A Colony in a Nation

by Chris Hayes

  II

  The images in the video are blurry and dark—a scene that has the jagged uneasiness of something you shouldn’t be seeing. Voices on the edge of panic and brimming with rage discuss the uniformed men who are marching into view. In the smartphone’s shaky frame, you can start to make out the invaders in silhouette against a vehicle’s flashing lights. Lots of shouts now from the onlookers who are seeing the same image coming into view. The marching men are dressed in black, and as they come closer, you can see they are wearing armor. Bulges at the knees. Shields in hand. They stroll casually. The street is empty, but the bystanders, standing in their yard sipping from plastic cups, begin chanting at them: “You go home! You go home! You go home!”

  One of the bystanders narrates the unfolding scene into the phone. “They are marching toward us. You can see ’em coming, and they are marching toward us.” At this point the viewer sees many more men in armor than had first appeared. Maybe three dozen in a walking wedge formation are making their way up the street. They are not in a hurry. Those congregated in the yard chant “Hands up! Don’t shoot!” The camera pans to the yard as four young men, one holding a drink, reach up in to the air, chanting “Hands up!” in unison.

  A few nights earlier in this neighborhood a police officer named Darren Wilson had shot and killed a young man named Michael Brown. Brown was unarmed. The friend who was with him, and several other eyewitnesses, said he had had his hands up* when he was shot. In the following days, protests erupted, a gas station was burned, police came out in shockingly heavy force, and those who took to the streets united around the chant “Hands up! Don’t shoot!”

  The young men in the yard are now hit by the high beams of a police vehicle. Through the loudspeaker, it sounds as if the cops tell them to “go home,” and they respond “We in our yard!” pointing to the ground beneath their feet for emphasis. The men in the yard raise their hands defiantly, as the loudspeaker instructs them “Please return inside,” with the same oddly laconic pacing of the armed men marching toward them. The residents stand defiantly with hands up, as someone off camera angrily calls the police’s bluff: “Go head, shoot that motherfucker. Shoot that motherfucker!”

  Another says, “C’mon. You want it. Come get it. You want it. Come get it.”

  His friend yells, “This my property!” and points again down at the ground as the camera pans to reveal the police have now come within about twenty feet.

  And then: a brief flare, and the screen goes dark.

  Bedlam. Screams. The person holding the camera appears to hit the ground.

  The camera returns upright and shows clouds of gas where the cops had been, with the lights glowing eerily behind them. The man who said he owns the house appears apoplectic. The police just shot a gas canister into his yard! He hops around the frame in rage, pointing down again at the ground “This my shit! This my shit! No, fuck that shit!”

  A friend comes to escort him away from confronting the phalanx of cops as he continues to yell, “This my shit!”

  Then: “You got all this recorded? This my backyard!”

  “This what they do to us!”

  “This my backyard!”

  “This is our home. This is our residence.”

  The man who appears to be the homeowner yells back to the cops, “Now go the fuck home!”

  And then his friend turns to the camera and asks “Why do you think people say ‘Fuck the police’?”

  He points back at the smoke still wafting in the background.

  “This shit.”

  WHEN A COP TELLS you to do something, do it. You hear this folk wisdom a lot, and it basically comes in two varieties. The first version is the central lesson of the Talk that so many African American parents give their children about how to survive a police encounter. Practical advice: Keep your hands on the wheel. Don’t make sudden movements. Say “Yes, officer. No, officer.” Et cetera.

  The other version of this folk wisdom isn’t merely practical advice but reflects a deeper belief about the sanctity of police authority. It’s what lies behind the question you so often hear: Why didn’t she just do what the cop said? That inquiry comes unbidden every single time some incident of police violence is captured on video. Even when the citizen in question is, say, a sixteen-year-old foster child sitting at her desk in her classroom in Columbia, South Carolina, refusing to leave, only to be body slammed and dragged across the room. Why didn’t she just comply? and None of this would have happened if she’d just listened.

  Section 29-16(1) of the municipal code of the city of Ferguson, Missouri, codifies this principle. It is a crime to “[f]ail to comply with the lawful order or request of a police officer in the discharge of the officer’s official duties.” As the Department of Justice would later show, the police much abuse this statute. Ferguson cops routinely issue orders that have no legal basis and then arrest citizens who refuse those orders for “failure to comply.” It’s a neat little circular bit of authoritarian reasoning.

  In the video, the police order the onlookers to go back inside their homes. When the men in the yard refuse to comply, the police shoot tear gas at them. But can the police do that? Don’t you have a right to stand in your own front yard? Thirteen years before the Declaration of Independence, British member of Parliament William Pitt defended the rights of Englishmen to privacy in their own home. He declared: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his forces dare not cross the threshold of the ruined tenement!”

  In modern parlance: This is our home. This is our residence.

  Like the vast majority of national reporters who descended on Ferguson in August 2014, I had no idea of the place’s existence until the night of August 9, when reports started circulating on Twitter that a young unarmed black man had been shot and killed there.

