Power operates in non-explicit ways, in indeterminable modes that exceed the economy and language of law. The fiction of the transcendence of law, of law being equal to justice, of law being committed to the needs of the people, must be scrutinized at its every enunciation. What is the cost of demanding compliance with, and enforcement of, laws without reassessing, prior to each act of enforcement, the latter's relation to justice? What modes of resistance are rejected or silenced when laws are prioritized over the people to whom the laws refer? How different is the enforcement of law in crisis from the enforcement of law in noncrisis? Is there ever a space of noncrisis in the state's narrative of the violence it exercises? Or is it simply a matter of state violence being more or less concealed, more or less visible?

This article is concerned with the state of emergency, with the sense of exceptionality and urgency its moniker imparts, and with the violence enacted in its name. I seek to investigate Giorgio Agamben's reading of the state of emergency and its contemporary relevance, particularly in relation to state violence in African American communities. Employing Alexander Weheliye's critiques of Agamben, I explore that which Agamben's theory of the state of exception – and its epistemological framework – excludes, diminishes, and conceals. I consider an example of an explicit and publicly declared state of emergency in the US to disclose various registers of violence through which states of emergency operate. I wish to analyze, through of the case of Joseph Kent, through what means the state justifies its violence. I employ a reading of Jacques Derrida's Force of Law to consider the role of aporia in discourse about, and in the enforcement of, the state of emergency, as well as to gesture to possibilities for more nonviolent relations with the law. The notions of aporia, of radical openness, of incommensurability, of the ever-present otherwise and elsewhere, are not new. What I propose is to apply these radically open theories to our relationship with the law and with state violence.

On 28 April 2015, Joseph Kent was kidnapped on live television. In under two minutes, an armored police vehicle simultaneously obstructed a news camera, created a wall against which Kent was physically trapped, and served as a holding facility into which he was thrown – all while the vehicle never stopped or changed its speed. Kent, a twenty-one-year-old African American Baltimore activist and organizer was, at the time of his arrest, a student at Morgan State University, working two jobs – one at a store in the mall and the other at a McDonald's – and living in Baltimore with his mother, stepfather, and eight siblings.Footnote ³ What does Kent's arrest – a recorded and publicly disseminated instance of explicit militarization of a civil community in the name of the preservation of law – reveal about the state of emergency in the US? What is generated and what is withheld when the law is conflated with justice, safety, and the state? What do publicly declared states of emergency reveal about the ongoing implicit state of emergency in the US?

On the night of the incident, according to Kent, police requested he help clear fellow protesters in time for a 10 p.m. curfew. He chose to assist with the request. After helping clear one side of the street, when he appeared to be the only protester remaining, either a police officer or a National Guardsman (the militarization of the police makes it difficult to distinguish visually between the two in the video) hurled a teargas canister near him. For protection, Kent put on a gas mask. Then, with impeccable military precision, he was captured by at least three officers, thrust into an armored vehicle, driven to another location, transferred to a police van, and taken to central booking. A few days after the arrest, in a CBS interview, Kent gave his own account:

At the time of his abduction, Kent represented a threat to the legitimacy of the law of curfew; and in the context of a publicly declared state of emergency, he was subordinated to that law. He notes he was publicly performing his mediatory role for the helmeted and shielded officers so they could view him as nonthreatening – in other words, he was performing for the officers as an act of survival. When he proclaimed, “everybody has to disperse” and “everybody has to leave,” either the officers thought Kent was addressing his own community members, or they thought he was addressing the police and National Guard – telling officers they needed to disperse, they needed to leave. If the officers held the latter perception, then Kent would be particularly threatening to those present solely to enforce the law, because he would have been not only deliberately disobeying the curfew-as-law, but also questioning the validity of the law itself, which would be a challenge to the validity of the enforcement of that law, and therefore to the authority behind the enforcement. From where do the laws of a state of emergency derive their authority, and what is at stake when this authority is challenged? What means are employed by the state to validate its use of violence?

