The Price Of Historical Negligence

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Posted: Nov 23, 2020 9:00 AM
The Price Of Historical Negligence

Source: AP Photo/Russell Contreras

As we celebrate Thanksgiving and the quatercentenary of the Pilgrim landing in November 1620, we should bear in mind the seeds of the American constitutional tradition that were sown and scattered from colonial New England. This cultural hearth became a lively experiment—indeed, a laboratory of political innovation, including formal agreements and covenants, Bible-based law codes, citizenship oaths, a long tradition of election sermons, bicameral legislatures, and written constitutions with a separation of powers and federalism as organizing principles.  

To an already long tradition of Anglican liberty, as Francis Lieber called it, which dated back before Magna Carta, the self-governing, self-taxing colonists contributed imaginative blends of uniquely American liberties along with the basic political symbols that have helped define the American character. The key issues that led to independence—such as a new series of taxes without representation—came to the fore immediately after the French and Indian War and led to acts of interposition by public officers—to shield against tyranny—through legislative assemblies, counties, judicial bodies, and the First Continental Congress. This is a heritage with which too few Americans today are familiar. Yet the example of this neglected history might still play a key role by provoking Americans into an overdue national conversation.

Lately we have moved from sporadic crises into a more settled state of endemic political antagonism. When a gaslighting media and political class characterizes weeks, even months, of looting and burning during a major economic lockdown as peaceful protests, reality itself is brought into question. It is a pattern we have seen, a refrain we have heard, at other historical junctures, particularly the decades that preceded the Secession Winter of 1860-1861.

In 1838, following the murder of an abolitionist newspaper publisher and other instances of mob violence, a young Illinois legislator described an “increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of Courts; and the worse than savage mobs, for the executive ministers of justice.” As with the Great Fear that followed the storming of the Bastille on July 14, 1789, people in this plague year are unsettled by doubt, even despair. Power abhors a vacuum. When elected and appointed officials fail to govern, a new constabulary—perhaps akin to Mao’s Red Guard—will simply install itself. We would do well to heed the young Abraham Lincoln’s warning:

[T]he innocent, those who have ever set their faces against violations of law in every shape, alike with the guilty, fall victims to the ravages of mob law; and thus it goes on, step by step, till all the walls erected for the defense of the persons and property of individuals, are trodden down, and disregarded. But all this even, is not the full extent of the evil.—By such examples, by instances of the perpetrators of such acts going unpunished, the lawless in spirit, are encouraged to become lawless in practice; and having been used to no restraint, but dread of punishment, they thus become, absolutely unrestrained.—Having ever regarded Government as their deadliest bane, they make a jubilee of the suspension of its operations; and pray for nothing so much, as its total annihilation. While, on the other hand, good men, men who love tranquility, who desire to abide by the laws, and enjoy their benefits, who would gladly spill their blood in the defense of their country; seeing their property destroyed; their families insulted, and their lives endangered; their persons injured; and seeing nothing in prospect that forebodes a change for the better; become tired of, and disgusted with, a Government that offers them no protection; and are not much averse to a change in which they imagine they have nothing to lose. Thus, then, by the operation of this mobocractic 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.

Today we struggle to navigate the treacherous crosscurrents of a politics of fear and rage that has spun wildly into a frenzy of vandalism. At the time Lincoln spoke at the Young Men’s Lyceum in Springfield on January 28, 1838, the Gag Rule in the House had already locked down discussion of slavery during the previous two years.  

Today dissenting voices are being silenced in the social media during the last weeks of a major election campaign. The cancel culture associated with our social media is even being channeled to cancel the West. Duplicitous guardians of our citadels of learning have abandoned their calling as trustees of our intellectual treasury in order to settle ideological scores and earn political points. The upstart Silicon Valley tech empires of the last three decades are now arbiters of social mores and permissible expression. Increasingly, all that remains evident of the great fountainhead of our common culture is a lingering whiff of a near-empty bottle. 

James Chowning Davies’s J-curve theory offers some insight as to what triggers political violence: “Revolutions are most likely to occur when a prolonged period of objective economic and social development is followed by a short period of sharp reversal.” Following a period of rising expectations, the sudden reversal of fortunes during the economic lockdown created a sense of “relative deprivation.”  It should not be surprising under these circumstances that counterfeit forms of civil resistance should also arise. Authority is in bad odor. Following the death of George Floyd in Minneapolis while in police custody, widespread protests soon devolved into revolutionary violence. A subversive postmodern nihilism has long sought to dismantle the institutions that undergird the increasingly post-Christian West.

Just as the French Revolution triggered a pell-mell of institutional upheavals, and the 1960s spawned a hedonistic counterculture and radical chic, so today we see a network of well-organized political operatives, apologists, and shock troops that undercut the Constitution’s safeguards through the conversion of our liberties and safeguards into weapons. The price of our historical negligence is a loss of liberty. Amid a climate of fear associated with both the pandemic and the faux-politics of the endlessly litigated 2016 election, governors have assumed emergency powers, closed businesses, and ordered people to shelter-in-place while giving free rein to violent protestors; mayors and police chiefs have ordered the police to stand down; city councils have defunded their police departments; state and local officials have defied the president’s efforts to protect federal property; and radicals who set up crime-ridden autonomous zones may never be held legally accountable.

The key question then is which will prevail: politics—the art of persuasion and consensus-building—or despotism—the coercion of surrender and acquiescence?

Adapted from “Interposition: Magistrates as Shields Against Tyranny,” Western Australian Jurist, 11 (2020): 301-38.