain.”¹² We might wonder who would be outraged at such operations and whose outrage would make a difference? At any rate, the verdict of his analysis is clear: On our highways, on our streets, in our airports, and at our customs checkpoints, skin color once again, irrespective of class, and without distinctions based on education or economic status, skin color once again is being used as a cause for suspicion, and a sufficient reason to violate people’s rights.¹³ For blacks in particular the situation is acute. The most recent attack on Fourth Amendment protections followed immediately the Warren Court’s “due process revolution,” as inaugurated by its decisions in the Mapp (1961) and Miranda (1966) cases. This shift in judicial opinion in favor of criminal suspects and defendants, disproportionately black and characteristically depicted as such, was supposed by some to be the criminal-law equivalent to or extension of then recent civil law reforms. The motion toward constitutional protections for blacks was, then, taken to be a byproduct of the limited success of the Civil Rights Movement, but its broader implications were rapidly conflated with the perceived threat of the radicalization of struggle dubbed “Black Power,” which for the mainstream presented ominous criminal tendencies, among other things. The idea that blacks could or should have both civil and criminal rights thus entered the furor of an emergent “law and order” political culture whose executive, legislative, and judicial wings all feverishly and collaboratively retrenched. The legal history from Richard Nixon to Ronald Reagan to George W. Bush— from “war on crime” to “war on drugs” to “war on terror”—is alarmingly short. The liberal civil-rights legislation and judiciary review enjoyed a very brief and largely ineffective life. But the “revolution” in criminal rights never even got off the ground; it never actually happened except in the collective paranoid fantasy of “white America.” There is, finally, no golden age for blacks before the criminal law. Therefore, in our discussions of a so-called creeping fascism or nascent authoritarianism or rise of the police state, particularly in the wake of the Homeland Security and patriot acts, we might do better than trace its genealogy to the general warrant (or even the Executive Order), whose specter forever haunts the democratic experiment of postrevolutionary civil society. Instead, the proper object of investigation is the antebellum slave code and its antecedents in colonial statute, not because the trajectory of this legal history threatens to undo the rights of all, but precisely because the prevailing libertarian impulse in the United States has so resourcefully and recurrently rendered the concrete situation of blacks in metaphoric terms. Under the force of this law, blacks, who were clearly in the polity but definitively not of it, were not only available to arbitrary search and seizure—the bane of the general warrant—but were, in the main, always already searched and seized. More to the point, they had, in the famous phrase, “no rights that a white man was bound to respect,” including the right to life. The ethos of slavery—in other words, the lasting ideological and affective matrix of the white- supremacist project—admits no legitimate black self-defense, recognizes no legitimate assertions of black self-possession, privacy, or autonomy. A permanent state of theft, seizure, and abduction orders the affairs of the captive community and its progeny. Structural vulnerability to appropriation, perpetual and involuntary openness, including all the wanton uses of the body so finely detailed by scholars like Saidiya Hartman and Hortense Spillers, should be understood as the paradigmatic conditions of black existence in the Americas, the defining characteristics of New World antiblackness.¹⁴ In short, the black, whether slave or “free,” lives under the commandment of whites.¹⁵ Policing blacks in the colonial and antebellum periods was, we recall, the prerogative of every white (they could assume the role or not) and was only later professionalized as the modern prison system emerged out of the ashes of Reconstruction.¹⁶ Without glossing the interceding history, suffice it to say that such policing was organized across the twentieth century at higher orders of magnitude by the political, economic, and social shifts attending the transition from welfare to warfare state.¹⁷ “Racial profiling,” then, is a young term, but the practice is centuries-old. In other words, the policing of blacks—whose repression has always been state sanctioned, even as it was rendered a private affair of “property management”— remains a central issue today; it has not recently emerged. Amnesty International’s public hearings on racial profiling, the stalled federal legislation termed “hr 1443,” the aclu’s “Driving while Black” campaign, and the problematic reworking of the issue of racial profiling after September 11 all unfold against the backdrop of this long history of “policing black people.” The effects of crude political pragmatism, legalistic single-mindedness, or historical myopia enable us to identify the unleashing of the police \with the advent of the war on drugs or the xenophobic panic around the New Immigration or the emergence of Homeland Security against the threat of terrorism.¹⁸
7 -The spectacular nature of police courtroom battles feeds white supremacist society and justifies further brutality, only complete rejection can solve Martinot and Sexton 03 Director, critical race theorist at San Francisco State University and African American Studies School of Humanities UCI, 2003 (Steve and Jared, “The Avant-Garde of White Supremacy”, Social Identities, Volume 9, Number 2, 2003 Accessed 8-13-12, MR)