A state of emergency requires a threat in order to present itself as a state of necessity. In the circumstances around Kent's arrest – in the context of a publicly declared curfew – the declared threat was an absence of law and order: the menace of non-state crime and violence. In order to continually generate and sustain the impression of a threat, the state rhetorically and legally criminalizes populations, characterizes the criminals as violent, and thereby justifies its own militarization and use of violence. As Judith Butler observes, writing about the trial of officers who beat Rodney King, the violence enacted by the state is always legitimized through an epistemology of whiteness that weaponizes the black body.Footnote ⁵ As Ta-Nehisi Coates writes, “in America, it is traditional to destroy the black body – it is heritage.”Footnote ⁶ This heritage of legitimizing particular state-employed or -condoned violences in the US is embedded in epistemic whiteness, and must be considered in its relation both to law-as-preservation and to law preservation.

In “Critique of Violence,” Walter Benjamin distinguishes between violence deemed legitimate and that which is criminalized. He distinguishes between lawmaking and law-preserving violence, noting that lawmaking violence is power-making violence. Therefore, when a non-state individual enacts lawmaking violence, the state reads it as a threat to the legal system. According to Benjamin, the state has a vested interest in “a monopoly of violence” to preserve the law. The state subordinates the individual to the law, which permits disproportionate state violence against non-state members. This monopoly of violence forms a stark distinction between violence deemed legitimate and necessary, and violence that is criminalized and penalized. This draws attention to the different frameworks through which the state reads, justifies, and criminalizes violence. Additionally, these issues question to whom the law is accountable. Benjamin notes that law-preserving violence, as opposed to lawmaking violence, is “threatening,” “predatory,” and employs militarism. Law-preserving violence explicitly subordinates the individual to the state; making it, I would argue, the most explicitly linked to the enforcement of law in a state of emergency. In examining the enforcement of law, Benjamin notes that police have an “all-pervasive, ghostly presence” and that they possess both lawmaking and law-preserving power. Reflecting on his arrest, Kent stated, “I suffered minor little scars from the shields, but other than that I'm alright.”Footnote ⁷ That he would describe his injuries as overlookable is due, in part, to the context of potential state violence that could have been, and perhaps will be in the future. Scars from the aggressively wielded shields of militarized police and the National Guard are deemed minor relative to the ghostly presence of the police's more damaging violences – including the ever-present threat of death that Kent had been protesting in the first place when he was arrested.Footnote ⁸ In his analysis, Benjamin does not directly address the conflation of the police and the military – such as the deployment of the National Guard during recent protests, or the Pentagon-donated weapons and equipment in raids on residential neighborhoods while enforcing the War on Drugs. What possibilities are foreclosed by the militarization of police? Kent addresses the state's militarization of his neighborhood, as well as the resulting (im)possibilities for communication:

How can a protester address a militarized officer whose language has already been declared through a vocabulary of enforcement of law – through facemasks, shields, and ready-to-use weapons? The nuances of listening are already impossible when a state-deployed group of individuals have a single responsibility, which is in direct relation to the law itself, rather than to the people to whom the law relates. Tom LeGro and Thomas Gibbons-Neff of the Washington Post analyzed photographs of policemen deployed during the Ferguson protests – which occurred shortly before the Baltimore protests, and involved many parallel protesting and policing strategies – and identified the following military-style equipment being used by police officers: acoustic riot control devices, armored tactical vehicles, helmets, goggles, flare launchers, smoke launchers, teargas launchers, KA-Bar-Style fighting knives, night-vision goggles, twelve-gauge shotguns, paintball guns, M4 carbines, marine pattern camouflage clothing and gear, long-range scopes mounted on tripods, mega AR-15 marksman rifles, and specialized body armor.Footnote ¹⁰ While not all these weapons were physically used against protesters, they were deployed as tools for militarization of a civil neighborhood; they were used as optics and as threats to lawbreakers. And as Michelle Alexander notes, over the last few decades there has been an escalation of the militarization of city police, with the Pentagon providing local police departments with military equipment.Footnote ¹¹ In addition to a highly militarized police force, between three thousand and four thousand National Guardsmen, summoned by Maryland governor Larry Hogan, occupied Baltimore from 27 April to 4 May 2015.Footnote ¹² How does the National Guard differ from contemporary police in riot gear? Today, as Emily Badger notes, “the distinctions are less apparent” than they used to be. In an article regarding the deployment of the National Guard in Ferguson, Missouri during protests in response to the murder of Michael Brown by a police officer, she states,

