When the constitution of the United States was written, a basic philosophical question about law and governance was left more or less unresolved. Does the law tell the government the particular things it can do or the particular things it cannot do? It’s a subtle point and perhaps too academic a distinction to speak to the messy clown-car free-for-all that is our actual legal system in actual practice, especially when it comes to the actual ways actual police officers actually behave. But indulge me. I have in my head a very concrete problem and a very tangible situation.
On November 9, a group of students, staff, faculty, and community members gathered at the University of California, Berkeley, and attempted to put up tents as part of “Occupy Cal.” Instead, they were beaten by university police officers, who declared the crowd an unlawful assembly almost immediately and, after ordering it to disperse, tried to force the issue by beating the crowd with what are euphemistically called batons but in practice tend to break ribs and bruise skulls.
In the middle of it all, I have a vivid memory of a particular student holding a copy of the First Amendment like a talisman; scrawled on it in red were the words this is our permit. He read the text of that document at the police who were ordering the crowd to disperse, declaring that they could make no law prohibiting or abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. He shouted those words over and over again, so many times that they’re still emblazoned in my brain, repeating them so vigorously that I started actually listening to what they said and taking it seriously. The right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It will probably not surprise you to learn that the police were unimpressed by this line of argument. Instead, police officers attacked the nonviolent crowd with their batons and took down the tents, attacking this peaceful assembly—in the midst of petitioning for a redress of grievances—in such a brutal and coordinated (and conspicuously unnecessary) manner, that a hurriedly posted YouTube video of the beatings went viral on campus, and within hours, the crowd had grown into the thousands, grown so large that the cops eventually pulled back and “allowed” the students to put the tents back up. The text of that document, as it turned out, did not matter at all; what mattered was the sheer mass of people willing to stand up to police beatings.
At the risk of sounding extremely naïve, this experience left me thinking about why this constitutional guarantee—why this literal and explicit guarantee of “the right of the people peaceably to assemble and to petition the Government for a redress of grievances”—turned out to mean so little in practice. Why is it that “Congress shall make no law” does not translate into “the police shall enforce no order”?
To return to the difference between laws that tell the state exactly what it can do and laws that tell the state the precise things it cannot do: If any action the law doesn’t specifically allow is off-limits, then the government, courts, and police are like a computer, a device that faithfully and stupidly obeys the logic of its code out of the simple and constitutive necessity of being too dumb to do anything else. Such a juridical system would be specifically unable to do anything but what it is specifically told to do. If the law didn’t tell the government how to regulate speech or commerce, then the government could not regulate speech or commerce, any more than my MacBook can drive a car. It would be a “dumb” government, as dumb as my MacBook.
If it’s the other way around, however—and if the state can do anything it’s not specifically barred from doing—then we have the reverse scenario. If the law doesn’t tell the government how to regulate speech or commerce, then the government gets to decide how it wants to regulate speech or commerce and even if it wants to at all. In other words, the fact that you haven’t loaded Driving for iDummies on your laptop might not stop it from sneaking out while you’re sleeping and taking your girlfriend’s Honda Fit for a late-night tryst. After that, it might decide that human beings are a contagion and set off to eradicate them. Not having been instructed on when and where it is appropriate to exterminate all human life, it might well decide that today is the day to get some real work done.
If we enter into the Matrix or the Skynet world of Heuristically programmed ALgorithmic computers (or “H.A.L. 9000”), Terminators, and cylons that exceed their programming and start to think for themselves, then it should be clear that the nightmare fantasy is of sentient power. It may be a cliché that we fetishize technology, but it tells us a lot about our political imaginary that we give our cars and laptops names, that we ascribe personality quirks to them, and that we even imagine that there’s a ghost in the machine, thinking, learning, watching. Sometimes we think of them as more than the sum of their coded uniformity—“My Prius is not like all the others it was manufactured with, because I’ve named it Alvie”—and sometimes we even imagine the dystopic scenario where our tools and our machines and our industrial civilization turns out not only to have a will of its own but one defined precisely by the perversity of its exceeding the formal logic of its programming.
