America is now in fascism’s legal phase
“Let us be reminded that before there is a final solution, there must be a first solution, a second one, even a third. The move toward a final solution is not a jump. It takes one step, then another, then another.”
So began Toni Morrison’s 1995 address to Howard University, entitled Racism and Fascism, which delineated 10 step-by-step procedures to carry a society from first to last.
Morrison’s interest was not in fascist demagogues or fascist regimes. It was rather in “forces interested in fascist solutions to national problems”. The procedures she described were methods to normalize such solutions, to “construct an internal enemy”, isolate, demonize and criminalize it and sympathizers to its ideology and their allies, and, using the media, provide the illusion of power and influence to one’s supporters.
Morrison saw, in the history of US racism, fascist practices – ones that could enable a fascist social and political movement in the United States.
Writing in the era of the “superpredator” myth (a Newsweek headline the next year read, “Superpredators: Should we cage the new breed of vicious kids?”), Morrison unflinchingly read fascism into the practices of US racism. Twenty-five years later, those “forces interested in fascist solutions to national problems” are closer than ever to winning a multi-decade national fight.
The contemporary American fascist movement is led by oligarchical interests for whom the public good is an impediment, such as those in the hydrocarbon business, as well as a social, political, and religious movement with roots in the Confederacy. As in all fascist movements, these forces have found a popular leader unconstrained by the rules of democracy, this time in the figure of Donald Trump.
My father, raised in Berlin under the Nazis, saw in European fascism a course that any country could take. He knew that US democracy was not exceptional in its capacity to resist the forces that shattered his family and devastated his youth. My mother, a court stenographer in US criminal courts for 44 years, saw in the antiBlack racism of the American legal system parallels to the vicious antisemitism she experienced in her youth in Poland, attitudes which enabled eastern European complicity with fascism. And my grandmother, Ilse Stanley, wrote a memoir, published in 1957, of her experiences in 1930s Berlin, later appearing on the US television show This is Your Life to discuss it. It is a memoir of the normalization years of German fascism, well before world war and genocide. In it, she recounts experiences with Nazi officers who assured her that in nazism’s vilification of Jews, they certainly did not mean her.
Philosophers have always been at the forefront in the analysis of fascist ideology and movements. In keeping with a tradition that includes the philosophers Hannah Arendt and Theodor Adorno, I have been writing for a decade on the way politicians and movement leaders employ propaganda, centrally including fascist propaganda, to win elections and gain power.
Often, those who employ fascist tactics do so cynically – they do not really believe the enemies they target are so malign, or so powerful, as their rhetoric suggests. Nevertheless, there comes a tipping point, where rhetoric becomes policy. Donald Trump and the party that is now in thrall to him have long been exploiting fascist propaganda. They are now inscribing it into fascist policy.
Fascist propaganda takes place in the US in already fertile ground – decades of racial strife has led to the United States having by far the highest incarceration rate in the world. A police militarized to address the wounds of racial inequities by violence, and a recent history of unsuccessful imperial wars have made us susceptible to a narrative of national humiliation by enemies both internal and external. As WEB Du Bois showed in his 1935 masterwork Black Reconstruction, there is a long history of business elites backing racism and fascism out of self-interest, to divide the working class and thereby destroy the labor movement.
The novel development is that a ruthless would-be autocrat has marshalled these fascist forces and shaped them into a cult, with him as its leader. We are now well into the repercussions of this latter process – where fascist lies, for example, the “big lie” that the 2020 election was stolen, have begun to restructure institutions, notably electoral infrastructure and law. As this process unfolds, slowly and deliberately, the media’s normalization of these processes evokes Morrison’s tenth and final step: “Maintain, at all costs, silence.”
Constructing an enemy
To understand contemporary US fascism, it is useful to consider parallels to 20th century history, both where they succeed and where they fail.