  A few days into the unrest that followed, an Iraq war vet tweeted a photo of himself next to one of a cop on the streets of Ferguson, noting, “The gentleman on the left has more personal body armor and weaponry than I did while invading Iraq.” Not just that: the cops in Ferguson were clad in head-to-toe camouflage, as if the olive and sandy brown color scheme would help them blend into the McDonald’s parking lot they were patrolling.

  The events on the streets of Ferguson in the days after Brown’s death didn’t outrage black people alone—it spooked people of all races. People who’d never had occasion to personally distrust the police wondered what the hell weapons of war were doing on the streets of this small St. Louis suburb. Politicians from both parties raised their voices to express concern, and to urge restraint, as the nightly news carried images of the kinds of disorder—tear gas, riot gear, clashes with police—that we normally associate with countries where the government sends in armed troops to put down dissidents, or where the possibility of all-out war does not seem remote.

  Of course none of this would have happened, some argued, if protesters had done what they were told. If everyone had listened to the police, everything could have continued as it always had.

  Societies operate through formal procedures of law and force but also through norms of compliance. Without those norms, nothing would function. Suppose you want to make a left-hand turn, but a traffic cop says you can’t. You don’t ask her to cite the law—you just don’t make the turn. You assume there’s a good reason for her to be blocking that street. Maybe there’s been an accident. Maybe there’s a fire. Or maybe there will be less traffic, and things will be more orderly, if she keeps you and everyone else from making a left at rush hour. Fine. Fair enough. Do what the cop says.

  But as a principle of self-governance, particularly of American self-governance, “do what the cops say” is a pretty strange unofficial motto. This great land of ours, this exceptional beacon of liberty, was founded by men who, to borrow a phrase, refused to comply. Wh
o not only resisted lawful orders but rebelled against the government that issued them. Colonists chased the king’s officers through the streets, caught them, beat them, tarred and feathered them, and wheeled them through town for all to mock and shame. As distant as it may seem now, that’s our national heritage when it comes to “lawful orders.”

  SEVERAL MORNINGS AFTER MICHAEL BROWN was shot and killed, and a group of angry youths burned down the local Quick Trip gas station, I ran into a few gentlemen assembled in that same burned-out parking lot, arguing and talking about politics as they cleaned up the site. One man in his fifties, with a wiry intensity, looked into the camera I had with me and said, “We want the world to know that we are a dignified, intelligent people, and we deserve every liberty that the United States Constitution affords any citizen.”

  But what was the Constitution doing, really, in Ferguson? It seemed an absurdly remote abstraction, as practical a piece of protection as reciting a poem into the barrel of a gun. And yet in a grand irony the document itself, and the nation it binds together, was born of almost the exact same set of grievances as those of the protesters getting teargassed in the streets of Ferguson.

  We are taught in grade school that the motto of the America Revolution was “No taxation without representation.” The tyrannical King George III insisted on taxing the colonies against their will, employing ever more draconian measures to do so, until the colonists could take it no longer.

  The idea that unjust taxation triggered the American uprising stays with us (or at least it stayed with me). But dig a little deeper into the history, and it turns out the spark of the revolution was not so much taxation as the enforcement of a particular tax regime—in other words, policing.

  Today the word taxes conjures up images of our modern administrative state, with automatic payroll deductions, marginal brackets, and sales tax, a system in which the collection of taxes is a bureaucratic affair. But that image fails to capture what taxation meant in the colonies at the time of the revolution. Under the British colonial system (and indeed for the first century of the United States), the lion’s share of taxes was assessed as tariffs: duties imposed on those wishing to import or export goods. These tariffs were central to the entire colonial system erected by England and other empires during the era of mercantilist trade wars that dominated the seventeenth to nineteenth centuries.

  Under British law (codified in the Navigation Acts), merchants and consumers in the colonies had to import nearly all of their products from British companies and pay very steep tariffs to do it. While Adam Smith would show, in The Wealth of Nations (published the same year as the Declaration of Independence), how self-defeating this system of trade ultimately was, to the mercantilist empires at the time the logic was impeccable: colonies meant cheap commodity imports for the home country, a lucrative market for manufactured exports, and significant revenues through tariffs on all those exchanges. (The British would later employ this same logic to outlaw Indians on the subcontinent from making their own salt, or weaving their own garments, so they’d have to purchase both from their colonial ruler.)

  So if you lived in the colonies and wanted to buy some-thing that wasn’t produced or grown there—whether tea to drink or the molasses your distillery needed to produce rum—you had to import it through the Crown and pay a steep tariff. And that’s when you could actually get the thing you wanted. Often you couldn’t, since many popular products weren’t produced anywhere in the British Empire. Madeira wine was made in rival Portugal and became quite popular in the colonies, but it had to be smuggled in. (A shipment of Madeira would be at the heart of the 1768 Liberty Affair, an early skirmish over smuggling enforcement that would pave the way to the revolution. George Washington was a famous devotee of the beverage.)

