December 16, 2020

José Carlos Mariátegui: Pioneering Latin American Marxist – By Marc Becker, 15 Dec., 2020


 José Carlos Mariátegui: Pioneering Latin American Marxist | Links International Journal of Socialist Renewal

December 14, 2020 — Links International Journal of Socialist Renewal reposted from Against the Current — Writing in the 1920s, the Peruvian Marxist José Carlos Mariátegui introduced a uniquely Latin American perspective on revolutionary socialist movements and theories. He famously noted, “we certainly do not want socialism in America to be a copy. It has to be a heroic creation.”[1] This political dynamism is what made him into an intellectual force with lasting relevance.

Mariátegui’s voluminous and perceptive writings as well as extensive political activism left an unmistakable and lasting impression on the political, social, and intellectual landscape of his country. Nevertheless, even as he has retained central importance for revolutionary socialism in Latin America, in the United States few people are aware of his contributions.

When Mariátegui died in 1930, his funeral turned into one of the largest processions of workers ever seen in the streets of the capital city of Lima, but in the United States his death was hardly noticed.

Waldo Frank, a prominent left-wing U.S writer, the first chair of the League of American Writers and a close friend of Mariátegui, declared that Mariátegui’s death plunged “the intelligentsia of all of Hispano-America into sorrow; and nothing could be more eloquent of the cultural separation between the two halves of the new world than the fact that to most of us these words convey no meaning.”[2]

Despite this lack of attention in the United States and writing a century ago and on a different continent, Mariátegui’s thought remains relevant for the struggles we face today.

Early Life

José Carlos Mariátegui was born June 14, 1894 in the southern Peruvian coastal town of Moquegua and grew up on outskirts of Lima. He was raised by a poor and deeply religious mestiza (mixed race) single mother, Maráia Amalia LaChira. She had separated from her husband, Francisco Javier Mariátegui, because, when she discovered that he was the grandson of a liberal independence hero, she wanted to protect her children from that liberal influence.

This did not prevent her son from becoming the leading Marxist thinker in Latin America, but it did seem to temper his attitudes toward religion.

Mariátegui was a poor and sickly child. He suffered from tuberculous, and when he was eight years old he hurt his left leg, disabling him for life. Because of a lack of financial resources, he only managed to achieve an eighth-grade education. As a result, he was largely self-taught, which later led him to quip that he was an intellectual at odds with the intellectual world.

Rather than continue his education, Mariátegui was forced to find a job to help support his family. At the age of 15, he began to work as a copyboy for the newspaper La Prensa. He soon rose through the ranks in the newsroom as he began writing and editing as well.

These experiences introduced him to the field of journalism, which he subsequently used both for his financial livelihood and as a vehicle to express his political views. Almost all of his voluminous writings originated as relatively short pieces that he penned for popular magazines.

Drawing on this journalistic experience, Mariátegui launched two short-lived newspapers, Nuestra Epoca and La Razón, that assumed an explicitly pro-labor perspective. His vocal support for the revolutionary demands of the workers soon ran him afoul of the Peruvian dictator Augusto B. Leguía, who in October 1919 exiled him to Europe.

Mariátegui later calls this early period of his life his “stone age” and ignored the literary output that resulted from it. As a result, his early writings have received little attention.

Marxism and Amauta

It was during his three-and-a-half-year sojourn in Europe that Mariátegui developed into a Marxist intellectual. Through a series of experiences in France and Italy he saw the revolutionary potential of Marxism. This trajectory and orientation later led his critics to condemn him as a “Europeanizer,” a rather ironic criticism for someone who has come to be generally applauded for adopting Marxist theories to a Latin American reality.

Mariátegui later commented that in Europe he picked up some ideas and a woman, the Italian Anna Chiappe with whom he subsequently had four children — all boys.

In 1923, Mariátegui returned to Peru “a convinced and declared Marxist.” He presented a series of lectures on the “history of world crisis” at the González Prada Popular University in Lima that drew on his experiences and observations in Europe.

He was a popular lecturer, but because of his lack of an academic degree he could not get a regular teaching appointment at the main San Marcos University. Indeed, he was an intellectual at odds with the intellectual world.

In 1924, the police arrested Mariátegui because of his alleged subversive activity at the González Prada Popular University. A strong international reaction led to his release, perhaps reinforcing in his mind the importance of the international dimensions to a socialist struggle.

In 1924, Mariátegui lost his (good) right leg, and as a result spent the rest of his life in a wheelchair. Even as his health failed (or perhaps because of that), both his intellectual output and efforts to organize a social revolution intensified.

Among Mariátegui’s literary activity, the most significant was the founding in 1926 of the journal Amauta (which means “wise teacher” in Quechua) as a vanguard voice for an intellectual and spiritual revolution. The journal moved beyond politics to include philosophy, art, literature, and science.

Amauta was a relatively high-brow publication that gained international renown. Two years later, Mariátegui launched a short-lived biweekly newspaper appropriately titled Labor as an extension of Amauta to reach out to the working class.

In 1928, Mariátegui published his most famous book 7 ensayos de interpretación de la realidad peruana (Seven Interpretive Essays on Peruvian Reality). The essays provide a broad sociological overview of key issues facing Latin America: economics, racial problems, land tenure, education, religion, regionalism and centralism, and literature (the last and by far the longest essay in the collection). This book quickly became a fundamental work on Latin American Marxism and established him as a founding light of Latin American Marxist theory.

In terms of his political activity, in 1928 Mariátegui founded the Peruvian Socialist Party (PSP), served as its secretary-general and brought it into alignment with the Communist International as a vanguardist party designed to lead the proletariat to revolution. With that goal in mind, the party organized communist cells all over country. In 1929, the PSP launched the General Confederation of Peruvian Workers (CGTP) as a Marxist-oriented trade union federation.

During this entire time, Mariátegui continued to run into political problems with the Leguía regime. Mariátegui attacked working conditions at the U.S.-owned Cerro de Pasco copper mine and Leguía feared that he was inciting workers.

In 1927, the police arrested and detained him for six days at a military hospital on charges of involvement in a communist plot. The police subsequently raided his house and shut down Labor.

Even as the labor and political organizations that Mariátegui helped found flourished, his health floundered. The person who came to be known as the Amauta died on April 16, 1930.

Mariátegui’s Ideology

Mariátegui was an integrative thinker who incorporated a broad range of factors into his political analyses and materialist conception of the world. Broadly, his intellectual contributions can be broken down along five lines: national Marxism, anti-imperialism, agrarian issues, racial matters, and religion.

Mariátegui is often seen as the first truly creative and original Latin American Marxist thinker who analyzed concrete historical realities in order to develop solutions to problems of non-European societies. Rather than a rigid and determi­nistic Marxism, he embraced an open and voluntarist revolutionary praxis that excelled in applying European doctrines to Latin American realities in new and creative ways.

From Mariátegui’s perspective, European forms of Marxism became dysfunctional when mechanically applied to Latin American realities. In part, this disconnect was due to the lack of an advanced capitalist economy that characterized the 19th-century European context in which Marx wrote. From that perspective, a social revolution should have been impossible in Latin America.

In contrast, Mariátegui contended that, given Latin America’s context, it was uniquely situated to move toward revolution.

Even though Mariátegui’s ideas were rooted in local realities, he was also interested in international aspects of a socialist struggle. In reviewing Mariátegui’s writings, his broad interest in topics such as the Mexican Revolution and Bolivian tin miners becomes readily apparent. He also maintained contacts with revolutionaries around the world including in China, France, and the United States.

An additional overwhelming factor that Latin America faced was U.S. imperialism. Mariátegui provided a critique of neo-colonial economic expansion of U.S. capital into Latin America and recognized the need for a unified socialist Latin America to halt that encroachment.

The Latin American revolution would be part of an international struggle. This was reflected, in part, by mobilizing international support for figures such as Augusto César Sandino’s fight against the U.S. marines in Nicaragua.

An “orthodox Marxist” understanding is that a socialist revolution must be based in an urban working-class vanguard, something that was largely missing from an overwhelmingly rural Latin American landscape. Furthermore, reflecting a mid-19th century French experience, Marx had been famously critical of peasants as an anachronistic and reactionary group who were only concerned with defending their traditional values and institutions and as such held back the flow of history (although Marx’s later thinking on Indigenous and peasant societies was considerably more nuanced).

Well into the 20th century, Latin America was an overwhelmingly rural society. Rather than seeing this as a weakness, Mariátegui saw it as a strength. Rather than a conservative and reactionary class, he looked to the rural peasant and Indigenous masses to lead a socialist revolution. Furthermore, he looked for a “Lenin” to emerge out of these masses to lead them to victory.

One mechanical interpretation of Marxist theory presents history as moving through a series of stages: from primitive communalism to slavery to feudalism to capitalism before finally progressing on to socialism and eventually the final stage of a communist utopia. From this perspective, Latin America was trapped into a feudalistic mode of production and needed to experience fully developed industrial capitalism before it could even think about proceeding on to socialism.

Mariátegui argued that while these stages might be present in Europe, his native Peru was simultaneously experiencing all of these modes of production, and hence could move from them directly on to socialism without the hundreds of years of delay to develop capitalism.

Racism and Indigenous Struggles

Related to Mariátegui’s belief in the potential for an agrarian revolution was his attention to racial issues. He championed the value of Indigenous societies as he sought to incorporate their heritage and population into the national culture. This included extolling the virtues of the ancient Inka civilization, emphasizing the socialist potential within their collectivist attributes, and embracing their gains and accomplishments.

As important or even more so than reclaiming a place for Indigenous peoples and the Inka empire in Peru’s national history and culture was advocating for a change in landholding patterns. Mariátegui wrote in his essay, “The Problem of the Indian,” that “Socialism has taught us how to present the problem of the Indian in new terms. We have ceased to consider it abstractly as an ethnic or moral problem and we now recognize it concretely as a social, economic, and political problem.”[3]

From Mariátegui’s perspective, a key issue that Peru faced was that Indigenous peoples and peasants, who comprised four-fifths of the country’s population, encompassed a large, impoverished and marginalized sector of society. For Peru to proceed forward, their situation needed to be addressed.

Their lot, according to Mariátegui, could not be improved or solved with humanitarian campaigns, administrative policies, legal reforms, moral appeals to conscious, religious conversions, or through education.

The situation Indigenous peoples faced was not one of powerless victims who needed outsiders to intervene on their behalf, of missionaries and others looking for a way to redeem a backwards race. Nor could people be educated out of their marginalized status, because those educational systems served the interests of the dominant culture.

Nor was the solution an ethnic one of inferior races that could be solved with an interbreeding with a European population. Mariátegui famously wrote, “To expect that the Indian will be emancipated through a steady crossing of the aboriginal race with white immigrants is an anti-sociological naiveté that could only occur to the primitive mentality of an importer of merino sheep.”[4]

Mariátegui instead made the materialistic claim that an understanding of the rural population’s exploited and oppressed status must be rooted in the land tenure system. The solution, however, could not be through individual, private ownership of land. Such a liberal strategy would not improve the lives of Indigenous peoples.