8 -The dichotomy between white ethics and its irrelevance to the violence of police profiling is not dialectical; the two are incommensurable. Whenever one attempts to speak about the paradigm of policing, one is forced back into a discussion of particular events—high-profile police homicides and their related courtroom battles, for instance. The spectacular event camouflages the operation of police law as contempt, as terror, its occupation of neighborhoods; the secret of police law is the fact that there is no recourse to the disruption of people’s lives by these activities. In fact, to focus on the spectacular event of police violence is to deploy (and thereby reaffirm) the logic of police profiling itself. Yet, we can’t avoid this logic once we submit to the demand to provide examples or images of the paradigm. As a result, the attempt to articulate the paradigm of policing renders itself non-paradigmatic, reaffirms the logic of police profiling, and thereby reduces itself to the fraudulent ethics by which white civil society rationalizes its existence. Examples cannot represent the spectrum of contemporary white supremacy from the subtle (e.g., the inability to get a taxi) to the extreme (e.g. the de facto martial law occupation of many black and brown neighborhoods), all of which has become structural and everyday. As in the case of spectacular police violence, producing examples of more subtle (if obvious) forms of "institutional racism" (e.g., continuing discriminatory trends in housing, education, employment, etc.) has the same effect of reducing the paradigm to the non-paradigmatic. The logic of this journalistic approach generates nonchalance in contemporary race talk such that sensational reportage about the supposedly hidden residues of a persistent racism disables analysis. Both the spectacular and the subtle, against which people can unite in their desire for justice, remain the masks behind which the daily operations of white supremacist terror proceed. Most theories of white supremacy seek to plumb the depths of its excessiveness, beyond the ordinary; they miss the fact that racism is a mundane affair. The fundamental excess of the paradigm of policing which infuses this culture is wholly banal. Those theories overlook that fact in favor of extant extravagance, spectacle, or the ‘deep psychology’ of rogue elements and become complicit in perpetuating white supremacy. The reality is an invidious ethos of excess that, instead, constitutes the surface of everything in this society. For some time now, the intellectual quest for racism’s supposedly hidden meaning has afforded a refuge from confrontations with this banality, even its possible acknowledgement. The most egregious aspect of this banality is our tacit acquiescence to the rules of race and power, to the legitimacy white supremacy says it has, regardless of their total violation of reason and comprehensibility. Our "tacit acquiescence" is the real silent source of white supremacist tenacity and power. As William C. Harris, II wrote in the aftermath of Tyisha Miller’s murder by the police: It is heartbreaking to be an American citizen and have to say this, but I do have to say this. We have almost, and I stress almost, become accustomed to police shooting innocent, unarmed, young, black males. That in itself is bad enough, and one was at one time inclined to think it couldn't get any worse, but it gets worse…. Now we have police killing our young black females. It can't get any worse than that. Harris is right; yet he also sells himself out because he acquiesces in the process of decrying acquiescence. He does not draw the line between respect for persons and impunity. He continues: "Even if she grabbed a gun, was it necessary to shoot at her twenty-seven times? I know it’s less than 41, but that's still too many times to shoot at a sleeping female—black, brown, yellow or white" (emphasis added). Why isn’t one bullet too many times to shoot anybody? It is the job of the spectacular (and sensational reports about the subtle) to draw attention away from the banality of police murder as standard operating procedure.
9 -Use of legal action is the slaves bow to its master
10 -Farley 5, Anthony. Prof. Farley specializes in Constitutional Law, Criminal Procedure and Legal Theory. Taught at Boston College Before Teaching at Albany “Perfecting Slavery” Page 221-222Slavery is with us still. We are haunted by slavery. We are animated by slavery. White-over-black is slavery and segregation and neosegregation and every situation in which the distribution of material or spiritual goods follows the colorline. The movement from slavery to segregation to neosegregation to whatever form of white-over-black it is that may come with post-modernity or after is not toward freedom. The movement from slavery to segregation to neosegregation is the movement of slavery perfecting itself. White-over-black is neosegregation. White-over-black is segregation. White-over-black is slavery. All of it is white-over-black, only white-over-black, and that continually. The story of progress up from slavery is a lie, the longest lie. The story of progress up from slavery is told juridically in the form of the rule of law. Slavery is the rule of law. And slavery is death. The slave perfects itself as a slave when it bows down before its master of its own free will. That is the moment in which the slave accomplishes the impossible reconciliation of its freedom with its unfreedom by willing itself unfree. 3 When exactly does this perfection of slavery take place? The slave bows down before its master when it prays for legal relief, when it prays for equal rights, and while it cultivates the field of law hoping for an answer.