National Guardsmen are their own legitimation; their presence is its own justification. When they arrive, it means a crisis has already begun and is the cause of their deployment. They are summoned in circumstances deemed to be emergencies (an assessment made by the police, the mayor, the governor, and/or the President, the last two being the only parties who can choose to deploy them), including natural disasters such as tornadoes, floods, and earthquakes, and specific circumstances of domestic unrest. What is the impact of associating a natural disaster with protesters? Is an occurrence of someone resisting curfew in her own neighborhood street, or breaking the window of a drugstore, analogous to the wilderness of a tornado blindly ripping through a child's bedroom? And what of the many National Guardsmen who are deployed overseas as soldiers, most recently in the ongoing wars in Iraq and Afghanistan? Writing about the aftermath of Hurricane Katrina, Naomi Klein describes the scene as “a sprawling convention center … now jammed with two thousand cots and a mess of angry, exhausted people being patrolled by edgy National Guard soldiers just back from Iraq.”Footnote ¹⁴ What are the potential dangers of employing officers – who are trained to perceive their environment as riddled with enemies in wartime – to control with state-sanctioned violence those community members who are criminalized through legal discrimination? Jim Craig, a professor of military and veteran studies at the University of Missouri–St. Louis states, “The National Guard by design is militarized, and so that doesn't theoretically de-escalate the situation.”Footnote ¹⁵ The militarization of civil neighborhoods communicates a subordination of citizen and community to law and to state, skewing the relationship between law and justice.

A critical tool for perpetuating systems of injustice is to feign that obeying laws will inevitably lead to justice. In “Force of Law,” presented at a 1989 colloquium entitled Deconstruction and the Possibility of Justice at Cardozo Law School, Jacques Derrida argues that the law is performative and not a priori existing. He distinguishes law from justice, undermining an oversimplified narrative of cause and effect. Law justifies itself in applying itself, whether or not it is externally judged to be “unjust or unjustifiable.” Its enforceability is implied in the very concept of justice as law.Footnote ¹⁷ So law is enforced not because it is right, not because it is the source of justice, but because enforceability is what makes law law. In other words, implied in law is that it can be applied by force. And this force can be “direct or indirect, physical or symbolic, exterior or interior, brutal or subtly discursive and hermeneutic, coercive or regulative, and so forth.”Footnote ¹⁸ In this way, law is “performative”; it performs its authority, and its law-ness, through its enforcement.Footnote ¹⁹

Importantly, and as I will examine later in regard to the role of “objectivity” in rhetorical and epistemic violence, law is a calculation that supposes the generality of a rule and applies that rule to a general public – a heterogeneous public comprising individuals subjected for generations to various interrelated economic, epistemic, gender, racial, ethnic, religious, political, sexual, and ableist institutionally operating hierarchies. However, justice, Derrida argues, is incalculable and “must always concern singularity.”Footnote ²⁰ If justice in incalculable, is it ever possible to know whether one is being just? Derrida proposes that the only way to do justice to justice is to recognize that justice addresses and operates in the singular, meaning that justice can only operate through individual cases: through a single decision, a single act, a single address. It must be more than an idea to be justice; it must be put into practice. The only way to do justice to justice is to employ a rigorous, intimate and excessive – though always inadequate – scrutiny, what Derrida describes as “sensitivity to a sort of essential disproportion” of the “normative apparatus surrounding justice.”Footnote ²¹ Unassessed, static, and universally applied laws should be closely scrutinized, as should the political, social, and historical institutions through which laws are applied and enforced. Each legal decision emerges within a distinct temporal, cultural, economic, and political context, rather than from an objective and universal system of law or justice. This context encompasses social institutions that make up what Patricia Hill Collins calls the “structural domain of power,” which reproduces subordination over time, and which includes “the policies and procedures of the U.S. legal system, labor markets, schools, the housing industry, banking, insurance, the news media, and other social institutions.”Footnote ²² In order to do justice to justice, one must not blindly accept inherited systems, theories, determinations, and practices of justice; one must challenge the authority, and elucidate the violence, of law – not only theoretically, but also in every legal, judicial, and penal decision. In Political Theology, Carl Schmitt reminds us of the subjectivity of the law and legal institutions. Laws and “the legal order” are entirely subjective – more specifically, they are based on decisions. They are not self-evident, though they can be applied this way. All orders, all structures of thought, law, practice, etc., are decisions made subjectively:

