The Marxist philosophy is often seen as a product of its time that has served good in the past but lost its practical use in today’s late-stage capitalism. Many political figures disparaged its legacy: for instance, in the 1960s, the UK Labor Prime Minister Harold Wilson stated that it was unreasonable to look for solutions in the Highgate cemetery – the burial place of Karl Marx. However, the relevance of some ideas can stand the test of time or prove right years after their initial articulation. The global crises of the last few decades have exposed the vulnerability of the existing capitalist system and compelled political leaders and followers to seek out alternative approaches. It is now difficult to say whether Marx has been ultimately saved from oblivion and vindicated. Yet, the framework that he developed provides a unique, refreshing perspective on modern legal phenomena. This essay demonstrates how the teachings of Marx are useful in revealing the faults of American constitutionalism and the criminal justice system.
Marxist Philosophy: Key Ideas
The idea that is central to understanding the Marxist philosophy is that of class struggle and division. Marx argued that the advancement of capitalism led to the inevitable formation and segregation of two classes: the bourgeoisie, or the capitalist class, and the majority, or the proletariat. The first and the main difference between the two classes is the capitalists’ control over the productive forces, or in terms of Marxism, the economic base. The economic base was defined by Marx as an amalgamation of lands, factories, machines, and other elements that could be put into exploitation for goods production and financial gains (Gliniecki, 2018). Following this logic, the proletariat did not have access to the economic base, nor any influence over its use. Therefore, the survival of the masses depended on the ruling class. The oppressed had to sell their labor to the capitalists to make a living while the latter would still make much more profit.
The logical question might arise as to why and how the Marxist philosophy can be put to use when it comes to analyzing legal institutions in the United States. So far, Marxism seems to have only explained the economic inequality and the financial privileges of the ruling class. The philosopher comprehensively shows how his teachings can be expanded to the legislative and judiciary branches of the government. In particular, Marx demonstrates that those who have economic power control other social institutions as well (Gliniecki, 2018). It starts with the base: the capitalists get a grip on the forces of production: tools, machinery, and raw materials. Later, they extend their leverage to control the relations of production: social relationships between people engaged in the production of goods and services. As the capitalists improve their status and strengthen their social standing, they might as well get access to superstructures. In this manner, the ruling class enters the realms of law, the mass media, family, and education.
One opportunity that the access to the superstructures endows the ruling class with is ideological control. The legal system, family, education, welfare, and other societal institutions essentially translate certain values. The legal system, in particular, communicates the notions of justice and fairness; it dictates the appropriateness and legality of certain deeds. At the same time, the legislative branch normalizes practices through precedents and subsequent legal acts, which also forms the public sentiment. Marx wrote that the ruling class abused their power over superstructures to gain ideological dominance. Simply put, the capitalists sought to control how and what people think in society.
The end goal of ideological dominance was to appease the ruling class, so their ideas were presented as a norm and common sense. One such idea was propagating unequal, exploitative relationships as natural, acceptable, and even desired. According to Marx, the result of ideological control is false consciousness: the proletariat is practically coaxed and deluded into thinking that the current order of things is nothing abnormal (Gliniecki, 2018). Therefore, the capitalists have more leeway to pursue their interests further and normalize their efforts to make a profit at someone else’s expense.
Another rationale for the use of Marxist theory in the legal analysis is the importance of law highlighted by the philosopher. In his historical inquiries, Marx described the transition from primitivistic to advanced societies. He argued that at each stage, laws were the milestones of development; they were indicative of a paradigmatic shift and radical transformation. Moreover, in the last few centuries, the law has become the most important tool for controlling masses. Previously, the ruling class would resort to brute force and armed conflicts, whose efficiency did not stand the test of time. With time, it has become more reasonable to change the legal system in a way that would keep society in check while creating the illusion of an impartial state.
While the aforementioned ideas may appear coherent and explain the applicability of the Marxist theory to law, it does not mean that the whole approach is devoid of some pitfalls. First and foremost, it is hard to find any comprehensively articulated ideas about the law in what Marx and Lenin wrote. Whoever wants to make Marxism central to their legal theorizing or practice will inevitably face the scarcity of straightforward evidence. Neither Marx or his successors have constructed a theory of law, nor did they develop a concept of law. Admittedly, it is possible to put together a jigsaw puzzle of sporadic Marx’s mentions of law and speculate about the implicit theory. Yet, in the context of this research paper, it makes more sense to focus on some of the main features of Marxism. Only those features of Marxism shall be selected that influence decisively what Marxism means when it is put into operation as a legal practice. For this reason, this paper sets the American legal system in the context of the class.