Rather, he advocated the need for fundamental economic change that would incorporate a land reform that was based on the ancient communal values of the Inka empire to alleviate land tenure problems and put power in hands of the people. It must be a local development that emerged out of local conditions, not a foreign import.

Mariátegui advocated what he saw as the highly developed and harmonious communistic system of the Inkas as a model for “Indo-American socialism” that grew out of Peruvian culture and language. In this way, Latin America could end its economic dependence on external capital.

Complexities of Religion

A final distinctive characteristic of Mariátegui’s Marxist approach was that he never saw the need to distance himself from his mother’s religious beliefs. He wrote, “The revolutionary critic no longer disputes with religion and the church the services that they have rendered to humanity or their place in history.”[5]

Some scholars have interpreted this as an act of respect for his devoutly Catholic mother. Others have pointed to “a personal, religious-like code of ethics that enabled him to endure physical pain and psychological anguish.”[6]

Mariátegui saw religion as an inherent component of human society. He did not consider a rejection of religion as necessary to engaging in the social struggle. Instead, he acknowledged the positive contributions that religion could make to a social revolution.

He did criticize priests who used religion to oppress Indigenous peoples, but for the most part considered anti-clericalism to be “a liberal bourgeois pastime” that ignored more fundamental and important issues.[7] He criticized liberals for their attempts to uproot religion without offering something in its place.

Michael Löwy challenges the conventional reading of the phrase “religion is the opium of the people,” as both not at all specifically Marxist (it had earlier roots in Hegel and others), as well as a more qualified and less one-sided statement than the soundbite usually indicates.[8]

Marx was critical of religion, but also recognized the dual character of the phenomenon. He wrote, “Religious distress is at the same time the expression of real distress and the protest against real distress. Religion is the sigh of the oppressed creature, the heart of a heartless world, just as it is the spirit of a spiritless situation. It is the opium of the people.”[9] Marx understood it as the alienation of the human essence, not a clerical conspiracy.

Mariátegui argued instead for a new and broader definition of religion. He termed this the “revolutionary myth” that would occupy people’s “conscience just as fully as the old religious myths.”[10] He wrote, “The soul of the Indian is not raised by the white man’s civilization or alphabet but by the myth, the idea, of the Socialist revolution.”[11]

Mariátegui’s “revolutionary myth” conception is related to his ideas of a subjective and voluntarist Marxism. He understood that objective economic conditions of an impoverished and exploited proletariat or peasantry was not enough to create class consciousness. For that reason, he emphasized the need for Marxist education and political organization to heighten class and racial awareness and to move the masses to action.

Myths are not passive, but lead to action. As the Cuban revolutionary Fidel Castro famously observed, “the duty of every revolutionary is to make the revolution. . . it is not for revolutionaries to sit in the doorways of their houses waiting for the corpse of imperialism to pass by.”[12] Mariátegui was an intellectual, but also a political activist who worked hard to achieve the realization of his ideals.

Lessons for Our Realities

Although Mariátegui was active a century ago, he leaves us with many ideas and lessons that are still relevant. His ideas of a national Marxism underscore the necessity of adapting ideas and theories to local realities.

As the recent experiences of pink-tide governments in Latin America demonstrate, it is of utmost importance to break dependence on foreign capital in order to move toward socialism. A country’s production must be oriented toward internal development rather than benefiting external imperial powers, even as that goal has become only more difficult to realize.

International solidarity remains as important as ever before. The issues that Mariátegui faced in the early 20th century, much as those that we face today, transcend narrow political borders. We need an international movement to move us closer to the promises of a socialist revolution.

Over the last century, Latin America has experienced a dramatic shift from a primarily rural society to one that is overwhelmingly urban. As a result, the specific concepts of the social base for a revolution and the importance of agrarian issues have changed. What remains, however, is Mariátegui’s insistence on an open and creative analysis of contemporary realities.

Racial issues are as present if not even more so than they were a century ago, although the ways they are articulated and defined continually change.

For a period in the 1980s, Mariátegui’s ideas of a revolutionary myth had a particular resonance as ideas of Liberation Theology influenced Central American revolutionary movements. How best to engage people with revolutionary socialist ideas continues to be an open debate, particularly in terms of the relative importance of emotion and ideology in motivating people to action.

Among all these issues, Mariátegui still continues to provide us with a shining example of the intelligent and creative potential of rethinking these ideas that has emerged out of Latin America. We need to rethink theory and ideas continually. Socialist theories are only viable when they are creative and dynamic. Avoid dogmaticism; question everything.


  1. José Carlos Mariátegui, “Aniversario y balance,” Amauta 3, no. 17 (September 1928): 3. Much has been written about Mariátegui, particularly in his native Peru. Less is available in English. The best treatments of his thought in English are Harry E. Vanden, National Marxism in Latin America: José Carlos Maríategui’s Thought and Politics (Boulder: Lynne Rienner Publishers, 1986) and Jesús Chavarría, José Carlos Mariátegui and the Rise of Modern Peru, 1890-1930 (Albuquerque: University of New Mexico Press, 1979). For his writings in English, see José Carlos Mariátegui, José Carlos Mariátegui: An Anthology, edited and translated by Harry E. Vanden and Marc Becker (New York: Monthly Review Press, 2011), as well as his most famous book José Carlos Mariátegui, Seven Interpretive Essays on Peruvian Reality (Austin: University of Texas Press, 1971). A recent though problematic biography in English (see my review Marc Becker, “The Life of José Carlos Mariátegui,” Monthly Review 71, no. 9 [February 2020]: 57-63) is Mike Gonzalez, In the Red Corner: The Marxism of José Carlos Mariátegui (Chicago, Illinois: Haymarket Books, 2019).
  2. Waldo Frank, “A Great American,” The Nation, June 18, 1930, 704.
  3. José Carlos Mariátegui, Seven Interpretive Essays on Peruvian Reality (Austin: University of Texas Press, 1971), 29.
  4. Ibid., 34.
  5. Ibid., 124.
  6. John M. Baines, Revolution in Peru: Mariátegui and the Myth (University, Alabama: The University of Alabama Press, 1972), 112-13.
  7. José Carlos Mariátegui, Seven Interpretive Essays on Peruvian Reality (Austin: University of Texas Press, 1971), 151.
  8. Michael Löwy, “Friedrich Engels on Religion and Class Struggle,” Science & Society 62, no. 1 (Spring 1998): 79-87.
  9. Karl Marx, “The Introduction to Contribution to the Critique of Hegel’s Philosophy of Right” in Basic Writings on Politics and Philosophy, edited by Lewis Samuel Feuer (New York: Anchor Books, 1989), 304.
  10. José Carlos Mariátegui, Seven Interpretive Essays on Peruvian Reality (Austin: University of Texas Press, 1971), 152.
  11. Ibid., 28-29.
  12. Fidel Castro, “The Duty of a Revolutionary is to Make the Revolution,” Fidel Castro Speaks, edited by Martín Kenner and James Petras (New York: Grove Press, Inc., 1969), 115.

December 01, 2020

Capital’s Historic Circle Is Closing: The Challenge to Secure Exit, by István Mészáros Monthly Review, Volume 69, Issue 07 (December 2017)

István Mészáros
In June 2017, István Mészáros sent me a copy of the present article for publication in Monthly Review. At the time, he asked if I would write an introduction, as well as give titles to its various sections, as I had for some of his previous essays. This piece was originally written as the closing section of Chapter One of his great work, Beyond Leviathan: Critique of the State—drafted but left unfinished upon his death on October 1, 2017.
Beyond Leviathan is divided into three parts, each of which was projected to be more than two hundred pages long and published as a separate volume. The three parts are entitled The Historic Challenge, The Harsh Reality, and The Necessary Alternative. Chapter One of Part One is entitled “From Relative to Absolute Limits: Historical Anachronism of the State,” and is in turn divided into five sections: (1) “Historical Constitution and Antagonistic Reality of the State”; (2) “Freedom Is Parasitic on Equality: Common Denominator of Antagonistic Political Formations and the Qualitative Determination of Disposable Time”; (3) “From Primitive Equality to Substantive Equality—via Slavery”; (4) “Capital’s Deepening Structural Crisis and the State”; and (5) “The Historic Circle Is Closing—The Challenge to Secure Exit.”
The third section of Chapter One was published in the September 2016 issue of MR, and the first section will appear as an article in a future issue. This article, the fifth and final section, is printed here for the first time. We are committed at MR and Monthly Review Press to ensuring that all of Beyond Leviathan will eventually be made available in a form as close as possible to Mészáros’s intentions. In the meantime, the parts he selected for prior publication should encourage critical thinking about what he called “the challenge and burden of [our] historical time.”
“Capital’s Historic Circle Is Closing” is a remarkably coherent statement, capable of standing on its own. Nevertheless, readers will no doubt benefit from a few words on the broad contours and conceptual framework of the larger critique of which this article is a part. Beyond Leviathan represents the endpoint of Mészáros’s analysis of “the structural crisis of capital,” whose main features he worked out in the early 1970s, as he was completing Marx’s Theory of Alienation. To address the issue of the state in a meaningful and dialectical way, it was necessary first to explore its material foundations. This was done in his monumental treatise Beyond Capital: Toward a Theory of Transition, published in 1995. That work focuses on the “capital system,” viewed as a form of “social metabolic reproduction,” of which capitalism, in Mészáros’s classification, is conceived as a specific historical form. Hence, simply overcoming capitalism, as in the Soviet Union, is not sufficient, since the entire capital system and its state must be challenged in their inner functioning and from within the core of the productive order. This requires the formation of a qualitatively different, communal system of social metabolic reproduction.
It is here that Beyond Leviathan is intended to complete Mészáros’s analysis. In his critique, the transition to socialism, which constitutes an absolute necessity of our time, requires the withering away of the state. But explaining what this means and how it is to be carried out demands the most thoroughgoing critique of the state ever developed. Indeed, no other political philosopher in the Marxist tradition since the classical period has attempted a more ambitious critique of the state, both at the level of theory and as a guide to revolutionary praxis in the transition to socialism. As Hugo Chávez said, Mészáros was “the pathfinder” of twenty-first century socialism.
—John Bellamy Foster