Hitler was a genocidal antisemite. Though fascism involves disregard for human life, not all fascists are genocidal. Even Nazi Germany turned to genocide only relatively late in the regime’s rule. And not all fascists are antisemitic. There were Italian Jewish fascists. Referring to the successful assimilation of Jews into all phases of Weimar era German life, my father warned me, “if they had chosen someone else, some of us would have been among the very best Nazis.” We American Jews feel firmly at home. Now, where the fascist movement’s internal enemies are leftists and movements for Black racial equality, there certainly could be fascist American Jews.
Germany’s National Socialist party did not take over a mainstream party. It started as a small, radical, far-right antidemocratic party, which faced different pressures as it strove to achieve greater electoral success.
Despite its radical start, the Nazi party dramatically increased its popularity over many years in part by strategically masking its explicit antisemitic agenda to attract moderate voters, who could convince themselves that the racism at the core of Nazi ideology was something the party had outgrown. It represented itself as the antidote to communism, using a history of political violence in the Weimar Republic, including street clashes between communists and the far right, to warn of a threat of violent communist revolution. It attracted support from business elites by promising to smash labor unions. The Nazis portrayed socialists, Marxists, liberals, labor unions, the cultural world and the media as representatives of, or sympathizers with, this revolution. Once in power, they bore down on this message.
In his 1935 speech, Communism with its Mask Off, Nazi propaganda minister Joseph Goebbels described Bolshevism carrying “on a campaign, directed by the Jews, with the international underworld, against culture as such”. By contrast, “National Socialism sees in all these things – in [private] property, in personal values and in nation and race and the principles of idealism – these forces which carry on every human civilization and fundamentally determine its worth.”
The Nazis recognized that the language of family, faith, morality and homeland could be used to justify especially brutal violence against an enemy represented as being opposed to all these things. The central message of Nazi politics was to demonize a set of constructed enemies, an unholy alliance of communists and Jews, and ultimately to justify their criminalization.
Contrary to popular belief, the Nazi government of the 1930s was not genocidal, nor were its notorious concentration camps packed with Jewish prisoners, at least until the November pogrom of 1938. The main targets of the regime’s concentration camps were, initially, communists and socialists. The Nazi regime urged vigilante violence against its other targets, such as Jews, separating themselves from this violence by obscuring the role of agents of the state. During this time, it was possible for many non-Jewish Germans to deceive themselves about the brutal nature of the regime, to tell themselves that its harsh means were necessary to protect the German nation from the insidious threat of communism.
Violent militias occupied an ambiguous role between state and nonstate actors. The SS began as violent Nazi supporters, before becoming an independent arm of the government. The message of violent law and order created a culture that influenced all the Nazi state’s institutions. As Yale historian Timothy Snyder writes in On Tyranny, “for violence to transform not just the atmosphere but also the system, the emotions of rallies and the ideology of exclusion have to be incorporated into the training of armed guards.”
In the US, the training of police as “warriors”, together with the unofficial replacement of the American flag by the thin blue line flag, auger poorly about the democratic commitments of this institution.
For a far-right party to become viable in a democracy, it must present a face it can defend as moderate, and cultivate an ambiguous relationship to the extreme views and statements of its most explicit members. It must maintain a pretense of the rule of law, characteristically by projecting its own violations of it on to its opponents.
In the case of the takeover of the mainstream rightwing party by a farright anti-democratic movement, the pretense must be stronger. The movement must contend with members of that party who are faithful to procedural elements of democracy, such as the principle of one voter one vote, or that the loser of a fair election give up power – in the United States today, figures such as Adam Kinzinger and Elizabeth Cheney. A fascist social and political party faces pressure both to mask its connection to and to cultivate violent racist supporters, as well as its inherently anti-democratic agenda.
In the face of the attack on the US capital on 6 January, even the most resolute skeptic must admit that Republican politicians have been at least attempting to cultivate a mass of violent vigilantes to support their causes. Kyle Rittenhouse is becoming a heroto Republicans after showing up in Kenosha, WI as an armed vigilante citizen, and killing two men. Perhaps there are not enough potential Kyle Rittenhouses in the US to justify fear of massive armed vigilante militias enforcing a 2024 election result demanded by Donald Trump. But denying that Trump’s party is trying to create such a movement is, at this point, deliberate deception.
