The Bitter History of Law and Order in America

Andrea Pitzer | Longreads | April 2017 | 11 minutes (2,800 words)

During his heady first days in office, Donald Trump developed his now-familiar ritual for signing executive orders. He began by swapping a large sheet of paper for a hinged portfolio, then he started revealing the signed documents to onlookers a little awkwardly, crossing his forearms to hold the folio up, or bending it backward to show the press his signature. Finally, he perfected the motion by turning the open folder completely around to face the audience, displaying it from three angles, as if delivering tablets of law from Mount Sinai. By the end of the week, he seemed pleased with this bit of theater in which he could star as the president. The ritual, of course, became a meme.

Shortly after he perfected this performance, Trump signed three executive orders promoted by the White House under the heading “Law and Order.” The first required the Attorney General to look at crimes against law enforcement; the second directed the AG to create a task force on crime reduction and public safety, with specific mention of illegal immigration; the third delegated cabinet members to review strategies for finding and prosecuting international drug cartels. All three called for studying crime rather than implementing new programs—they also heightened anxiety over purported crime by blacks and immigrants while making it seem like only Trump was willing do something about it.

“Law and order” has been a popular catchphrase for Trump—he used repeatedly on the campaign trail going back to 2015. In doing so, Trump followed in the footsteps of Richard Nixon, who gets much of the credit for perfecting this disingenuous approach to crime in American politics. In a diary entry from 1969, White House chief of staff H.R. Haldeman paraphrased Nixon’s thinking: “You have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to.” During the campaign Nixon’s team tackled this challenge by adopting a strategy of “law and order”—by playing to racist fears, they could cloak divisive rhetoric in an unobjectionable demand for security during a chaotic era.

The crime wave seized on by Nixon was not imaginary. Beginning in the 1960s, the United States faced a surge in criminal violence: Across the decade, the murder rate rose by 44 percent, and per capita rates of forcible rape and robbery more than doubled. The reasons for the surge in offenses—as well as the cause of its decrease in the early 1990s—are still not fully understood, though historians believe that the high rate of male baby-boomers coming of age likely played a critical role.

Nixon was responding to “soft on crime” rhetoric by President Lyndon Johnson, who in a 1966 statement to Congress on crime and law enforcement had described “social justice and personal dignity for all Americans” as a path to preventing violence. Johnson’s greater attention to rehabilitation and bail reform provided fodder for conservatives who argued the country was coddling criminals. Ambitious politicians found it easy to pair anxiety over the end of Jim Crow and the beginning of the women’s liberation movement with this fear of all-too-real violence.

Nixon

Richard Nixon in the Oval Office of the White House, 1969. (AP Photo)

A candidate who declared himself tough on crime was understood to also oppose radical shifts in the social order. That same year, 1966, Gerald Ford, then the House Minority Leader, asked: “How long are we going to abdicate law and order—the backbone of any civilization—in favor of a soft social theory that a man who heaves a brick through your window is simply the misunderstood and underprivileged product of a broken home?” Months before Nixon’s victory in 1968, Governor of California Ronald Reagan blamed the assassination of Martin Luther King, Jr. on the civil rights leader’s own policies of civil disobedience. On the day of King’s funeral, Reagan pointed to the “great tragedy that began when we began compromising with law and order, and people started choosing which laws they’d break.”

The success of this language at the ballot box meant that later presidential adopters followed the same law-and-order trail. In 1988, George H.W. Bush launched a racial smear campaign with a television ad that associated opponent Michael Dukakis with convicted murderer Willie Horton and “revolving door” prisons. Bush would continue the theme on the campaign trail once again four years later: “We need to show them what law and order is all about.” Democrats also played the law-and-order card. In 1994, Bill Clinton invoked the phrase as he tried to shore up his own tough-on-crime credentials by supporting the largest crime bill in U.S. history. In the summer of 2016, Donald Trump launched his own law-and-order candidacy during a time when violence could be perceived as rampant—eight police officers had been gunned down over two weeks that July—but crime statistics remained near historic lows.

Law and order is as much a perception as it is a policy, and the roots of law and order as a political platform run far deeper than Nixon’s “Southern strategy.” For centuries, the rhetoric of law and order has been used to intimidate black Americans, limit voting rights, and hobble the influence of minority religions. But law and order for Trump is also nostalgic throwback to the politics of his youth and the youth of many of his supporters, offering a simple good-versus-evil binary through which he can view the entire world.

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Americans have long been an unruly population. In the colonial era, British attempts to impose law and order were met with occasional mob actions and armed resistance, encouraging the King to leave his subjects in a quasi-anarchic state for long periods of time. At the close of the French and Indian War in 1763, Parliament began passing a series of acts prohibiting settlement west of the Appalachian Mountains, suspending disobedient colonial legislatures, and heavily taxing American subjects with the intention of cracking down on “obstinate, undutiful, and ungovernable” colonists. The acts sparked open rebellion and eventual independence.