The Structural Crisis of Capital and the State


We are now not very far from marking the centenary of President Franklin Delano Roosevelt’s First Inaugural Address. In fact, by now more than five-sixths of the time is gone toward that memorable centenary. However, the changes accomplished in all these decades are very far from what were the solemnly declared and for a long time sincerely believed original hopeful expectations.
President Roosevelt entered his office in the period of what is customarily referred to as the Great World Economic Crisis, dated 1929–33. His First Inaugural Address was delivered on March 4, 1933, promising a radical change in the world economy, not as a limited conjunctural improvement lasting perhaps a few years, but as a deep-seated and permanent transformation. Major unhindered capital-expansion was thought to be the answer, to be helped along in a significant way by presidential candidate Roosevelt’s New Deal program in the United States, announced on July 2, 1932, and contributing, of course, to his overwhelmingly successful election.
Indeed, economic expansion appeared to work almost prodigiously in the United States from the second half of 1933 to the early months of 1937. However, in the second half of 1937 the U.S. economy started to relapse into a stagnant state and in 1938 the country experienced a deep recession. Understandably, however, the outbreak of the Second World War “rescued” the U.S. economy from its recession, carrying with it for the country a massive productive expansion and two decades of successful growth also after the end of the global war, in the period of postwar reconstruction all over Europe and in some other parts of the world.
President Roosevelt’s original design for a vigorous capitalist economy explicitly advocated the removal of “artificial” protective devices represented by the still existing British and French Empires. He made it absolutely clear already in his First Inaugural Address that he “shall spare no effort to restore world trade by international economic readjustment.” 1 And in the same spirit a few years later he made it quite clear that he advocated the right “to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad.”2 President Roosevelt made it also very clear during the Second World War that he was not only against the British continuing to rule India after the war but equally against the French retaining the territories of Indochina as well as their North African colonies.3
Thus Roosevelt genuinely believed that putting an end to the traditional empires would create the conditions for healthy economic development all over the world. And he projected American leadership as arising not from colonial/military domination, but by virtue of the principles inherent in the U.S. type of economic advancement, oriented by the claimed “freedom from unfair competition and domination by monopolies at home or abroad.” Toward the peak of the country’s successful expansion under the New Deal he was even talking in heightened positive terms about the work of “destiny” in this way: “a better civilization than any we have known is in store for America and by our example, perhaps, for the world. Here destiny seems to have taken a long look.”4
However, in contrast to such expectations, postwar developments—by which time Roosevelt was dead—had brought with them not “freedom from monopolies at home or abroad” but the assertion of the new power relations of continued imperialism under American domination. Under such conditions the world economy was characterized by the prevalence of the most iniquitous differential rate of exploitation of the global labor force, with labor in the capitalistically much more advanced U.S. economy occupying a considerably better position in that respect.
Filipino historian and political theorist Renato Constantino gave a striking example of this gruesome mode of exploitation, which in his country imposed the appallingly low wages of the differential rate:
Ford Philippines, Inc., established only in 1967, is now [four years later] 37th in the roster of the 1,000 biggest corporations in the Philippines. In 1971 it reported a return on equity of 121.32 percent, whereas its overall return on equity in 133 countries in the same year was only 11.8 percent. Aside from all the incentives extracted from the government, Ford’s high profits were mainly due to cheap labor. While the U.S. hourly rate for skilled labor in 1971 was almost $7.50, the rate for similar work in the Philippines was only $0.30.5
What is most significant in such matters, however, is that from the early 1970s onward we have been experiencing the capital system’s deepening structural crisis, instead of the originally projected unhindered expansion of the world economy to the benefit of all. The secondary antagonism of the capital system between the rival competing units for a long historical period contributed to expansion and, in its turn, was also greatly supported by continued expansion. That is why it could be idealized in the name of unqualified expansion, ignoring its nature and consequences. With the onset of capital’s structural or systemic crisis, however, things have changed not only for the worse but for much the worst.
Thus, despite the increasingly direct involvement of the capitalist state in the economy, even in the form of injecting in its rescue operations trillions of dollars into the bottomless hole of bankrupt capitalist enterprises, the problems multiplied. At the same time the neoliberal ideologues of capital hypocritically continued to glorify the insuperable virtues of the “free enterprise system” and even the fiction of “rolling back the boundaries of the state” when in reality we had a propensity to stagger from one crisis to another ever since the 1970s. In our time, however, in contrast to 1939, the potentiality of a global war cannot “rescue” the capital system from its deepening structural crisis, because of its suicidal danger. Thus the primary antagonism between capital and labor—representing also labor’s positive hegemonic alternative to the system’s modality of societal reproduction—cannot be ignored any longer.
Capital’s Closing Circle
With the structural crisis of the capital system as a whole, and by no means only of capitalism, the expansionary historic circle through which capital could dominate humanity for a very long time is perilously closing. That closure brings with it the danger of humanity’s total destruction in the interest of capital’s absurdly prolonged rule. I have repeatedly tried to highlight since the 1970s the fundamental differences between capitalism, historically limited to a few centuries, and the much more fundamental frame of reference of the capital system, focusing at the same time on the grave dangers manifest in now-unfolding historical developments.6 In this context, it will be necessary to stress the principal factors that clearly indicate the perilous character of capital as such, destructively resisting the necessary closure of its historic circle. As everyone knows, we are told all the time that “there is no alternative” to capital’s mode of reproducing the societal order. We must take a closer look at this claim. But before doing so, it is necessary to sum up as briefly as possible the defining characteristics of the capital system’s structural crisis.
The historical novelty of capital’s structural or systemic crisis, in contrast to its periodically recurrent conjunctural crises, is manifest under four main aspects: Its character is universal, rather than restricted to one particular sphere (e.g., financial or commercial) or affecting this or that branch of production, or applying to this rather than that type of labor, with its specific range of skills and degrees of productivity, etc.
Its scope is truly global, in the most threateningly literal sense of the term, rather than confined to a particular set of countries, as all major crises have been in the past.
Its time scale is extended, continuous—if you like permanent—rather than limited and cyclic, as all former crises of capital happened to be.
Its mode of unfolding might be called creeping—in contrast to the more spectacular and dramatic eruptions and collapses of the past—while adding the proviso that even the most vehement or violent convulsions cannot be excluded as far as the future is concerned: i.e., when the complex machinery now actively engaged in “crisis management” and in the more or less temporary “displacement” of the growing contradictions runs out of steam.7
With regard to these defining characteristics, it is particularly important to stress the fundamental difference between the capital system as a whole and the limited historical phase of capitalism integrated into the overall capital system. For it cannot be underlined enough, the capitalist private enterprise form of production, with its “personifications of capital” (in Marx’s words) as individual capitalists, can be overthrown, and had been, for instance through the Russian October Revolution in 1917, but not the capital system in its entirety. That must be totally eradicated through a fundamental restructuring process and replaced by a radically different socialist metabolic order. Likewise, the capitalist state can be overthrown, and had been, but not the state as such. The state as such must also be totally eradicated and replaced by a qualitatively different modality of truly autonomous overall control of societal decision-making by the people through the qualitative reconstitution of the social metabolism itself.
The disconcerting historical fact is that whatever can be overthrown can also be restored. Indeed, private capitalism and the capitalist state had been both overthrown and restored. Restored, for instance in the former Soviet Union, by Mikhail Gorbachev and his associates. And they did not have to restore the capital system itself because they had it already, with themselves as the dominant post-capitalist bureaucratic “personifications of capital” whose role was to enforce the politically regulated maximal extraction of surplus labor, in contrast to the primarily economic extraction of surplus labor as surplus value under capitalism. For the historically limited post-capitalist transformations of capitalism—like those undertaken in October 1917 and thereafter—are perfectly compatible with the continued rule of the capital system’s metabolic order, since no fundamental socialist restructuring is involved in the political overthrow of the capitalist state without the eradication of the hierarchically entrenched state structure itself.
This is an elementary lesson for the future. In fact the difference between the capital system and capitalism is vitally important to us not in relation to the past but in terms of the present and the future. For our grave problem is the danger presented to humanity’s survival not simply by this or that particular form of capital’s state formations known up to the present time but by any one of its conceivable varieties also in the future, as they are bound to arise if capital’s social metabolic order is not restructured in a historically viable socialist way. It must be also underlined that the idea of a “global coercive state,” no matter who champions it, borders on insanity.
Breaking the Bounds of Nature
To be sure, capital’s personifications of any color must resist at all cost the necessary closure of their system’s historic circle in the interest of prolonging its rule. For the globally perceptible social determinations pointing in the direction of that historic closure are both overwhelming and closely intertwined, so that against them the traditionally enforced adjustments and state correctives cannot work any longer.
Let us see the principal factors that indicate the necessary closure of the capital system’s historic circle, calling at the same time for a viable alternative.
Perhaps the most obvious—if extremely problematic—global accomplishment that cannot be denied in its all-destructive power even by capital’s worst apologists is the ability of the dominant states to annihilate humanity through a global military conflagration. Evidently, this problematical achievement through the now fully operational weapons of mass destruction did not exist in past ages. However, it appeared on our horizon with its menacing finality simultaneously with the closure of capital’s historic circle. As we know, in our time, the so-called “strategic thinkers” of the political/military domain do not hesitate to commend and actively “plan the unthinkable,” while some presidents and prime ministers decree that with their politically trustworthy “safe fingers,” they would not hesitate to push the nuclear button in the event of a global confrontation.
In this way the capital system’s ardent defenders put their fate into the safety and viability of the weapons of mass destruction—which include also chemical and biological weaponry—as well as into the groundlessly assumed remedy of mutually assured destruction (MAD). The alternative would be, of course, to positively overcome the causes of lethal antagonisms, which happen to be inseparable from the nature of the capital system itself, especially in the descending phase of its global development. But precisely because such systemic antagonism is inherent in capital’s social metabolic order, not reducible to its political/military superstructure, the measures traditionally enforced through extreme military violence by the rival states cannot be used under the conditions of potentially total destruction of humanity. That price would be far too high to pay even in terms of the most elementary requirements of rationality.
Advocating MAD as such a postulated automatic deterrence is a fundamentally irrational strategy. Its only “rationality” consists in promoting the massive vested interests of the “military-industrial complex,” in Eisenhower’s memorable phrase. The required and feasible alternative to MAD can only be the elaboration of a qualitatively different social metabolic order. A new order that is not overburdened with systemic antagonisms due to vested interests. The operation of such qualitatively different social metabolism is the only way to bring under control, and in due course fully eliminate, the now threatening weapons of mass destruction. By contrast, the radical incompatibility of attending to the causes of antagonism within the established economic and political order, in view of its insuperably antagonistic systemic determinations, signals the necessary closure of capital’s historic circle.
Another literally vital determination on the global scale concerns our planet’s limited material resources. Naturally, this is also a historical development, accomplished through the spread of the capitalistically ever more advanced mode of industrial production over the entire globe, with more than seven billion people, in contrast to the past as recent as even the period just before the Second World War. Today it is unavoidable to consider satisfying the needs of four immense capitalist economic complexes—the United States, Europe, China, and India—in contrast to a few decades earlier, when a handful of dominant capitalist countries could derive overwhelming benefits to themselves from the material resources and services of the “underdeveloped world,” treated as the presumed legitimate “hinterland” of their own expansion. As a result of these changes, now also the working classes of China and India have started to demand a less miserable share of their own products, to be used by themselves in comparison to the past.
Naturally, of this whole complex of problems, the apologists of capital only notice the greatly increased need for the planet’s limited material resources, and even that in a grossly distorted form, under the ideologically most revealing heading of “population explosion.” To be sure, no one should deny the increasing relevance of these factors, let alone the absolute legitimacy of the people’s need. But it is necessary to highlight also some social and economic determinations that inevitably call again for a fundamental structural change in our societal reproductive order. They indicate some heavily aggravating conditions regarding the mode of allocating and utilizing the resources available for the satisfaction of the needs of ever greater numbers who work with, and lay their claim on, our planet’s limited material resources as a result of capital’s economic conquest of the world.
It is enough to mention here two of the most important aggravating conditions: the perverse imperative of uncontrollable capital-expansion oriented toward exchange value, to the detriment of use value, creating scarcity also when without the imperative of endless capital-expansion there would be an alternative to the danger of ever-increasing scarcity; and the dominance of destructive production and concomitant waste, combined with the capital system’s self-mythology of “creative destruction,” also at the descending phase of capital’s systemic development.
In relation to both of these major aggravating determinations, the obvious practically feasible remedy would be a positively planned strategic intervention in the economy, in the interest of maximizing socially required use-value and at the same time attending to the strictest control of waste. But that kind of rationally planned economy—which is inconceivable without substantive equality as its social basis—is totally incompatible with the long-established modality of capitalist production.
Moreover, we have to add here to the general problem of increased need for the planet’s material resources—including the elementary requirement of water—the special difficulty arising for the demand for strategic material resources among the competing massive capitalist complexes. In the absence of a rationally planned allocation of such resources on a global scale, that can only lead to belligerent confrontations among the rival states, with potentially devastating consequences. By now for several centuries the capitalist productive system had very little concern about economy as economizing, in the original sense of that term. However, in the future the required societal reproduction is bound to be totally unthinkable without the conscious application of the orienting principles of a properly planned and responsibly economizing economy. Accordingly, also in that sense we notice here the necessary closure of the capital system’s historic circle.
