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By Jeff Handmaker
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Is there a crisis in the United States, as many commentators would make us believe? If so, what is the nature of that crisis? It has become very fashionable to speak of innumerable ‘crises’ while most of these events can be traced to something far deeper, namely lawfare. It is becoming increasingly clear that the use of lawfare has been Trump’s game plan from the beginning until the end of his administration; accordingly, he is now seeking to bypass the will of the voters and entrench himself in the White House.
Americans, and indeed people around the world, have tried to make sense of the US election, in particular its incomprehensible system of tallying Electoral College votes, as well as a plethora of legal challenges to elections across the country. A quick scan of the latest news items from around the world reveal claims of a range of nebulous ‘crises’ in the US: a political crisis, a crisis of democracy, a constitutional and potentially post-election crisis, a crisis of bourgeois democracy, and even a crisis of the American Dream.
But do any of these depictions of ‘crisis’ really help us understand what has been happening? And why is it that the courts rather than the voter (or Electoral College for that matter) seem to end up deciding an election, as Trump hoped would happen for this presidential election when he complained about electoral fraud?
Simplistic descriptions of ‘crises’ without a deeper examination of the root causes won’t help us understand what is transpiring. As my ISS colleague Karim Knio has consistently argued, we should not waste a good crisis. Accordingly, he insists that one must resist the simplistic tendency to speak of a crisis IN or a crisis OF something, but rather should seek to understand the potential of such events to trigger political change.
To be sure, this is not to dismiss the importance of potentially calamitous events – whether they are political, economic, ecological, sociological or indeed medical (the COVID-19 pandemic comes to mind). However, the crucial thing is to learn from how such events have been (mis)managed to get to the underlying causes. In other words, explaining the pedagogy of crisis management is much more important than the crisis itself.
Amidst a cacophony of voices, each seeking to provide their own explanation of the ‘crisis’ in the US, and even how to solve it, very few speak of the underlying reasons why the US is in such a mess. This is a far more fundamental matter, including the insidious ways in which law is instrumentalised to suppress basic democratic and legal values, and indeed to suppress people as well. I argue that the illegitimate misuse of the legal system in the US through the use of lawfare is underpinning many of these ‘crises’.
It was evident from the very beginning of the Trump administration that it would use lawfare to accomplish its goals. Lawfare is about instrumentalising law to suppress people and to undermine rule of law values. This use of law assumes “delegitimising and oppressive forms, justifying retrogressive policies and even reinforcing the hegemonic actions of states”.
Throughout the four years of the Trump administration, there has been an expansive mis-use of the law through lawfare to accomplish what would otherwise have been impossible through legitimate legal procedures. All branches of government have been affected by it. In the legislature, following an impeachment by the Democrat-controlled House of Representatives, Trump’s strong alliance with key members of the Republican-held Senate ensured that, through lawfare, he would be duly acquitted in a sham trial that failed to call any witnesses. Trump also waged lawfare in the judiciary: he appointed two Justices with right-wing political views – Brett Kavanaugh and Amy Comey Barrett – to the US Supreme Court, the latter one week before the presidential election. But most of all, Trump made extensive use of lawfare by way of executive orders, from the so-called ‘Muslim ban’ to the separation of migrant children from their families after being detained at the US border.
Trump was hardly the first president to make use of Executive Orders—Bush and Obama made extensive use of them as well. Indeed, Trump capitalised on this expansion of executive power. Notwithstanding their shaky legality (they were frequently overturned after being challenged in court), it seems that this form of lawfare has mainly been intended as a source of distraction, for example from the administration’s ‘dangerously incompetent’ handling of the COVID-19 pandemic or the Republican party’s systematic unravelling of the US social safety net.
However, Trump arguably took lawfare to a whole new level in the context of the 2020 Election. In the run-up to the election and even as Biden was proclaimed victorious, lawfare has been Trump’s principal strategy, his endgame for attempting to win re-election in 2020 by way of voter suppression, which another commentator refers to as a ‘crisis’ in itself.
Voter suppression through lawfare has a long history that is rooted in the country’s racist past. This has involved the systematic use of lawfare at municipal and state levels, and has taken various specific forms. A common form has been to require voters to produce specific IDs, based on a spurious claim (i.e. little to no evidence) that voter fraud was rampant. A second form of lawfare has been to exclude those with a previous felony conviction (i.e. record of having committed a serious crime). A further form of lawfare has been to re-design voter districts so that Republicans have a greater chance of winning elections according to a particular set of demographics. Much of these lawfare aimed at voter suppression were pushed by a private organisation known as the American Legislative Exchange Council (ALEC).
In the weeks prior to election day on 3 November, Trump and his associates issued frequent warnings of the potential for voter fraud, citing mail-in ballots as a major cause. As often accompanies lawfare, there was little to no evidence for making such claims.
By 8 November, it became increasingly clear that Biden would win the US Presidential election by more than 4 million votes. By then he had already collected well more than the 270 electoral votes needed to win and was on track to secure more than 300 in total. Accordingly, every single major US news network—including the Trump-friendly FOX news— projected by 8 November that Biden would win the election.
The response of Trump and his associates was not to concede, but to step up their lawfare game by launching multiple lawsuits in different states, albeit lacking the support of large law firms that are required to mount such complex litigation. As with many other previous lawfare actions, this action was also led by former New York mayor Rudy Giuliani, again alleging ‘fraud’, though still based on little to no evidence. Nevertheless, these false allegations have been bolstered by Trump’s allies in the Senate—in particular Lindsey Graham and Ted Cruz—all aimed at questioning the legitimacy of the 2020 presidential election, or potentially at maintaining the Republican voter base.