Black rebellion, white backlash
Street violence proved invaluable to the National Socialists in their path to power. The Nazis instigated and exacerbated violence in the streets, then demonized their opponents as enemies of the German people who must be dealt with harshly. Trump’s rise followed Black protest, at times violent, of police brutality in Ferguson and Baltimore. More recently, the murder of George Floyd and a historic protest movement in the US in the late spring has given fuel to fascist misrepresentation.
All of these recent developments take place as only the latest in a long US history of Black rebellion against white supremacist ideology and structures, and a parallel history of white backlash.
White vigilante groups regularly formed in reaction to Black rebellions, to “defend their families and property against Black rebellion”, the historian Elizabeth Hinton writes in her recent history of these rebellions. Hinton shows that police often acted in concert with these groups. For decades, the instigator of these rebellions has typically been an incident or incidents of police violence against members of the community, following a long period of often violent over-policing that exacerbated these communities’ grievances.
Street movements in the US have often been accompanied by vigorous campus protests, from the protests against the Vietnam war of the 1960s, to recent campus protests for racial justice that attracted media rebuke (paradoxically, for “chilling free speech”). Politicians in both parties have feasted on these moments, using them to troll for votes. During these episodes of protest and rebellion, US politicians from Barry Goldwater onwards, placing campus protests together with Black rebellion against over-policing, have encouraged harsh law and order policing and crackdowns on leftists. John Ehrlichman, one of Nixon’s top advisers, said that Nixon’s campaign and administration “had two enemies: the anti-war left and Black people”, and invented the drug war to target both:
Politicians have shown less interest in addressing the underlying conditions that lead to violence in poor Black urban communities – the widespread availability of guns, the massive and persistent racial wealth gap and the effects of violent policing and mass incarceration. And why should they? As long as these underlying conditions persist, politicians of either party can run for office by milking fear and promising a harsh law and order response. Morrison’s 1995 address is a warning that these conditions are ripe for harnessing by a fascist movement, one targeting democracy itself.
In its most recent iteration, in the form of the reaction against Black Lives Matter protesters and the demonization of antifa and student activists, a fascist social and political movement has been avidly stoking the flames for mass rightwing political violence, by justifying it against these supposed internal enemies.
Rachel Kleinfield, in an October 2021 article, documents the rise of the legitimation of political violence in the US. According to the article, the “bedrock idea uniting right-wing communities who condone violence is
that white Christian men in the United States are under cultural and demographic threat and require defending – and that it is the Republican Party and Donald Trump, in particular, who will safeguard their way of life.”
This kind of justification of political violence is classically fascist – a dominant group threatened by the prospect of gender, racial and religious equality turning to a leader who promises a violent response.
How to topple a democracy
We are now in fascism’s legal phase. According to the International Center for Not for Profit Law, 45 states have considered 230 bills criminalizing protest, with the threat of violent leftist and Black rebellion being used to justify them. That this is happening at the same time that multiple electoral bills enabling a Republican state legislature majority to overturn their state’s election have been enacted suggests that the true aim of bills criminalizing protest is to have a response in place to expected protests against the stealing of a future election (as a reminder of fascism’s historical connection to big business, some of these laws criminalize protest near gas and oil lines).
The Nazis used Judeo-Bolshevism as their constructed enemy. The fascist movement in the Republican party has turned to critical race theory instead. Fascism feeds off a narrative of supposed national humiliation by internal enemies. Defending a fictional glorious and virtuous national past, and presenting its enemies as deviously maligning the nation to its children, is a classic fascist strategy to stoke fury and resentment. Using the bogeyman of critical race theory, 29 states have introduced bills to restrict teaching about racism and sexism in schools, and 13 states have enacted such bans.