At least one more problem must be forcefully underlined here: the ecological incompatibility of capital’s mode of social metabolic reproduction with the rationally sustainable demands of our time. This is clearly expressed today even in the way in which a new geological epoch is being named to indicate humanity’s extremely problematical—indeed most dangerous—impact on our planet. This new geological epoch is called the Anthropocene, corresponding to the time when some of the capital system’s ineradicable damages have been inflicted on our planet, more or less in the last hundred years, beginning with the residues of nuclear explosions and continuing to the present, in permanent plastic deposits in the oceans.
Naturally, capital’s ecological incompatibility with the demands of historically sustainable existence goes much further than a few uncontestable and no longer eradicable phenomena that mark a new geological epoch, even if their rate of increase might be reduced or stopped altogether. To the vast range of ecological damages we have to add, among others, not only chemical pollution and soil erosion, but also—what is frequently discussed at conferences on “global warming” — increasing acidity in our oceans, as well as the grave disruption of biodiversity and the irresponsible treatment of nuclear waste in the service of profit. Indeed the earlier mentioned aggravating condition of destructive production, in the interest of maintaining uncontrolled growth targets and mindless profitability, is closely connected with capital’s enmity to ecological sustainability. Thus also in this absolutely vital domain the painful evidence points to the closure of the capital system’s historic circle. An irreversible closure because the capital system, due to its innermost structural determinations, cannot remedy any of the identified dangerous developments, even if it tries to derive profit from them in some cases, like for instance the grotesquely propagandized “carbon tax” as the claimed solution to global warming.
What are the prospects for the future under these circumstances? That is a very difficult question. For in connection with all of the determinations identifiable in the closure of capital’s historic circle we find powerful vested interests inseparable from the mode of overall control characteristic of the Leviathan state. Rational appeal for change would be in this respect very naïve. Structurally entrenched overall decision-making powers tend to resort to adventurism when they cannot prevail in any other way. Historical evidence for countless centuries tends to confirm that way of responding to fundamental challenges by the rival states when the stakes increase.
The March of Folly
In relation to the Leviathan state’s unavoidable adventurism, it is relevant to distinguish between the unholy imperative of the state’s necessarily asserted commanding functions in dangerous situations and the role of implementing them by the commanding personnel itself. As mentioned before, in idealist philosophical accounts of historical development, exemplified by the most monumental of them conceived by G. W. F. Hegel, the commanding personnel of the state tends to assume a somewhat mysterious role, under the exalted name of the “World Historical Person”—like Alexander the Great, Julius Caesar, Luther, and Napoleon, repeatedly praised by Hegel—as the instruments cunningly used for its own design and purposes by the “World Spirit” and hidden from the historical individuals concerned.
In his characterization of the paradoxically unhappy fate of such figures, we are told by Hegel that “they attained no calm enjoyment; their whole life was labor and trouble; their whole nature was naught else but their master-passion. When their object is attained they fall off like empty hulls from the kernel. They die early, like Alexander; they are murdered, like Caesar; transported to St. Helena, like Napoleon.”8
However, the question of why the World Historical Persons must suffer a rather unhappy fate in their different historic circumstances remains wrapped up in complete mystery. The assertion that they have fulfilled the World Spirit’s hidden design and therefore they can “fall off like empty hulls from the kernel” seems to be ubiquitously valid by definition, thanks to the very nature of the Hegelian explanatory design. The World Historical Persons cannot go wrong even when they go devastatingly wrong, because in doing so, even if their action brings disaster, they actually fulfill the World Spirit’s unobjectionable purpose. In this way even the most irresponsible deed pursued by them is responsible and even ideal, because it brings into existence the required World Historical phase of events and developments, together with their objective embodiments.
The particular institutional forms and instruments through which the World Historical Persons prevail or fail—in the case of the three individuals named in the last quote by Hegel, Alexander, Caesar, and Napoleon, acting within the particular institutional form of the antagonistic state through which they assert their own role—is not mentioned at all, let alone criticized by the great German philosopher, because they themselves are said to be the instruments. Indeed they are said to be the instruments not of a potentially objectionable particular state formation but of the World Spirit itself whose ultimate design is the institution of the ethically insuperable (and therefore absolutely unobjectionable) institution of the Germanic state. Such a state cannot be considered an instrument in its human sense. For it is said to be nothing less exalted than “the Divine Idea as it exists on Earth.”9
The great problem in this respect is that in the really existing world the requirement of successful military action in the interest of the particular antagonistic state formation represented by its commanding personnel sooner or later induces them as decision makers—that is, as Hegel’s World Historical Persons—to undertake extreme risks and overreach their own power in dangerous adventures until a greater state power violently counters their efforts. Before that fateful clash, there seems to be no limit to their commanding power. They must presume to undertake even the most extreme risks, not because their “whole nature is naught else but their master-passion,” but because it is dictated by the objectively required state-imperative to succeed on behalf of the state, which they command, and outwit through their chosen extreme designs their adversary or enemy.
The Hegelian World Historical Person nearest to our own time, Napoleon, was undoubtedly an outstanding historic figure. Winston Churchill characterized him as “the greatest man of action born in Europe since Julius Caesar.”10 In truth he was much more than that. He was a great military leader and commander as well as an organizational genius, with his own vision of the state. Napoleon was victorious in fifty-eight of the sixty-five immense military confrontations he fought, often against far superior forces. Even his English military rival, who in the end defeated him at Waterloo thanks to much more powerful military units on his side, “when asked who was the greatest captain of the age, the Duke of Wellington himself replied: ‘In this age, in past ages, in any age: Napoleon.’”11 Moreover, the Code Napoléon, instituted in France in 1804, represented a great advance over its rivals in being the most consistent in eliminating the feudal remnants in the domain of the Law. And yet Napoleon undertook the disastrous Russian adventure in 1812 and was responsible for the almost complete annihilation of his own army. Moreover, he even tried to restore slavery in the French colonies in Latin America as a way of securing military victory, although such an absurdly retrograde social design was undoubtedly contrary to his own conception of political Enlightenment.
Thousands of years earlier, Alexander the Great seemed to be always invincible. However, even he undertook some extreme risks that almost destroyed his army. This happened when he had chosen to follow a route with his vast army through the Makran Desert, although there were alternatives to it, and had to suffer nearly catastrophic losses. In the end,
After sixty days in the desert, the survivors…had seen thousands die around them, perhaps half their fellow-soldiers and almost all the camp-followers. If 40,000 people had followed Alexander into the desert, only 15,000 may have survived to see Kirman. All such figures are guesses, but there is no mistaking the men’s condition. Not even the sum total of all the army’s suffering in Asia, it was agreed, deserved to be compared with the hardships in Makran.”12
And this is not the whole story. For in the course of actual historical development to our own time, some conditions have radically changed in this respect, and by no means for the better. Alexander the Great and Napoleon almost annihilated their own armies through their chosen actions that made them overreach adventurously the power presumed by them. But they could do nothing worse than that. Today the situation is incommensurably worse. For irrespective of which side of the social confrontation the commanding personnel might represent—a progressive or a fatefully retrograde one—their overreaching themselves is capable of destroying humankind altogether, and potentially even the conditions of life on this planet in its entirety.
This is far from being a hypothetical danger. In 1962–63, Soviet leader Nikita Khrushchev installed in Cuba his country’s advanced ballistic missiles, capable of raining nuclear warheads on the nearby United States. He was inspired for this action by the fateful misconception that by doing so he might be able to protect Cuba itself, which was tangibly threatened by the United States also after the Bay of Pigs invasion. The consequence of Khrushchev’s action, however, was that the entire world was placed in the immediate vicinity of a potential nuclear devastation until those ballistic missiles were withdrawn from Cuba and shipped back to the Soviet Union. Needless to say, no one can exclude today the recurrence, in some form, of a similar potential self-extermination of humankind as a result of adventurous decision-making. It stands to reason that no one should ever have that power. Nevertheless, the fact is that some do. And that kind of danger is bound to persist for as long as the Leviathan state in any one of its conceivable forms survives.
Substantive Equality and a New Social Metabolic Order
As we have seen, eighty years ago President Franklin Delano Roosevelt was promising the world “a better civilization than any we have known”—in conjunction with a projected unhindered economic development everywhere and the end of imperialism—because “destiny seems to have taken a long look.”13 In reality, however, a few months after President Roosevelt died, shortly after his well-deserved fourth election to the American Presidency, his former Vice President and automatic successor, Harry Truman, unleashed over Hiroshima and Nagasaki the atomic weapons of mass destruction, causing the instant death of 130,000 people, mostly civilians. At the same time, contrary to the earlier prognosticated hopeful expectations, countless millions of people all over the world were condemned to remain tied to their earlier conditions of utter misery. Also, imperialism could continue in the same old civilization, as before, even if under new relations of international power, with the United States as its dominant economic, political, and military force.
However, the replacement of one dominant imperialist power by another, redefining thereby the international relation of forces among the former imperialist countries, does not mean that historical development as a whole can be brought to a halt in epochal terms, with regard to the social metabolism of reproduction in general, in total subordination to the newly dominant state.14 That kind of absurd political reductionism is proper only to some reactionary pseudo-theoretical Empire-fantasy. In the really existing world every mode of social metabolic reproduction has its historical limits objectively defined in comprehensive epochal terms. It is in that fundamental epochal sense that the historic circle of the capital system as a whole is perilously closing in our own time. And that closure has far-reaching objective implications for every state, irrespective of its size or its more or less dominant position in the international order, including all known and feasible varieties of the post-capitalist capital system.
Politicians at the top of the established state tend to repeat their view that “there is no alternative.” Margaret Thatcher and Mikhail Gorbachev did so in unison, until they had to find out that, after all, there had to be an alternative to both of them.15 To some extent this assertion of “no alternative” happens to be true, even if not in the way the high-ranking politicians presume, on the basis of their institutionally defined (and confined) position. The changes in this respect under the circumstances of the necessary closure of capital’s historic circle are seminally important.
The primary function of the institutionally articulated political/military form of societal control has been for many centuries the protection and enhancement of the established social metabolic order of which it is an integral—both constitutive and self-constitutive—part. This is why the periodic attempts made in the past radically to alter that metabolic order had to assume from the start the form of some kind of “revolutionary overthrow” of the established political/regulatory framework itself. For they had to try to “open the gates,” so to speak, to a radical change in the social and material class relations themselves, from slave revolts and peasant uprisings to the French, Russian, and Chinese Revolutions.
However, the consolidation of their initial gains proved to be in general very limited. This had to be the case because the inertia of the inherited structural determinations—of which the institutionalized political form itself was an integral part, given its own self-constitutive hierarchical structural embeddedness—militated against lasting success. This is why historical development shows the well-known tendency of such revolutionary attempts to turn instead into some form of change in personnel only, reproducing the structural determinations of domination and subordination even when there is a significant shift, for instance, from the feudal to the bourgeois state order.
The emergence of the modern capitalist state alters the form but not the substance of the class determinations of structural domination and subordination. Under the conditions of the ascending phase of capital’s social metabolic order, materially productive developments can dynamically proceed toward their all-conquering global completion. However, the descending phase carries with it some grave negative changes that prove irreversible from capital’s social ground, accelerating the closure of capital’s historic circle on our planet with its inevitably limited resources. In the material domain such changes bring the consequences of wasteful destructive production, due to the unalterable systemic imperative of endless capital-expansion, with its ultimately catastrophic impact on nature. At the same time on the political/military plane they result in monopolistic imperialist military destructiveness, with the danger of humanity’s total self-annihilation. And capital’s Leviathan state can only impose total destructiveness on humanity through its weapons of mass destruction—which it continues to “modernize” and multiply—but not prevent it. Thus the total eradication of the Leviathan state is a vital necessity in our time, in the spirit envisaged by Marx for weighty reasons. That is the course that needs to be followed after the long destructive deviation suffered by humanity since the last decades of the nineteenth century under the conditions of monopolistic imperialism.
This is where we can see the paradoxical truth of “there is no alternative” repeatedly stated by some leading politicians, as confined to the political domain. Certainly there is no alternative in the sense envisaged by them, because it is impossible to elaborate the much needed societal reproductive alternative in and through the political/military framework of state-determinations. By the inherent nature of the fundamental issues at stake, the historically sustainable alternative can only be a radically different social metabolic order. For the requirements of sustainability imply a societal reproductive order with its consciously articulated—autonomously planned and exercised—mode of overall decision-making, in place of the authoritarian usurpation of power in all of its historically known varieties by the hierarchically entrenched and superimposed antagonistic Leviathan state. Without instituting—uncompromisingly in the form of substantive equality—and also safeguarding such order against the restoration of the material and political vested interests of the long class-exploitative past, it is impossible to secure exit from capital’s historic circle.
So much must be rectified even in the world of ideas before an order of substantive equality can be secured. Let us confine our attention in that respect to the crucially important dimension of societal restructuring that directly involves the problem of substantive equality. For even one of the greatest idealist philosophers of all history, Hegel, could dismiss the demand for equality, in favor of veiled vested interests, with words like these: “Men are made unequal by nature, where inequality is in its element, and in civil society the right of particularity is so far from annulling this natural inequality that it produces out of mind and raises it to an inequality of skill and resources [wealth], and even to one of moral and intellectual attainment. To oppose to this right a demand for equality is a folly of the Understanding which takes as real and rational its abstract equality and its ‘ought-to-be.’”16