Imposing a narrative of objectivity to obscure the subjectivity of decision-making is a form of violence. By “objectivity” I refer to the quality of being uninfluenced by the elements of human life, including culture, ideology, history, gender, sexuality, race, and class, and thus being unbiased. Additionally, this term gestures to the misconception that everyone has access to all forms of perception; or, put another way, by using this term, I seek to draw attention to that which is present but may be less visible given privileged modes of sensing and reading. Derrida illustrates examples of a wider and less explicit spectrum of violence, including the violence enacted by translation, “an always possible but always imperfect compromise between two idioms,” and the violence of being subjected to binary questions, for which he uses the title of the talk as an example: “That is the choice, the ‘either/or,’ ‘yes or no’ that I detect in this title. To this extent, the title is rather violent, polemical inquisitorial.”Footnote ²⁴ Identifying nuanced and concealed operations of violence such as these is crucial to the possibility of holding state violence accountable, which is a step in any aspiration to justice. Reading violence in a plurality of registers allows one to discern violence enacted through the rejection of possibilities.

Derrida also notes that our responsibility temporally exceeds us: it is inherited from those who precede us, and the impact of our engagement with it – whether or not we choose to act on this responsibility, to recognize it, to claim it – may disclose itself after we are gone. As a result of this temporal excess, our responsibility – in its uncontainability – exceeds our understanding of it. We all have a responsibility “without limits, and so necessarily excessive, incalculable, before memory.”Footnote ²⁵ Audre Lorde notes the incalculability and interrelatedness of our responsibility toward one another when she writes, “None of us escapes the brutalization of the other.”Footnote ²⁶ We are, as Lorde notes, ethically, spiritually, and often materially responsible for one another's well-being – and we are embedded in networks of power from which we may be benefiting at the cost of others’ brutalization. This temporally exceeding responsibility displaces a cause-and-effect framework, which is restricted to each single individual, and discloses, instead, a more complicated and implicit network of interrelationships across geography and time. To try to understand and enact such an uncontainable responsibility involves repeatedly calling into question the credibility of the law. Derrida argues that when an axiom's credibility is suspended, in the absence of certainty, anxiety can ensue. And anxiety – resulting from non-resolution, from the open question, from the “always unsatisfied appeal” – is required for justice to even be possible.Footnote ²⁷ The interval of discomfort and suspense is precisely where transformations take place. Such transformations are only possible when fictions of certainty and totalizing representability are repeatedly interrogated and undermined.

On 28 April 2015 Mayor Stephanie Rawlings-Blake declared a week-long 10 p.m. to 5 a.m. curfew for the city of Baltimore. Violating the curfew would constitute a misdemeanor.Footnote ²⁸ In a state of emergency, the laws – including curfew-as-law – and those who defy them, are made unambiguous, un-individualized, and calculable. Curfew, and its enforcement, harbor no indeterminacy. It is anti-aporia. It does not allow for undecidables. It clearly delineates the boundaries of what is inside and outside of the law; and to determine that something is outside, or against, the law is already an absolute acceptance of the law – rather than an engagement with the law as performance, as an ongoing possibility that can be destroyed and remade. If the state-expressed justification for a curfew is a publicly declared state of emergency then its continued enforcement relies on a continued state of emergency. In this way, violence from protesters is required as public proof of the necessity and legitimacy of the curfew and its enforcement. Thus curfew is entirely calculable as law; its violent enforcement is always legitimated through the existence of the curfew itself as a response to a need; it requires violence from the community to continue being enforceable; its enforcers enact violence on behalf of the state against those who enact non-state violence; and those who are tasked with enforcing curfew-as-law are tasked solely with preserving the law itself by making every non-police member obey it, without ever employing what Derrida calls a “fresh judgment” of that law.