As the nineteenth century began, the idea of imposing law and order retained some of its imperial stain, at least until influential figures across several states found they now had their own interests to preserve. By mid-century, law and order parties sprang up across the United States to fight social change and maintain the status quo for those in power.

In the 1840s, a Law and Order Party formed in Rhode Island out of a coalition of rural Democrats and Whigs. The party aimed to keep a colonial-era charter signed by King Charles II which limited suffrage to white men with assets totaling at least $134. After a renegade election bypassed the existing legislature and installed a body of representatives elected by white men of all incomes, the Law and Order Rhode Islanders insisted on retaining power on the terms laid out in the 1663 royal charter. With two separate legislatures and governors in place—one the result of expanded voting, and one standing against it—the Law and Order government barricaded the state house to block armed supporters of the People’s Party. After plotting a military raid on an arsenal, the shadow governor who fought for expanded white suffrage was captured, tried, and sentenced to life in prison with hard labor and solitary confinement. (He was eventually freed.)

A decade later, during the maelstrom known asBleeding Kansas,” which would determine whether the territory would become a “free” or “slave” state, a new Law and Order Party was formed in response to the establishment of a Free-State Party. Law and Order organizers drew military officers from as far away as Florida to intimidate armed abolitionists arriving from the North. As in Rhode Island, competing state governments arose through disputed elections, and after a few skirmishes between their militias, the Free-State government was crushed by Law and Order forces.

Intercession on the part of President Franklin Pierce on the pro-slavery side was followed by cross-border massacres. John Calhoun, the surveyor-general of Kansas and Nebraska, had called the Free-Staters “outlaws and traitors,” condemning “the idea of appeasing the insatiable gluttony of abolition rage and fanaticism by harassing and plastering with indictments the law and order men, under the pretense of ‘impartial justice.’”

After the Civil War, political Law and Order Leagues were formed for the prohibition of liquor, a largely Protestant movement bound up with an attempt to control Irish-Catholics, from the factories where they worked, to their schools, convents, and saloons. The leagues were affiliated with the Know-Nothing Party, a movement that drew on prejudice and fear of diluting American culture.

When Prohibition was repealed in 1933, “law and order” as a concept became less attached to any specific political belief, but rather a stand-in for a perceived status quo. After the Supreme Court outlawed school segregation in 1954 and Congress passed the Civil Rights Act of 1964, the liberal Warren Court effectively ended broad legal accommodation of racial animus. Denied a policy agenda, “law and order” persisted as a social construct: Goldwater nodded to increasing street crime in 1964, and many politicians—including Nixon—began to shift to a more subtle wink-and-nod approach to conflating racial issues with crime. In return, not only did Americans elect Richard Nixon to the presidency twice, but American culture also winked back.

***

Donald Trump turned twenty-five in 1971. That year, a bloody law-and-order aesthetic bloomed in Hollywood. In Dirty Harry, Clint Eastwood’s cop is frustrated with a lax criminal justice system, taking matters into his own hands in order to execute justice. In A Clockwork Orange, an ultraviolent gang of droogs assaults an elderly tramp who laments that “there’s not no attention paid to earthly law and order no more.” The novel Death Wish appeared the next year, followed in 1974 by the Charles Bronson film, in which a former bleeding-heart liberal avenges his wife’s murder by becoming a murderous vigilante on the streets of New York.

Political scientist Timothy Lenz, writing about the wave of law-and-order movies in the early 1970s, notes that when it comes to this strain of conservatism, a tension exists between the opposite poles of “law” and “order.” This tension has existed for millennia, Lenz writes, pointing out that even Aristotle and Plato disagreed on whether the rule of law is the best vehicle for justice. From one perspective, law can be seen as simply a means to an end—the establishment of order. If order can be achieved by other means, the law can be dispensed with. Looking at the law-and-order scaffolding that framed Dirty Harry and similar crime films of the era, Lenz explains that in any narrative contest between law and order, order triumphs, and the audience walks away satisfied with what critic Pauline Kael calls a manipulative “righteous conclusion.”

This idea has dominated criminal policy and the cultural portrayal of crime in the United States for nearly half a century. It worked in Nixon’s favor, but Nixon wasn’t alone. Lenz describes Eastwood’s cop as projecting “an air of confidence, certainty, and simplicity, the character attributes that contributed so much to the political success of another actor turned Republican politician, Ronald Reagan.” Three decades after Reagan, with the actor’s same confidence, certainty, and simplicity, Trump further blurred the lines between entertainment and reality, drawing his supporters toward the binary world in which he resides.

