As Hayes writes in A Colony in a Nation, this story captures the core pillars of the American character: subjugation and control, all tinged with white fear.
Hayes’s book is a brisk historical examination of the forces that gave rise to the “law and order” that defined the American idea of justice well before Barry Goldwater coined the term in 1964. As Hayes explains, it took the 2014 riots in Ferguson and conversation around race and criminal justice to reveal that there are two Americas: the Colony, where the law is a tool of freedom, and the Nation, where it’s a tool of violence and theft. Hayes reveals a sad historical truth: “Liberty and justice for all” is an Enlightenment creation myth, spun by the Colony to obscure the real foundation of American politics.
I spoke to Hayes about race, Trump, and the historical origins of “law and order.”
JARED KELLER: You trace the origins of the “law and order” mentality that we generally attribute to Richard Nixon back to the very birth of our national identity — to the constant fear experienced by pre-Revolutionary colonists in Jamestown and elsewhere. How did you end up on this track?
CHRIS HAYES: I had a feeling coming out of Ferguson [in 2014] that the law was being enforced in a way that was just fundamentally inimical to democracy. It felt more like some kind of occupation, a colonization. And that got me thinking about how the Bill of Rights talks about policing power. I started reading about the origins of the Fourth and Fifth Amendments: why were the founders obsessed with search and seizure, whether you could be compelled to testify, even the whole idea of warrants.
That legal history is fascinating, because it comes out of specific abuses during the Revolutionary period, but I started looking back further into pre-colonial history — there’s a great Bernard Bailyn book about this. So much of the country’s foundational experience is just being in this savage and brutal wilderness and imposing order upon it.
That’s a core part of the settler-colony ethos, and that basic dynamic of white fear about what’s out past the settlement, what’s in the woods, whether it’s indigenous people or slaves in the field or the bad neighborhood down the block — there’s some continuity there in how that orders and structures the social subconscious in the American political trajectory.
It’s not just fear driving the growth of police power, as you point out: there’s a fundamental revenue incentive as well.
We think about the Revolution as a revolt over taxation — which it was, at some level, obviously — but taxes then weren’t collected in the way they are now. People didn’t file, there was no income tax, and people obviously didn’t have automatic payroll deductions. Taxes were largely a question of duties and customs and border enforcement. Because those existed, people tried to evade them, and the way they were enforced was basically through policing power: searching ships, ensuring logs matched the actual cargo, busting smugglers, searching in what I call “stop and frisk.”
The thing that really pissed off the colonists, particularly the very powerful New England shipping and smuggling class, wasn’t just the taxes, but the enforcement that is necessary to extract the revenue, which is fundamentally an action of policing. There’s actually a line in the Declaration of Independence that’s basically about police harassment. [Thomas] Jefferson says King George “hath sent hither swarms of Officers to harass our people and eat out their substance.” It’s a very specific grievance — he has buried us in customs officers to harass us and penalize us and make it impossible for us to earn a living.
That makes sense, of course: order itself comes with its own level of economic logic. That’s why it’s “order” and not “peace,” right? And we can’t make smart economic decisions unless we know conditions will remain relatively stable and predictable. But it’s ironic that the colonists threw off the yoke of economic exploitation before turning around and dropping that system back on other people.
That’s a deep tension here, right? We’re inheritors of a deep tradition of rebellion — Jefferson on the blood of tyrants watering the tree of liberty and whatnot — but the actual granular details of the Revolution are also very interesting. It’s a war, with ordered armies, but before we get to that point of an actual revolution there’s just a ton of mob violence, which I didn’t realize until I dove into the history: chasing down customs officials, tarring and feathering them, beating the crap out of them. We think of folks with guns and tricorn hats, but before then it was just a ton of mob violence.
Like the first Thanksgiving, which you describe as actually a really twisted, dark affair that’s basically a violent trap set for Native Americans. The militarized police and “carceral state,” as Ta-Nehisi Coates puts it, aren’t really new — it’s just that the logic has become more crystallized in American institutions.
The foundational experience of America is that of white fear. The first diary entry of the captain of the ship that landed in Jamestown is basically, like, “We were attacked by the savages.” That’s an elemental through line that structures a lot of the way our national character developed.
And the object of that white fear rotates, from indigenous people to slaves. Sometimes it’s foreigners, right now it’s immigrants, largely. It’s the churning engine at the core of our national character.
