Dual state theory—the idea that the legal system treats the state’s friends and enemies differently—is becoming an elite explanation for the violent excesses of Trump’s second term. University of Chicago legal scholar Aziz Huq kicked off the trend last year in the Atlantic, telling the story of Ernst Fraenkel, a Jewish scholar who chronicled the ways the Nazis warped the German legal system during the country’s descent into fascism. The Nazis split the legal system into two. Jews and other enemies of the Nazis were condemned to a “prerogative state” governed by unpredictable and arbitrary terror, “unchecked by any legal guarantees.” In parallel, a “normative state” was left largely untouched, ensuring corporations and German citizens loyal to the Nazis had the stability needed to carry on. Because the prerogative state remained largely hidden from Nazi loyalists and regular citizens, the violence and immorality visited on Jews and so-called undesirables didn’t interfere with the daily lives of ordinary Germans, who could ignore the prerogative state’s horrors.
David French of the New York Times recently applied dual state theory to Renee Good’s killing by ICE agent Jonathan Ross in Minneapolis. In French’s telling, Renee Good didn’t realize she had crossed the porous border between the normative and prerogative state when she was interacting with ICE. In videos from moments before her death, Good appears relaxed. Good’s last words, “That’s fine, dude. I’m not mad at you,” indicate that she didn’t see the officer who was preparing to shoot her in the head as a threat. But what French misses is that Good’s interaction with ICE is only half an explanation. If Good were talking to Ross to snitch on immigrants, she would likely be alive. Like whites killed under Jim Crow for violating segregation ordinances or registering Black voters, Good crossed the line between normative and prerogative state when she expressed solidarity with immigrants targeted by a racist state.
There is a lot to agree with in French’s analysis. It’s obvious that the Trump administration has turned Minneapolis into an occupied zone where masked state-sponsored, heavily armed thugs can inflict violence and death on the population with impunity. Vice President JD Vance has gone so far as to (incorrectly) say ICE agents have “absolute immunity.” Although legal experts claim Vance is wrong, they agree with French’s assessment that holding ICE officers accountable is unlikely given the judiciary’s chipping away at accountability measures, courts’ reflexive deferral to law enforcement, and the administration’s assertion that Ross did nothing wrong. French is also right about the combustibility of the situation. Lydia Polgreen, French’s colleague at the Times, likened the occupation to an emerging civil war, comparing her witnessing of ICE’s brutality to her past work as a foreign correspondent covering civil conflict. It’s good that conservatives like French acknowledge the reality of the Nazi-like aspects of Trumpism, however late the realization (and in fairness, lots of leftists refused to recognize the fascism in front of their noses during Trumpism’s ascent).
But French’s omissions are as important as his recognition of incipient authoritarianism. David French’s article shows the analytic peril of ignoring the way normal policing and repression work in communities of color. To his credit, French revised his early condemnation of Black Lives Matter, but his rethinking hasn’t gone far enough. French writes, “In the normative state, your life almost never depends on immediate and unconditional compliance with police commands.” The imagined audience here is telling. Black Lives Matter activists spent a decade trying to show that some Americans quite reasonably do fear for their lives when they interact with the police. Black families have “the talk” with their boys, teenage or sometimes even younger, about the risk of interaction with police, often telling the boys, don’t move too quickly; comply, don’t speak back. This is, of course, the kind of advice black folks were giving one another under Jim Crow, and immigrants are now giving their children under the Minnesota occupation. French and his ilk would do well to listen to them.
French’s blind spots reflect those of mainstream pundits who avoid admitting that US law has always been “dual” to some degree because it is a racial state. The facts are that Black folks and immigrants have long been subject to a homegrown separate and unequal justice system whose extremes sometimes veered into a lawless “prerogative state.”
Homegrown Dual States
Jim Crow was a homegrown dual legal system. Laws designed to harm Black folks during Jim Crow, like poll taxes, were often neutral in principle but discriminatory in fact. White Americans could rob, assault, and murder Black Americans with little fear that they’d be held to account by the legal system. Savage communal carnivals known as lynchings were so normal that keepsake postcards documenting murders—often depicting smiling perpetrators—were sent through the mail. White people who chose to show solidarity with Black activists during the Freedom Rides or Mississippi’s Freedom Summer threatened white supremacy and became, like Renee Good, targets themselves.
French would do well to acknowledge that the Nazis refined, but didn’t necessarily invent, the dual state. Nazi lawyers recognized the duality of Jim Crow’s legal system, which they saw as a template for their own eugenic laws. In Hitler’s American Model, Yale legal scholar James Q. Whitman showed some Nazi lawyers were puzzled by all the effort put into pretending the American legal system was race-neutral. The 14th Amendment’s equal protection guarantee led Jim Crow legislators to hide their discriminatory goals behind colorblind blandishments. Nazi law, unburdened from the need to hide its murderous intent, was more honest about its legal system’s goals. But both America’s and the Nazis’ dual systems of law were built around the notion that racial others—and their allies—were unworthy of legal rights.
America’s legal system for addressing immigration, which empowers ICE, precludes immigrants from legal protections. Immigrants are not entitled to a lawyer, and are regularly tried without them, though some estimate that having access to a lawyer increases chances of a successful case tenfold. With appeals systems truncated and expedited removals common, immigrants are frequently denied due process and deported without legal recourse. During the first Trump administration, an arbitrary, cruel, and dubiously legal family separation policy stripped young children from their parents, in hopes of deterring other families attempting entry into the United States. Undocumented migrants who were brought here by their parents and grew up in the United States have been deported to foreign countries whose language they don’t speak. Support for draconian immigration enforcement is often bipartisan, with both parties locked in a spiral of dehumanizing escalation. For instance, family separation was the brainchild of Trump’s Border Czar Tom Homan, who proposed it during the Obama administration and won a medal for his efforts.
Analogies to mid-20th-century European fascism are occasionally appropriate, but ICE is better thought of as the confluence of homegrown anti-Black and anti-immigrant pathologies. Pundits often reach for foreign examples out of an American exceptionalism that sidesteps the mundane crimes the nation visits upon Black folks and other people of color. Yes, ICE agents in Minnesota are doing Nazi cosplay. But recent history shows that ICE is also drawing on America’s own traditions of racial violence. In 2020, Minnesota was in turmoil in response to Officer Derek Chauvin choking George Floyd to death with his knee. The massive protests in response to Floyd’s murder were driven by evidence that Black folks’ interactions with police in the United States could easily end in murder. By 2020, the Black Lives Matter activists had long been making the point that Black non-compliance with unfair and arbitrary policing was too often met with violence. Cell phone videos showed that officers often lied about these encounters, escalated unnecessarily, and sometimes planted evidence, attempting to justify murder. It’s true that after public outcry, some of the officers in these high-profile killings were prosecuted. But as the ACLU notes, following the rare prosecution of a murderous cop, police accountability is “still elusive in many places, and nonexistent in some.”
Black Lives Matter activists and prison abolitionists, in an appeal to their compatriots, argued that weapons designed to contain and control racially marginalized populations would eventually be turned on white Americans. Policing experts like Radley Balko have made the case that although what ICE is doing in Minnesota is exceptionally brazen, it is also part of a long history. What’s happening in Minnesota isn’t the imposition of an extension and intensification of the way the criminal justice system has long functioned for communities of color in the United States.
This history of state-sponsored racist policy is at the center of ICE’s occupation of Minnesota. Pundits working for our largest national outlets should recognize that America’s racially punitive systems of policing and immigration enforcement laid the groundwork for ICE’s violence. America’s emerging “dual state” isn’t an import; it’s a logical extension of our longstanding racial state.