On April 29, 1992, Los Angeles was on the brink of chaos: four Los Angeles Police Department officers who had been videotaped beating Rodney King, a black man, had been acquitted. Mayor Tom Bradley held a press conference, where he said in part “I am here to tell this jury, ‘No. No, our eyes did not deceive us…what we saw was a crime.’” Within an hour, calls to police skyrocketed, and LAPD Assistant Chief Bob Vernon opined that the mayor’s remarks incited the riot that would consume Los Angeles over the next week, resulting in 63 deaths and over $1 billion of property damage. The riot began at the intersection of 71st and Normandie streets where police were present to make an arrest, but then retreated from the area as a crowd gathered and became increasingly violent. Over the next few hours, several men, most famously Reginald Denny, were pulled out of their vehicles when they stopped at the intersection and beaten within an inch of their life by the mob, while the police waited at a command post blocks away. Police did not attempt to return to the locus of the riot until the mob had moved on and begun looting and torching buildings elsewhere, leaving a husk of a city block smoldering behind them. This response, police fleeing confrontations with rioters, continued over the next two days, most poignantly in Koreatown, where store owners and their families, many of whom had prior military training, took to arming themselves to defend their properties. One store owner reported that there were four police cars nearby when shots were fired in his direction, which promptly fled, before he and others began firing at looters. 

While the LA riots were brought under control within a few days through the use of federal law enforcement and the military, the riot was only made possible by the remarks of politicians and the retreat of police. Even after the fact, the actions of the rioters were lauded by some, including Congresswoman Maxine Waters, who celebrated when several of Reginald Denny’s attackers were acquitted. The seeds nascent in the LA Riots of 1992 have grown to full bloom in recent years, as political support for anarchy has consolidated with a tyrannical response by government to opposition. The consequence is the death of the rule of law and the transformation into a two-tiered justice system in the United States, which can best be described by the term Marcusian anarcho-tyranny.

The consequence is the death of the rule of law and the transformation into a two-tiered justice system in the United States, which can best be described by the term Marcusian anarcho-tyranny.

Prior to the 21st century, the standard in America for enforcing the law was simple: equal application of the law. If someone committed a crime, they would be investigated, prosecuted, and convicted, regardless of any of their particular characteristics. No crime would go unpunished because of the immutable traits of those involved. This attitude was firmly articulated in the Judiciary Act of 1789’ oath for judges, which read in part: “I will administer justice without respect to persons, and do equal right to the poor and to the rich.” For many citizens of the United States, however, this is no longer the case. Both at the federal level, and in many state and local jurisdictions, a new concept of enforcing the law has taken hold: Marcusian anarcho-tyranny.

Anarcho-tyranny, the second component of the new law enforcement regime, was a term first coined by American political theorist Samuel Francis in 1994. In “Anarcho-Tyranny, U.S.A.,” he said it was 

the combination of oppressive government power against the innocent and law abiding, and, simultaneously, a grotesque paralysis of the ability or the will to use that power to carry out basic public duties such as protection or public safety.

A particularly damning example given by Francis is North Carolina’s public crackdown on driving without wearing a seatbelt. The governor, James Hunt, held a press conference with law enforcement officers announcing the new focus. Yet at the same time, North Carolina capped its prison population, resulting in the parole of thousands of violent inmates before the completion of their sentences. In just one year, at least fifteen of those parolees went on to commit murder, and likely countless other crimes.  Francis explained that “it is characteristic of anarcho-tyranny that it not only fails to punish criminals, and enforce legitimate order but also criminalizes the innocent.” He noted that despite the increase in the quality of equipment and training for police, there was little impact on the crime rate;and an increasing rate of violent crime did not prevent the enforcement of gun control and speeding laws against otherwise innocent citizens. As Francis points out, “it’s easier and more profitable to enforce the law against the marginal lawbreaker than against those habitually committed to spreading mayhem.” This tendency is clearly present today. Look, for example, at the difference between police response to violation of COVID-19 regulations and to the riots that raged for much of 2020. It is easier and less dangerous to fine someone for not wearing a mask than to suppress an ongoing riot.

Despite the clear applicability of Francis’s concept of anarcho-tyranny to the present situation in America, it is lacking. For example, he claims that, 

under anarcho-tyranny, the goal is to avoid performing such basic functions as stopping real crime and to think up purely fictitious functions that will raise revenue, enhance the power of police or bureaucrats, and foster the illusion that the state is doing its job.