There are two models of community-formation: the classical Lockean “social contract,” where people come together in town halls in some sort of idyllic portrait of democracy in action, and what the late economist Mancur Olson would call “stationary bandits,” people who decided that, instead of raping and pillaging, it was better to settle down, wear a crown, and extract revenue over time by imposing order. In your book, American governance looks more like the latter.
Right, and there are different models for how this order is imposed. There’s top-down, where a territory is controlled. One of the theories for the spike in violence in northern cities during the crack years is basically that old drug cartels were disrupted by a new product and the breakup of the ordered turf of the old cartels meant that there was more bloodshed. You can imagine different situations in which the same amount of drugs is being sold, the same illicit activity, but one is more violent than the other because, instead of a monopoly in a neighborhood, you have five competing crews.
But apart from Olson, there’s another body of literature about spontaneous order, the ways in which that develops; in the West, historians have written about how informal norms of ownership and property and respect between peers and among a community can preserve order.
And in a weird way, if you go back to the original [James Q.] Wilson and [George L.] Kelling Atlantic article on “broken windows,” the two are trying to imagine police as facilitators of that peer-to-peer communal order. But in some ways, it’s a fundamentally impossible project, because the police are by and large not members of the communities they’re attempting to enforce order on.
It reminds me of the origins of vigilante committees on the frontier. In 1851, a vigilance committee emerged in San Francisco out of the fear of arson, but five years later the famous 1856 Committee of Vigilance ginned up anxiety around disorder despite the fact that crime had fallen significantly in the intervening years, mainly thanks to its social capital within the city.
One of the big questions here is cause and effect, absolutely. The thesis of broken windows that’s been effectuated in police departments across the world — and believed by many people — is that relationship between disorder and crime.
Disorderliness sends a message that a place is not effectively being policed, which leads to lawlessness; that’s the whole idea behind stopping fare jumpers, cracking down on graffiti, halting public urination. It’s not a crazy thesis at all, and there is some data to suggest some kind of connection, but nothing like evangelists for it like [Bill] Bratton would have you believe.
One of the fascinating things about that original article, which remains probably the most influential article published in a magazine just about ever, is that they’re not even making the case that it will reduce crime. They’re just making a psychological case that it will make people feel safer, which is sort of fascinating, because that’s a much more measured claim.
Let’s talk about that psychology. You write that the division between the “Colony” and the “Nation” is not just a matter of coercive infrastructure, where the agents of the state maintain order, but also a matter of norm enforcement. Groups who make up the “Colony” have very clear identities within the American mosaic, but whiteness doesn’t.
Yeah, and those categories shift in really interesting ways (although “blackness” is always really there), like who gets entered into the category of “whiteness.” You can’t, for instance, find data now on Irishmen who do X or Y, because we don’t keep that category in our enforcement regime anymore, but they sure as heck did back in the 1850s and 1860s.
The categories of “who’s the Other” and “who’s not” shift over time, although I think blackness has remained the enduring Other throughout this entire through line. It’s the way the state thinks in terms of who is a citizen and who is subject, who is the empowered locus of political and social capital and who is the punished.
This is slippery in lots of ways, of course. If you take race out of the question entirely and just look at white people, the United States is still an incredibly punitive place compared to its peers. And if you dive deeper, there are these massive class disparities where high school dropouts are more likely to be more incarcerated than college grads by an order of magnitude. There are all these different categories and subcategories, and there’s a broader story here that’s as old as time: poverty and criminality have been linked in many societies both through the ways the law is constructed (there’s the famous Anatole France line about sleeping under bridges), and also the way desperation or relative deprivation affects people’s behavior.
And these things manifest themselves subtly, right? During Ferguson, every digital news outlet wrote the same story about how African-American protesters were referred to as “thugs,” but a bunch of college kids who rioted at a Keene State pumpkin festival were simply called “revelers.”
This is sort of the thought experiment of the last chapter: what would policing look like in an environment in which the people who are policed and the perpetrators of crimes themselves have high levels of social capital and are valued?
The answer is that it exists on American elite campuses: they’re private juridical spheres in their own weird way, but also places that are full of uniformly elite populations where some people do things that are criminal — and the administrations are remarkably forgiving. There’s a remarkable amount of disorder tolerated in those contexts, and that’s because of the contingency of what we even mean when we talk about “order” and how we associate it with people who are or are not socially powerful.