11 -
12 -The alternative is to burn it down civil society is inseparable from its foundation Farley 4 (Anthony Paul, Associate Profess @ Albany Law School, “Perfecting Slavery”, http://www.luc.edu/law/activities/publications/lljdocs/vol36_no1/farley.pdf, Accessed: 11/9/11, )
13 -What is to be done? Two hundred years ago, when the slaves in Haiti rose up, they, of necessity, burned everything: They burned San Domingo flat so that at the end of the war it was a charred desert. Why do you burn everything? asked a French officer of a prisoner. We have a right to burn what we cultivate because a man has a right to dispose of his own labour, was the reply of this unknown anarchist.48 The slaves burned everything because everything was against them. Everything was against the slaves, the entire order that it was their lot to follow, the entire order in which they were positioned as worse than senseless things, every plantation, everything.49 “Leave nothing white behind you,” said Toussaint to those dedicated to the end of white-overblack. 50 “God gave Noah the rainbow sign. No more water, the fire next time.”51 The slaves burned everything, yes, but, unfortunately, they only burned everything in Haiti.52 Theirs was the greatest and most successful revolution in the history of the world but the failure of their fire to cross the waters was the great tragedy of the Nineteenth century.53 At the dawn of the Twentieth century, W.E.B. Du Bois wrote, “The colorline belts the world.”54 Du Bois said that the problem of the Twentieth century was the problem of the colorline.55 The problem, now, at the dawn of the Twenty-first century is the problem of the colorline. The colorline continues to belt the world. Indeed, the slave power that is the United States now threatens an entire world with the death that it has become and so the slaves of yesterday, today, and tomorrow, those with nothing but their chains to lose, must, if they would be free, if they would escape slavery, win the entire world. win the entire world. VIII. TRAINING We begin as children. We are called and we become our response to the call. Slaves are not called. What becomes of them? What becomes of the broken-hearted? The slaves are divided souls, they are brokenhearted, the slaves are split asunder by what they are called upon to become. The slaves are called upon to become objects but objecthood is not a calling. The slave, then, during its loneliest loneliness, is divided from itself. This is schizophrenia. The slaves are not called, or, rather, the slaves are called to not be. The slaves are called unfree and thus the living can never be and so the slaves burst apart and die. The slaves begin as death, not as children, and death is not a beginning but an end. There is no progress and no exit from the undiscovered country of the slave, or so it seems. We are trained to think through a progress narrative, a grand narrative, the grandest narrative, that takes us up from slavery. There is no up from slavery. The progress from white-over-black to white-over-black to white-overblack. The progress of slavery runs in the opposite direction of the past-present- future timeline. The slave only becomes the perfect slave at the end of the timeline, only under conditions of total juridical freedom. It is only under conditions of freedom, of bourgeois legality, that the slave can perfect itself as a slave by freely choosing to bow down before its master. The slave perfects itself as a slave by offering a prayer for equal rights. The system of marks is a plantation. The system of property is a plantation. The system of law is a plantation. These plantations, all part of the same system, hierarchy, produce white-overblack, white-over-black only, and that continually. The slave perfects itself as a slave through its prayers for equal rights. The plantation system will not commit suicide and the slave, as stated above, has knowing non-knowledge of this fact. The slave finds its way back from the undiscovered country only by burning down every plantation. When the slave prays for equal rights it makes the free choice to be dead, and it makes the free choice to not be.
14 -
15 -The ROB is rejecting racism. Addressing Anti-Blackness is a priori – it prevents ethicality and sets the groundwork for all violence – 3 warrants.Wilderson, award-winning author of Incognegro: A Memoir of Exile and Apartheid. He is one of two Americans to hold elected office in the African National Congress and is a former insurgent in the ANC’s armed wing, 2003 (Frank B. III “Chapter One: The Ruse of Analogy” Red, White, and Black: Cinema and the Structure of U.S. Antagonisms,) GG
16 -Two tensions are at work here. One operates under the labor of ethical dilemmas~-~- “simple enough one has only not to be a nigger.” This, I submit, is the essence of being for the White and non-Black position: ontology scaled down to a global common denominator. The other tension is found in the impossibility of ethical dilemmas for the Black: “I am,” Fanon writes, “a slave not of an idea others have of me but of my own appearance.” Being can thus be thought of, in the first ontological instance, as non-niggerness; and slavery then as niggerness. The visual field, “my own appearance,” is the cut, the mechanism that elaborates the division between the non-niggerness and slavery, the difference between the living and the dead. Whereas Humans exist on some plane of being and thus can become existentially present through some struggle for/of/through recognition, Blacks cannot attain the plane of recognition (West 82). Spillers, Fanon, and Hartman maintain that the violence that has positioned and repetitively re-positions the Black as a void of historical movement is without analog in the suffering dynamics of the ontologically alive. The violence that turns the African into a thing is without analog because it does not simply oppress the Black through tactile and empirical technologies of oppression, like the “little family quarrels” which for Fanon exemplify the Jewish Holocaust. Rather, the gratuitous violence of the Black’s first ontological instance, the Middle Passage, “wiped out his/her metaphysics…his her customs and sources on which they are based” (BSWM 110). Jews went into Auschwitz and came out as Jews. Africans went into the ships and came out as Blacks. The former is a Human holocaust; the latter is a Human and a metaphysical holocaust. That is why it makes little sense to attempt analogy: the Jews have the Dead (the Muselmenn) among them; the Dead have the Blacks among them.¶ This violence which turns a body into flesh, ripped apart literally and imaginatively, destroys the possibility of ontology because it positions the Black within an infinite and indeterminately horrifying and open vulnerability, an object made available (which is to say fungible) for any subject. As such, “the black has no ontological resistance in the eyes of the white man” (110) or, more precisely, in the eyes of Humanity
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1 -2016-11-19 15:09:33.0
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1 -Loyola Wickham Neg
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1 -Anti-Blackness K
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1 -Glenbrooks