 None of this account is untrue, but it does not incorporate the brazen political bias which infects the American justice system today, particularly by those on the Left. Today, anarcho-tyranny does not merely mean the abandonment of fighting real crime, it means not using the justice system to permit anarchy by one’s own supporters, while using that same justice system to protect that anarchy and punish political opponents for lesser or equivalent crimes.

Today, anarcho-tyranny does not merely mean the abandonment of fighting real crime, it means not using the justice system to permit anarchy by one’s own supporters, while using that same justice system to protect that anarchy and punish political opponents for lesser or equivalent crimes.

Enter Herbert Marcuse’s concept of “repressive tolerance.” Marcuse, a German emigree to the United States and Critical Theorist of the Frankfurt school, was remarkably influential on New Left thought. The Critical Theory he espoused, which sought to understand the differences between the professed values of Liberal society and the reality of conditions, would be applied to the justice system in a derivative known as Critical Legal Theory, which holds that, in Marcuse’s words, “law and order are always and everywhere the law and order which protect the established hierarchy.” Marcuse argues that tolerance is a good if and only if it actually allows for the voicing of dissent that will push society towards greater progress. This conception of tolerance is not possible in modern America, he argues, because the institutions of society, particularly media and the universities, are part of a system of “institutionalized inequality,” which a priori limit the bounds of tolerance such that real dissent against the prevailing orthodoxy is impossible. “These conditions invalidate the logic of tolerance” so that one is unable to persuade another of the need for radical change within this framework. To allow for the re-emergence of true freedom and make progress and liberation possible, Marcuse says that “repressive tolerance” must be implemented, which “cannot be indiscriminate and equal with respect to the contents of expression, neither in word nor in deed.” Marcuse, then, explicitly endorses viewpoint discrimination  on political grounds: “liberating tolerance, then, would mean intolerance against movements from the Right, and toleration of movements from the Left.” This political basis for our two-tiered justice system is facially recognizable as what is present in America today.

But just because the justice system is operating along party lines does not itself prove Marcuse’s plan is that which is being implemented. Such a scenario could just as easily be produced by partisans using power to benefit friends and harm enemies. In fact, this description is, as with Francis’s anarcho-tyranny, correct but incomplete. The abuse of the justice system to partisan ends is undoubtedly occurring, but the specific manner in which it is occurring is Marcusian anarcho-tyranny, as will be seen by examining several particular components of how “justice” is administered today aligns with the prescriptions of repressive tolerance.

Central to Marcuse’s idea of repressive tolerance is the belief in “a ‘natural right’ of resistance for oppressed and overpowered minorities to use extralegal means if the legal ones have proved to be inadequate.” This turn to “extralegal means,” Marcuse claims, is justified and necessitated by the current, oppressive conditions. Because the oppressed minorities must struggle against the established, oppressive system for liberation, their means are necessarily beyond that system, resulting in the anarchy half of Marcusian anarcho-tyranny.

The anarchy by allegedly oppressed minorities occurs in two ways. First, they themselves exercise it outside of government. Oppressed minorities are even free to use violence, as “they do not start a new chain of violence, but try to break an established one.” Antifa is allowed to roam freely and terrorize whomever they wish, because they oppose fascism and thus clear the way for progress. Thus, the riots throughout the summer of 2020 after the death of George Floyd, which involved looting, arson, assault, and at least six fatalities, are also permitted. But riots, the nation was repeatedly told, were the voice of the unheard. When these violent demonstrations were not being covered up by a compliant press, they were being celebrated as reparations for past injustice. 

Anarchy takes place by deliberate government inaction as well. Marcuse says that the implementation of repressive tolerance using the current institutions, “would be tantamount to the ‘official’ promotion of subversion.” One need look no further than the nearest major city’s district attorney to see that this “official promotion of subversion” is taking place in the justice system. Throughout the country, Democrat megadonor George Soros-backed prosecutors like George Gascon in Los Angeles and Kim Foxx in Chicago are categorically refusing to prosecute certain crimes, ranging from so called “quality of life crimes” like public intoxication, prostitution, and the like, to crimes as serious as retail theft and assault. If that weren’t enough, these prosecutors will enter into plea deals with criminals who commit serious crimes that result in little or no prison time.