The most effective forms of influence and regulation are those that are invisible – those that conceal their work as they do their work. The legal imposition of a curfew is an explicit manifestation of a state of emergency. However, what more concealed embodiments of such a state are perpetually at play, though perhaps more implicitly or demographically concentrated?

In a state of emergency, certain rights of a population are suspended, and the state exercises violence in the name of preserving the citizens and/or the state against a state-declared threat. The implication is that a state of emergency, whether or not publicly declared, is an exception to the normal order; that the normal legal order cannot sustain or address such a crisis, and therefore cannot be wielded to protect the citizens or the state. In such narratives, “law and order” are rhetorically bound to the promise of safety and yet the state of emergency presents itself as a zone in which conventional laws are suspended. I suggest, however, that there exists a state of emergency embedded in conventional US law. These laws are rhetorically dissimulating, but are not a suspension of the law. In State of Exception, Giorgio Agamben argues that a state of emergency is neither inside nor outside the law. It is not a special set of laws for an emergency; rather, it is a suspension of all laws: “The state of exception is not a special kind of law (like the law of war); rather, insofar as it is a suspension of the juridical order itself, it defines law's threshold or limit concept.”Footnote ²⁹ He makes the crucial observation that a state of emergency is possible not only in the context of war, but also in times of social and economic crisis. The “modern state of exception,” as Agamben traces it, is a creation of the democratic–revolutionary tradition and not the absolutist one.Footnote ³⁰ This is an important development from Schmitt's reading of the state of exception, which binds the state of exception to dictatorships. The assumption underlying Schmitt's theory is that contemporary democracies such as the US are free from state violence; or rather, that the very existence of branches of government somehow makes democracy immune from enacting state violence unless there is a disruption of the “fundamental hierarchy of law and regulation in democratic constitutions.”Footnote ³¹ Agamben writes,

Agamben deliberately chooses the term “state of exception” over other possible terms for this particular set of circumstances, in part because the state of exception is not rhetorically limited to, and therefore does not reinforce, the war narrative often fictitiously perpetuated by the state:

I employ the term “state of emergency” to emphasize the element of crisis presented in the state-provided narrative. Agamben's acknowledgment that the state of exception is not merely provisional, as it feigns to be, but rather can become a “lasting practice” is valuable to help discern more coded states of exception. However, one should not negate the possibility that the legislative and judicial branches can be complicit in enacting a state of exception and its corresponding violences. Discussing the role of the state of exception in American history, he writes,

Agamben also notes in contemporary states of exception that the government “instead of declaring the state of exception prefers to have exceptional laws issued.”Footnote ³⁵ In this way, he identifies the possibility for a legally coded state of exception. He writes that “the sovereign power of the president is essentially grounded in the emergency linked to a state of war,” so that “over the course of the twentieth century the metaphor of war becomes an integral part of the presidential political vocabulary whenever decisions considered to be of vital importance are being imposed.”Footnote ³⁶ He writes,

Evidence of this “fictitious” rhetorical maneuvering can be seen most recently in both the War on Drugs and the War on Terror in the US. Emphasizing the exceptionality of the state of exception, Agamben argues that it is a space devoid of law, and yet still carries the force of law. He demonstrates this visually by crossing out the “law” in “force of law”: “The state of exception is an anomic space in which what is at stake is a force of law without law (which should therefore be written: force-of-law).”Footnote ³⁸ He points out that the state of exception needs law, but can only assert itself when law is suspended. Today, with the War on Terror, the state of exception is at its “maximum deployment,” through permanent internal states of exception, all while still claiming to be “applying the law”:

Agamben observes that a state of exception is “a suspension of the juridical order itself,” but at what point does it cease being a suspension of laws and in fact constitute its own rigorous legal and judicial system?Footnote ⁴⁰ Why does he read the circumstances of the state of emergency as an exception to the rule, rather than as the rule itself, as foundational to the creation of a society? Can the state of emergency be read as a state of hyperlegality, as Colin Dayan argues in The Law Is a White Dog, rather than an exception to, or suspension of, law?Footnote ⁴¹ Agamben observes that emergency or exception can become the rule, but he identifies it only in a post-9/11 context for democracies, and in juxtaposition to a norm, rather than as the norm:

