Equality Under the Law is a Reactionary Doctrine

If one is to remain agnostic of the motivations and social movements that brought Kyle Rittenhouse to Kenosha on the night of August 25th, 2020, it becomes impossible to make proper meaning of the two murders he would commit that night, and of his recent acquittal. That agnosticism is precisely what the American justice system relies on, and why there was no chance that it could deliver justice in this case.

Legally speaking, Rittenhouse may very well have had every right to fire his weapon. Legally speaking, everything that occurred from then until now, from the police’s preferential treatment to the blatantly biased rulings of the judge—were above board. Legally speaking, it doesn’t matter that Rittenhouse shouldn’t have been there at all, or that the ideas and movement that brought him there are reactionary and even genocidal.

Legally speaking, Rittenhouse has been proclaimed innocent, and yet he is an enemy of the people nonetheless, guilty the moment he stepped foot in Kenosha, at which point he forfeited any right to self-defense. Rittenhouse is guilty not simply because of what he did, but primarily because of why he did it. If the Left is to appropriately grapple with this case, and those that will surely follow, we must make a clean break from the liberal maxims that undergird our legal system, or else we will stand around stupefied as the legal system facilitates the rise of fascism as it once did in Europe.

The law, and its agents in the police and courts, worked exactly as intended in this case; that is, to protect and uphold the status quo, including institutional racism. It took no special conceit or conspiracy to achieve this outcome. Our legal system as a matter of principle does not examine the “why,” but only the “what”—because the system is designed to administer “justice” with the appearance of agnosticism about ideology—and so the most relevant facts of the case aren’t allowed to matter in court. But they do matter. “Equality under the law” is a fundamental aspiration of our legal system, and is an attractive doctrine that seduces many segments of society, including segments of the Left. There was a time when this doctrine was progressive, and challenged the formalized social stratification of feudalism and chattel slavery. However, we must recognize that in our contemporary moment, “equality under the law” plays a reactionary role. Like “freedom of speech,” it is the masters’ tool for protecting their position as exploiters. In a society locked in a struggle against racism, it matters which side one stands on, matters in a far deeper sense than law. Increasingly, progressive forces are waking to this reality.

Many activists have summoned the courage to outright abandon these stale liberal maxims, as progressive forces once abandoned the divine right of kings. Many others may be instinctively on the side of true justice—the suppression, even violent suppression, of fascism and its agents—but feel ambivalent when this instinct clashes with the mainstream liberal principles they’ve had hammered into their heads. They should not feel ambivalent.

Consider when Richard Spencer, an open white supremist, was punched by an anti-racist activist and the moment was caught on film. Legally an assault and battery, this attack was rightly met with applause by the Left and much hand wringing from the Right and Center. “But what about freedom of speech!,” they cried, sparking a debate about the changing nature of activism, cancel culture, violence, etc. Even those who applauded may have felt torn celebrating an obvious crime. The proof is in the pudding, however. Spencer admits that this and similar attacks have had a profound effect on him and his ability to organize. If you stand against racism, this is inarguably a good thing.

The loose assortment of groups and individuals known as ANTIFA have come to occupy this particular anxiety in our political dialog, as their activities are in blatant contradiction with classical liberal norms and values. ANTIFA activists do not concede that fascists, white supremacists, and other reactionaries have a right to a platform, to hold space, to organize, etc., as our legal system does. But ANTIFA and the other groups that form the most militant bastion against the rising fascism around us recognize a vital fact from history: the rise of fascism cannot be stopped by legal means—or, at the very least, legal measures alone—as was attempted in Germany and Italy in the decade before WWII (the Freikorps were legal, afterall). In fact, it is the law, and “legalism” as a moral doctrine, which facilitates the rise of fascism.