While Left-wing violence is considered speech, Marcusian anarcho-tyranny treats speech by the Right as violence. According to Marcuse, “the whole post-fascist period is one of clear and present danger,” necessitating “the withdrawal of tolerance before the deed.” In Marcuse’s view, scratch any man on the Right, and one finds a fascist. To prevent the fascists from coming to power, their ability to do so must be eliminated. One means is the Left’s collusion with Big Tech (Microsoft, Apple, Google, Facebook, Twitter, etc.) to censor and ban conservatives on the grounds of “hate speech.” Numerous Right-leaning pundits have been banned by Twitter for pointing out the fact that Assistant Secretary for Health and Human Services Rachel Levine is biologically a man.

While Left-wing violence is considered speech, Marcusian anarcho-tyranny treats speech by the Right as violence. 

The tyranny component of Marcusian anarcho-tyranny is not content merely to censor the Right in cyberspace. The opposition must be crushed using law enforcement. Hence, the federal government focuses its massive national security apparatus inward on the “domestic violent extremist” threat. What qualifies one as a domestic terrorist? Supporting the Second Amendment, flying the Betsy Ross flag, or opposing Critical Race Theory or radical gender theory at school board meetings, according to the FBI. All of these people are standing in the way of progress. They must be suppressed for the glorious new future. In most cases, the threat of law enforcement action is enough to chill potential opponents’ activities. The recent flurry of subpoenas and search warrants to Trump’s current and former attorneys and advisors, allegedly dealing with the January 6th riot at the Capitol, but whose scope is so broad that individuals who had nothing to do with that day are being targeted, is an effort to intimidate the Right. 

But if real opposition is mounted, then prosecutions are necessary. President Trump’s staff was constantly harangued by DoJ investigators after the FBI concocted the Russia collusion hoax (themselves colluding with the Clinton campaign), and proceeded to indict many of his advisors on process crimes or completely unrelated charges. Trump supporters who committed no violent acts and never entered the Capitol building during the January 6th riot are held on misdemeanor charges without bail. Trump advisors were charged with contempt of Congress for not submitting to questioning by a “committee” that was created outside House rules and while ongoing legal battles over executive privilege were being conducted, while Obama-era officials like Eric Holder and James Clapper, who brazenly lied in testimony before Congress, were let go unscathed.

Marcusian anarcho-tyranny comes into clearest focus when the power of government is wielded against those who dare oppose the anarchy engulfing their own streets. When Mark and Patricia McCloskey saw that a mob had broken into their gated community and heard them shouting detailed, violent threats at them, they brandished legally owned firearms on their own property. The St. Louis State’s Attorney charged them with a felony, not the mob. When, on the third night of riots in Kenosha, Wisconsin, Kyle Rittenhouse shot three convicted criminals as they tried to carry out their publicly stated intentions to kill him, he was charged with murder and attempted murder. Fortunately for Rittenhouse, the entire scenario was caught on camera, and he was acquitted. But after two previous nights of rioting, private citizens would not have had any role had the government not allowed the riots to continue.\

Marcusian anarcho-tyranny comes into clearest focus when the power of government is wielded against those who dare oppose the anarchy engulfing their own streets. 

The goal of all these specific components of Marcusian anarcho-tyranny is the imposition and institutionalization of repressive tolerance via the justice system. The Right stands in the way of progress and continues the supposed oppression of minority groups, so it must be crushed. Opposition to the Left’s project, as the “Red Sermon” by President Biden in Philadelphia made all too clear, is opposition to “democracy” itself, “semi-fascism” that is a threat to the very soul of the Republic. Only ideologues could be so brazen in their destruction of the rule of law while simultaneously claiming to uphold it. Only ideologues could be so reckless in their pursuit of such ends. Mere partisans seeking to benefit friends and harm enemies would at least be circumspect. Not so for those committed to creating utopia. The FBI’s raid on Mar-a-lago, purportedly looking for classified documents and presidential records showed just how removed from reality these ideologues truly are. The accelerationism propelling the Left ever more quickly towards the eradication of effective dissent blinded them to the effect the Rubicon crossing action of targeting a former president (and likely future candidate) would have on the body politic. The Left thought they could play it off as yet another action demanded by “the rule of law.” Not so. Even the disgraced former Democratic Governor of New York, Andrew Cuomo, voiced hesitancy over the raid. It is this overreach, this utter disregard of norms by the practitioners of Marcusian anarcho-tyranny, that provides the opening to eradicate it and restore the social contract through true rule of law, wherein the law is applied equally, without fear or favor.

The goal of all these specific components of Marcusian anarcho-tyranny is the imposition and institutionalization of repressive tolerance via the justice system. 

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Gabriel Powell is a senior studying politics.