My favorite thing about your book is that there is barely any mention of Trump. You wrote A Colony in a Nation in the run-up to Election Day and point out that the “law and order” mantra that Trump adopted has been on the march for more than a half-century now. Now that Ferguson gave the American people a window onto the troubled relationship between Colony and Nation, and the Trump election took that story further, what can people do to translate these revelations into action?
You mean in terms of protesting?
Sure, but also on a larger political level. If Trump’s not taken seriously, what incentive is there to obey the norms that prop up this system?
This is the big thing about Trump to me. I really wanted not to write a book about him, and the book isn’t really about him, but it’s actually, weirdly, pretty relevant, insofar that the entire book is about the structure of the politics of white fear and order — and that’s what we’re now watching play out every day.
The big lesson to me is that when people say “law and order,” what they mean is “order over law,” and that’s the essence of what’s happening now. When Trump talks about immigrants “breaking the law,” that is coming from someone who bragged about sexual assault himself and has been accused of same, at various times didn’t pay his workers, and appointed an Attorney General who appeared to tell an untruth under oath. This thing about “breaking the law” is a conversation stopper, as opposed to restoring some sense of social order. That’s the key to understanding all of this.
That’s the very definition of power, isn’t it? Being able to decide when to suspend or violate the law in order to save it?
That’s exactly right. There are different ways to interpret and understand and enforce the law, and that depends largely on social power: we have lots of tolerance for some and not so much tolerance for others. That fundamental truth, which people have been saying forever, really sort of stands out in the system we’ve constructed now.
What’s most alarming in the age of Trump is that power is no longer, as you put it, humming along in the background like an operating system in the Nation and acting like an intrusive computer virus in the Colony: now it feels intrusive everywhere. How much of this is the product of, say, technological change?
I do think social media has elevated things outside the confines of the Colony in a way that is new and important. And I also think that order is harder to impose unilaterally when people have a bunch of different information sources, although the flip side of that is obviously that people can cocoon much more easily.
I guess “fake news” is a great unifier; everyone can deploy this excuse when they want to retreat into the confines of their own ideological order.
That phrase got destroyed extremely quickly and expeditiously and cynically, I think. But yes, I’m not sure I know the answer to that. Ferguson really did genuinely spread on social media before anyone else got to it. What happened there is a sort of object lesson in the power of that.
So we’re living under a “law and order” presidency, and Trump seems determined to maintain the supremacy of the Nation over the Colony. But could any president, if they wanted, actually disentangle this weird bifurcated judicial logic from American institutions? Obama tried to, at least symbolically, with his pardons and commutations for nonviolent drug offenders, but that’s only a tiny sliver of the US prison population. Can we ever dismantle the divide between Colony and Nation, or is it something we just have to accept?
The book doesn’t offer programmatic solutions, but the key here is recognizing the politics that drive this. I use the metaphor of a magnet pulling a bunch of iron filings into tyrannical alignment. There is not one criminal justice system in the United States, and while it’s convenient to focus on federal drug prisoners or nonviolent drug offenders, there are thousands of jurisdictions and millions of different individual actors from cops making decisions on the beat to prosecutors and judges and bail-setting and bailiffs and sheriffs offices.
The point is that everything moved in one direction for a long time, toward more punitive norms, and we have to understand that what’s driving this is a fundamental type of politics, a type of politics that Donald Trump represents — and not accidentally. He is a creature of a certain kind of politics of “law and order,” a white fear of crime, that was very much dominant in New York during his formative years. You have to interrogate that head on, and dismantle its appeal — an appeal that is very real for liberals and conservatives alike. It’s not just some crazy thing that only bad racist people feel pulled by. It’s extremely powerful, as Trump’s victory shows, and you need to bring this to the surface and attack it as the root cause of many destructive policies.
But it won’t be easy. Right now, Republican statehouses are moving legislation to ban protest in various ways, and it’s easy to understand why: people don’t like the disorder and disruption of protest, and it’s popular to say, “We’re going to quash it.” There are certain parts of the Trump playbook that are not replicable, but other parts of it are replicated constantly everywhere. Anti-immigrant legislation has been prevalent and popular in states from Arizona to Alabama, the insane over-criminalization of the drug war — that’s all produced by the same set of impulses that Donald Trump took advantage of. He’s just kind of a unique avatar for that.
That reminds me of the famous front cover of Thomas Hobbes’s Leviathan, with that king-figure made up of his subjects looming over the countryside, sword in hand. The infrastructure has been built, culturally and institutionally, over hundreds of years, and Trump is just the perfect distillation of that.
That’s exactly right.