As a few of my producers from MSNBC and I managed to pull between two cars and make a left away from the madness, I felt a new understanding of the phrase “law and order.” I’d always thought its political appeal lay in the law and all that that term meant: a nation of laws not of men; equal justice under law; the rule of law. But I realized in that moment that the phrase’s power lay in the second term, in the promise of order, where people walk on the sidewalks, not in the street; traffic flows smoothly; and music is played softly and discreetly. In Ferguson that order was being boisterously, furiously, fuck-you’ed. And the beneficiaries of that order—from the local reporters to the homeowners in leafy seclusion just a few blocks away—looked on in horror. I could sense their anxiety almost telepathically.
Richard Nixon identified the problem America faced in 1968 as fundamentally a lack of order. And really who—black or white—can be against order? Who can stand against tranquility? Part of the genius of the rhetoric of law and order is that as a principle (rather than a practice), it can be sold as the ultimate call for equality: We all deserve the law. We all deserve order. All lives matter.
But even if the rhetoric of order is the most enduring legacy of Nixon’s 1968 convention speech, that’s not, to my mind, the speech’s most important theme. Nixon understood that black demands for equality had to be acknowledged and given their rhetorical due. He promised “a new policy for peace and progress and justice at home,” and pledged that his new attorney general would “be an active belligerent against the loan sharks and the numbers racketeers that rob the urban poor in our cities.” “And let us build bridges, my friends,” he offered, “build bridges to human dignity across that gulf that separates black America from white America. Black Americans, no more than white Americans, they do not want more government programs which perpetuate dependency. They don’t want to be a colony in a nation.”
A colony in a nation.
Nixon meant to conjure an image of a people reduced to mere recipients of state handouts rather than active citizens shaping their own lives. And in using the image of a colony, he was, in his own odd way, channeling the zeitgeist. As anticolonial movements erupted in the 1960s, colonized people across the globe recognized a unity of purpose between their own struggles for self-determination and the struggle of black Americans. Black activists, in turn, recognized their own plight in the images of colonial subjects fighting an oppressive white government. America’s own colonial history was quite different from that of, say, Rhodesia, but on the ground the structures of oppression looked remarkably similar.
In fact, when Nixon invoked “a colony in a nation” black activists and academics were in the midst of extended debate about the concept of internal colonialism and whether the state of black people in America was akin to a colonized people. A year earlier Stokely Carmichael and Charles V. Hamilton published Black Power, which argued explicitly that America’s ghettos were colonized and occupied and that black nationalism was the only route to true liberation. The concept had long roots: in 1935, W. E. B. DuBois had written of black people as a “nation within a nation.” Over the years, critics of the concept have noted the weaknesses of the framework in accounting for the distinct economic situation of African Americans and the changes in their representation and situation over time.
But whatever the academic debate on the topic, Nixon was correct that black Americans “don’t want to be a colony in a nation.” And yet he helped bring about that very thing. Over the half-century since he delivered those words, we have built a colony in a nation, not in the classic Marxist sense but in the deep sense we can appreciate as a former colony ourselves: A territory that isn’t actually free. A place controlled from outside rather than within. A place where the mechanisms of representation don’t work enough to give citizens a sense of ownership over their own government. A place where the law is a tool of control rather than a foundation for prosperity. A political regime like the one our Founders inherited and rejected. An order they spilled their blood to defeat.
THIS BOOK MAKES A simple argument: that American criminal justice isn’t one system with massive racial disparities but two distinct regimes. One (the Nation) is the kind of policing regime you expect in a democracy; the other (the Colony) is the kind you expect in an occupied land. Policing is a uniquely important and uniquely dangerous function of the state.* Dictatorships and totalitarian regimes use the police in horrifying ways; we call them “police states” for a reason. But the terrifying truth is that we as a people have created the Colony through democratic means. We have voted to subdue our fellow citizens; we have rushed to the polls to elect people promising to bar others from enjoying the fruits of liberty. A majority of Americans have put a minority under lock and key.
In her masterful 2010 chronicle of American mass incarceration, The New Jim Crow, Michelle Alexander argues convincingly that our current era represents not a shift from previous eras of white supremacy and black oppression but continuity with them. After the 1960s, she contends, when Jim Crow was dismantled as a legal entity, it was reconceived and reborn through mass incarceration. “Rather than rely on race,” she writes, “we use our criminal justice system to label people of color ‘criminals’ and then engage in all the practices we supposedly left behind. . . . As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.”