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1 -Racism is Systemic and Institutionalized in US Police. Walcott ’15.JAMES WOLCOTT. The Other Cultural Forces Behind Police Brutality. Vanity Fair. JULY 2015http://www.vanityfair.com/culture/2015/06/police-deaths-baltimore-ferguson-james-wolcott
2 -Black Lives Matter was the protest message adopted after the acquittal in 2013 of George Zimmerman in the shooting of the unarmed 17-year-old Trayvon Martin. It swelled into a movement as open season seemed to be declared on black males and tragedies multiplied. Black lives matter in America, but white lives rule. Self-styled, homegrown, beef-jerky Red Dawn “Wolverines!” Open Carry showboats can preen about with AR-15s strapped to their backs without meeting kingdom come, and a psycho-killer such as James Eagan Holmes can be apprehended in one piece after conducting a massacre in an Aurora, Colorado, movie theater that left 12 dead and 70 wounded, while a black father of four, Rumain Brisbon, can be shot for holding a vial of pills mistaken for a weapon, another can be shot for handling a pellet gun at Walmart (John Crawford, aged 22), and a 12-year-old black child can have his future erased for playing with a BB gun, shot by an officer who may not have been aware the boy was holding a toy gun. (The victim, Tamir Rice, died the next day at the hospital and six months after his death had still not been buried, denied even that dignity. His family finally decided to have him cremated.)The latitude of response allowable to a black suspect is razor-thin to nonexistent. Resist, like Eric Garner, surrounded by a scrum of cops for the quality-of-life offense of allegedly selling individual cigarettes, or “loosies,” and you can find yourself in a choke hold that leaves you gasping, “I can’t breathe,” until the last breath goes. Flee and you may get shot in the back, like Walter Scott, felled by a South Carolina officer whose fairy-tale account of the incident collapsed when video showed him performing his fatal marksmanship, or like Eric Harris, who uttered, as he lay dying from a gunshot wound, “My God, I’m losing my breath,” to which one of Tulsa County’s finest responded, “Fuck your breath.” Or you may get tossed into a van and reduced to a bag of broken body parts, like Freddie Gray, whose death ignited a raging tempest in Baltimore. Seemingly surrender and you can still get killed point-blank, as happened to Jerame Reid, who emerged from the passenger side of a car at a traffic stop in New Jersey with his hands raised. Six shots later, he was history.It’s no great revelation that racism is rife in many police departments, even those in a city renowned for its liberal cosmopolitanism such as San Francisco, where a toxic spill of text messages between policemen (the most flagrant offender shared this handy health tip: “Cross burning lowers blood pressure! I did the test myself!”) led to officer dismissals and the review of thousands of cases. Such slur-slinging is sometimes defended as a combination of gallows humor and fraternal hazing, a Friars Roast on squad-car wheels that expresses camaraderie and releases job pressure, but the torture claims of nearly 200 black men at the hands of a white police commander and detectives in Chicago over the course of decades show that racial slurs emerge from embedded supremacist attitudes.
3 -The Aff is pure legal fantasy, the assumption that QI is the panacea to all our problems ignores the empirical reality of the court system, that such defenses don’t matter and officers still get off free Reinert 11’ Alexander A. Reinert “Does Qualified Immunity Matter?” 2011 University of St. Thomas Journal Volume 8.3 Spring 2011
4 -Thus, despite its broad potential, most commentators view Bivens liability as more powerful in theory than in practice. This is due partly to the Court’s continued hostility to “extending” Bivens to new constitutional contexts and partly to the barriers to success built into recognized Bivens causes of action. Thus, both academics and judges assume that Bivens litigation is generally unsuccessful as a practical matter.80 Commentators offer many explanations for this relative lack of success, but most agree that Bivens plaintiffs are disadvantaged because the personal defense of qualified immunity is an imposing barrier to recovery from federal officers.81 Supporting this general view that qualified immunity plays a significant role in the resolution of Bivens actions are empirical studies that have suggested that, when introduced as a defense, it is highly successful.82 These studies, however, were based entirely on reported decisions, which at the district court level may exclude over 95 of judicial decision-making.83 A study that I conducted of all district court decisions and dockets over a three-year period within five varied judicial districts revealed that only 2 of Bivens cases were resolved via qualified immunity defenses.84 While these data themselves are limited, they at least suggest the possibilty that it is misleading to look only to published cases to determine the role that qualified immunity plays in Bivens litigation. So, let us assume that qualified immunity plays a much less significant role in the outcomes of run-of-the-mill cases than has previously been assumed. Nonetheless, the defense still could have a significant impact on Bivens litigation for many reasons. First, because qualified immunity focuses on those cases in which the law is hazy, the defense is most logically going to do its most significant work when a claim for relief is novel or unanticipated by prior precedent. These cases may be a small subset of the overall universe of Bivens claims, but they may also be more significant to the public and the legal community precisely because of their precedential and political significance. Indeed, this may explain the difference between the reported role of qualified immunity in published and appellate decisions and its reported role in a broader range of decisions. Second, qualified immunity may be important as a release valve because it may provide courts with an opportunity to affirm that a particular plaintiff was wronged, even if it is unfair to hold an individual defendant personally liable for that wrong. John Jeffries has made arguments along this line, essentially maintaining that the rights-remedy gap qualified immunity creates is a net positive because it frees courts to announce new rights going forward without imposing retroactive liability on government officials.85 It is worth noting that for qualified immunity to play a role in either of these scenarios, cases in which a qualified immunity defense may be raised must be filed with the courts. Courts cannot take advantage of qualified immunity as a pressure valve if every filed case involves legal principles so commonly accepted that there is never a need or opportunity to announce new legal principles. In this sense, at least where the law is unclear, there likely is an optimal amount of cases involving novel legal principles in which qualified immunity may be an appropriate defense. If very few or no cases are filed in which qualified immunity may play a dispositive role, that may limit the power of federal courts to announce prospective rules moving forward, even if underlying constitutional violations have transpired.