In reality, the opposite is true of everything Hegel asserts about nature’s inequality in relation to human beings. Difference is certainly in great evidence in nature, but turning nature’s difference into human inequality is revealingly arbitrary, when social institutions are responsible for it. But the unjustifiable Hegelian ideological legitimation of historically established societal inequality in the name of nature itself arises because some social forces in the course of the French revolutionary turmoil were forcefully struggling over it. That is what Hegel had to reject, with a categorical claim, in the name of the absolute validity of his philosophical categories.
In contrast to the specific antagonisms of the French Revolution, a century and a half earlier, at the time when Thomas Hobbes was writing his Leviathan, the demand for substantive equality could not appear with its powerful social challenge on the historical agenda. In the Hobbesian philosophical conception, there was no need to assume a retrograde position toward equality and enlist nature in its pretended favor. On the contrary, Hobbes, for his own specific philosophical reasons, could make absolutely clear his view on nature’s full consonance with human equality:
Nature hath made men so equall, in the faculties of body and mind; as that though there bee found one man sometimes manifestly stronger in body, or of quicker mind then another; yet when all is reckoned together, the difference between man, and man, is not so considerable, as that one man can thereupon claim to himselfe any benefit, to which another may not pretend, as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others, that are in the same danger with himselfe.
And as to the faculties of the mind, (setting aside the arts grounded upon words, and especially that skill of proceeding upon generall, and infallible rules, called Science; which very few have, and but in few things; as being not a native faculty, born with us; nor attained, (as Prudence,) while we look after somewhat els,) I find yet a greater equality amongst men, than that of strength. For Prudence, is but Experience; which equall time, equally bestowed on all men, in those things they equally apply themselves unto.17
We shall see in the chapters dedicated to Hobbes and Hegel why, in their theories of the state, they adopted such diametrically opposite views.* What is necessary to stress in the present context is that the pressing demand for the establishment of substantive equality that first appeared as a historic imperative of social reality during the French Revolution, and was violently defeated in its aftermath, can never be removed from our own historical agenda. For the elaboration and effective societal reproductive operation of the required—fundamentally different—social metabolic order is unsustainable without it. That is the key defining characteristic of the socialist metabolic order. Our success or failure to secure a sustainable exit from capital’s dangerously closing historic circle depends on it.
Exiting Capital’s Closing Circle
Despite the undeniable dangers on our horizon, is it possible to secure that exit from the capital system’s necessarily closing historic circle? That is a painfully difficult but unavoidable question. At the present stage of history, even with the “principle of hope” on our side, this vital question can receive only a conditional and tentative answer.
Toward the end of the Second World War, reflecting on the harrowing vicissitudes of the war years, Jean-Paul Sartre wrote a great one-act play, translated into English under the title No Exit. He wanted to convey in it the feeling of absolutely paralyzing powerlessness that seemed to dominate people under the conditions of ostensibly uncontrollable war.
At first he thought to set the stage in a caved-in bomb shelter where the escape routes have been blocked. But then he realized that in a situation like that the force of solidarity among the people buried in that shelter could begin to operate, urging them to work together to find an exit. And that would undermine the meaning Sartre intended to convey in his play. Thus, thanks to a brilliant dramatic insight, he set his play in hell, from which there could be no escape. And this is how his intended message sounded from the mouth of one of the three fatefully trapped people:
Yes, now is the moment; I’m looking at this thing on the mantelpiece, and I understand that I am in hell. I tell you, everything has been thought out beforehand. They knew I would stand at the fireplace stroking this piece of bronze, with all those eyes intent on me. Devouring me. [He swings around abruptly.] What? Only two of you? I thought there were more. Many more. [Laughs.] So this is hell. I would never have believed it. You remember all we were told about the torture-chambers, the fire and brimstone, the “burning marl.” Old wives’ tales! There is no need for red-hot pokers. Hell is other people!18
That was the final summation, which stressed the irreconcilable antagonism among the three people whose mutually tormenting bad conscience defined their relationship of hell among themselves throughout their interchanges in the course of the play, giving its nightmarish meaning to the riveting Sartrean words: “Hell is other people!”19 Those words referred in general to “other people,” wherever they might be, who have brought, and might also in the future bring, the war upon others and themselves, engaging uncontrollably in similar acts of hell and trapping others as well as themselves in hell by their own acts.
This vision was conceived by Sartre in his haunting play just months before Harry Truman ordered the instant destruction of the people of Hiroshima and Nagasaki in the name of democracy and freedom. For several decades thereafter Sartre continued to fight with passionate determination and courage against the very real danger of nuclear inferno being imposed upon the earth. In all those decades the tormenting words of warning about the acts of Hell brought into this world by people, the ubiquitous “other people,” could be always felt behind Sartre’s indefatigable protests, even when they were not directly uttered.
Unpunished state-determinations continue to be responsible also today for countless acts of hell, when unjustifiable justifications can be twisted around at will in endless self-legitimating contradictions. In many ways feudal reactionary Saudi Arabia can continue to bomb, unpunished, countless civilian targets in Yemen, even the hospitals clearly marked by the organization Médecins Sans Frontières, and the infernal destructive weaponry is supplied for such acts of hell by the leading “democratic states,” violating thereby their own international commitments. And when that is made clear in public, they can cynically retort that there is “insufficient evidence” that the Saudis use the weapons against civilian targets. The “democratic states” can do that unpunished because they are the judge and jury also over what should be considered, as defined by their own view, the “sufficient evidence.”
The same kind of self-legitimating self-contradiction can prevail over the infernal weapons of mass destruction in general. The military-industrial complex may be criticized on occasions, but its highly profitable products—for which the funds are supplied by the state from taxes imposed mostly on the working people—cannot be seriously challenged. The dominant states cannot consider abandoning such weapons. Once upon a time leading left-wing British politician of the Labour Party, Aneurin Bevan, declared that he “would not walk into the negotiating chamber naked”—that is, if the highly debated issue of British nuclear disarmament would be adopted as party policy—and therefore he was rejecting it as future foreign secretary. Bevan was betraying thereby the reactionary nature of his taking for granted the permanent discriminatory inequality of international power politics. And he could not be considered an exception in that respect. In their international agreements, the politicians of the dominant states agree to reduce their nuclear arsenal by a few hundred bombs and at the same time order the manufacture of thousands of them from their own military-industrial complex. Thus many thousands of such nuclear weapons are available for being unleashed on our planet, while as few as two hundred of them would be sufficient for the destruction of humanity altogether, according to the relevant scientific assessment.
It is perfectly true, of course, that some of the major states are less dominated by the vested interests of their own military-industrial complex than some others. But that is quite irrelevant in the present context. None of the dominant states are likely to give up on their own nuclear weapons not only in view of the now generally acknowledged role of such weapons of mass destruction in asserting military strength in the international power structure, but also because of their own likely fear of being more exposed through unilateral nuclear disarmament to nuclear destruction. Thus the now existing huge nuclear arsenals are likely to be with us in the foreseeable future. At the same time, as capital’s historic circle is getting nearer to its irreversible closure, the intensifying internal and international economic and social antagonisms are bound to carry with them increasing dangers. And since materially grounded globalization inexorably proceeds under the present circumstances, nation-based antagonistic political/military determinations can only aggravate the systemic antagonisms. The best one can hope for in that respect is that the dominant states do not engage in a fundamental direct confrontation, with its catastrophic consequences.
These challenges cannot be resolved within the paralyzing confines of the necessarily hierarchical and antagonistic framework of the political/military domain. For finding a solution, as mentioned before, a radical transformation of our modality of decision-making is required, affecting no less the elementary constitutive cells of our societal reproduction than the most comprehensive level of the global interdependencies. And the fundamental guiding principle of that kind of transformation can only be the universal adoption of the positive principle of productive work, on the basis of substantive equality, inseparable from the total eradication of the hierarchical and necessarily antagonistic state formations.
Nearly two centuries ago, Goethe depicted in his Faust with wonderful, subtle irony the final moments of his hero who was modeled by him in some way on the great historic figure of Paracelsus. In that final scene Goethe’s hero, blinded by Sorge (Anguish) because he refused to yield to her, mistakenly greets the noise of the Lemurs—who are in fact digging his grave—as the welcome noise of canal-digging, in realization of his great social project and self-fulfillment for which he is destined to lose his wager with Mephistopheles, the devil. These are Faust’s final words:
A swamp along the mountain’s flank
Makes all my previous gains contaminate;
My deeds, if I could drain this sink,
Would culminate as well as terminate:
To open to the millions living space,
Not danger-proof but free to run their race.
Green fields and fruitful; men and cattle hiving
Upon this newest earth at once and thriving.
Settled at once beneath this sheltering hill
Heaped by the masses’ brave and busy skill
With such a heavenly land behind this hedge,
The sea beyond may bluster to its edge
And, as it gnaws to swamp the work of masons,
To stop the gap one common impulse hastens.
Aye! Wedded to this concept like a wife,
I find this wisdom’s final form:
He only earns his freedom and his life
Who takes them every day by storm.
And so a man, beset by dangers here,
As child, man, old man, spends his manly year.
Oh to see such activity,
Treading free ground with people that are free!
Then could I bid the passing moment:
“Linger a while, thou art so fair!”
The traces of my earthly days can never
Sink in the aeons unaware.
And I, who feel ahead such heights of bliss,
At last I enjoy my highest moment—this.20
In Faust, Divine Providence rescues the hero from the clutches of the devil Mephistopheles. We cannot count on such solution in our references to the legitimately updated contemporary meaning of historic Paracelsus. The ground of Goethe’s understandable irony, depicting also the fateful mistake of Faust in his wishful self-fulfillment, noble and deserved as it is in favor of his hero, must be removed in the actually existing world.
Under the conditions depicted by Goethe, Faust/Paracelsus could not possibly achieve his historic dream. Goethe in his greatness supremely conveyed also that. Even in our time the earlier indicated question marks still remain. That is because historic achievement of the magnitude involved in positively oriented and truly autonomous human decision-making absolutely needs the enduring foundation of substantive equality. That is feasible only on condition of fully articulating the required radical mass movement in the spirit of globally extendable solidarity. Combined with substantive equality, that is the only basis on which the necessary critique of the Leviathan state can succeed in historically sustainable terms.
↩All quotations by President Roosevelt’s speeches are taken from B. D. Zevin, ed., Nothing to Fear: The Selected Addresses of Franklin Delano Roosevelt, 1932–1945 (London: Hodder and Staughton, 1947).
↩“Annual Message to Congress,” Washington D.C., January 11, 1944.
↩See Roosevelt’s Letter to Cordell Hall, January 24, 1944.
↩Roosevelt, “Address on the Fiftieth Anniversary of the Statue of Liberty,” New York City, October 28, 1936.
↩Renato Constantino, Neo-Colonial Identity and Counter-Consciousness (London: Merlin, 1978), 234. Naturally, this kind of absurdly high differential rate of exploitation—of twenty-five to one in the Philippines in the late 1960s and early 1970s—could not last forever. With the unfolding of the capital system’s structural crisis, since the early 1970s, the original differential rate had to be modified in the sense of becoming the downward equalization of the differential rate of exploitation, negatively affecting also the working classes in the capitalistically most advanced countries, including the United States.
↩In this respect, see in particular my Isaac Deutscher Memorial Lecture, “The Necessity of Social Control,” delivered at the London School of Economic and Political Science on January 26, 1971; my article “Political Power and Dissent in Post-revolutionary Societies,” New Left Review 108 (1978): 3–21; my long study on “Il rinnovamento del Marxismo e l’attualità storica dell’offensiva socialista,” Problemi del Socialismo 23 (1982): 5–141; and my book Beyond Capital: Toward a Theory of Transition (New York: Monthly Review Press, 1995), on which I worked for twenty-five years, first published in English in 1995. Naturally, Beyond Leviathan was conceived in the same period. However, its material foundation had to be spelled out first in Beyond Capital, in contrast to idealist theories which would concentrate one-sidedly on politics and the state. Nevertheless, the problems of the state in their materiality are clearly indicated in the works just mentioned, as well as in The Power of Ideology, first published in English in 1989. They also clarify the difference between the materiality of the state as such and the state’s “legal and political superstructure.” For it is a total misinterpretation of the Marxian position to consider the state itself only as a superstructure. Marx never had any doubt about the materiality—indeed the massive repressive materiality—of the state as such. The state has, of course, its superstructural dimension, legitimately characterized as the “legal and political superstructure.” But the state as such cannot be reduced simply to a superstructure.
↩These four main points are quoted from my article on “Il rinnovamento del Marxismo.” I added there also the following lines for further clarification: “(1.) A structural crisis affects the totality of a social complex, in all its relations with its constituent parts and sub-complexes, as well as with other complexes to which it is linked. By contrast, a non-structural crisis affects only some parts of the complex in question, and thus no matter how severe it might be with regard to the affected parts, it cannot endanger the continued survival of the overall structure. (2.) Accordingly, the displacement of contradictions is feasible only while the crisis is partial, relative, and internally manageable by the system, requiring no more than shifts—even if major ones—within the relatively autonomous system itself. By the same token, a structural crisis calls into question the very existence of the overall complex concerned, postulating its transcendence and replacement by some alternative complex. (3.) The same contrast may be expressed in terms of the limits any particular social complex happens to have in its immediacy, at any given time, as compared to those beyond which it cannot conceivably go. Thus a structural crisis is not concerned with the immediate limits but with the ultimate limits of a global structure.”
↩G. W. F. Hegel, The Philosophy of History (New York: Dover, 1956), 31.
↩Hegel, The Philosophy of History, 39.
↩Churchill, A History of the English Speaking Peoples, vol. 3 (London: Cassell, 1956), ix.
↩Elizabeth Longford, Wellington: Pillar of State (New York: Harper and Row, 1972), 413. Quoted in Andrew Roberts, Napoleon the Great (London: Penguin, 2014), 809.
↩Robin Lane Fox, Alexander the Great (London: Penguin, 1975), 398–99.
↩See Page 3 above.
↩See in this respect Paul Baran’s outstanding book The Political Economy of Growth (New York: Monthly Review Press, 1957), in which he rightly pointed out that “The assertion of American supremacy in the ‘free’ world implies the reduction of Britain and France (not to speak of Belgium, Holland and Portugal) to the status of junior partners of American imperialism” (vii).
↩See in this respect the epigraphs on page 281, opening part two of my book Beyond Capital.
↩G. W. F. Hegel, The Philosophy of Right (New York: Oxford University Press, 1952), 130.
↩Hobbes, Leviathan (Cambridge: Cambridge University Press, 1996), 86–87.
↩From the final scene of No Exit.
↩See in this respect my book The Work of Sartre (New York: Monthly Review Press, 2012).
↩Goethe, Faust, part II, lines 11559–86, trans. Louis MacNeice and E. L. Stahl (Oxford: Oxford University Press, 1956), 287.