There is an implication in Agamben's reading that the non-state-of-exception laws are themselves a kind of norm, a non-abusive or nonviolent system, and that in nations he identifies as democratic, it is in circumstances of crisis/exception that the law gets suspended and enforced violently. However, I propose that the internal permanent state of exception in the US is intrinsic to the “normative aspect of law.” As Charles W. Mills writes regarding the United States,

For example, in the case of mass incarceration in the War on Drugs (the manifestation of a more implicit state of emergency), the Supreme Court (the governmental body that interprets the Constitution and sets national precedents for how all lower courts can interpret, apply, and contest laws) has repeatedly legally codified rhetorical, economic, physical, and institutional racism. As Alexander writes<

While he does note that there is such thing as a “perpetual” state of exception, such as with the post-9/11 War on Terror, Agamben does not explore the notion of a state of emergency that is integral to the founding of a nation. He writes that the creation of a permanent state of exception (even when not officially declared) has become an essential policy of the modern state, including in states that consider themselves democracies – however, what he reads as permanence still marks its origin in a point after the initial establishment of the state. Agamben points out that the government tries to present the state of exception as a “state of necessity” in order to justify its force (and violent enforcement) of law. Importantly, he problematizes the notion of necessity as it is treated by the state as well as by many scholars:

He reminds the reader that necessity is determined by the subjective interpretation of the one claiming the necessity. And just as Derrida points out that justice can only be enacted in a single decision – as opposed to the generality of a law – Agamben points out that “necessity ultimately comes down to a decision” and “that on which it decides is, in truth, something undecidable in fact and law.”Footnote ⁴⁶ Such that the general determination by the state of a state of necessity, as justification for a state of emergency, is never objectively or universally true, it always serves the interest of one at the expense of another. In The Shock Doctrine: The Rise of Disaster Capitalism, Naomi Klein points out how, in states of emergency, “leaders are liberated to do whatever is necessary (or said to be necessary) in the name of responding to a national emergency.”Footnote ⁴⁷ A sense of urgency is bound to the notion of necessity, and, as Klein notes, such states “are, in a way, democracy-free zones – gaps in politics as usual when the need for consent and consensus do not seem to apply.”Footnote ⁴⁸ In considering the exceptionality of a state of emergency, neither Klein nor Agamben notes the perpetual state of emergency embedded in the American legal and juridical systems. In Habeas Viscus, Alexander Weheliye argues that a state of emergency is not necessary for those “already marked for violent exclusion.”Footnote ⁴⁹ Or, read another way, there has been a state of emergency built into the legal infrastructure of the U.S. from its founding, which is in fact operating all the time. One need not repeatedly publicly declare a state of emergency if there is an always-already state of emergency, in which the administration of justice is enveloped in the violent enforcement law, and civil, social, and human rights are suspended.Footnote ⁵⁰ Weheliye observes the perpetual state of emergency targeting distinct populations in American society: “As opposed to the temporally bound state of exception espoused by Agamben and Schmitt that revokes the legal entitlements of all citizens, here different populations – often racialized – are suspended in a perpetual state of emergency.”Footnote ⁵¹ In the US, the state of exception is only an exception for some, and it is inscribed in the law, though sometimes obscurely. Presenting a more complicated and nuanced assemblage of power, law, and sovereignty, Weheliye draws from, criticizes, and is in conversation with the work of Agamben, Michel Foucault, Hortense Spillers, and Sylvia Wynter to redefine and reread notions of bare life and biopolitics, leading to his analysis of “racializing assemblages of subjection.”Footnote ⁵² Specifically, he places Wynter and Spillers's work, which he describes as “alternate genealogies for theorizing,” against Agamben and Foucault's.Footnote ⁵³ Agamben’s work, Weheliye writes, “discursively duplicates the very violence it describes without offering any compelling theoretical or political alternatives to our current order.”Footnote ⁵⁴ In criticizing Agamben and Foucualt's theories, he notes that race, as a process of hierarchization, must be “placed front and center” in any analysis of political violence, rather than deemed to be too “primitive” for Western legal, sociological, philosophical, and literary scholarship.Footnote ⁵⁵ In this way, he notes the continued decolonization required for the “disciplinary and conceptual formations of knowledge” in which we work.Footnote ⁵⁶ Race and racialization are foundational to the culture, institutions, and perpetual state of emergency in the US; however, in political and theoretical discourses colonized by the supremacy of so-called objectivity, the workings of whiteness dismiss race as subjective and personal. This strategy of enacting political violence is reinforced by laws that make the consequences of hierarchization seem individualized rather than systemic.

