Trump’s Constitution demand betrays the lawlessness of law and order


Former president Donald Trump recently called for “the termination of all rules, regulations, and articles, even those found in the Constitution” in response to what he continues to falsely describe as the “fraudulent elections” of 2020.

For some commentators, it was the ultimate flip-flop — a reversal of the former president’s loud demands for “law and order,” one of Trump’s favored phrases. In reality, however, Trump’s insistence on doing highly illegal things in the name of what he sees as a greater cause, while also championing “law and order” fits perfectly with the long history of the politics of that phrase. Dating to the late-19th century, the term has been at the center of backlash politics — White resistance to Black equality — in which White supporters insisted upon this very inconsistency. They saw such behavior as justified because of their racialized vision of what law and order constituted.

The roots of this idea of law and order date to the end of the Civil War. White Southern enemies of postwar Reconstruction positioned themselves simultaneously as outlaws and “lovers of law and order,” to use the 1869 words of “a large and respectable meeting of the citizens” — meaning White residents — in Holly Springs, Miss. They declared that “it behooved our people to continue law-abiding in the future,” as they had in the past. The present, however, demanded something different because the state’s 1868 interracial constitutional convention had guaranteed Black men’s voting rights and integrated public schools. The interracial democracy was an “anomalous condition” that was akin to being “without law,” which forced them to “be a law unto themselves.” This was a promise of racist violence to undo a fledgling regime of democratic equality.

This White brand of law and order enforced the racial caste system of Jim Crow for decades — until the African American civil rights movement began to successfully challenge it. Activists advocated civil disobedience to fight against unjust laws. In his famous “Letter from Birmingham Jail,” the Rev. Martin Luther King Jr. defined unjust laws in a way that exposed the racist double standard embedded in the concept of law and order. An unjust law was one the “majority inflicts on a minority that is not binding on itself.”

But as this movement gained steam, and began securing support for federal legislation that would upend the Jim Crow system, many White politicians and citizens doubled down, once again grabbing onto their long-standing idea of law and order to resist strenuously. They pressed to criminalize and punish Black people and other minorities for various crimes — including the civil rights movement’s civil disobedience — even as they insisted that they should be allowed to resist or even violate civil rights laws. This time, the phrase became a regular part of mainstream political discourse, beginning at roughly the moment in 1963 when President John F. Kennedy committed his administration to advancing the most significant civil rights legislation since Reconstruction.

“If white vigilantes must ride to preserve law and order — let them ride,” declared Edward Fields, the information director of the National States Rights Party, in 1963, after White racists fired shots to break up a civil rights protest in Gadsden, Ala. Fields was not alone in labeling as “law and order” any illegal actions to combat what he called the “Second Reconstruction” of the modern civil rights movement.

The 1964 presidential campaign of Barry Goldwater was a major accelerant in mainstreaming such thinking. While the Republican nominee explicitly repudiated the sort of violence promoted by the white supremacist Fields, he made “law and order,” in the words of the historian Michael Flamm, a “central campaign theme of his challenge to Lyndon B. Johnson.” As Goldwater’s running mate, William E. Miller, put it, “If Senator Goldwater and I are elected in November, there will be in this country a new era of law and order.”

While Goldwater may have rejected the crudest excesses associated with the phrase, he still embraced its full political meaning — including proponents’ double standard regarding civil rights law.

Goldwater’s many critics called this out.

Pennsylvania Gov. William Scranton (R), his rival for the 1964 GOP nomination, got at this tension in an open letter during the Republican convention, when he wrote, “Goldwaterism has come to stand for refusing to stand for law and order in maintaining racial peace.” A letter from Robert Anderson to the St Louis Post-Dispatch in September 1964 went even further. It chronicled how Goldwater’s 1960 ghostwritten memoir, “Conscience of a Conservative,” had declared that the candidate was “not impressed” that the Supreme Court’s school integration decision was “the law of the land.” It also detailed how Goldwater had said President Dwight D. Eisenhower shouldn’t have sent troops to Little Rock in 1957 to enforce the court-ordered desegregation of Central High School and proclaimed that Gov. Ross Barnett “had every right” to try to prevent James Meredith from integrating the University of Mississippi. “To decry the enforcement of the law does not instill respect for the law,” observed Anderson.

A Post-Dispatch editorial got what Goldwater was up to. His “attempt to identify advocacy of racial justice with advocacy of lawlessness and violence,” was just “a demagogic attempt to cultivate a ‘white backlash.’ ” Venerated columnist Walter Lippmann also decried how Goldwater’s vision encouraged and condoned “the taking of the law into unauthorized private hands.”

Those stoking and embracing White backlash politics weren’t deterred after Johnson — who had successfully pushed through Kennedy’s civil rights law — crushed Goldwater. “Law and order” remained their battle cry. One widely circulated analysis of the 1966 congressional campaigns noted the ongoing salience of the backlash vote. It observed that in the North, law-and-order sentiment “is aroused by opposition to open housing legislation” and in the South it “is fueled chiefly by opposition to the federal school desegregation guidelines” and the 1965 Voting Rights Act. These were protests, among White people North and South, against the dilution of White political power.

Understanding the political potency of such sentiments, the GOP made the rhetoric of law and order a key part of their political strategy moving forward, with the 1968 and 1972 party platforms, and their presidential candidate, Richard M. Nixon, highlighting the phrase.

And its tie to the opposition of enforcing civil rights law was clear as day. Black comedian and activist Dick Gregory lamented in 1969, “Law and order seems to be a symptomatic utterance of a sick society.”

The rhetoric of law and order continued to be a throughline in Republican politics long after Goldwater and Nixon. Ronald Reagan, who was elected president in 1980 and 1984, got his start in electoral politics in 1966 when he successfully ran for governor of California as a law-and-order candidate, highlighting, under that rubric, student unrest, crime, Black militancy and a recently passed state law that banned discrimination in housing. Reagan’s vice president, George H.W. Bush, emphasized law and order in his 1988 campaign for the presidency, especially in his attack on his Democratic opponent Michael Dukakis for being weak on crime. This mudslinging included the notorious “Willie Horton” advertisements. Bush’s son, George W. Bush, also regularly invoked law and order in his gubernatorial and presidential campaigns.

Donald Trump fits perfectly into this long history of rhetoric. Never a champion of the rule of law, he, like so many backlashers before him, has always treated “law and order” as meaning protection and immunity for himself and his friends, and harsh punishment for his enemies. It’s in this context that his recent comments about suspending the Constitution are best understood. Then, as now, advocates of law and order are not calling for the enforcement of laws or veneration of the rule of law. Instead, “law and order” is an ugly way to mark a stark, often racialized, double standard that legitimates the criminality of some while criminalizing others.