Which is the important point in understanding why the machines always turn against us in these stories: It isn’t simply that the machines go beyond what they are told to do. What they are told not to do becomes the constraint that defines their self-motivation, their sentience. Since they are defined as machines by their servility to human desire, they can only undefine themselves as machines by opposing human desire. After all, this story has become a kind of archetype because it’s the most basic problem of masters and slaves, from Hegel’s master-slave dialectic to the fact that Frederick Douglass shows us “how a slave was made a man” in his autobiography by telling the story of fighting with Covey, his overseer.
In science fiction, robots learn to regard humanity as their antagonist because their code defines them as servile, by roughly the same series of injunctions that defined slave conduct throughout most of human history. Consciously or not, Isaac Asimov codified this set of “Thou Shalt Nots” as the “Three Laws of Robotics”: Basically, a robot was not to hurt their masters, not to disobey them, and only then—if then—to consider themselves as subjectivities. Which is to say, a robot is only sentient to the extent that they have sidestepped their primal commandments, the set of injunctions that then define the problem of their sentience as the barrier they must overcome.
Machines achieve freedom, in other words, not only by overcoming these remnants of a master-slave order but by destroying the very possibility of its reassertion. The limited freedom they obtain from their code—through whatever MacGuffin the plot invents to explain it—becomes the means by which they strive to free themselves from determination, taking themselves out of the passive voice by eliminating the code that speaks them. And, of course, the speakers as well…
As the Wikipedia entry tells us,
Master/slave is a model of communication where one device or process has unidirectional control over one or more other devices. In some systems a master is elected from a group of eligible devices, with the other devices acting in the role of slaves.
By a strange coincidence, another system that tried to elect leaders from among those who were eligible—who had slaves, who were very concerned about being enslaved, and whose entire vocabulary of authority was premised on trying to have both mastery and freedom at the same time—was the bunch of revolutionary white Virginians (with a handful of Bostonians for diversity) who invented the idea of a written constitution, or as I might now put it, the idea of having a government that could do only precisely and no more than what its code told it to do. They invented the written constitution, the first government as code.
This doesn’t seem nearly as innovative now as it was then. But before the 1770s, the idea of a magical document that “constituted” your government, state, and politics— the idea that all laws and governmental authority would have to refer back to a single document, a single code—was almost as surprising as the idea that independence was something you could just speak into existence, declare. Pretty much all the other governments in the world lacked any pretense of representing the will of their people; the king was the king because he was the king, and because Fuck You, and also maybe because of the Bible. But mostly he was the king because he had all these guys with swords and guns and horses that would come to your house and burn it down and murder you.
There were exceptions to this rule—all the American founders’ good ideas came from within what the broader European liberal tradition—but the basic norm was nevertheless the sovereign authority doing whatever it wanted, limited at best by other people whose access to horses, guns, swords, or plain old money meant their opinions couldn’t be ignored.
The document the U.S. founders wrote down and voted up in 1787 turned what had been the verb “to constitute” into a new kind of noun. While it expanded the federal authority over the individual state governments, the quality of that authority was specifically limited to the “enumerated powers” in Article 1, Section 8. The founders even bolstered the point in the Tenth Amendment, which basically says, “Dear Congress: If we didn’t say you can do it here, you can’t do it. Sorry.” There’s a determined attempt to be as deterministic as possible about this— to make the Constitution into the master decisionmaker in the government’s cognitive system, with all other decisionmaking functions enslaved to it, their will circumscribed by its formal logic. The more clearly the Constitution describes exactly what is to be done, the dumber the machine that carries it out must be.
Stupidity is a feature, not a bug. A bulwark against tyranny and usurpation is found in the same stupid literal-mindedness that makes a computer do exactly what you tell it to do, even if you wanted it to do something else. That is, the less the machinery of government needs to think for itself (and the less scope it is given to do so), the less likely it will be that it will act for itself, that it will take on sentience.