Marxism and Constitutionalism
For the sake of clarity, it is essential to provide an exhaustive definition of the constitution. Generally speaking, a constitution can be defined as a set of rules in accordance with which citizens are governed. Constitutions regulate the relationship between citizens and nation-states as well as between various parts of the political system (Simba, 2019). It should be noted that constitutions are not a modern phenomenon: in actuality, rules about how states and societies should function, interact, and self-regulate emerged around the time when the first state structure was created. However, what makes the concept of a constitution and constitutionalism especially important and relevant today is the associations that it now has. Namely, today, whenever academics, lawyers, and politicians discuss the constitution or constitutional rights, what they are referring to broader liberal ideas such as fairness, equality, and justice. The general principle that encompasses progressive constitutional ideas is often called the Rule of Law.
One may rightfully ask as to what exactly separates the constitution from other legislative documents and why in recent times, it has become central to liberalism and the human rights movement. The answer lies in the restrictive power that every constitution possesses. First and foremost, the constitution limits the ability of the government by creating a system of checks and balances. Another limitation comes from the transfer of power in the hands of the citizens. Another essential function of the constitution is to define the basic structure of the government and its three main organs: legislative, executive, and judiciary branches.
Not only does a constitution allot powers to each of the three branches, but it also draws a clear line between their responsibilities (Simba, 2019). Through the system of checks and balances, it prevents any of the organs from gaining excessive leverage and influence processes in the wrong way. Of special note is the country’s constitution superiority to all other laws. Any law that is to be passed by the government needs to conform with the concerned constitution. In summation, the primary role of constitutions is to avert abuse of power. Constitutionalism, as a political approach, solidifies the principle that the authority of the government derives from and is limited by the fundamental law.
From the description provided above, one would think that a constitution is a reliable guarantor of the state’s impartiality and independence. Yet, the Marxist philosophy takes a critical stance when it comes to constitutionalism. To better understand Marxists’ scepsis toward the described phenomena, one should analyze some important historical events in terms of class struggle. One of the prime examples that Engels brings up in his work is that of the Athenian revolution. The thinker described a transition from natural economy to the more developed forms that stimulated and accelerated the formation of two classes and triggered a shift.
Engels wrote that political revolutions that would lead to the introduction of new laws would not automatically imply a change in the class nature of society (Gliniecki, 2018). According to the philosopher, Solon’s “political revolution” did not fundamentally change the class structure of Athenian society. While the new laws were passed and a governmental system was updated, Athens did not abolish slavery. In a quite similar way, the bourgeois revolutions moved society from one mode of existence to another: for instance, from feudalism to capitalism. However, again, these changes appeased the rich, wealthy, and powerful by and large: they did not eradicate oppression in the slightest. Despite the changing legal basis, the exploitation of the working masses persisted, however, evolving and taking different forms.
The example provided by Engles might seem to be outdated: after all, thousands of years separate modern America and Ancient Greece. Yet, there are clear lessons to be learned, and namely, the dangers of formal law that does not add to the social welfare and prosperity of all people. Today, many people lament the fall of democracy in the United States even though the very intention to build a democratic state is dubious, to begin with. To understand why Marxists are not particularly excited by US constitutionalism, one should clarify exactly how and by whom the US Constitution was created in the first place.
By 1776, after numerous attempts to cut ties from the British Empire, the US had finally reached full independence. The key figures in that process were those who are now referred to as the Founding Fathers of the United States. The seven men shared some commonalities: all of them came from an educated elite, resided in older settlements, and belonged to the upper-middle class. They were of British descent and Protestant faith and represented a meager fraction of the population. Interestingly enough, they had one more characteristic in common: they were explicit in their distaste for democracy.