The key to democracy is an informed electorate. An electorate that knows about persisting racial injustice in the United States along all its dimensions, from the racial wealth gap to the effects of over-policing and over-incarceration, will be unsurprised by mass political rebellion in the face of persistent refusal to face up to these problems. An electorate ignorant of these facts will react not with understanding, but with uncomprehending fear and horror at Black political unrest.
Sometimes, you trace a fascist movement to its genesis in Nazi influence on its leaders, as with India’s RSS. In the United States, the causal relations run the other way around. As James Whitman shows in his 2017 book, Hitler’s American Model: The United States and the Making of Nazi Race Law, the Jim Crow era in the United States influenced Nazi law. In 2021, legislators in 19 states passed laws making access to the ballot more difficult, some with specific (and clearly intentional) disparate impact on minority communities (as in Texas). By obscuring in our education system facts about this era, one can mask the reemergence of legislation that borrows from its strategies.
Indeed, the very tactic of restricting politically vital information to schoolchildren is itself borrowed from the Jim Crow era. Chapter 9 of Carter G Woodson’s 1933 book, The Mis-Education of the Negro, is called Political Education Neglected. In it, Woodson describes how history was taught “to enslave the Negroes’ mind”, by whitewashing the brutality of slavery and the actual roots and causes of racial disparities. In Fugitive Pedagogy: Carter G Woodson and the Art of Black Teaching, Jarvis Givens documents the strategies Black educators used to convey real history in the constricted environments of Jim Crow schools, strategies that, tragically, will again become necessary for educators to take up again today.
Fascist ideology strictly enforces gender roles and restricts the freedom of women. For fascists, it is part of their commitment to a supposed “natural order” where men are on top. It is also integral to the broader fascist strategy of winning over social conservatives who might otherwise be unhappy with the endemic corruption of fascist rule. Far-right authoritarian leaders across the world, such as Brazil’s Jair Bolsonaro, Hungary’s Viktor Orbán, and Russia’s Vladimir Putin, have targeted “gender ideology”, as nazism targeted feminism. Freedom to choose one’s role in society, when it goes against a supposed “natural order”, is a kind of freedom fascism has always opposed.
According to National Socialist ideology, abortion, at any point in pregnancy, was considered to be murder. Just as it was acceptable to murder disabled people and other groups whose identities were considered dangerous to the health of the “Aryan race”, it was acceptable to perform abortions on members of these groups. In the first six years of Nazi rule, from 1933 to 1939, there was a harsh crackdown on the birth control movement. Led by the Gestapo, there was a punitive campaign against doctors who performed abortions on Aryan women. The recent attack on abortion rights, and the coming attack on birth control, led by a hard-right supreme court, is consistent with the hypothesis that we are, in the United States, facing a real possibility of a fascist future.
If you want to topple a democracy, you take over the courts. Donald Trump lost the popular vote to Hillary Clinton in 2016 by almost 3m votes, and yet has appointed one-third of supreme court, three youthful far-right judges who will be spending decades there. The Roberts court has for more than a decade consistently enabled an attack on democracy, by hollowing out the Voting Rights Actover time, unleashing unlimited corporate money into elections, and allowing clearly partisan gerrymanders of elections. There is every reason to believe that the court will allow even the semblance of democracy to crumble, as long as laws are passed by gerrymandered Republican statehouses that make anti-democratic practices, including stealing elections, legal.
There has been a growing fascist social and political movement in the United States for decades. Like other fascist movements, it is riddled with internal contradictions, but no less of a threat to democracy. Donald Trump is an aspiring autocrat out solely for his own power and material gain. By giving this movement a classically authoritarian leader, Trump shaped and exacerbated it, and his time in politics has normalized it.
Donald Trump has shown others what is possible. But the fascist movement he now leads preceded him, and will outlive him. As Toni Morrison warned, it feeds off ideologies with deep roots in American history. It would be a grave error to think it cannot ultimately win.
This article was amended on 22 December 2021 to fix a typo.