5 -There is no legal recourse for police violence, in particular, and structural vulnerability, in general – the affirmative’s faith in the court distracts from the affective matrix of antiblackness Sexton 2007Jared, African American Studies Program, University of California Irvine | "Racial profiling and the societies of control," Warfare in the American homeland: Policing and prison in a penal democracy, ed. Joy James, pg.198-202
6 -A Genealogy of Policing In the contemporary United States, the police operate as the unaccountable arbiters of lethal violence, the agents of a domestic militarism that underwrites all expansionism and interventionism. They are, as a rule, afforded impunity in their discretion to use what we continue to euphemize as “excessive force,” which really means any manner of brutalization whatsoever, including so called unjustified shootings. In each case, the police enjoy a virtual immunity from prosecution and rarely experience even interruptions in salary. This free rein is not only practical, however—the effect of negligent judicial oversight or disorganized civilian review boards—it is also codified as what the legal scholar Janet Koven Levit terms “constitutional carte blanche.” There is simply no legal recourse against the violence and violation of the police; police departments are, according to a recent Human Rights Watch report, agencies “shielded from justice.”⁵ At this point of extremity, the power of life and death rests clearly in their hands, granted by official decree. Before the police, we do not live under constitutional (or other) protection of any sort. We are, in short, “naked before the state.”⁶ Under such conditions, it should surprise no one that “racial profiling” as an institutionalized practice of the agencies of the police is not only possible or pervasive but entirely legal. There is nothing hyperbolic about my argument here. Reading the legal scholarship on racial profiling, one gets a distinct sense of vertigo. What one finds there is an infinite regress around the standards of “probable cause” set forth in the Fourth Amendment protection against “unreasonable searches and seizures.” A number of scholars have amply demonstrated how, for instance, the recent cases of Illinois v. Wardlow (2000) and United States v. Whren (1996) effectively circumvented the standard of “reasonable suspicion” that previously governed the conditions under which the police might stop and frisk pedestrians or motorists during routine traffic stops.⁷ That earlier standard of reasonable suspicion was established in Terry v. Ohio (1968), the case from which the well-known “Terry stop” takes its name. However, on even cursory examination, one sees that Terry itself instituted a loophole around the Fourth Amendment definition of probable cause, all of which enabled the police greatly during its war on drugs, as Reagan declared it in 1982.⁸ We might lament this persistent whittling away of the standards of suspicion, yet if we look closely at the doctrinal history of Fourth Amendment protections, we find again that probable cause itself reduces down to an equally vague and problematic standard of protection. As H. Richard Uviller remarks in Virtual Justice: Probable cause is not a very apt term; it has little to do with probability and nothing whatever with causality. But it is the term chosen by the Framers to describe the degree of suspicion requisite for the government to move into the citizen’s private spaces. It means “damn good reason to believe,” that’s all. Not certainty beyond a reasonable doubt, not even more likely than not. But just more than a hunch or mere suspicion. That’s the best we can do to define it.⁹ Of course, the Fourth Amendment was intended to preclude the use of the “general warrant” or “writ of assistance” carried by British colonial officers before the Revolution, which sanctioned the search and seizure of anything and everything in the home or on the person of a given “suspect.” In other words, the parameters of search and seizure were at the discretion of the colonial police and not subject to any judicial review. It is safe to say that the police today have regained the general warrant, such that under present circumstances “we all become susceptible to the arbitrary whims and unsupported hunches of police officers.”¹⁰ The pretexts available to stop and frisk any pedestrian or motorist they so choose are as numerous as they are unavoidable. In a motor vehicle, any infraction of the traffic code, however minor, can lead to full-scale search and arrest. Given that “no one can drive for even a few blocks without committing a minor violation,”¹¹ one is imminently open to police encounter on the streets and highways. Simply walking away from the police is now grounds for a stop and frisk, despite the supposed constitutional right to do so. Standing still is also grounds for a stop, either in particular designated “high-crime areas” or in any setting in which the police judge your presence “incongruous.” In theory, everyone in the United States (and many outside its boundaries) is subject to these rules of engagement. Yet, as Ira Glasser, former director of the America Civil Liberties Union (aclu), recently noted, while the police could, say, randomly raid apartment buildings on the Upper West Side of Manhattan and yield fruitful results, they clearly do not. As he puts it, “They don’t do it because most of the folks who live in those apartment buildings are white. They don’t do it because if they tried to do it, the outrage would become so big, so fast that it would become politically impossible to sustain.”