The views of the Founding Fathers were nothing outlandish as the majority of European Enlightenment thinkers held them. They saw democracy as a threat to the social structure because masses could not be trusted with governance (Hoebeke, 2017). The Founding Fathers’ convictions were reflected at large in their writings. For instance, Hamilton argued that excessive inclination to democracy would lead to a drastic change in the regimen, with some of the options being monarchy and dictatorship (Hoebeke, 2017). Jefferson questioned the notion of majority in democratic processes: he saw a situation in which 51% of people could influence the fate of the other 49% as deeply unfair (Hoebeke, 2017). Madison emphasized the incompatibility of democracy with personal security; for him, that political form was associated with turbulence and violence.
All in all, the Founding Fathers made everything possible to keep democracy at bay. Even though they proclaimed the US a republic, it was instead an aristocracy, and a despotic one. Applying the Marxist analysis to the situation, it is safe to say that the Founding Fathers were clearly from the ruling class, so they could not speak for the masses. Moreover, they did not even intend to do so: they were openly distrusting the “proletariat” of their time. They saw the masses as inherently dangerous and in need of constant control.
One may argue that the reality in which Americans live today is completely detached from those of the 18th century. However, the problems with the Constitution persist: it still fails to ensure justice and equality. The primary purpose of any constitution is to limit the power of the government. One of the primary ways of doing it is through voting: elections allow citizens to express their preferences and decide the fate of the country. The US Constitution, as it is applied now, excludes the possibility of a legitimate popular vote. Each state has representatives that cast the final votes, and it would only be half-bad if the number of representatives was in proportion to the population of the state. It is not the case: scarcely populated states such as Alaska, Vermont, and Wyoming get more representation per capita than the most densely populated state in the US, California. Speaking in numbers and figures, 40 million Californians somehow deserve to choose two senators, just like 730,000 Alaskans.
Second, the Electoral College membership depends on congressional representation, which renders voting in specific states practically useless (Bugh, 2018). The smallest states have disproportionately great power, and their choices do not reflect what the majority of the Americans wish for when they go to the polls. Lastly, another phenomenon that demonstrates that the ruling class is propagating its interests, referring to fundamental law, is gerrymandering. Gerrymandering is defined as a practice of redistricting states in favor of a particular political party (Chen & Cottrell, 2016). Every ten years, the census board updates the borders of congressional districts to determine the location of Republican and Democratic voters. Redistricting is often presented as a moderate political exercise: it is allegedly done regularly to remove bias from the system. However, upon closer look, one understands that in the majority of the states, the procedure is controlled by state legislators and governor. If legislative bodies and the governor’s office have affiliation with a particular party, they will have a strong inclination to advantage their side.
Gliniecki (2018) concurs with this sentiment: the analyst argues that the bourgeoisie resorts to unconstitutional methods while maintaining constitutionalism. They actively look for loopholes and misinterpretations to take advantage of them. It is safe to say that the constitutional rules that govern the country are false impartiality and preach abstract but unattainable equality before the law. In summation, American constitutionalism refers to the document that was created by the ruling class to harness the proletariat while benefiting from them. Its legacy lives on to this day and upholds the unfair system that denigrates the interests of the masses.
Marxism and the American Criminal Justice System
The US Constitution defines one of the country’s main organs: legislative. The document is supposed to be limiting the power of the government over citizens’ lives and ensuring the fair enactment of the law. The criminal justice system may be defined as an amalgamation of agencies, processes, and institutions that control crime and punish those who violate the law. It is said that in the United States, there is not a single criminal justice system, but there are several (Hagan, 2020). State criminal justice systems handle crimes committed within the boundaries of a particular state. If a crime is committed on federal property or in more than one state, the ruling is made by the federal justice system (Hagan, 2020). Some of the key components of the US criminal justice system at all levels include law enforcement, prosecution, defense attorneys, courts, and corrections.
Just like in the case of the Constitution, Marxists have issues with the American criminal justice system. In its current state, it consistently fails to protect all citizens and treat them equally. For instance, there is strong evidence that criminal justice reform is long overdue for Black America. The US criminal justice is flawed, and what is even more unsettling is how biased it is in targeting colored communities (Simba, 2019). According to the most recent statistics, out of the current 2.2 million people incarcerated in the country’s jails and prisons, a disproportionate number are Black people and other people of color (Chavis, 2018). As a 2018 Pew Research Study revealed, African Americans make up 12% of the US adult population (Chavis, 2018). However, they represent almost one-third of the sentenced prison population.