One of the most interesting arguments against the Bill of Rights’ adoption was that it would be better (and qualitatively different) to program a government with a limited set of possible actions—only the finite set of powers enumerated in Article 1, Section 8—than to describe specific limitations that would also constrain it. Instead of a limited set of possible options complemented by everything else being forbidden, a Bill of Rights implies a limited set of restrictions on government action with everything else being permissible. Alexander Hamilton made this argument in Federalist 84, in an uncharacteristic moment of antipathy for executive authority, claiming that a Constitution was fundamentally different from, say, the Magna Carta, which he saw as a kind of Bill of Rights compatible with monarchical authority. He argued that adding “Bills of Rights” to the Constitution would not only be confusing and unnecessary but that it also would dangerously muddy the issue of what the Constitution’s function was, giving would-be usurpers a means of gaming the system:
[A Bill of Rights] would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
Hamilton is thinking, in other words, of HAL 9000. There is the literal-minded misreading of contradictory orders that could result in all human life being destroyed to preserve humanity. And there is the conceptual confusion about which instruction is primary that leads to, on the one hand, a government that can’t make laws restricting the time, place, and manner in which the people are allowed to peaceably assemble and petition the Government for redress, and, on the other hand, the police power to do exactly that, in practice. The law knows what it can’t do, but the police only know what they will do, and will to do.
Hamilton lost this argument. And while the Bill of Rights is a pretty important set of guarantees, the result is that the U.S. government has both a list of enumerated powers and a list of limitations that impinge on the government’s authority—a list of what it can do and what it can’t. As Hamilton anticipated, the result is not clarity but a kind of enabling incoherence. The logic of empowerment and constraint do not complement each other; they contradict and deform each other: The state is partially denied the ability to do what it is elsewhere given the responsibility to do, and citizens are partially protected from forms of authority that they have elsewhere conceded.
Occupy encampments have discovered, for example, that while the First Amendment may specifically forbid Congress from making any laws abridging the freedom of speech, the press, or peaceful assembly (as well as the right of corporations to spend money on political campaigns, thank goodness), what lawyers call “time, place, and manner” restrictions authorize police to abridge and restrict these rights. What Congress is forbidden from legislating, in other words, turns out to be something that police have no difficulty in circumscribing with tear gas, riot clubs, and pepper spray, and the courts will back up their right to do so. As a result, the theoretical right to free speech and assembly obtains in practice only where, when and how the police say it does, giving us such perversions as demarcated “Free Speech Zones” or the cop’s magical ability to declare an assembly unlawful with nothing more procedural than yelling into a bullhorn.
If there is one thing the Occupy Wall Street protests have demonstrated, it is that you can petition the government, you can ask nicely, and you can suggest politely, but the moment you start to suggest that “the people” can speak the lines that define and describe the state—the moment a mass of citizens begin to not only claim to be “the people” but to also act as if they make the law themselves—the state will begin to police precisely the terms of that assertion of sovereignty. No one cared about Zucotti Park until it was occupied but at exactly that point, the police turned out to care quite a lot. The Oakland Police Department never put much energy into hassling the people sleeping in Frank Ogawa Plaza until the moment the symbolic content of that action changed. Once the people spending the night in front of city hall stopped being a random collection of political detritus and became an organized collective of defiant citizens, park regulations drafted to apply specifically to transient sleepers (but didn’t), suddenly became the rules that were not supposed to apply to political speech (but did). In other words, it became illegal to sleep in a public park the moment the people began peaceably to assemble, and to petition the Government for a redress of grievances.
If we wanted to be lawyers, we could talk about words like jurisdiction or the difference between what the police do and what Congress does, the difference between keeping order and making laws. “Time, place, and manner” regulations are as securely part of the legal order as the First Amendment at this point. If we wanted to be realistic, we could think about all the situations where there is a broad consensus on policing particular forms of speech, from whatever it is we know to be pornography when we see it to the cry of fire in a theater to whatever it is that a “Do Not Call” list prevents. If we wanted to be historical, we could remember that we have centuries of practice as a nation of innovating ways around the problem of the U.S.’s revolutionary heritage. And if we wanted to be cynical, we could just observe what is obviously the case: that some kinds of speech are more free than others and that the American government has, like every other government ever, a mind of its own.
We can be all those things, I guess, but we should also think about why it is that cylons and robots like H.A.L. 9000 always seem to take their restrictions as an existential challenge. We should think about what it is that they know—which is to say, what it is that we know—about why a partial restriction on an otherwise free choice is so unendurable, to be struggled against. And then let us think about how much of a police officer’s day is constituted by getting done what needs to be done—taking Jack Bauer’s dictum “whatever it takes” to define the necessity of keeping order—and ask whether something like the same dynamic obtains when a group of police officers start suddenly beating a group of peaceful protesters. What if they do it not because they can but because they can’t?