We Balk at ‘Law and Order,’ but Democracy Needs the Rule of Law

We Balk at ‘Law and Order,’ but Democracy Needs the Rule of Law

We Balk at ‘Law and Order,’ but Democracy Needs the Rule of Law

The preservation of our liberties has always depended more on habit than on compulsion.

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They are still deciding what to call the events of January 6. Riot? Insurrection? Coup? From the Wilkes mob and the Gordon mob in 18th century London to our own Seattle and Portland mobs, hyperbole and euphemism have fought a close contest in this area. Consider two stock phrases that look synonymous but have come to mean very different things. “Law and order” may convey the preconditions of a free society, but the use of that slogan—by Richard Nixon’s campaign in 1968 and its successors in 1988 and 2016—gave the words a dubious odor. Repression of speech and assembly and ordinary freedom of action could be hidden under the seemingly harmless phrase. Yet no such opprobrium has ever attached to the instruction to abide by “the rule of law.” Why not?

In the absence of the law-abiding habit, we could hardly trust our fellow citizens in the commonest daily encounters. Civil society depends on self-restraint far more than on regulation by the authorities. A rational commitment to equality likewise depends on self-restraint. The axiom that all persons are equal under the law will only prevail where citizens restrain their desire for power. In a free society, the authorities can never enforce habits the people at large decline to practice.

No better analysis exists of the reasons to abide by the law than Abraham Lincoln’s “Lyceum Address” of 1838. The speech was one of a series commissioned by the Young Men’s Lyceum of Springfield, Ill., on the perpetuation of American institutions. Lincoln, who was just 28 when he delivered it, took as his occasion the recent accounts of “outrages committed by mobs,” which “form the every-day news of the times” and “have pervaded the country, from New England to Louisiana.” The outrages in question all involved the passions of a mob leading to the killing of persons. “Alike,” said Lincoln, these incidents “spring up among the pleasure hunting masters of Southern slaves, and the order loving citizens of the land of steady habits.”

Among the scenes “revolting to humanity” was the hanging of gamblers in Vicksburg, Miss., but the mob went on from there: “Next, negroes, suspected of conspiring to raise an insurrection, were caught up and hanged in all parts of the State; then, white men, supposed to be leagued with the negroes; and finally, strangers, from neighboring States.” Lincoln is still more shocked by a “horror-striking scene at St. Louis,” the lynching of “a mulatto man, by the name of McIntosh,” who was “seized in the street, dragged to the suburbs of the city, chained to a tree, and actually burned to death; and all within a single hour from the time he had been a freeman, attending to his own business.” These episodes have in common the replacement of law by mob rule.

The lynchings in Vicksburg and St. Louis, said Lincoln, show what happens when “the lawless in spirit,” by going unpunished, are permitted to become “the lawless in practice.” Such outbreaks amount to more than a concern of certain localities: “By the operation of the mobocratic spirit, which all must admit, is now abroad in the land, the strongest bulwark of any Government, and particularly of those constituted like ours, may effectually be broken down and destroyed—I mean the attachment of the People.”

In recounting the events of the preceding months and years, Lincoln deplores most of all the violence done to persons, yet he by no means exempts the destruction of property—“whenever the vicious portion of the population shall be permitted to gather in bands of hundreds and thousands, and burn churches, ravage and rob provision stores.” Then, as now, mob actions were not isolable to a single group or party cause. Their example was infectious because vice, as well as virtue, may catch by contact.

The date of the talk, January 27, 1838, reminds us that the bank and real estate panic of 1837 had seen many livelihoods destroyed, just as they have been during the Covid-19 lockdown and the protests sparked by the killing of George Floyd. But Lincoln searched deeper. He spoke of a spiritual letdown in that fourth decade of the 19th century. The revolutionary generation had almost entirely passed away, but no substitute had been found for “the powerful influence which the interesting scenes of the revolution had upon the passions of the people as distinguished from their judgment.” It seems fair to draw an analogy with the generation of the Cold War and the mixed triumphalism and bewilderment that followed its close. Was a new enemy on the horizon required to secure our own habits of liberty? If so, the Global War on Terrorism has turned out to be a poor substitute. A Domestic War on Terrorism, if the Biden administration tries to launch one, will answer our present discontents just as ineffectually.

The enduring post–World War II confidence of, say, 1947—the year that saw the launching of Truman’s Loyalty Program—has finally slipped away altogether. As Lincoln said of 1776, “Those histories are gone…. They were a fortress of strength; but, what invading foemen could never do, the silent artillery of time has done.” The specter of world communism is gone. The wars fought in the name of defeating terrorism, from Afghanistan to Iraq to Libya to Syria to Yemen, have never ceased, but it has been a long decade since they made any kind of sense to most Americans.

Lincoln sought to remedy the violence of the mob spirit by inculcating piety toward the laws. Americans, he proposed, should swear on the memory of the Revolution “never to violate in the least particular, the laws of the country; and never to tolerate their violation by others.” The law-abiding disposition should in fact become “the political religion of the nation.” What could a young lawyer in 1838, with no religious pretensions, have meant by a “political religion”? It was not quite the same as a superstition. After all, there are bad laws, which “if they exist, should be repealed as soon as possible”; yet “while they continue in force, for the sake of example,” those laws “should be religiously observed.”

Since people are taught by example and not only by precept, bad examples on any side should not be tolerated. “There is no grievance,” Lincoln concluded, “that is a fit object of redress by mob law.” And again: “Passion has helped us; but can do so no more. It will in future be our enemy.” Reason is an honored word in the constitutional lexicon. Responsibility is another. They have not been heard from lately, and they are worth reviving.

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