If conservatives were inclined to tip the scale towards “order” to deliver a Hollywood ending, others have tried in vain to co-opt the phrase and tilt it back toward the “law” side of the equation. During and after World War I, progressives formed Law and Order Leagues with the support of the NAACP to oppose lynching and denounce vigilante justice—only to compete against the Ku Klux Klan, which had embraced the phrase first, and was portrayed by supporters as “conservators of law and order” as early as 1871.

By the second half of the 1960s, “law and order” had a single meaning: A restoration of the traditional social order. George Wallace ran in 1968 on the Supreme Court’s responsibility for nationwide lawlessness, and proclaimed from the campaign trail that he found it “a sad day in the country when you can’t talk about law and order unless they want to call you a racist.”

Over time, law-and-order movements are often steamrolled by the social change they try to suppress. In the case of Prohibition, decades of anti-Catholic sentiment persisted alongside liquor restrictions until the passage and then repeal of the Eighteenth Amendment and the grudging acceptance of a once-alien Irish population. Rhode Island’s Law and Order Party conceded on the issue of suffrage only months after locking the state house, quickly moving to enfranchise blacks as well as middle-class and poor whites. In Kansas, the Law and Order party lost its pro-slavery momentum despite early victories, and the territory entered the Union in 1861 as a free state. Radical law and order movements sometimes win the battle, but generally lose the war.

***

Donald Trump first used the phrase “law and order” in a 1990 Playboy interview. He had recently taken out a full-page ad in four New York City newspapers to demand the death penalty for muggers and murderers. It was widely understood the target of the ads were the five black and Latino youths recently charged with the assault and rape of a white woman in Central Park. Asked about the ad by Playboy, he replied, “In order to bring law and order back into our cities, we need the death penalty and authority given back to the police.”

In 1991, Donald Trump applied for the trademark to use the words “Central Park” on items including furniture, chandeliers and key chains, a year after he called for the death penalty for the Central Park Five. (AP Photo/Mario Suriani)

The Central Park Five were exonerated by DNA evidence and their convictions vacated in 2002, but Trump never accepted their innocence. With little in the way of proof, he claimed as late as October 2016 that the men were guilty. “When we hear he is going to be a ‘law and order president,’” wrote one of the defendants, “a collective chill goes down the spines of those of us who have been the victims of this ‘law and order.’”

Trump’s advisors learned law and order as political strategy from the Nixonian inheritors of anti-suffrage and pro-slavery movements, but Trump’s supporters embraced law and order as a remedy for their own suffering. If suffering can’t be cured—if jobs don’t come back, or a higher social status isn’t restored—law and order implies that at least somebody will be punished.

Yet Trump himself embraces law and order as someone who understands the world through television and film. His tough-on-crime stance may be the only philosophy on which he campaigned that was not purely political posturing. Law and order for Trump has as much in common with Dirty Harry as Tricky Dick. Like everything he says, it’s political theater—but in this case, one that has been part of his personal worldview for decades.

This latest law-and-order mania marks a strange congruence, one of the few in which Trump, his advisors, and his base, all understand exactly what each of them means, though they arrive there by different routes. For once, Trump doesn’t have to flip positions or embrace something he doesn’t comprehend or believe. He’s always believed in law and order—even when it’s not real.

This time, there is no crime wave to serve as a fig leaf justifying a crackdown, but this was never at the heart of what law and order was about. The fear of blacks, immigrants, and voter fraud dovetails with Trump’s carnival-barker feel for his crowd’s resentments. This supporters’ pop-culture fantasy of using violence to keep the upper hand is his desire, too.

On the stump in Tennessee in October of 2015, a full year before his election, Trump played to the crowd by borrowing another page from Nixon’s playbook, calling his supporters the “silent majority.” In a video of the event, he declares, “We need law and order” then repeats the line again. After reading the Second Amendment aloud from a sheet of paper, he pretends to do a fast draw from a holster. “I have a license to carry in New York,” he announces from the podium, quickly inventing a fantasy vigilante scene. He imagines his attacker saying, “Oh, there’s Trump. He’s easy pickings.” Trump tilts his head and play-acts drawing a gun a second time. Thumb up and index finger pointed at the audience, he asks his invisible villain, “What’d you say?” From there, he reenacts a scene from Death Wish, making his favorite bing! sound effect as he pretends to be Charles Bronson shooting a bad guy. “One of the great movies,” he says. “Today, you can’t make that movie.” But that won’t keep Trump from trying.

***

Andrea Pitzer is the author of the forthcoming book One Long Night: A Global History of Concentration Camps, and The Secret History of Vladimir Nabokov.

Editor: Michelle Legro
Fact checker: Matt Giles
Illustration: Kjell Reigstad


from Longreads https://longreads.com/2017/04/06/the-bitter-history-of-law-and-order-in-america/

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