¹² We might wonder who would be outraged at such operations and whose outrage would make a difference? At any rate, the verdict of his analysis is clear: On our highways, on our streets, in our airports, and at our customs checkpoints, skin color once again, irrespective of class, and without distinctions based on education or economic status, skin color once again is being used as a cause for suspicion, and a sufficient reason to violate people’s rights.¹³ For blacks in particular the situation is acute. The most recent attack on Fourth Amendment protections followed immediately the Warren Court’s “due process revolution,” as inaugurated by its decisions in the Mapp (1961) and Miranda (1966) cases. This shift in judicial opinion in favor of criminal suspects and defendants, disproportionately black and characteristically depicted as such, was supposed by some to be the criminal-law equivalent to or extension of then recent civil law reforms. The motion toward constitutional protections for blacks was, then, taken to be a byproduct of the limited success of the Civil Rights Movement, but its broader implications were rapidly conflated with the perceived threat of the radicalization of struggle dubbed “Black Power,” which for the mainstream presented ominous criminal tendencies, among other things. The idea that blacks could or should have both civil and criminal rights thus entered the furor of an emergent “law and order” political culture whose executive, legislative, and judicial wings all feverishly and collaboratively retrenched. The legal history from Richard Nixon to Ronald Reagan to George W. Bush— from “war on crime” to “war on drugs” to “war on terror”—is alarmingly short. The liberal civil-rights legislation and judiciary review enjoyed a very brief and largely ineffective life. But the “revolution” in criminal rights never even got off the ground; it never actually happened except in the collective paranoid fantasy of “white America.” There is, finally, no golden age for blacks before the criminal law. Therefore, in our discussions of a so-called creeping fascism or nascent authoritarianism or rise of the police state, particularly in the wake of the Homeland Security and patriot acts, we might do better than trace its genealogy to the general warrant (or even the Executive Order), whose specter forever haunts the democratic experiment of postrevolutionary civil society. Instead, the proper object of investigation is the antebellum slave code and its antecedents in colonial statute, not because the trajectory of this legal history threatens to undo the rights of all, but precisely because the prevailing libertarian impulse in the United States has so resourcefully and recurrently rendered the concrete situation of blacks in metaphoric terms. Under the force of this law, blacks, who were clearly in the polity but definitively not of it, were not only available to arbitrary search and seizure—the bane of the general warrant—but were, in the main, always already searched and seized. More to the point, they had, in the famous phrase, “no rights that a white man was bound to respect,” including the right to life. The ethos of slavery—in other words, the lasting ideological and affective matrix of the white- supremacist project—admits no legitimate black self-defense, recognizes no legitimate assertions of black self-possession, privacy, or autonomy. A permanent state of theft, seizure, and abduction orders the affairs of the captive community and its progeny. Structural vulnerability to appropriation, perpetual and involuntary openness, including all the wanton uses of the body so finely detailed by scholars like Saidiya Hartman and Hortense Spillers, should be understood as the paradigmatic conditions of black existence in the Americas, the defining characteristics of New World antiblackness.¹⁴ In short, the black, whether slave or “free,” lives under the commandment of whites.¹⁵ Policing blacks in the colonial and antebellum periods was, we recall, the prerogative of every white (they could assume the role or not) and was only later professionalized as the modern prison system emerged out of the ashes of Reconstruction.¹⁶ Without glossing the interceding history, suffice it to say that such policing was organized across the twentieth century at higher orders of magnitude by the political, economic, and social shifts attending the transition from welfare to warfare state.¹⁷ “Racial profiling,” then, is a young term, but the practice is centuries-old. In other words, the policing of blacks—whose repression has always been state sanctioned, even as it was rendered a private affair of “property management”— remains a central issue today; it has not recently emerged. Amnesty International’s public hearings on racial profiling, the stalled federal legislation termed “hr 1443,” the aclu’s “Driving while Black” campaign, and the problematic reworking of the issue of racial profiling after September 11 all unfold against the backdrop of this long history of “policing black people.” The effects of crude political pragmatism, legalistic single-mindedness, or historical myopia enable us to identify the unleashing of the police \with the advent of the war on drugs or the xenophobic panic around the New Immigration or the emergence of Homeland Security against the threat of terrorism.¹⁸
7 -The spectacular nature of police courtroom battles feeds white supremacist society and justifies further brutality, only complete rejection can solve Martinot and Sexton 03 Director, critical race theorist at San Francisco State University and African American Studies School of Humanities UCI, 2003 (Steve and Jared, “The Avant-Garde of White Supremacy”, Social Identities, Volume 9, Number 2, 2003 Accessed 8-13-12, MR)