2017, Volume 69, Issue 07 (December 2017)
 2020 Monthly Review 

November 26, 2020

Gutting Habeas Corpus The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain, by Liliana Segura, May 4, 2016


Gutting Habeas Corpus

The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain

Liliana Segura


May 4 2016, 12:54 p.m.

On the eve of the New York state primary last month, as Hillary Clinton came closer to the Democratic nomination, Vice President Joe Biden went on TV and defended her husband’s 1994 crime bill. Asked in an interview if he felt shame for his role passing a law that has been the subject of so much recent criticism, Biden answered, “Not at all,” and boasted of its successes — among them putting “100,000 cops on the street.” His remarks sparked a new round of debate over the legacy of the crime bill, which has haunted Clinton ever since she hit the campaign trail with a vow to “end the era of mass incarceration.”
A few days later, on April 24, a lesser-known crime law quietly turned 20. The Antiterrorism and Effective Death Penalty Act of 1996 — or AEDPA — was signed by Bill Clinton in the wake of the Oklahoma City bombing. While it has been mostly absent from the recent debates over the crime policies of the ’90s, its impact has been no less profound, particularly when it comes to a bedrock constitutional principle: habeas corpus, or the right of people in prison to challenge their detention. For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted. Americans are mostly unaware of this legacy, even as we know more than ever about wrongful convictions. Barry Scheck, co-founder and head of the Innocence Project, calls AEDPA “a disaster” and “a major roadblock since its passage.” Many would like to see it repealed.
If the Clintons have not been forced to defend AEDPA, it’s partly because neither the law nor its shared history with the crime bill is well understood. AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism. But the law was also the product of an administration that long before the Oklahoma attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as political weapon. After the Republicans seized control of Congress in the historic 1994 midterm elections, the Clinton White House sought to double down on its law-and-order image in advance of the 1996 presidential race. In the short term, it was a winning political strategy for Clinton. In the long term, it would help pave the way to one of the worst laws of his presidency.
The story that sets the stage for AEDPA can be partly told through White House memos from the time, a trove of which were released in 2014. Buried among hundreds of thousands of digital records housed in the Clinton Digital Library are previously confidential documents that shine light on Clinton’s criminal justice strategies in the mid-90s, yet have been largely overlooked.
One memo reveals a White House weighing its options in the weeks after the “Republican Revolution.” Dated November 22, 1994, it was written by top Department of Justice lawyer Ron Klain, who sent it to his boss as well as members of President Clinton’s inner circle, including Bruce Reed (the operative behind the famed pledge to “end welfare as we know it”) and senior White House adviser Rahm Emanuel. The memo was titled “Crime Bill ‘Redux.’”

Ronald A. Klain, chief of staff to Attorney General Janet Reno, October 1994.
Photo: The LIFE Picture Collection/Getty
Klain was assessing the threat posed by the new Republican majority to the 1994 crime bill. Passed just two months earlier, it had been a crucial Democratic victory — an end to the era when “the Republicans are seen as the party that’s tougher on crime,” as declared by Senate Majority Leader George Mitchell. The GOP had relentlessly assailed the legislation as a “fake crime bill” for prevention programs like “midnight basketball.” Now the GOP was getting ready to deploy a bill of its own.