Other sources report that African American men are incarcerated at more than five times the rate than While American men (Chavis, 2018). African American women are also often not served: they are imprisoned at twice the rate of White women (Chavis, 2018). The aforementioned racial disparities are a sign of a faulty system that advantages the ruling class that consists mainly of white people.
The discrepancies in how justice is executed in relation to class become even more apparent if one looks at individual cases. One of the most resonant cases of recent years was that of Brock Turner, a student who sexually assaulted an unconscious woman. Turner, a student at one of the most prestigious US universities, Stanford, was born into a wealthy family, had aspirations to make it to the Olympics as a swimmer, and boasted a nigh-on perfect GPA. The Marxist philosophy would undoubtedly classify him as a representative of the ruling class: white, rich, and having access to scarce resources such as high-quality education. Turner’s status served him well: while initially, the student could spend as long as 14 years in prison, he received a much lighter sentence of 14 months (Associated Press & USA Today, 2018). In court, the defense was using Turner’s social standing as an argument for his innocence. The student’s father went as far as claiming that his son should not go to prison for “20 minutes of action (Associated Press & USA Today, 2018).” This case is a perfect example of the ruling class abusing their power while completely disparaging the suffering they caused for the oppressed class.
To showcase a striking contrast in how the system treats the over- and underprivileged, one may refer to the case of Curtis Flower. It is one of the most outstanding and resonant in the history of the American criminal justice system. An African American man and a former furniture store employee, Flower has been on six trials for the same crime while waiting on death row (“In the Dark Season Two,” 2019). As of now, it seems that the prosecution abused its power and framed Flower to make a convincing case for mass murder. However, the evidence is not exactly straightforward, and moreover, the forensic methods that have been used raise many doubts.
Probably, the most problematic moment is jury selection that appears to be highly biased and unfair. During the first trial, the jury pool included five Black people that were later struck out by the prosecutor. The situation repeated itself for each trial: the prosecution side would find an excuse to exclude all or the majority of Black people. Later investigation has shown that there was no reason to do so apart from racial bias (“In the Dark Season Two,” 2019). Interestingly enough, each time Black jurors were presented during the trial, it would end in a hung jury. In contrast, all-white jury selection would result in a unanimous decision to send Flowers to the death chamber (“In the Dark Season Two,” 2019). The case of Curtis Flower clearly demonstrates how the life of a worker who does not have many resources or leverage can be destroyed by the system governed by the privileged. While Turner got away with rape and returned to his normal life shortly after his trial, Flower has yet to finish his fight for justice.
The central idea of the Marxist philosophy is the class struggle: the ruling class has access to the means of production and takes advantage of the proletariat. If first the ruling class only governs the distribution of goods, later it expands its leverage to the so-called superstructures such as the legal system. It should be noted that Marx and Engels never explicitly expressed their ideas about the law; yet, it is possible to conclude their views from the main ideas developed in their works. From the Marxist standpoint, the American constitution does not uphold equality, and moreover, it was not even created with such a goal in mind. Today it validates institutions such as the electoral college to suppress the voice of the masses. The American criminal justice system also favors the ruling class, which is reflected in the court’s decisions based on the defendant’s status.
Associated Press & USA Today. (2018). Judge who gave Stanford rapist Brock Turner lenient sentence in sexual assault case is ousted from job by voters. Web.
Bugh, G. (Ed.) (2016). Electoral college reform: Challenges and possibilities. Abingdon, UK: Routledge.
Chavis, B. F. (2018). Criminal justice reform long overdue for Black America. Web.
Chen, J. & Cottrell, D. (2016). Evaluating partisan gains from Congressional gerrymandering: Using computer simulations to estimate the effect of gerrymandering in the US House. Electoral Studies, 44, 329-340.
Gliniecki, B. (2018). Law and Marxism: The state and the constitution. Web.
Hagan, F. E. (2020). Introduction to criminology: Theories, methods, and criminal behavior. Chicago, IL: Nelson-Hall, Inc.
Hoebeke, C.H. (2017). The road to mass democracy: Original intent and the Seventeenth Amendment. Abingdon, UK: Routledge.
In the dark season 2. APM reports. (2019). Web.
Simba, M. (2019). Black Marxism and American constitutionalism: An interpretive history from colonial background to the Great Depression. Washington DC: Kendall Hunt.