This all reveals the importance of learning how lawfare has been used to undermine fundamental pillars of governance. Despite the claims of pundits that the US is facing innumerable, unspecified crises, the biggest crisis facing the US is much deeper and fundamental. It is a crisis in how lawfare is systematically used to undermine the very fundaments of liberal democracy and, most recently (and visibly), the integrity of the electoral system.
Learning from how Trump and his associates have misused the law through their disingenuous campaign of lawfare is also key to understanding why challenging the election is not as important as Trump’s lawyers make it out to be. Lawfare is used to exclude legitimate voters and to foster a deep and growing polarisation that will make it all the more possible for right-wing Republican candidates—even those with no qualifications or experience other than starring in a reality TV programme or running loss-making businesses—to seek presidential office in future.
In other words, Trump’s endgame of lawfare is a crude strategy for undermining basic principles of governance in order to secure re-election. While this strategy of polarisation is proving unlikely to work for this election, it may well secure a Republican victory in future.
About the author:
Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.
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When North America was colonised, the relationship of indigenous people with food was also colonised. But a group of women acting as seed keepers for their communities are fighting back, practicing decolonisation in their daily work and addressing the legacy of food colonisation through the reclamation of seeds and the traditions, practices, and affective relations that nurture human-plant-environment relationships and keep Native communities thriving, healthy, and connected.
Understanding the colonisation of North America begins with understanding food. Europeans thought that Natives could be ‘civilized’ through their stomachs. Targeting Native diets and methods of food provisioning was a way to control and disempower. Native populations of humans, non-human animals, and plants were decimated due to disease and violence. In what is now called the United States, native groups were forced onto individual allotments, often marginal land away from ancestral homes. Sedentary farming was viewed as the rational form of land use, shaping the native in the white yeoman farmer’s image.
And in residential schools, Native languages, dress and diets were forcefully repressed and replaced with English, European clothing and foods like wheat and dairy, which were largely absent from Native diets previously (Vernon 2015).
The legacy of this physical and cultural violence is clear: today, at least 60 Native reservations struggle with food insecurity, and Native families are four times as likely as other US families to report having not enough to eat (PWNA 2017). This places many Native communities in a relationship of dependence with the US Government: the USDA provides canned goods, powdered milk, processed cheese and white sugar, contributing directly to high rates of diabetes, heart disease, and obesity (Vernon 2015).
Fighting back
Native women are addressing the legacy of food colonisation by asserting their communities’ right to grow food for themselves—food that nourishes human bodies, cultural tradition, and the wider web of non-human species and environments. These women and the groups they work with not only promote food sovereignty but practice it: Winona La Duke of the Anishinnaabe founded the White Earth Land Recovery Project, which bought back 1,200 acres of tribal land that had been appropriated by the US government and began a project to revive the collection of wild rice, an important traditional food.
Rowen White of the Mohawk Nation founded Sierra Seeds, a company selling locally adapted and heritage varieties, and directs the Indigenous Seed Keepers Network (ISKN). In the winter of 2018, the ISKN came to an agreement with Seed Savers Exchange, a public access seedbank of rare and heritage varieties, to identify and rematriate[1] varieties of corn, beans and squash that originated in Native communities (White, n.d.).
Rufina Juarez, a Chicana Indigenous woman, helped organise the 14-acere South Central Farm, maintained by 350 primarily Central American families as a space to grow culturally appropriate, nourishing food in 20-by-30-foot plots. The farm was a haven for immigrants to grow food that connected them to the places they left behind: nopales, corn, squash, tlapanche and papalo greens, lettuces, strawberries, cabbages (Mark 2006). The farm was bulldozed in 2006 even after farm advocates were able to raise money to meet the $16 million asking price. (Juarez 2010, Gordon 2006).
And still, new challenges constantly arise: climate change alters traditional migratory routes of important game animals like caribou, land grabbing for industrial monocropping or extraction removes land from indigenous stewardship, and biopiracy[2] and corporate consolidation of the seed industry deteriorates crop biodiversity (Cultural Survival 2013). Native women continue to organise in the face of these challenges, recognising that colonisation is an ongoing, evolving process, deeply tied to the machinations of globalised capital.
Enduring practices
The work of seed keeping and the maintenance of community tradition it entails is often, but not exclusively, spearheaded by women. Collaboration between many stakeholders, Native or not, young and old, male, female, or otherwise, is key. I chose to highlight these initiatives because women are central and powerful, but are not burdened with speaking for ‘nature’, from an essentialised, gender-based position. Rather, their work builds on traditions of care, affectivity, and community network building that women and others have performed for generations, throughout the trauma of colonisation and the attempted, but unsuccessful, erasure of native foodways.
[1] “Rematriate” means returning the seeds to their place of origin. “Repatriate” is more commonly used, but here I chose to retain the word used in White’s article, which consciously imputes a feminine quality to the seed and the land to which it is returning.
[2] Biopiracy describes the process by which biological or genetic material (commonly from medicinal or crop plant or animal species) is obtained and exploited for commercial use without the knowledge or consent of the original ‘owners’ or stewards of the material. The most common situation is multinational pharmaceutical or agrochemical/seed companies using indigenous plant knowledge to locate commercially valuable species, stela them, and then patent them so they become exclusive property of the corporation. The term was originally coined by Pat Mooney of the ETC Group and popularized by Vandana Shiva of Navdanya.
This article is part of the series `Women´s Month 2019´, in which members of the ISS gender committee reflect on women´s issues on Bliss.
Image Credit: https://www.stopthewall.org/apartheid-wrong
About the author:
Leila Rezvani is a Master’s student in the AFES major. She comes from Southern Vermont, USA, and is interested in the politics of scientific knowledge production, seed systems, plant breeding and thinking about how the agro-food system could be more just for plants, people and non-human animals. She misses the mountains and hopes to work for a small seed company or farm someday (soon).