“By now, we are all aware of the Republican proposal to revisit last year’s hard won crime bill,” Klain wrote in his memo. Called the Taking Back Our Streets Act, the GOP bill was designed to dismantle the crime bill’s signature features — in particular, a community policing project known as the COPS program — while going even further than the president had in his sweeping legislation. “The Republicans’ goal here is purely political and tactical,” Klain wrote. “To take away the clearest, best ‘Clinton achievement’ on crime, and to deprive the president of the opportunity to award communities all over the country their share of the 100,000 new police officers.”
The GOP also aimed to kill off the crime bill’s prevention programs, but Klain was more concerned about COPS — no doubt in part because the 100,000 police figure had been his idea. A young lawyer described by the New Republic as having “chillingly good political skills,” Klain had been working to pass crime legislation since he was in his 20s, as the “youngest ever chief counsel to the Senate Judiciary Committee.” Under Sen. Joe Biden, Klain had drafted unsuccessful precursors to the 1994 crime bill. Now Klain was being credited as the man who successfully steered its passage.
Klain saw “only two possible outcomes” to the Republican maneuvering. “The president will have to sign the bill that Congress sends him, or veto it.” While the former would “outrage our core constituency,” he wrote, the latter posed a potentially bigger threat: “We cannot needlessly give the GOP the opportunity to say that the president is vetoing a ‘tough on crime’ bill for ‘soft on crime’ reasons.”
Fear of looking “soft on crime” on the heels of the most extreme law-and-order legislation in U.S. history might have seemed irrational. The 1994 crime bill broadened “three strikes,” poured money into prison building, and vastly expanded the death penalty. But the new power struggle with Congress meant the White House wasn’t taking any chances.
Klain had a solution. Clinton should “welcome Republican efforts to build on last year’s crime bill,” he wrote, by folding them into new Democratic legislation that protected the administration’s top priorities. If it passed, it would be an additional “win” for the White House. Klain attached to his memo “a very, very rough outline of a possible new crime bill,” along with a chart comparing it both to the 1994 crime bill and the new GOP bill. Klain proposed including a $1 billion cut in prevention programs (reallocating $700 million to new juvenile prisons), more cops in schools, and “tougher truth in sentencing.” In some areas, his outline was harsher than the GOP legislation — “broaden[ing] the range of offenses for which juveniles may be tried as adults” and “enhanc[ing] penalties for lesser drug crimes.” In other areas, like the “deportation of criminal aliens,” it simply adopted the Republican line.
Finally, the proposal reintroduced an idea favored both by Clinton and his foes in Congress: “habeas corpus reform,” previously cut from the crime bill and now part of the Taking Back Our Streets Act. Sometimes called the “Great Writ” for its treasured place in constitutional law, habeas corpus referred to the long-standing right of prisoners to challenge their incarceration in court. For the federal courts, this meant reviewing state convictions for constitutional violations, a process that took years. In the zero-tolerance climate of the ’80s and ’90s, the concept of habeas corpus had met with increasing impatience; critics accused people on death row of gaming the system, filing “appeal after appeal” just to stay alive. “In brief,” Klain wrote, “these reforms would limit death row inmates to a single habeas petition — to be filed within strict time limits — while providing such inmates with competent counsel to assist in preparing this single filing.” While the Republican version of habeas reform made no guarantee on the right to counsel, both sides could agree on the need to speed up the death penalty.
After the Oklahoma City bombing, Clinton appeared on “60 Minutes” calling for the perpetrator to be executed.
Klain’s imagined crime bill sequel never came to pass — he left the DOJ early the next year. But his top priority lived on. In February 1995, as Clinton threatened to veto the looming GOP bill over the COPS program, White House staff received talking points titled “DEBUNKING THE MYTHS: THE 100,000 COPS PROGRAM WORKS!!!” In the meantime, others considered the habeas provisions in the Taking Back Our Streets Act. The administration seemed poised to fight for competent counsel; one memo from February 1995 is particularly notable. Apart from providing for lawyers at the post-conviction stage, it stressed that habeas reform “must provide for competent trial counsel,” since “excessive delays in capital cases result not only from manipulation of habeas corpus procedures, but also from a high rate of constitutional error in capital trials.” This point tended to be aggressively ignored in the calls to speed up the death penalty, which usually blamed prisoners for abusing their rights.
As the GOP bill continued to advance that spring, the White House was planning PR events to blunt its political impact. “Our strategy on crime has always been to associate ourselves with police officers,” Rahm Emanuel and Bruce Reed wrote to Clinton in March, urging him to “bolster this image.” But then, suddenly, everything changed.
On the morning of April 19, 1995, a massive explosion rocked the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people and injuring hundreds more. On the ground days later, Clinton gave a powerful eulogy — PR events were no longer needed. It was now up to the president to keep Americans safe, not just from criminals, but from terrorists. Dropping its work on the GOP crime bill, Congress vowed to pass a new counterterrorism bill by Memorial Day.
But at least one key criminal justice priority survived. On the Sunday after the Oklahoma City bombing, Clinton appeared on 60 Minutes, calling for the perpetrator to be executed. The 1994 crime bill had expanded the death penalty “for purposes such as this,” he said. “If this is not a crime for which capital punishment is called, I don’t know what is.” Asked by co-host Ed Bradley how he could deliver on his promise that “justice will be certain, swift and severe,” Clinton called for speeding up death penalty appeals. “Congress has the opportunity this year to reform the habeas corpus proceedings,” he said. “And I hope that they will do so.”
If it was unclear how proposals to shorten appeals for state prisoners related to federal terror cases, prosecutors nonetheless applauded Clinton’s remarks. In a letter to the White House, a bipartisan group of state attorneys general warned that failure to overhaul habeas corpus would endlessly delay justice for “such acts of senseless violence” and undermine “the expression of our level of opprobrium as a nation for acts of terrorism.”
Almost a year later, on April 24, 1996, a signing ceremony took place on the South Lawn of the White House. “In a presidential election year,” the AP reported, “it was an opportunity for a warm display of bipartisanship on a sunny, spring day.” The New York Times described “the Marine band playing and American flags whipping in the breeze.”
“We send a loud, clear message today all over the world, in your names,” the president told families in attendance whose loved ones had died in Oklahoma City. “America will never surrender to terror.” Then he signed the Antiterrorism and Effective Death Penalty Act.

A calendar hangs inside a prisoner’s cell on death row at the Georgia Diagnostic and Classification Prison, Dec. 1, 2015, in Jackson, Ga.
Photo: David Goldman/AP
Twenty years later, AEDPA has long been eclipsed as a counterterrorism measure by the USA Patriot Act, which was built on its foundations. As crime legislation, it remains relatively unknown, even amid renewed debate over Clinton’s other policies. But for people in prison, its legacy has been sweeping and harsh. For all the rhetoric that accompanied the signing of AEDPA, it has been most severely felt by state prisoners with no connection to terrorism — and especially those who insist they are innocent.
AEDPA is most notorious for its impact on death penalty cases. “I suspect that there may well have been innocent people who were executed because of the absence of habeas corpus,” said former D.C. Circuit Judge Abner Mikva, a Carter appointee who later served as White House counsel in 1994 and 1995. For Mikva, who turned 90 this year, his failure to stop so-called habeas reform is one of the major regrets of his career. He still recalls his time as a young law clerk for U.S. Supreme Court Justice Sherman Minton in the 1950s; when habeas petitions would reach his desk, Mikva said, “I saw how complicated it was for him to review these handwritten records — which is what they had at the time — and how uncertain some of the convictions were.”

Abner Mikva, a former D.C. circuit judge who served as White House counsel, attending a ceremony at the Supreme Court, May 8, 1995.
Photo: The LIFE Images Collection/Getty
But AEDPA’s reach spans much further than death row. For anyone wrongfully convicted — whether they are actually innocent or the victim of an unfair trial — the law presents a daunting barrier: a one-year countdown clock for federal review that begins the moment state-level appeals have run out. For New York exoneree Jeff Deskovic, who was in prison when AEDPA passed, the new law “filled me with terror.” Deskovic had given a false confession as a teenager to the rape and murder of a classmate following hours of punishing police interrogation in 1989. He was sentenced to life.

“I was writing a bunch of letters trying to get help,” he recalled, when under AEDPA, “the situation became more dire.” Amid the confusion over how the law applied to old cases — for prisoners like Deskovic, who had exhausted his state appeals, the one-year countdown began upon enactment of AEDPA — his lawyer missed the April 24, 1997, deadline by four days. The district attorney argued that his petition should be dismissed on these grounds. The courts agreed (including the 2nd Circuit Court of Appeals, whose decision was co-written by Sonia Sotomayor). Deskovic spent six more years in prison before the Innocence Project convinced the new district attorney to test DNA in his case. It matched someone else and his conviction was vacated.
Deskovic was lucky to have an attorney at all. “I don’t think people realize that [non-death row] inmates are not provided with attorneys in federal court,” Deskovic said. Although AEDPA contained no promise of competent counsel in the end, people on death row are entitled to post-conviction representation. Others are often left to file pro se petitions, essentially representing themselves. “So now you have poor people who are often poorly educated — certainly not lawyers, certainly not having formal legal education — wading through this procedural thicket, and they can very easily get tripped up. And federal courts think nothing of saying, ‘Oh, you didn’t follow this rule? This procedure? We’re not looking at your case anymore.’”
Even more profound than the strict limits and deadlines it imposed in individual cases is the way AEDPA altered the balance of power between state and federal courts, favoring finality over fairness. Under AEDPA, federal courts may only grant habeas relief if a state court ran afoul of “clearly established federal law,” or if its ruling was rooted in “an unreasonable determination of the facts in light of the evidence presented.” In the oblique language of the law, this drastically raised the bar for overturning state convictions. Federal judges have been “pretty much shut out … from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred,” 9th Circuit Court of Appeals Judge Alex Kozinski wrote in the Georgetown Law Journal last year. “We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”
In the New York Times Magazine last summer, Emily Bazelon cited Kozinski as one of a growing number of critics who have called for the repeal of AEDPA. Federal judges “are now raising alarm that the law is systematically failing to provide the necessary safeguards against miscarriages of justice,” she wrote. There are many examples of the way AEDPA has been “cruel” and responsible for “much human suffering,” according to Kozinski. But Deskovic, who now runs a foundation to help the wrongfully convicted, points to the case of a man named Lorenzo Johnson as particularly egregious.
Johnson was convicted in Pennsylvania for his involvement in a 1995 murder. The state never claimed he was the triggerman or even that he had a direct role in the killing, yet at 22 Johnson was sentenced to mandatory life without parole. In October 2011, the 3rd Circuit Court of Appeals overturned his conviction, finding that, while Johnson might have been present at the scene, the claim that he intended to commit murder was “mere speculation” by the state. After 16 years behind bars, Johnson walked out of prison. With Deskovic’s help, Johnson found a job, reunited with his family, and pursued public speaking.
But in 2012, the U.S. Supreme Court reversed the 3rd Circuit’s ruling, holding that it had “failed to afford due respect to the role of the jury and the state courts of Pennsylvania.” Although the federal court had found insufficient evidence to keep Johnson in prison, the “state court of last review” disagreed — “and that determination in turn is entitled to considerable deference under AEDPA.” After four months of freedom, Johnson got a phone call from his lawyer telling him he had to go back to prison. “It was surreal and horrifying,” said Deskovic, who drove him back to Pennsylvania from New York. Along the way, Johnson made calls to friends and family, struggling to explain. To Deskovic, it was a grotesque ruling by the Supreme Court — a “rush to repudiate a line of reasoning by the lower federal court,” rather than an interest in justice. Johnson “shouldn’t have had to be returned back to prison on a technicality.”
Today Johnson writes articles behind bars that are published at the Huffington Post. In a recent article titled “Clinton’s Other Terrible Crime Bill,” he described the lasting impact of AEDPA. “Although I’m living through a nightmare, I’m also just one of many others,” he wrote, pointing out the record number of exonerations in recent years. “But these numbers have not even scratched the surface; there are many other wrongfully convicted people still in prison.”