8 -The dichotomy between white ethics and its irrelevance to the violence of police profiling is not dialectical; the two are incommensurable. Whenever one attempts to speak about the paradigm of policing, one is forced back into a discussion of particular events—high-profile police homicides and their related courtroom battles, for instance. The spectacular event camouflages the operation of police law as contempt, as terror, its occupation of neighborhoods; the secret of police law is the fact that there is no recourse to the disruption of people’s lives by these activities. In fact, to focus on the spectacular event of police violence is to deploy (and thereby reaffirm) the logic of police profiling itself. Yet, we can’t avoid this logic once we submit to the demand to provide examples or images of the paradigm. As a result, the attempt to articulate the paradigm of policing renders itself non-paradigmatic, reaffirms the logic of police profiling, and thereby reduces itself to the fraudulent ethics by which white civil society rationalizes its existence. Examples cannot represent the spectrum of contemporary white supremacy from the subtle (e.g., the inability to get a taxi) to the extreme (e.g. the de facto martial law occupation of many black and brown neighborhoods), all of which has become structural and everyday. As in the case of spectacular police violence, producing examples of more subtle (if obvious) forms of "institutional racism" (e.g., continuing discriminatory trends in housing, education, employment, etc.) has the same effect of reducing the paradigm to the non-paradigmatic. The logic of this journalistic approach generates nonchalance in contemporary race talk such that sensational reportage about the supposedly hidden residues of a persistent racism disables analysis. Both the spectacular and the subtle, against which people can unite in their desire for justice, remain the masks behind which the daily operations of white supremacist terror proceed. Most theories of white supremacy seek to plumb the depths of its excessiveness, beyond the ordinary; they miss the fact that racism is a mundane affair. The fundamental excess of the paradigm of policing which infuses this culture is wholly banal. Those theories overlook that fact in favor of extant extravagance, spectacle, or the ‘deep psychology’ of rogue elements and become complicit in perpetuating white supremacy. The reality is an invidious ethos of excess that, instead, constitutes the surface of everything in this society. For some time now, the intellectual quest for racism’s supposedly hidden meaning has afforded a refuge from confrontations with this banality, even its possible acknowledgement. The most egregious aspect of this banality is our tacit acquiescence to the rules of race and power, to the legitimacy white supremacy says it has, regardless of their total violation of reason and comprehensibility. Our "tacit acquiescence" is the real silent source of white supremacist tenacity and power. As William C. Harris, II wrote in the aftermath of Tyisha Miller’s murder by the police: It is heartbreaking to be an American citizen and have to say this, but I do have to say this. We have almost, and I stress almost, become accustomed to police shooting innocent, unarmed, young, black males. That in itself is bad enough, and one was at one time inclined to think it couldn't get any worse, but it gets worse…. Now we have police killing our young black females. It can't get any worse than that. Harris is right; yet he also sells himself out because he acquiesces in the process of decrying acquiescence. He does not draw the line between respect for persons and impunity. He continues: "Even if she grabbed a gun, was it necessary to shoot at her twenty-seven times? I know it’s less than 41, but that's still too many times to shoot at a sleeping female—black, brown, yellow or white" (emphasis added). Why isn’t one bullet too many times to shoot anybody? It is the job of the spectacular (and sensational reports about the subtle) to draw attention away from the banality of police murder as standard operating procedure.
9 -Use of legal action is the slaves bow to its master
10 -Farley 5, Anthony. Prof. Farley specializes in Constitutional Law, Criminal Procedure and Legal Theory. Taught at Boston College Before Teaching at Albany “Perfecting Slavery” Page 221-222Slavery is with us still. We are haunted by slavery. We are animated by slavery. White-over-black is slavery and segregation and neosegregation and every situation in which the distribution of material or spiritual goods follows the colorline. The movement from slavery to segregation to neosegregation to whatever form of white-over-black it is that may come with post-modernity or after is not toward freedom. The movement from slavery to segregation to neosegregation is the movement of slavery perfecting itself. White-over-black is neosegregation. White-over-black is segregation. White-over-black is slavery. All of it is white-over-black, only white-over-black, and that continually. The story of progress up from slavery is a lie, the longest lie. The story of progress up from slavery is told juridically in the form of the rule of law. Slavery is the rule of law. And slavery is death. The slave perfects itself as a slave when it bows down before its master of its own free will. That is the moment in which the slave accomplishes the impossible reconciliation of its freedom with its unfreedom by willing itself unfree. 3 When exactly does this perfection of slavery take place? The slave bows down before its master when it prays for legal relief, when it prays for equal rights, and while it cultivates the field of law hoping for an answer.