  In the American colonies, local shipping magnates provided illicit goods like Madeira. Despite their businesses’ illegitimacy before British law, they were men of great wealth, prestige, and power. John Hancock, the man whose iconic signature dominates the founding documents, was one of the most infamous smugglers of his day. He was a criminal, basically—and he and his fellow smugglers kept the colonies running. Without the goods they smuggled, there would have been little local economy to speak of. Because the black market was so widespread, agents of the Crown tended to view the colonies as a den of iniquity, a seedy place overwhelmingly populated by hustlers, hucksters, and shady characters. One British officer referred to the residents of Newport, Rhode Island, one of the main smuggling hubs at the time and now a famous bastion of privilege, as “a set of lawless piratical people . . . whose sole business is that of smuggling and defrauding the King of his duties.”

  Much of that smuggling and defrauding centered on molasses, the raw ingredient needed for rum. Nearly all the molasses that American rum distilleries used to make their product came from Caribbean islands controlled by rival empires like the Dutch and the French. The demand for rum was bottomless, because rum was more than a drink. It was a kind of currency itself, a key commodity of exchange. Caribbean planters sent molasses north, the American colonies distilled the molasses into rum, and the rum was then sent across the Atlantic to the Gold Coast of Africa, where slavers used it to purchase slaves to bring back to the Caribbean.

  Smuggling in the colonies was not so different from drug dealing in economically depressed neighborhoods and regions today. During the pre-Revolutionary era, smugglers created economic activity that caused huge knock-off effects: a cascade of subsidiary industries and cash flow that kept a whole lot of people in the colonies (not to mention lots of business back in merry old England) in the money. The same goes for dealers in, say, Westside Baltimore or the South Side of Chicago or the South Bronx, or northern Maine or eastern Kentucky or South Central Los Angeles. Sure, the drug trade is illegal, reckless, and destructive, but it encourages commerce in places where the legitimate economy produces few jobs. While dealers and “the street” are viewed skeptically, often angrily, they also command status. Dealers, like smugglers, become institutions—the way, say, New Englanders viewed John Hancock in the years leading to the revolution.

  Such extensive criminal conspiracies depend and depended on codes of silence and the confidence that snitches will be punished. In 1759, when one informer in New York threatened to expose an illegal smuggling ring, a local official sympathetic to the smugglers arrested him on trumped-up charges, and an angry mob beat him to a pulp. Smuggling was so embedded in colonial society, British officers complained they couldn’t find anyone to enforce the law who wasn’t somehow connected to it. When they did manage to prosecute cases, they found that colonial juries engaged in their own version of nullification. Between 1680 and 1682 New England’s head of customs brought thirty-two seizure cases to trial. He lost thirty.

  The laws were unenforceable because the market demand was nearly limitless, and the colonies were an ocean away. And for much of the eighteenth century, the British Empire’s attitude toward our Founders’ rampant smuggling was one of benign neglect. The law was enforced in the same way drug laws are very loosely “enforced” on elite college campuses. Authorities know it’s happening, but they don’t go out of their way to bust people for it. Between 1710 and 1760, as the population of the colonies quintupled to over 1.5 million, the total number of customs agents rose from thirty-seven to fifty.

  But then, as is so often the case, a war changed everything. Between 1754 and 1763 Britain fought a bloody and expensive campaign against the French and allied indigenous tribes in North America. As the so-called Seven Years’ War dragged on, colonial officials watched in horror as smugglers openly flouted wartime laws that prohibited trading with the French enemy. When Britain signed the Treaty of Paris, ending the conflict, it gained much of Canada and Florida—but it had incurred a staggering amount of debt. The inexperienced young king, George III, turned to tariff enforcement in the colonies as a relatively painless way of replenishing the royal coffers. Or so he thought.

  Because taxe
s were ultimately enforced through police actions, the British crackdown essentially inaugurated America’s first tough-on-crime era. It was a classic crackdown: more customs officials were granted more expansive powers, while courts were streamlined to produce swift punishment and avoid the maddening jury nullification that had made it so hard to punish smugglers in previous decades. After 1763 customs officials no longer looked the other way in exchange for small bribes. Instead, they began operating in ways that looked a lot like what we now call “stop and frisk.”

  British customs officials took to trawling the coast, stopping merchant ships to search and harass them. Authorities had no specific cause for these searches other than their confidence that they’d find illicit goods. This was the same approach and justification that the NYPD infamously used to search for drugs and guns in the pockets of hundreds of thousands of young men, disproportionately black and brown, on the streets of New York in the 2000s. In a landmark legal ruling, a federal district judge found that “stop and frisk” amounted to wholesale, systematic violation of the Fourth Amendment protections against unwarranted search and seizure. “While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience,” Judge Shira Scheindlin wrote in her opinion. “No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life.”

  The British legal tradition has no Fourth Amendment, but common law had developed some privacy protections. In the 1604 Semayne’s Case, a British court ruled that the inhabitant of a house could rightfully bar the entry of a king’s officer if the officer had not gone through the proper process. This case articulated the now-famous Castle Doctrine, with British jurist Sir Edward Coke declaiming, “The house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.”