Weheliye also points out the distinction that Agamben makes between “the normal order” and the state of exception, and the sites that Agamben excludes out of hand from his analysis – such as prisons.Footnote ⁵⁷ Another of Weheliye's critiques of Agamben is that his analysis is entirely based on a framework in which European Nazism is viewed as the apex of state violence and horror, thus ignoring “the historical relationality and conceptual contiguity between Nazi racism and the other forms of biopolitics … perfected in colonialism, indigenous genocide, racialized indentured servitude, and racial slavery.”Footnote ⁵⁸ In Discourse on Colonialism, Aimé Césaire points out this tendency in Western scholarship, describing how the barbarism of Hitler was a culmination of all the barbarism Europe had previously unleashed on the non-West.Footnote ⁵⁹ He writes that “they tolerated that Nazism before it was inflicted on them … they absolved it, shut their eyes to it, legitimized it, because, until then, it had been applied only to non-European peoples.”Footnote ⁶⁰ To work within, and therefore reinforce, such a hierarchical framework of registered violence is itself violent in its containment and its corresponding exclusions. In putting forward a contemporary reading of the state of emergency, one must ask, which modes of sensing and reading do Western pedagogy, epistemology, philosophy, society, etc. privilege? What exists in the environment that makes certain connections more likely than others? Given the intersectional hierarchies that are always operating, particular violences are rendered unregisterable and unmournable. As Teju Cole notes in “Unmournable Bodies,” the global outpouring of support and visible performances of solidarity against the 2015 Charlie Hebdo terror attacks in France drew attention to countless overlooked global populations that have endured terror attacks of equal or greater proportion. He writes,

Cole points out a marked distinction between violences read as worthy or unworthy of mourning, which “often keeps us from paying proper attention to other, ongoing, instances of horrific carnage around the world.”Footnote ⁶² Privileging certain violences over others must be scrutinized to better discern that which is being overlooked, rejected, and excluded in the formation and enforcement of laws.

To reimagine our relation to law, to allow for other potentialities, one must first discern the myriad interrelational dynamic of power through which law is justified and enforced. One must also recognize the explicit and implicit state of emergency embedded in American political, legal, and cultural institutions. A publicly declared state of emergency presents itself as a state of exception – a necessary suspension of the legal norm – and thus can conceal the implicit state of emergency operating all the time. In presenting an explicit state of emergency as an exception, the state implies that in “normal” and nonemergency circumstances the state does not employ state violence. Instead, the explicit militarization of law enforcement – which, through increased media coverage, is viewed by a broader and more varied demographic – should elucidate more coded state violence always operating. State violence enacted in any state of emergency is rhetorically maintained through security imperatives – binding the notion of law and order not only to the security of the state, but also to the personal, economic, moral, and social safety of its residents – often by equating the preservation of the state with the preservation of its non-state residents. Whether or not publicly proclaimed, every state of emergency is sustained through crisis declaration, enemy condemnation, and a conflation of law with safety and justice. While rigorous censorship, publicly performed punishments, curfews, and calls for the National Guard in residential communities are markers of explicit and publicly discernible states of emergency, my contention is that the daily – and often implicit – legal, judicial, economic, and militaristic enforcement of laws, such as in the name of the ongoing War on Drugs, constitute an ongoing state-endorsed state of emergency whose roots lie in the very founding of the legal, juridical, and political institutions of the US. Critically rereading the notion of the state of emergency by examining it not as a state of exception but as a state of permanence allows one to discern various violences enacted by the state all the time.