11 -
12 -The alternative is to burn it down civil society is inseparable from its foundation Farley 4 (Anthony Paul, Associate Profess @ Albany Law School, “Perfecting Slavery”, http://www.luc.edu/law/activities/publications/lljdocs/vol36_no1/farley.pdf, Accessed: 11/9/11, )
13 -What is to be done? Two hundred years ago, when the slaves in Haiti rose up, they, of necessity, burned everything: They burned San Domingo flat so that at the end of the war it was a charred desert. Why do you burn everything? asked a French officer of a prisoner. We have a right to burn what we cultivate because a man has a right to dispose of his own labour, was the reply of this unknown anarchist.48 The slaves burned everything because everything was against them. Everything was against the slaves, the entire order that it was their lot to follow, the entire order in which they were positioned as worse than senseless things, every plantation, everything.49 “Leave nothing white behind you,” said Toussaint to those dedicated to the end of white-overblack. 50 “God gave Noah the rainbow sign. No more water, the fire next time.”51 The slaves burned everything, yes, but, unfortunately, they only burned everything in Haiti.52 Theirs was the greatest and most successful revolution in the history of the world but the failure of their fire to cross the waters was the great tragedy of the Nineteenth century.53 At the dawn of the Twentieth century, W.E.B. Du Bois wrote, “The colorline belts the world.”54 Du Bois said that the problem of the Twentieth century was the problem of the colorline.55 The problem, now, at the dawn of the Twenty-first century is the problem of the colorline. The colorline continues to belt the world. Indeed, the slave power that is the United States now threatens an entire world with the death that it has become and so the slaves of yesterday, today, and tomorrow, those with nothing but their chains to lose, must, if they would be free, if they would escape slavery, win the entire world. win the entire world. VIII. TRAINING We begin as children. We are called and we become our response to the call. Slaves are not called. What becomes of them? What becomes of the broken-hearted? The slaves are divided souls, they are brokenhearted, the slaves are split asunder by what they are called upon to become. The slaves are called upon to become objects but objecthood is not a calling. The slave, then, during its loneliest loneliness, is divided from itself. This is schizophrenia. The slaves are not called, or, rather, the slaves are called to not be. The slaves are called unfree and thus the living can never be and so the slaves burst apart and die. The slaves begin as death, not as children, and death is not a beginning but an end. There is no progress and no exit from the undiscovered country of the slave, or so it seems. We are trained to think through a progress narrative, a grand narrative, the grandest narrative, that takes us up from slavery. There is no up from slavery. The progress from white-over-black to white-over-black to white-overblack. The progress of slavery runs in the opposite direction of the past-present- future timeline. The slave only becomes the perfect slave at the end of the timeline, only under conditions of total juridical freedom. It is only under conditions of freedom, of bourgeois legality, that the slave can perfect itself as a slave by freely choosing to bow down before its master. The slave perfects itself as a slave by offering a prayer for equal rights. The system of marks is a plantation. The system of property is a plantation. The system of law is a plantation. These plantations, all part of the same system, hierarchy, produce white-overblack, white-over-black only, and that continually. The slave perfects itself as a slave through its prayers for equal rights. The plantation system will not commit suicide and the slave, as stated above, has knowing non-knowledge of this fact. The slave finds its way back from the undiscovered country only by burning down every plantation. When the slave prays for equal rights it makes the free choice to be dead, and it makes the free choice to not be.
14 -
15 -The ROB is rejecting racism. Addressing Anti-Blackness is a priori – it prevents ethicality and sets the groundwork for all violence – 3 warrants.Wilderson, award-winning author of Incognegro: A Memoir of Exile and Apartheid. He is one of two Americans to hold elected office in the African National Congress and is a former insurgent in the ANC’s armed wing, 2003 (Frank B. III “Chapter One: The Ruse of Analogy” Red, White, and Black: Cinema and the Structure of U.S. Antagonisms,) GG
16 -Two tensions are at work here. One operates under the labor of ethical dilemmas~-~- “simple enough one has only not to be a nigger.” This, I submit, is the essence of being for the White and non-Black position: ontology scaled down to a global common denominator. The other tension is found in the impossibility of ethical dilemmas for the Black: “I am,” Fanon writes, “a slave not of an idea others have of me but of my own appearance.” Being can thus be thought of, in the first ontological instance, as non-niggerness; and slavery then as niggerness. The visual field, “my own appearance,” is the cut, the mechanism that elaborates the division between the non-niggerness and slavery, the difference between the living and the dead. Whereas Humans exist on some plane of being and thus can become existentially present through some struggle for/of/through recognition, Blacks cannot attain the plane of recognition (West 82). Spillers, Fanon, and Hartman maintain that the violence that has positioned and repetitively re-positions the Black as a void of historical movement is without analog in the suffering dynamics of the ontologically alive. The violence that turns the African into a thing is without analog because it does not simply oppress the Black through tactile and empirical technologies of oppression, like the “little family quarrels” which for Fanon exemplify the Jewish Holocaust. Rather, the gratuitous violence of the Black’s first ontological instance, the Middle Passage, “wiped out his/her metaphysics…his her customs and sources on which they are based” (BSWM 110). Jews went into Auschwitz and came out as Jews. Africans went into the ships and came out as Blacks. The former is a Human holocaust; the latter is a Human and a metaphysical holocaust. That is why it makes little sense to attempt analogy: the Jews have the Dead (the Muselmenn) among them; the Dead have the Blacks among them.¶ This violence which turns a body into flesh, ripped apart literally and imaginatively, destroys the possibility of ontology because it positions the Black within an infinite and indeterminately horrifying and open vulnerability, an object made available (which is to say fungible) for any subject. As such, “the black has no ontological resistance in the eyes of the white man” (110) or, more precisely, in the eyes of Humanity
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