Michael Reinoehl, an ANTIFA-associated activist, was suspected of very similar charges as Rittenhouse after he allegedly shot and killed Aaron Danielson, a far-right activist, at a rally in Portland, Oregon. Unlike Rittenhouse’s victims, reports indicate that Danielson was armed with a handgun and a can of bear mace. He was likely using the bear mace when Reinoehl shot him, and according to Reinoehl, he believed that Danielson was in the act of stabbing someone when he opened fire. However, unlike Rittenhouse, Reinoehl never saw his day in court. Federal Marshalls arrived at his home soon after the incident and killed him before taking him into custody. The Marshalls claimed that Reinoehl initiated a gunfight, but Reinoehl’s clip was full when he was killed. Witnesses say that Marshalls opened fire without warning. Nonetheless, this police action was also ruled a legal killing.

It is difficult to imagine a similar situation befalling Rittenhouse, but if it had, and cops had gunned him down that night, it is almost certain that police would not be facing charges for doing so, and it is quite likely that the same people now insisting that Rittenhouse did nothing wrong would also be insisting that police had done nothing wrong by killing him. As mind-bending as this may seem at first glance, there may be nothing at all hypocritical about this (at least legally).

That is to say, by design our system provides a great deal of discretion to police on the ground, and the legal system tends to back up those decisions after the fact when those choices serve the status quo, which they usually do. The police are, after all, the front line in protecting private property and the oh-so-legal regime of extracting surplus profits from working people. It is no wonder then that as police in Kenosha were brutalizing and arresting Black Lives Matters demonstrators for being out past a (legal) curfew, they simultaneously expressed gratitude, and even handed out water bottles, to the heavily armed right wing militias that were also present, including Kyle Rittenhouse. There are many indications, including statements from the same militia members, that the police had previous knowledge of where the militias were staging and intended to push Black Lives Matter protestors towards them. This type of coordination between far right groups—and even co-membership between police and reactionary groups—is nothing new, and essentially ensures that the police will side with right wingers on the ground as they have the legal discretion to do. And why not? Both groups often serve the same reactionary interests.

It is absolutely the case that race plays a significant role in how these situations play out, as many others have pointed out. Had Rittenhouse been Black, it is far more likely he wouldn’t have survived that night or subsequent arrest. But the case of Reinoehl shows that it is not simply the identity of the individual, but the content of their ideas and the purpose of their actions, which is determinative. It is not the case that Rittenhouse was acquitted simply for being white. Had Rittenhouse been Black, and had survived arrest, it is very likely he would have been acquitted, simply for standing on the side of the status quo (if, that is, he was able to raise the millions in legal fees needed to fight the case instead of caving to a plea deal). In fact, if he had been Black, and had been killed by police, it would not just have been because police are motivated to murder—and often get away with murdering—Black people, but also because the cops’ first assumption may have been that, being Black, he was acting on behalf of anti-racist forces. This reality should not be discounted.

Legal does not mean good or right, and so we must come to terms with the fact that to fight racism is to fight the entire legal system of the United States. The State is not a neutral force arbitrating a conflict between Left and Right. It is an amalgam of “legitimate” legal organizations as well as aligned civilian forces (as long as those forces prove useful which, on January 6, they did not). We cannot expect equal treatment by police and courts except in name, and we should not give it. The content of one’s politics is, and must be, primary. We must say that all white supremacists are guilty from the moment they step onto the street, and indeed, so is the entire system that protects them. We need not grant Rittenhouse an “equal right” to “self-defense.” Anyone actively promoting fascism, white supremacy, genocide, etc., must be repressed and suppressed by any means necessary; and we must seek to build a society that has no tolerance for armed right wing militias that menace and intimidate anti-racist protestors. That will be a far more just world than one nominally governed by “equality under the law.”

Those who stand against fascism, even those who stand against it violently, are heroes, the law be damned.

Zachary Orlin (pseudonym) is an activist, organizer, stay at home dad, and writer. He lives in Boston with his wife and three young children. Pronouns: He, Him, His. Read other articles by Zachary.