President Bill Clinton sits between House Speaker Newt Gingrich, left, and Senate Majority Leader Bob Dole, right, during an April 26, 1995, meeting at the White House.
Photo: Luke Frazza/AFP/Getty Images
In the recent debates about crime policy from the ’90s, a common Clinton defense has been one of unintended consequences, in which bad laws were born of the best intentions. But White House memos in the run-up to AEDPA make clear that Clinton had been thoroughly warned about its dangers. What’s more, news articles from the era betray the extent to which criminal justice policies were being crafted with political strategy in mind, rather than as serious solutions to crime. “It’s been the most careful political calculation,” former Deputy Attorney General Philip Heymann told the New York Times after leaving the DOJ in 1994 — “with absolutely sublime indifference to the real nature of the problem.”
Indeed, with crime rates falling in the mid-90s, even the landmark features of the 1994 crime bill largely boiled down to posturing. In the New Republic, a former operative for Clinton’s 1992 campaign recalled the origins of the $8.8 billion COPS program that Joe Biden defends to this day: “Clinton had a big crime speech coming up. We had no idea how many extra cops would be a good thing. … Bruce Reed and I called [Ron Klain] from Little Rock. He said, ‘Would 100,000 be enough?’” Not surprisingly, in contrast to Biden’s boasting, the COPS program failed to deliver on its promises.
By the time AEDPA passed, Clinton had learned how effectively he could undercut the Republicans by co-opting their ideas on crime. Republicans were outraged. “We say habeas corpus, they say sure. … We say prisons; they say sure,” one frustrated GOP source complained to the New York Times as the 1996 election against Bob Dole approached. But critics pointed out that the costs of such a winning political strategy were far too high. “I have absolutely no faith that constitutional principles matter to this president when they emerge in a criminal-justice context,” American Civil Liberties Union legislative director Laura W. Murphy told the Times. AEDPA marked “a total collapse” on the issue.
In the end, the final question for Clinton when it came to gutting habeas corpus was how to spin it.
In an email to The Intercept, Klain defended the 1994 memo in which he sought to outmaneuver the GOP by proposing a tough new Democratic crime bill. “Clearly we were trying hard to stave off draconian legislation being advanced by the new Republican majority,” he wrote. As for habeas corpus, he drew a clear distinction between what the Democrats advanced and what ended up in AEDPA. “We explored a number of strategies to prevent their plans to gut appeal rights without providing adequate counsel,” he said. “The GOP version passed after I left.”
It is true that many Democrats fought against the version of habeas reform that passed as part of AEDPA. Among them was Joe Biden, who for years had hoped to pass a habeas reform law of his own. But his proposed legislation, most recently aimed at the 1994 crime bill, had been drafted with state prisoners in mind, meaning that “the Biden bill would not affect the case of Timothy McVeigh,” as Bruce Reed wrote to Clinton on May 3, 1995, two weeks after the bombing. “We should go along with some form of limits on appeals by federal prisoners,” Reed advised. In the margins, Clinton appears to have written “agree.”
Two days later, White House lawyer Chris Cerf sent a memo to his colleagues comparing the dueling versions of habeas reform before Congress. He analyzed their legal implications and their chances of passing. Biden’s bill, which included myriad provisions on the right to counsel, was “dead on arrival.” A measure brought forward by Senate Judiciary Chair Orrin Hatch as part of the terrorism bill introduced by Bob Dole was somewhat “less radical” than other GOP versions, but still “a very significant incursion into traditional habeas law.” Cerf raised particular caution over provisions that required higher standards of deference to state courts and made it harder for federal courts to grant evidentiary hearings. “For all practical purposes,” he wrote, these two combined “would eliminate federal habeas hearings.”
The White House should accept the Hatch bill on a set of strict conditions, Cerf wrote. Among them: the deletion of those troubling provisions and the addition of language to ensure “competent counsel at all phases of a capital case.” If Hatch refused, Cerf wrote, the White House should reject his proposal and instead aggressively try to “unbundle habeas from the counterterrorism bill,” saving the fight for another day. But he was not optimistic. “My sense … is that the habeas train is coming down the track and is unstoppable,” Cerf wrote, “especially after the president’s comments on 60 Minutes.” In an underlined sentence, he warned, “We do not want to put the president in the position of having to accept highly objectionable habeas provisions merely because they are tied to the counterterrorism bill.”
Indeed, while it would take almost a year to pass AEDPA, Clinton’s immediate call to speed up the death penalty days after the bombing had rigged the game from the start. As Democrats began threatening to throw gun control amendments at Dole’s terror bill to force the removal of habeas reform, Hatch seized on Clinton’s own rhetoric, declaring, “The American people do not want to witness the spectacle of these terrorists abusing our judicial system … by filing appeal after meritless appeal.” For a moment, Clinton stood his ground. In late May 1995, a month after the attack, he sent a letter to Dole arguing against passing habeas reform as part of the terrorism bill and stressing the need to protect “the historic right to meaningful federal review.” But less than two weeks later, on Larry King Live, Clinton suddenly reversed course. Habeas reform “ought to be done in the context of this terrorism legislation,” he said, “so that it would apply to any prosecutions brought against anyone indicted in Oklahoma.”
Inside the White House, Abner Mikva believed he knew what had happened. In early June 1995, just days after Clinton wrote to Dole, a delegation from Oklahoma City arrived in Washington. It included survivors of the bombing as well as grieving family members. They called themselves “the habeas group.” Convinced it would result in swifter justice for the terrorist attack, they were lobbying for streamlining death row appeals. Mikva and his staff had been trying at the time to convince the president to support a more cautious version of habeas reform put forward by the NAACP Legal Defense Fund. But after the visit, Mikva recalls, all bets were off. “He wrote on my memo, ‘No. Oklahoma.’ And that was the end of our efforts.”
Yet, for all the political gamesmanship that paved the way to AEDPA, Mikva places the ultimate blame for the erosion of habeas corpus on the judiciary — particularly conservative U.S. Supreme Court Justice William Rehnquist. Rehnquist had long railed against the drawn-out appeals that delayed executions for making “a mockery of our criminal justice system.” Upon assuming the Supreme Court bench, in 1988, Rehnquist formed the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, naming retired Justice Lewis Powell Jr. as its head. Powell “came up with some very draconian changes to habeas,” Mikva recalled, “which were basically the substance of what ultimately passed.”
Federal judges at the time were alarmed by the recommendations. In 1989, at a Senate Judiciary hearing convened by Joe Biden, Judge Stephen Reinhardt of the 9th Circuit decried Powell’s report. “Finality and speed are the presumed objectives,” Reinhardt testified. “They seem to outweigh the concerns for fairness, justice, due process, and compliance with the constitution.” Citing his experiences with prosecutors who withheld evidence in capital cases — violations that can take years to discover — Reinhardt posed the question: “What can I do if someone comes in with affidavits and proof asking for relief from me when a man is about to be executed and the statute says I have no jurisdiction or authority to grant a stay or any habeas relief?”
Yet habeas reform efforts continued along parallel tracks in the legislative and judicial branches. By the time AEDPA passed, a series of Supreme Court rulings had already made it more difficult to challenge state convictions. (Indeed, in one 1995 White House memo to Clinton, Bruce Reed noted that Republicans had ultimately dropped habeas reform from the 1994 crime bill over fears that “a Democratic crime bill would undermine recent Supreme Court decisions that have strengthened prosecutors’ hands.”) To some legal scholars at the time, this made AEDPA mostly symbolic — an attempt by lawmakers to take credit for what the judiciary had already done.
In Congress, however, others saw the dangers posed by AEDPA. On April 17, 1996, during the final round of fighting in the Senate, New York Democrat Daniel Patrick Moynihan warned that the provisions curtailing habeas corpus would “introduce a virus that will surely spread throughout our system of laws.” One of just eight senators to vote against the law — Biden was not among them — Moynihan read from a letter to Clinton sent by four attorneys general. They urged him to “communicate to the Congress your resolve, and your duty under the Constitution, to prevent the enactment of such unconstitutional legislation and the consequent disruption of so critical a part of our criminal punishment system.”
But in the end, the final question for Clinton when it came to gutting habeas corpus was how to spin it. On April 23, 1996, the day before the ceremony on the South Lawn, Bruce Reed sent a memo to the White House staff secretary titled “Habeas language in signing stmt.” The remarks drafted for the president went into “far more detail” than they should, he wrote. “I realize this is a controversial issue,” Reed said, “but it is also one that could get us in trouble if we say more than necessary.”
AEDPA has fulfilled the very concerns Clinton brushed aside upon signing the bill.
With the presidential election in view, Republicans were already “blasting us with the charge” that Clinton’s re-election would “be a bonanza for criminals’ rights,” Reed wrote, somewhat ironically. He suggested a number of edits to minimize avenues for attack. Among them: “We should drop the sentence, ‘I am advised that one provision of this important bill could be interpreted in a manner that would undercut meaningful federal habeas corpus review and raise profoundly troubling constitutional issues.’ This sentence could be used against us,” he warned, “and doesn’t add anything, since we later say we don’t think it will be interpreted this way.”
Yet Clinton’s final remarks struck a defensive tone. His signing statement contained four paragraphs on the habeas provisions in AEDPA, assuring that they would neither “limit the authority of the federal courts” or “deny litigants a meaningful opportunity” to win evidentiary hearings. “Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent federal courts have the power ‘to say what the law is’ and to apply the law to the cases before them,” Clinton said. “I have signed this bill on the understanding that the courts can and will interpret these provisions … in accordance with this ideal.”
But Clinton was wrong. AEDPA has instead fulfilled the very concerns he brushed aside upon signing the bill. It is a law “misconceived at its inception and born of misguided political ambition,” as Judge Stephen Reinhardt recently wrote, some 25 years after testifying before Congress, “and repeatedly interpreted … in the most inflexible and unyielding manner possible.”
Ironically, AEDPA had little bearing in the end on the case of Timothy McVeigh, whose relatively swift execution in 2001 had more to do with political will than stringent new review standards. Nor did AEDPA solve the problem its supporters claimed it would address in the first place — federal court dockets remain backlogged and prisoners spend longer awaiting execution than ever.
But in a sense, the cruelest irony is how AEDPA has affected those who are not on death row yet nonetheless face the prospect of dying in prison on dubious grounds. Ignored by those who championed the law — and still largely invisible from the debate — they have been no less affected by its legacy. As Lorenzo Johnson wrote from a prison cell last month, “AEDPA has been devastating for wrongfully convicted prisoners and their families. Reform is long overdue.”